Thursday, July 29, 2010

Our Blips Aren't Sealed

United States v. Amanuel, No. 06-1103-cr (2d Cir. July 29, 2010) (Cabranes, Katzmann, Hall, CJJ)

After a nearly eight-year journey through both the state and federal courts without being tried, the defendants here will finally have to face the music. In this decision, the circuit vacated most of the district court’s order suppressing the evidence against them.

The State Court Proceedings

In 2002, New York state police officers obtained a warrant to intercept a digital pager used by the defendants, who were suspected of drug trafficking. The officers were supposed to record the intercepted communications electronically, but did not do so. Instead, they visually monitored a clone pager and entered the intercepted information in a handwritten log. When the warrant expired, they gave 84 pages of this material to a state judge for sealing. Based on the contents of the logs, state prosecutors then obtained a warrant to monitor and record the defendants’ cell phones; information from those wiretaps provided probable cause for the issuance of search warrants, through which physical evidence was obtained.

Once the defendants were charged in state court, however, they successfully moved to suppress the evidence against them. Under state law, all electronic interceptions are supposed to be recorded electronically. Since the pager intercepts were not, the state court suppressed all evidence that derived both directly and indirectly from the pager interception warrant. Since that was all of the evidence against the defendants, the court dismissed the indictment.

The District Court Proceedings

The feds took up the case in 2005, and charged the defendants with a cocaine conspiracy. The defendants again moved to suppress, and the district court granted the motion. Like the state court, it suppressed all of the evidence. Although the court held that federal law, not state law, governed, it concluded that the handwritten logs were not “sealed” as required by the applicable wiretap statute, 18 U.S.C. § 2518(8)(a). Finding that this was a Fourth Amendment violation, the district court suppressed all the evidence - the pager intercepts as well as the wiretap and physical evidence that derived from them.

On this, the government’s appeal, the circuit held that only the pager intercepts should have been suppressed. It accordingly vacated the remainder of the suppression ruling.

The Circuit’s Rationale

The circuit began by agreeing with the district court that federal law, not state law governs, even though the eavesdropping warrant was issued by a state judge.

The court also agreed that the police had not complied with the relevant federal statute. Section 2518(8)(a) requires that intercepted electronic communications “shall, if possible,” be recorded electronically and in “such a way” that will protect the recordings from “editing or other alterations.” Immediately after expiration of the warrant authorization, the recordings are to be provided to the judge who issued the warrant and “sealed.”

The circuit held that the recording method here - handwritten transcription - did not satisfy § 2518(8)(a). The statute requires mechanical recording that “minimize[s] human involvement and limit[s] the opportunity for intentional alteration and human error.” The court also held that it would have been possible for the state police to record the intercepts properly. A recording device was available, and the state offered no explanation for why it was not used.

Next, the circuit agreed that the sealing requirement of the statute was not met. The state investigators did promptly give the handwritten log to the state judge for sealing. But the sealing requirement flows directly from the electronic recording requirement; records “that do not comply with the recording requirements ... are not susceptible to sealing.” Accordingly, the “sealing contemplated by the statue simply was not possible” here. The sealing is supposed to protect the integrity of the recordings; since the handwritten logs already were of suspect integrity, their sealing would be “of little purpose.”

But the circuit disagreed with the district court’s remedy. The statute expressly provides that its own remedies are the only ones available for non-constitutional violations, and the district court erred in finding a constitutional violation. The sealing and recording requirements of § 2518(8)(a) are “evidentiary in nature” and were “enacted to ensure that the communications are admissible under the rules of evidence,” not to safeguard a constitutionally protected privacy right. While the failure to properly record and seal might in some cases “implicate a privacy right,” by itself it does not. And here, since there was a warrant and the defendants made no other privacy claim, there was no constitutional violation.

