Monday, April 26, 2010

Summary Summary

There hasn’t been much action in the circuit in the past couple of weeks. This smattering of noteworthy summary orders will have to keep us occupied for the time being.

In United States v. Givens, No. 09-0765-cr, and United States v. Blue, No. 09-0219-cr (2d Cir. April 26, 2010), related cases, the circuit vacated two defendants’ sentences because the district court misinterpreted an ambiguous Regalado remand order and did not conduct a full resentencing.

United States v. Young, No. 09-1853-cr (2d Cir. April 22, 2010), is surely the tersest and most cryptic summary order yet. It provides, in its entirety, “On the basis of the record before us, including what we have learned at oral argument, we discern no error and therefore AFFIRM the judgment of the District Court.”

In United States v. Lorenzo, No. 08-3626-cr (2d Cir. April 12, 2010), the court held that the defendant was not eligible for a crack resentencing because his offense level was capped at thirty due to a mitigating role adjustment, and thus was not affected by the amended crack guideline.

Sunday, April 11, 2010

Summary Summary

The circuit seemingly never tires of issuing summary orders of interest. Here are three more:

In United States v. Grant, No. 09-1760-cr (2d Cir. April 8, 2010), the court ordered a Jacobson remand so that the district court could clarify an ambiguity in its decision on a motion to suppress that was material to the circuit's consideration of whether police officers had the defendant's implied consent to enter his apartment.

In United States v. Orozco, No. 08-4043-cr (2d Cir. April 1, 2010), the defendant appealed a condition of supervised release requiring him to notify the probation department of any "significant romantic relationship" to which he did not did not object at the time, but that was was rendered illegal under a later-decided case. The circuit ducked the plain error questions, and remanded instead under Rule 31.2(c) which gives district courts the "power to modify conditions of supervised release at any time to eliminate ambiguity and to adjust them to changed conditions."

In United States v. Ayers, No. 08-6286-cr (2d Cir. March 30, 2010), the court found that a sex offender's challenge to polygraph and voice stress testing as a condition of his supervised release was ripe, even though his claim related only to the use of that information in a future civil commitment hearing, which would only occur if, for some reason, he was reordered to custody.

Saturday, April 10, 2010

The Heavy Burdens

United States v. Burden, No. 03-1727-cr (2d Cir. March 31, 2010) (Hall, Livingston, Gibson, CJJ)

From 1997 to 2001, Kelvin Burden, ran a crack cocaine ring in Norwalk, Connecticut, with the help of several of his brothers, two of whom were named David, and a few of his friends. The gang’s activities grew increasingly violent. Throughout 1998 and 1999 there were fatal encounters with members of a rival gang, the Hill Crew; also, in 1999, Burden gang members shot at two of their own, killing one and leaving the other a paraplegic.

The defendants were convicted of racketeering, drug charges and multiple VCAR counts, and received sentences ranging from eighty-eight months to life.

Their principal arguments on appeal were that the evidence was insufficient to establish that the Burden gang was an “enterprise” and that its activities constituted a “pattern.” The circuit affirmed.

First, the defendants asserted that the evidence showed only that the Burdens and their friends sold drugs, but not that the group had the structure required of an enterprise. While the circuit noted the “limitations of the evidence in this case,” it found that the evidence was sufficient. The Burden organization had “multiple members who joined in the shared purpose of selling drugs and promoting such sales.” They had a meeting place from which they could sell in secret, store guns and plan. And their activities were “orderly because there was a hierarchical structure in place.” Nor did it matter that there were “other styles of organization between the narcotics business and the violent acts.”

As for the pattern requirement, the statute requires “criminal acts that have the same or similar purposes, results, participants, victims or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated events.” There must be at least two acts that are related and that amount to or pose a threat of continued criminal activity. “Horizontal” relatedness requires that the predicate acts be related to each other, but this can be indirect - a common relationship of each act to the enterprise is enough. “Vertical” relatedness means that each act is related to the enterprise. Both types of relatedness must be proven, but each is satisfied by “linking each predicate act to the enterprise.” The pattern element was satisfied here, even though the violent acts here were “the type of conduct that the defendants could have committed absent a connection to the enterprise.” The court agreed that the fact that the violent acts were discussed at the same location where the narcotics activity took place was not enough to establish vertical relatedness. But the violence between the Burdens and rival gang members had its genesis in a drug debt to a Burden member, and that was sufficient.

One defendant also raised an interesting Crawford issue, claiming that an informant’s statements on a wire were “testimonial” because the cooperator consented to be wired and knew that what he said could be used against others at a future criminal trial. The defendant relied on United States v. Saget, 377 F.3d 223, 228 (2d Cir. 2004), where the circuit wrote: “Crawford at least suggests that the determinative factor in whether a declarant bears testimony is the declarant’s awareness or expectation that his or her statements may later be used at trial.”

