Monday, June 21, 2010

Ordinary People

United States v. Heras, No.09-3150-cr (2d Cir. June 18, 2010) (Raggi, Lynch, Wallace, CJJ)

On this government appeal, the circuit vacated a district court order granting a Rule 29 motion that misconstrued the “ordinary consequences” rule and remanded the case for reinstatement of the verdict.

Background

Defendant Heras was arrested in the parking lot of a Queens hotel, after dropping off the target of a controlled cocaine delivery. When the agents told him what was going on, he said that “[w]hatever happened” in the hotel “has to do with [the target]. That has nothing to do with me.” He first told the agents that he had taken the target there to meet a woman, but then admitted that he knew the target was a drug dealer who had gone to the hotel to pick up drugs. He also admitted that he expected the target to compensate him, as he had done in the past, by connecting Heras with suppliers for his own marijuana operation.

After the jury convicted Heras, the district court granted his Rule 29 motion, holding that the evidence was insufficient to establish that Heras had the specific intent to distribute the drugs.

The Appeal

The circuit disagreed. Here, a “jury could reasonably infer Heras’s intent to distribute from evidence indicating that he knew that the object of the charged drug possession was [the target’s] distribution of the contraband and that, with that knowledge, he agreed to facilitate the crime.”

The court also noted that the law is generally willing to let a jury infer that a defendant intends the ordinary consequences of his actions. The district court had held that, under a footnote in United States v. Nelson, 277 F.3d 164 (2d Cir. 2002), in the face of “exculpatory evidence” - Heras’ claim that the target’s activities had “nothing to do with me” - more than a presumption of ordinary consequences was necessary to demonstrate Heras’ intent.

But the district court misconstrued the Nelson footnote. That footnote amplified a text sentence holding about this inference by noting that “where a jury infers intent by deciding that a given defendant meant to bring about the consequences of his actions, that defendant cannot (without pointing to countervailing evidence that the jury ignored) unseat this finding by challenging the sufficiency of the evidence.” This statement indicates only that “no sufficiency challenge to a finding of intent based on an ordinary consequences presumption can be mounted in the absence of countervailing evidence.” It does not hold that “any proffer of countervailing evidence renders an ordinary consequences presumption insufficient as a matter of law” on the question of intent.

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Sunday, June 20, 2010

Wholly Terror

United States v. Awan, No. 07-4315-cr (2d Cir. June 14, 2010) (Pooler, Raggi, Livingston, CJJ)

On this government appeal, the circuit remanded for resentencing in light of the district court’s refusal to apply the terrorism enhancement, U.S.S.G. § 3A1.4.

Awan was convicted after a jury trial of various offenses in connection with his efforts to assist the Khalistan Commando Force (the “KCF”), a Sikh terrorist organization based in India, the ultimate aim of which is to compel the Indian government to create a separate Sikh state in the Punjab region. From 1998 to 2001 Awan served as a conduit for funds from U.S. supporters of the KCF to its leader. Later, while incarcerated at the MDC on credit card fraud charges, Awan tried to recruit an associate to go to Pakistan and receive explosives training at a KCF camp.

The terrorism enhancement applies if the defendant was convicted of a felony offense that “involved” or was “intended to promote” a federal crime of terrorism. But the district court declined to apply this section to any of the counts of conviction. It did not consider the “intended to promote” prong at all, and concluded that the evidence did not support the required “motivational element” - that the conduct was “calculated to influence or affect the conduct of government” - under the “involved” prong. Application of the enhancement would have yielded a sentence of 45 years' imprisonment, the statutory maximum. Instead, however, the district court sentenced Awan principally to 168 months.

On appeal, the circuit vacated and remanded for reconsideration because the district court erred in its consideration of both prongs of the enhancement.

A defendant’s offense “involves” a federal crime of terrorism when either his offense or its relevant conduct includes one of the federal crimes of terrorism enumerated in 18 U.S.C. § 2332b(g)(5)(B) and the conduct was “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” Here, the district court held that there was insufficient evidence that Awan’s conduct was so “calculated.” Rather, it found that Awan was motivated by “private purposes” - he enjoyed associating with terrorists and the prestige or potential influence it gave him.

To the circuit, however, this holding “addresse[d] the wrong question.” The section does not require proof of a defendant’s particular motive. “Calculation” is “concerned with the object that the actor seeks to accomplish"; it may “often serve motive, but they are not in fact identical.” A person can commit an offense calculated to influence or retaliate against government even if that is not his personal motivation. For example, he might murder a head of state knowing this will affect the conduct of government, even if his specific motive is to impress other terrorists. This conduct would still qualify under the “involved” prong of the terrorism enhancement. Thus, here, whatever Awan’s motive might have been, the terrorism enhancement would apply if he also had the intent specified by the Guideline. Because the district court misconstrued this aspect of the enhancement a remand was necessary.