Thus, the district court erred in suppressing both the intercepted communications and all evidence derived from them. The defendants were entitled only to the statute’s more limited exclusionary remedy: the statute provides only that, absent a seal or a “satisfactory explanation,” the contents of the intercept cannot be used or disclosed in the ways prescribed by 18 U.S.C. § 2517(3). But that subsection discusses only the testimonial use and disclosure of the material. Subsections (1) and (2) are the ones that permit the disclosure use of intercepted communications for investigative purposes, and they are not covered by the remedial language. Accordingly, the exclusionary remedy here only applies to the unsealed pager intercepts themselves - the government cannot offer testimony regarding their contents. But the government is not precluded from offering evidence obtained through the warrants that were based on the pager interceptions.


Cops Out

United States v. Caracappa, No. 09-1177-cr (2d Cir. July 23, 2010) (Kearse, Sack, Wesley, CJJ)

When last we heard from Stephen Caracappa and Louis Eppolito, two corrupt NYPD detectives who also did hits for the mob, the circuit had vacated a district court order tossing their RICO conspiracy conviction and granting them a new trial on the remaining counts. See Enterprise Rent-A-Cop, posted September 27, 2008. On remand, the district court sentenced Caracappa to life plus 80 and Eppolito to life plus 100. This opinion disposes of the defendants’ appeal. The circuit affirmed.

The opinion treads little new ground, with the exception of one interesting evidentiary issue. An important cooperating witness was Burton Kaplan, who in his day had been a trusted member of the Lucchese Family and the main intermediary between Caracappa/Eppolito and Anthony Cassso, the Lucchese underboss. During his trial testimony Kaplan explained that he would relay law enforcement information from Caracappa/Eppolito to Casso and instructions and money from Casso back to them. After the defense vigorously cross-examined him, the judge permitted the government to call Kaplan’s former attorney, who confirmed that, in 1994, Kaplan admitted to him that he was the conduit between Caracappa/Eppolito and Casso.

The circuit upheld this as a prior consistent statement under Fed. R. Evid. 801(d)(1)(B). First, it noted that such a statement need not be offered through the declarant; anyone with first-hand knowledge can report a prior consistent statement. The defendants’ main contention was that they had argued that Kaplan's motive to fabricate predated the statement, which would take it out of the rule. The circuit disagreed, finding that their real argument was that Kaplan - who cooperated only after receiving a long prison sentence of his own - only developed the motive to fabricate so that he could get out of prison. Since he made the statement to his attorney two years before he was arrested, he did so before he had a motive to fabricate.

The circuit also rejected the defendants’ argument that they were deprived of an opportunity to cross-examine Kaplan about the statement. The district court told them that they could re-call Kaplan if they wished, and, in any event, they knew about the statement when Kaplan himself testified because it was mentioned in his 3500 material.

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Wednesday, July 28, 2010

PC World

United States v. DeSilva, No. 09-2988-cr (2d Cir. July 28, 2010) (per curiam)

In this child pornography case, the sentencing court made a clearly erroneous finding of fact in the defendant’s favor. On the government’s appeal, the circuit vacated and remanded.

DeSilva was charged only child pornography offenses, but in the course of the investigation admitted to law enforcement officers that he had sexually abused a friend’s child for more than two years. As part of his bail application, which was unsuccessful, he submitted a psychologist’s report that indicated that if DeSilva were released to his parents and tightly supervised there was little chance that he would abuse another child.

DeSilva ultimately pled guilty to distributing child pornography. His sentencing range was 235 to 240 months’ imprisonment, and he faced a 60-month mandatory minimum. The district court imposed a below-Guideline sentence of 132 months, citing several factors, including the psychologist’s “opinion” that DeSilva was “not a danger to the community.”

The circuit agreed that the district court’s reliance on the bail report to find that DeSilva was not a danger to the community was clear error. The report's findings were conditioned on the premise that DeSilva would be released to his parents. What was relevant for sentencing was whether DeSilva would pose a large danger to society on release from prison; the psychologist’s opinion thus had “only minimal relevance” to whether DeSilva would be likely to molest another child in the future.