The court here noted that this language is dictum and was limited in a later case. Instead, the court held that a declarant’s awareness that his words may be used at a later trial is only “part of the equation,” and “it is the law of this circuit that it is not the sole touchstone.” Looking at the particulars of the statements here, the court found that they were not testimonial. Nothing that the informant said “was spoken for the purpose of accusing. Rather, his comments were made to elicit inculpating statements by others present.” Thus, the “declarant’s purpose in speaking matters,” and a statement “the purpose of which is 'non-accusatory' is not testimonial.”

All five defendants won Regalado remands, however, so that the district court could revisit their crack sentences.

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An Appeal To Reason

Ramchair v. Conway, No. 08-2004-pr (2d Cir. April 2, 2010)(Winter, Calabresi, Sack, CJJ)

It seems as if most Second Circuit habeas decisions deal only with the procedural hurdles faced by state prisoners. So it is indeed remarkable that the court has decided two cases less than one week apart in which it got through the procedural thicket and actually resolved the substantive issue presented in the case. This decision, in which the court agrees that the petitioner’s state court appellate counsel was constitutionally ineffective, is accordingly blog-worthy.

The case has a long history. Ramchair was charged with a 1995 robbery after he was identified in a fairly suspect lineup, at which his counsel was present. He moved to suppress the identification and, after a hearing, the trial court denied the motion. He then had two trials that ended in mistrials, but at which the issue of counsel’s presence at the lineup never arose. At his third trial, his attorney - the same one who attended the lineup - disputed the fairness of the lineup. Over objection, the prosecutor permitted a detective to testify that Ramchair’s attorney had been present at, and did not object to, the lineup.

The attorney asked permission to testify to rebut the detective, but the trial judge denied the request. Accordingly, after the detective's testimony, counsel moved for a mistrial, which the trial judge denied. Ramchair was convicted and sentenced to an indeterminate term of ten to twenty years’ imprisonment.

Ramchair appealed. It took five years for his appellate counsel to perfect the appeal. When appellate counsel finally got around to filing a brief, with respect to the lineup, counsel argued only that the trial court’s ruling prohibiting his counsel from testifying violated Ramchair’s constitutional right to present a defense. The Appellate Division affirmed, noting that trial counsel was ethically prohibited from acting as a witness. Appellate counsel did not raise on appeal “the issue of the trial court’s refusal to grant a mistrial upon Ramchair’s counsel’s motion seeking one.”

Ramchair then filed a habeas petition in the district court raising the same claims he had raised on his direct appeal. The district court concluded that those claims did not warrant relief, but that a claim that Ramchair’s appellate counsel was ineffective might have merit. The court held the petition in abeyance pending exhaustion of that claim in the state courts. Once the claim was exhausted, in 2009, the district court granted the petition. It held that appellate counsel had correctly identified the unfairness in the prosecutor’s surprise tactic that made trial counsel an essential witness to the central factual dispute in the case, but that counsel sought the wrong relief. A claim that defense counsel should have been allowed to testify had minimal support in the law, but a claim that the trial court erred in not granting a mistrial would likely have been accepted on appeal.

On the state’s appeal, the circuit remanded, instructing the district court to conduct an evidentiary hearing to determine whether there appellate counsel had a strategic reason for not raising the mistrial claim. At the hearing, appellate counsel explained that she was under the impression that the mistrial motion only preserved the claim that trial counsel should have been allowed to testify. She did not think that the mistrial motion preserved the claim that the mistrial itself should have been granted.

The district court granted the petition a second time, again holding that appellate counsel’s mistake constituted constitutional ineffectiveness. The court also granted Ramchair a new trial, rather than a new appeal, noting that Ramchair had been in custody for more than twelve years.

The circuit affirmed both holdings. It began by noting that Ramchair’s trial was indeed fundamentally unfair. The lineup was the only evidence that he had committed the robbery he was charged with, and Ramchair was denied an opportunity to present a crucial witness as to its fairness.

The circuit then agreed that appellate counsel was constitutionally ineffective. She pursued a strategy that had a “minimal chance of success,” since it “ran directly contrary to the advocate-witness rule.” Appellate counsel should have instead argued that Ramchair’s right to present a defense could only have been vindicated by a mistrial, which the trial court “erred as a matter of law in not granting.”

The error was also prejudicial since there is a “reasonable probability that the [appellate courts] would have been swayed by the mistrial claim, because that claim was sound.”

Finally, the district court did not abuse its discretion in granting a new trial. District courts have “broad discretion” in fashioning habeas relief, and there was no error in the court's consideration of the long delays in this case, some of which were “unreasonable” and “none of them apparently of [Ramchair’s] doing.”