The “intended to promote prong” is intended to cover situations different from the “involved” prong - cases where the defendant’s offense or relevant conduct does not include one of the enumerated federal crimes of terrorism. An offense is “intended to promote” a federal crime of terrorism when the offense is “intended to help bring about, encourage, or contribute to a federal crime of terrorism” listed in the statute, even if the defendant did not commit a listed offense and the offense was not itself “calculated” to achieve the goals identified in the “involved” prong. All that is required is that “the defendant has as one purpose of his substantive count of conviction or his relevant conduct the intent to promote a federal crime of terrorism.”

Here, the district court declined to consider this prong at all, concluding that since Awan was convicted of a listed offense there was no need to determine whether his conviction of a non-listed offense - money laundering - was intended to promote a federal crime of terrorism. This was error. The government “should have been permitted” to prove that, even if the crimes of conviction and their relevant conduct did not satisfy the calculation requirement under the “involved” prong, they were nevertheless “intended to promote a federal crime of terrorism committed or to be committed by other individuals.” Accordingly, for this reason as well the circuit remanded the case for resentencing.

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Saturday, June 19, 2010

Julius’ Seizure

United States v. Julius, No. 08-4267-cr (2d Cir. June 11, 2010) (Pooler, Hall, CJJ, Sweet, DJ)

Here, the district court granted the defendant’s motion to suppress a gun seized during Julius’ arrest on a parole violation. on the government's appeal, the circuit remanded for reconsideration in light of Herring v. United States, 129 S.Ct. 695 (2009).

In 2007, Julius violated the conditions of a term of special parole imposed after a state court conviction in Connecticut. He had failed to attend court-mandated counseling sessions and had changed his residence but refused to disclose his new address to his parole officer.

The officer finally found Julius at his girlfriend’s house, where the officer, accompanied by another parole officer and a deputy marshal found him lying on a bed in a back bedroom. They arrested him without incident. As an officer removed him from the room, in handcuffs, the marshal searched the bed to see if Julius had discarded any contraband. He partially lifted the mattress and found a gun. With that, the officers contacted the local police department for assistance. Local police arrived and secured consent to search the entire apartment; returning to the same mattress, they lifted it completely and found ammunition.

The district court held that the ammunition was properly obtained as the product of a consent search, but that the gun was improperly seized - the marshal's the initial search under the mattress was not an incident search because Julius was already handcuffed and the mattress was plainly beyond his control. It also held that Julius’ status as a parolee did not legitimize the search because the marshal lacked even reasonable suspicion.

On appeal, the circuit began by surveying the current state of the law with respect to the Fourth Amendment rights of parolees and identifying the central area of dispute here: Julius’ expectation of privacy as a parole absconder.

Having identified the issue, however, the court declined to resolve it. Instead, it remanded the case for reconsideration under Herring. In Herring, the defendant was erroneously arrested after “negligent bookkeeping” by the police department resulted in an officer’s erroneous belief that there was an outstanding warrant for his arrest. The Supreme Court held that this violated the Fourth Amendment, but that the exclusionary rule should not apply because it would not serve the purpose of “deterring Fourth Amendment violations in the future.” According to the circuit, Herring requires a district court to conduct a “cost/benefit analysis” in deciding whether “the deterrent effect of applying the exclusionary rule outweighs the cost of the rule’s application.” This balance should consider “whether the degree of police culpability in this case rose beyond mere administrative negligence such that application of the rule is necessary to compel respect for the Fourth Amendment’s guarantees.”

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PC World

United States v. Vallejo, No. 09-1673-cr (2d Cir. June 11, 2010) (Winter, Cabranes, Raggi, CJJ) (per curiam)

This latest per curiam opinion looks at the petty offense exception to the Sentencing Guidelines’ criminal history rules, set out in U.S.S.G. § 4A1.2(c)(1). That provision excludes from the criminal history score prior sentences for certain petty offenses and “offenses similar to them.” On appeal, Vallejo argued that his two prior convictions for unauthorized use of a vehicle in New York State were for an offense “similar to” the listed offense of careless or reckless driving.

But the circuit held that Vallejo had waived the claim. For one of them, a 2001 conviction, after a sentencing hearing he “expressly acknowledged” that the conduct underlying the conviction - stripping parts from a stolen car - warranted the assessment of a criminal history point. For the other, the underlying conduct was identical, so he waived his objection to that one too.

The court then went on - apparently in dicta - to agree with the district court that the criminal history points were warranted. Unauthorized use is higher level misdemeanor than reckless driving and requires a “higher degree of moral culpability” - proof that the defendant knew that he lacked the vehicle owner’s consent. It is also a trespassory offense, and thus poses a high risk that the owner or someone else might end up in a confrontation with the defendant.

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