Land of Enhancement

United States v. Tutty, No. 09-2705-cr (2d Cir. July 16, 2010) (Calabresi, Pooler, Chin, CJJ)

In United States v. Dorvee, 604 F.3d 84 (2d Cir. 2010), the court held that the child pornography Guidelines are entitled to less deference because they are not the product of an “empirical approach,” and because they “provide for a series of enhancements that apply in virtually every case,” resulting in enormous sentences “even in run-of-the-mill cases.” See Deconstruction Project, posted May 23, 2010. Here, following on the heels of Dorvee, the court found procedural error in the district court’s refusal to consider a broad-based policy challenge to those Guidelines.


Defendant Jason E. Tutty pled guilty to possessing digital images of child pornography that he had received and distributed over the Internet using a file sharing program. He had no criminal history and no know history of sexual contact with a child. At sentencing, in the face of a 168 to 210-month range, he argued both that his personal history and characteristics warranted a lesser sentence, and that, on policy grounds, the court should not follow the Guidelines. The court indicated that it lacked the authority to deviate from the Guidelines solely on policy grounds, and sentenced him to 168 months.

The Court’s Decision

Tutty challenged only the substantive reasonableness of the sentence. Interestingly, however, the court, considering the case “nostra sponte in the interest of justice,” vacated the sentence on procedural grounds and remanded for sentencing. It held that the district court “committed procedural error when it concluded that it could not consider a broad, policy-based challenge to the child pornography Guidelines.”

The court did not rule on substantive reasonableness, but noted that, on remand, the district court would “now have the benefit of our decision in Dorvee.” The circuit directed that the district court “take note of the[] policy considerations” identified in Dorvee and “bear in mind that the ‘eccentric’ child pornography Guidelines ... ‘can easily generate unreasonable results’ if they are not ‘carefully applied.’”

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Sunday, July 25, 2010

PC World

In the current crop of per curiams the court follows the Supreme Court's lead on two sentencing issues.

United States v. Pickett, No. 09-0683-cr (2d Cir. July 20, 2010) (Winter, Cabranes, Wesley, CJJ) (per curiam), follows Dolan v. United States, 2010 Wl 2346548 (June 14, 2010). Pickett was sentenced to 168 months’ imprisonment after a fraud trial. The court did not impose restitution immediately, holding it open for a more complete accounting of the victims’ losses. It entered a restitution order ninety-eight days later. Under Dolan, a sentencing court that misses the ninety-day statutory deadline for imposing restitution can still do so where it “made clear prior to the deadline’s expiration that it would,” leaving open “only the amount.” Since that is what happened here, the restitution order was proper.

United States v. Mock, No. 09-4154-cr (2d Cir. July 19, 2010) (Wesley, Hall, CJJ, Goldberg, JCIT) (per curiam) applied Dillon v. United States, 2010 WL 2400109 (June 17, 2010), in rejecting a claim, raised on the defendant’s appeal of the denial of a crack resentencing, that the district court made an error in the original sentencing. Under Dillon, a crack resentencing is a “limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Thus, neither the district court nor the circuit was free to consider the defendant’s argument regarding procedural errors made at the original sentencing.

Summary Summary

It’s been a while, but here is the latest set of summary orders of interest.

In United States v. Romeo, No. 09-3106-cr (2d Cir. July 19, 2010), the court found plain error in the sentencing court’s fact-finding as to the number of victims, and ordered a Jacobson remand.

In United States v. Timewell, No. 09-2777-cr (2d Cir. July 15, 2010), the court found error in a post-Crosby remand sentence. The district court ruled in the case before the mandate issued, thus it lacked jurisdiction. It also erred in ruling before giving the parties an opportunity to be heard, and misapprehended the terms of the mandate.

In United Sates v. Most, No. 09-6292-cr (2d Cir. June 8, 2010), the court upheld the imposition of the statutory maximum sentence for a supervised release violation. The district court’s reasons - the defendant’s criminal history, repeated violations of supervision and the fact that he received a significant downward departure in the underlying case - supported the sentence.

In United States v. Cotto-Lopez, No. 08-5337-cr (2d Cir. June 1, 2010), the court remanded for resentencing because the district court “made no explicit finding that Cotto-Lopez was or was not a minor or minimal participant,” despite his “substantial argument for such a finding,” thus frustrating the appellate court’s ability to review the sentence.The court’s adoption of the PSR was not enough, because the PSR’s finding as to the defendant’s role was a “bare conclusion without analysis or explanation.”