Payment Plan Available

United States v. Kyles, No. 06-4196-cr (2d Cir. April 2, 2010) (Miner, Katzmann, Raggi, CJJ)

In 1993, defendant Kyles received a long bank robbery sentence, along with a $4,133 restitution order. The court did not set a payment schedule, and instead (illegally) delegated that task to the Probation Department, which never acted. In 1998, the district court amended the restitution order by directing that Kyles pay $2 per month while incarcerated. Kyles did not appeal that order.

In 2006, the district court amended the order again, this time raising the monthly payments from $2 to $25. After much back-and-forth over whether the district court had authority to order this and Kyles’ ability to pay, the court amended the order again, this time specifying that Kyles’ payments should be “increased in accordance with the guidelines of the Inmate Financial Responsibility Program.”

Kyles appealed, arguing that the district court lacked the authority to modify his restitution schedule in this way. The court disagreed. Although a district court’s ability to alter an imposed sentence is quite limited, here the court found that an order modifying the payment schedule, but not the amount of the restitution itself, did not alter the sentence.

Kyles also made a double jeopardy argument. The Double Jeopardy Clause protects the “finality of criminal judgments” and hence prohibits “alternations to sentences carrying a legitimate expectation of finality.” But here since the order altered only the payment schedule, Kyles had no “legitimate expectation of finality.”

Third, Kyles argued that the district court lacked the statutory authority to change the payment schedule while he was incarcerated. The circuit disagreed, finding an inherent power to do so in the statutory provision that gives district courts the “equitable authority” to order payments over time instead of immediate payment of the whole amount. “Inherent in equitable authority is the power to adjust orders when the circumstances informing them change.”

Finally, the court agreed with Kyles that delegating to the Bureau of Prisons the power to set the amount of restitution payments was illegal. The court remanded the case for a imposition of restitution order that specifies the amount Kyles must pay each month and makes clear that prison officials cannot depart from that order.


Friday, April 09, 2010

The Persistents of Apprendi

Besser v. Walsh, No. 05-4375-pr (2d Cir. March 31, 2010) (Winter, Sack, CJJ, Murtha, DJ)

While the blog does not usually cover habeas cases, this one is important, as it invalidates New York State’s discretionary felony persistent offender sentencing scheme. The decision involves five separate cases heard “in tandem,” which is what the circuit calls cases that present the same legal issue that are heard together but not formally consolidated.

In New York, a first-time felon usually faces an indeterminate sentencing range based on the grade of the offense of conviction. If the court finds that a defendant sustained a qualifying predicate felony, he faces an enhanced sentence as a second felon. A defendant with two prior felonies is a “persistent felony offender,” a designation that in many instances requires a minimum sentence that is greater than the maximum sentence authorized for a second felony offender convicted of the same offense.

Unlike second-felony treatment, which requires merely a finding that the predicate felony exists, persistent felon treatment requires a two findings. First the judge finds that the defendant has at least two prior felonies. This makes the defendant eligible for the enhanced sentence. But in order to impose the enhanced sentence, the court must also find that the “history and character of the defendant and the nature and circumstances of his criminal conduct” are such that it is in the public interest for the defendant to be subject to the longer term.

The New York Court of Appeals repeatedly rejected Apprendi challenges to this scheme even though it would seem fairly clear that it violates Apprendi. After all, Apprendi holds that, other than the fact of a prior conviction, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” Under this scheme, the maximum is increased by fact-findings that are far more extensive than the mere existence of the prior conviction.

It is somewhat surprising to learn, then, the circuit did not find an Apprendi violation, per se. Rather, it found that the scheme violated Apprendi only as interpreted by Blakely. The reason derives from the habeas corpus standard of review, which constrains federal courts to look only at whether the state court’s interpretation of federal law - in this instance Apprendi - was “reasonable.” In fact, the circuit had twice upheld New York’s persistent felon scheme on Apprendi-based habeas challenges, holding that, despite Apprendi’s use of the phrase “any fact,” it was reasonable to read Apprendi to mean that “certain kinds of judicial fact-finding did not violate Apprendi even if it resulted in a sentence beyond the statutory maximum.”

In other words, according to the circuit, it was "reasonable" to read the word “any” to mean “some.” This is why we do not blog habeas cases.

According to the circuit, Apprendi’s “any” did not really stop meaning “some” until Blakely, which made it “unambiguously clear” that “any” meant “any,” and not “some.” So, in this decision the court at last holds that the New York persistent felony offender scheme violates not Apprendi, but Apprendi as interpreted by Blakely. That Apprendi alone was not enough to secure this result was bad news for one defendant, whose case, although otherwise identical to the other four, became final before Blakely was decided. This is another reason why we do not blog habeas cases.

Finally, instead of simply granting the petitions and ordering new sentencings for four post-Blakely defendants, the court remanded the case to the district court to address whether the application of the unconstitutional sentencing statute was harmless error.