Wednesday, July 14, 2010

Second Time Aground

United States v. Castello, No. 09-2784-cr (2d Cir. July 7, 2010) (Jacobs, Winter, McLaughlin, CJJ)

Joseph Castello was convicted of failing to file CTRs in connection with his check cashing business. When last we heard from him, see Cashed and Burned, posted 2/6/2009, the circuit vacated a 12 million dollar-plus forfeiture order and remanded for more complete findings under United States v. Bajakajian, 524 U.S. 321, 337-39 (1998), and its Eighth Amendment-derived excessive fines test. On remand, the district court made findings on the four factors set out in Bajakajian, and reduced the amount of the forfeiture to zero. On this, the government’s appeal, the circuit vacated the zero and ordered reimposition of the original forfeiture amount.

Reviewing the district court’s findings de novo, the circuit found fault with all of them. The first Bajakajian factor requires consideration of “the essence of the crime of the defendant and its relation to other criminal activity.” Here, while Castello was convicted only of failing to file CTRs and nothing else, his conduct was still very serious because it conduct permitted thousands of his check-cashing customers to commit fraud.

The second Bajakajian factor considers “whether the defendant fit[s] into the class of persons for whom the statute was principally designed.” The circuit concluded that this factor weighed in favor of full forfeiture. While Castello himself was not a money launder, drug trafficker or tax evader, the main targets of the statute of conviction, his conduct facilitated such conduct "in just the way the statute was designed to frustrate."

Third, Bajakajian considers “the maximum sentence and fine that could have been imposed.” For this factor, the court concluded that the Guidelines are a “more indicative” measure of offense severity than the statutory maximum penalties. Castello received the statutory maximum sentence - five years’ imprisonment and a $250,000 fine. But the Guideline range based on his actual conduct was far greater than five years, even though the court could not impose it because of the statutory maximum. Accordingly, this factor weighed in favor of full forfeiture.

Finally, Bajakajian invites an analysis of “the nature of the harm caused by” the offense conduct. Castello cashed thousands of checks in excess of $10,000, totaling over $200 million, without filing the required CTRs, and he did so knowingly and willfully. This helped his customers evade taxes, cash fictitious checks, and commit securities fraud. The victims included private parties as well as the federal government. Accordingly, this final factor also weighed in favor of full forfeiture.

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Thursday, July 08, 2010

Le Platt Du Jour

United States v. Woltmann, No. 10-413 (2d Cir. July 6, 2010) (Jacobs, Winter, Walker, CJJ)

Once again, Judge Platt’s unconventional way of doing business has resulted in a sentencing remand to a different judge. Here, the issue was his treating the guideline range in a plea agreement as binding, while ignoring a 5K1.1 letter and § 3553(a). This prompted the circuit to hold that the plea agreement’s appellate waiver was unenforceable and vacate the sentence.


Pursuant to a cooperation agreement, Gary Woltmann pled guilty to tax fraud, then provided substantial assistance to the government in the successful prosecution of another tax case. The government duly filed at 5K1.1 letter that expressly asked for a sentence below the 18 to 24 month guideline range. But Judge Platt refused to consider the letter, viewing it as an effort to repudiate the plea agreement, in which Woltmann had agreed not to appeal a sentence of 27 months’ imprisonment or less. To the judge, that provision trumped both the 5K1.1 letter and the remaining § 3553(a) factors. He sentenced Woltmann to 18 months’ imprisonment, the bottom of the range.

The Circuit’s Ruling

After Woltmann filed a notice of appeal, the government moved to dismiss based on the plea agreement’s appeal waiver. Construing the plea agreement under “ordinary contract principles” but with “special due process concerns for fairness,” the court found the waiver unenforceable.

Appeals waivers are ordinarily enforceable without much controversy. But the circuit will not enforce one if the sentence was “reached in a manner that the plea agreement did not anticipate” or where the sentencing court “failed to enunciate any rationale for the defendant’s sentence, thus amounting to an abdication of judicial responsibility.” Both of these circumstances were present here.

First, the judge insisted on relying on the guideline range in the agreement - calling the agreement, amongst other things, “the controlling instrument” - notwithstanding “our law that such reliance is misplaced.” By misreading the plea agreement Judge Platt imposed a sentence “inconsistent with the parties’ expectations,” since the agreement, by its unambiguous terms, contemplated that the sentence would be imposed only after consideration of the 5K1.1 letter and § 3553(a). It was accordingly improper for the judge to reject the 5K1.1 letter because he felt it "repudiated" the agreement. In short, the judge “refused to consider the 5K1.1 motion and the § 3553(a) factors on the ground that the appeal waiver and the sentencing range in the [a]greement obviated anything else.” This rendered the appeal waiver unenforceable.

Judge Platt’s belief that the plea agreement constituted an “enforceable concession by Woltmann that any sentence at or below 27 months was appropriate” was likewise error. It amounted to an abdication of judicial responsibility - a second reason to deem the appeal waiver unenforceable.

Finally, the circuit ordered that the case be remanded to a different judge for resentencing, citing (1) the “scorn with which Judge Platt approached the matters pertaining to sentencing” (2) his “pattern of error regarding 5K1.1 letters” and (3) the fact that reassignment would not waste resources because all that the court need do on remand is what “courts do as a matter of routine.”


Wednesday, July 07, 2010

Kaiser on a Roll

United States v. Kaiser, No. 07-2365-cr (2d Cir. July 1, 2010) (Jacobs, Calabresi, Pooler, CJJ)

Mark Kaiser was convicted after a jury trial of securities fraud-related offenses in connection with an accounting fraud scheme at USF, a large food product distributor. The circuit, finding error in the conscious avoidance instruction and in an evidentiary ruling, vacated the judgment and remanded the case for a new trial.


From 1994 until 2001, Kaiser helped run USF’s Purchasing Department, and negotiated rebates from its vendors called promotional allowances (“PA”s”). Kaiser was charged with developing a scheme to fraudulently inflate the PA income for certain years and with committing other fraudulent acts, including making false statements, to hide the inflated numbers from USF’s outside auditors. The government’s case was built largely around the testimony of three cooperating witnesses, who testified that Kaiser was the mastermind. Kaiser’s defense was that the cooperators had cooked up the scheme, kept him in the dark about it, then collectively decided to make him the scapegoat once it all unraveled.

The Charge Error

First, the court found plain error in the district court’s conscious avoidance instruction. A conscious avoidance charge must communicate two points: that a jury may infer knowledge of the existence of a fact only if it finds that the defendant was aware of high probability of its existence, and second, that there can be no conscious avoidance of a fact that the defendant actually believed did not exist. So important are these concepts that a 1988 decision on the issue directed that the opinion be circulated to all AUSAs in the circuit. Remarkably, then, the charge at Kaiser’s trial omitted both of these key concepts.

The court agreed with Kaiser that the omission “might well have confused the jury” - the particular language used by the district court, which merely indicated that “there are times that a person can consciously avoid looking at facts that are available and that, in the law, is the equivalent of knowledge” - created “some risk” that the jury would convict if it found that Kaiser “was merely negligent.” Also troubling was the omission of the instruction that an actual belief in the nonexistence of the relevant information would absolve Kaiser entirely.

Lastly, the court found - on review for plain error - that Kaiser established that the erroneous charge affected his substantial rights. The documentary evidence in the case was consistent with his defense that he was unaware of the fraud. While the testimony of the cooperating witnesses tipped the balance, there was “ample reason for the jury to question” their credibility.

The Evidentiary Ruling

The court also found error in the admission of testimony from one of the cooperators, Lee, who reported that USF’s general counsel, Abramson, had learned of an accounting decision that Kaiser had made in connection with a particular PA payment and was “very upset and wanted to go to the SEC to expose” it. The circuit rejected the government’s argument that the statement was not admitted for its own truth. To the contrary, the government in summation used the supposed truth of the hearsay to rebut Kaiser’s assertion that his conduct had been approved by lawyer.

The court also rejected the government’s claim that the testimony was not hearsay because it was an assertion of the Abramson’s “then existing state of mind.” Here, the “obvious premise” of the statement was the Kaiser was doing something illegal. It was this assertion, not Abramson’s intent to report Kaiser to the SEC that “constitutes inadmissible hearsay.”

Moreover, and in any event, the court held that the statement should have been excluded under Rule 403. The mere identification of a non-hearsay use of a statement is insufficient to justify its admission if the jury is likely to consider it for its truth “with significant resultant prejudice.” Here, there could be “no doubt” that Abramson’s statement that he wanted to report Kaiser to the SEC was “highly prejudicial.” It went to the “important disputed issue” of whether Kaiser acted knowingly, and the jury would likely have concluded that Abramson, who, unlike the witness who reported the statement, had never been charged with a crime, was both knowledgeable and trustworthy. The prejudice was compounded by the district court’s refusal to give a limiting instruction. For hese same reasons, the court found that the error was not harmless.

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Penalty Phase Two

United States v. Wilson, No. 07-1320-cr (2d Cir. June 30, 2010) (Jacobs, Miner, Livingston, CJJ)

An Eastern District jury convicted Ronell Wilson of capital crimes for the murder of two NYPD detectives during a botched undercover gun buy; it also unanimously voted to sentence him to death. On appeal, a divided panel vacated the death sentence and remanded the case to the district court for a new penalty phase.

The majority identified two errors that occurred during the penalty phase, both relating to Wilson’s statement of remorse, which he was permitted to read to the jury without being subject to cross-examination.

First, the prosecutor argued that Wilson had not until “last week” accepted responsibility for his offense; while he had “an absolute right to go to trial,” he could not “have it both ways” - go to trial and then “say I’m sorry only after you prove I did it.” The majority held that this comment improperly held out Wilson’s “constitutionally protected decision to go to trial” as a reason to sentence him to death, which “unconstitutionally burdened Wilson’s Sixth Amendment right to trial.”

The majority also identified a Fifth Amendment error. Again discussing on the remorse allocution, the prosecutor commented unfavorably on Wilson’s decision to read a statement rather than take the witness stand, noting that “[t]he path for that witness stand has never been blocked for Mr. Wilson.” The majority held that “an unsworn, uncrossed allocution constitutes a limited Fifth Amendment waiver that allows the prosecution to argue for an adverse inference from a defendant’s failure to testify as to what which he has allocuted.” (emphasis in original). But here, the prosecutor went beyond this waiver by noting that Wilson’s path to the witness stand “has never been blocked.” A juror might have thought that “never” extended “back to the guilt phase of the trial ... as well [as] to the full penalty phase rather than just to the reading of the allocution.”

For harmlessness, the majority considered the two errors in combination and concluded that the prosecution could not prove beyond a reasonable doubt that they did not contribute to the verdict. The prosecutor cited two of Wilson’s constitutional elections - to go to trial and not to testify - as reasons to reject two of Wilson’s proffered mitigating factors - acceptance of responsibility and remorse. The government then cited lack of remorse as evidence of future dangerousness. To the majority, the focus on Wilson’s decision to go to trial had an “uncontrollable resonance for the jury” - not one juror found either that Wilson had accepted responsibility or shown remorse, and it unanimously agreed that Wilson presented a risk of future dangerousness. “On these facts, it is hard to see how the government can prove that these errors were harmless.” In addition, the absence of a limiting instruction on the Fifth Amendment issue clearly contributed to the harm.

Judge Livingston dissented. In her view, there was no Sixth Amendment violation at all, and the Fifth Amendment error, if there was one, was so trivial as to be harmless.


A Study In Contradictions

United States v. Ramirez, No. 07-2912-cr (Calabresi, Cabranes, Parker, CJJ) (2d Cir. June 29, 2010)

In this case, the circuit found that the district court erred in applying the “impeachment by contradiction” doctrine. But since the error was harmless, it affirmed.


At his drug conspiracy trial, defendant Jose Luis Rodriguez testified that he was not knowingly involved in the drug trafficking of which he was accused. He claimed that he was merely the driver for Jose Adames, the group’s ringleader, and never saw or knew of any cocaine on their trips. Rodriguez testified that he served as Adames’ chauffeur until late 2004, when he received a warning that Adames was involved with drugs, at which time he stopped driving for him.

To rebut this, the government called a police officer who testified that he saw Rodriguez handle cocaine during an unrelated traffic stop after the charged conspiracy had ended. Specifically, the officer saw Rodriguez outside a car putting plastic bags containing cocaine into a box. Rodriguez was arrested, but was not prosecuted in that case.

The Appeal

The circuit held that the admission of the account of the drug arrest was error. The officer's testimony was extrinsic evidence of Rodriguez’ past conduct, which is prohibited by Fed.R.Evid. 608(b). And the court rejected the government’s effort to shoehorn the testimony into the “impeachment by contradiction” doctrine, which provides that where a defendant testifies on direct about a specific fact, the prosecution is entitled to prove that he lied as to that fact.

Here, the rebuttal testimony did not in fact contract Rodriguez. Rodriguez did not testify that he had never seen or handled drugs. Rather, he testified that he did not see or handle drugs during the time he worked for Adames, while the impeachment testimony concerned a later event. Since the government could not identify any point in the record where Rodriguez “forswore, as a universal matter, ever having seen drugs of any kind,” the testimony should have been precluded under Rule 608(b).

However, despite its concerns over the prejudicial impact of evidence of an unrelated drug arrest - which “can prove extremely damaging to a defendant at trial” because it “functions essentially as evidence of criminal propensity” - the court found the error to be harmless. The remainder of the government’s evidence was “sufficiently conclusive and its case [was] sufficiently robust.” In addition to Rodriguez’ confession, a string of co-conspirators took the stand and described Rodriguez’ knowing involvement in Adames’ operation.

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Lost In Translation

United States v. Malki, No. 08-4417-cr (2d Cir. June 29, 2010) (Newman, Raggi, Hall, CJJ)

In this rare choice-of-guideline appeal, the circuit vacated the sentence and remanded for resentencing under a different guideline.


Defendant Malki entered the United States illegally in 1978. He eventually obtained political asylum, permanent residence status and United States citizenship, but all under a false identity. In 2003, still using this false identity, he took a job as a translator for a military contractor in Iraq and gave false background information to obtain a security clearance. In connection with this work, Malki had access to classified information, but was not permitted to possess it. Eventually, in connection with a security review, classified documents were found in his apartment, and Malki, when confronted, admitted his false identity.

He ended up pleading guilty to making false statements and naturalization fraud, as well as to four counts of having “knowingly and willfully retained” documents relating to the national defense, in violation of 18 U.S.C. § 793(e). For these counts, the district court, over objection, applied U.S.S.G. § 2M3.2, which covers “Gathering National Defense Information,” and sentenced Malki to 121 months’ imprisonment, the bottom of the range under that Guideline.

The Appeal

On appeal, the circuit agreed that the district court should have sentenced Malki under U.S.S.G. § 2M3.3, which covers, inter alia, “Unauthorized Receipt of Classified Information.” Malki’s indictment did not charge him with “gathering” the classified information, it charged him with “retaining” it. And, since the conduct of “retaining” is similar to “unauthorized receipt” and significantly different from “gathering,” § 2M3.3 is the right guideline in Malki’s case. While it is true that Malki’s relevant conduct included actively gathering the classified material, only the charged conduct, and not the relevant conduct, can be the basis for choosing the offense conduct guideline.

The court also rejected the argument that the error was harmless because the district judge expressly stated that the 121-month sentence was “a reasonable one” and “anything less would be inappropriate.” The judge made that comment in the context of explaining his decision to impose sentence within the guideline range; the circuit could not “be confident that he would have imposed the same sentence had he understood that the bottom of the correct guideline was 58 months less than the bottom of the guideline he thought was applicable.”