Monday, August 23, 2010

You See Davis

United States v. Bonilla, No. 09-1799-cr (2d Cir. August 13, 2010) (Miner, Cabranes, Wesley, CJJ)

Five months ago, in United States v. Davis, a Second Circuit panel denied the government’s motion for summary affirmance in a criminal case. Davis held that summary affirmance is a “rare exception” that should only be granted where the issues raised by the appellant are truly frivolous. It also noted that summary affirmance in criminal cases is “particularly perilous.” See, An Exercise in Frivolity, posted March 20, 2010.

Here, with Davis’ ink barely dry, a different panel granted a motion for summary affirmance in a criminal case.


Angel Bonilla pled guilty to illegal reentry, and had a past conviction for felony assault, which triggered the 16-level enhancement in U.S.S.G. § 2L1.2(b)(1)(A)(ii). At offense level 21 and criminal history category IV, he faced a Guideline sentencing range of 57 to 71 months.

At sentencing, he raised a host of Apprendi issues with respect to the assault conviction and challenged the 16-level enhancement on the grounds that it overstated his potential for dangerousness and resulted in a sentence greater than necessary. He also made a Kimbrough claim, arguing that the Sentencing Commission did not engage in any deliberation or empirical study for enacting the 16-level enhancement, rendering it “arbitrary.”

The district court indicated that it had “reviewed and considered” everything before it - the parties’ memoranda, the PSR, the statutory factors and the Sentencing Guidelines - and sentenced Bonilla to 57 months’ imprisonment. The court also gave an explanation for the sentence, noting that: the 16-level increase did not “overstate the seriousness of the defendant’s prior conviction” given the conduct that underlay it - this was his fourth conviction and his third reentry and he had absconded for several months. Thus, the “people who drafted these sentencing statutes had in mind a person such as this.”

The Circuit’s Decision

On appeal, Bonilla raised two issues. First, he pursued his Apprendi claim, arguing that since his prior felony conviction was neither alleged in the indictment, pled to or proven beyond a reasonable doubt, his statutory maximum was two years, not 10. He also argued that the sentence was procedurally unreasonable because the district court did not adequately consider or respond to his arguments about the 16-level enhancement.

The government moved for summary affirmance, contending that the prior conviction was not an element of the offense and that the district court properly considered and responded to all of Bonilla’s arguments.

The circuit granted the motion, despite acknowledging Davis’ “particularly perilous” language and the circuit’s extremely restrictive definition of “frivolous” - an appeal is frivolous only where it is “totally lacking in merit, framed with no relevant supporting law, conclusory in nature, and utterly unsupported by the evidence.” The court noted that it granted 160 summary affirmance motions associated with Anders briefs in 2009, a statistic that showed that “a fair number of frivolous appeals are filed in this Court.”

In analyzing Bonilla’s claims, even though not raised in an Anders brief, the court found them to be frivolous. The Apprendi claim was easy - Bonilla acknowledged that it was precluded under existing law and that he had raised it only to preserve it for Supreme Court review.

As for the procedural claim, Bonilla’s argument was not that the district court did not adequately explain its sentence; it was that it did not address his Kimbrough argument with respect to the 16-level enhancement with sufficient specificity. But the circuit disagreed. It noted that “it might be said” that the district court’s response was sufficiently specific, but that in the end it did not matter because “we never have required a District Court to make specific responses to points argued by counsel in connection with sentencing.” Here, the court “considered all arguments of counsel and fully stated the reasons for the sentence imposed, and that was all that was required.”

Finally, the court also relied on the “plain-error rule” because Bonilla “did not ask the District Court for a specific response to [the] 16-level enhancement argument” or the argument that the enhancement “was made without the benefit of empirical study.”


This is a very disturbing opinion. Bonilla’s arguments were weak, to be sure, but it is hard to see how they were “totally lacking in merit, framed with no relevant supporting law, conclusory in nature, and utterly unsupported by the evidence.” It might well be that the tension between this case and Davis is going to cause difficulty in future cases for defense attorneys struggling with the question whether to file an Anders brief or a merits brief. This case just is not different enough from Davis for a clear line to emerge.


Sunday, August 22, 2010

PC World

United States v. Green, No. 08-5548-cr (2d Cir. August 13, 2010) (per curiam)

An unconstitutionally vague condition of supervised release is the theme of this most recent per curiam opinion.

Defendant Green, while serving a long prison sentence for crack cocaine trafficking, was convicted of possessing a weapon and marijuana in prison. As part of his sentence, the judge imposed a condition of supervised release prohibiting him from associating with the Bloods or any other criminal street gang and from "the wearing of colors, insignia, or obtaining tattoos or burn makes relative to" such a gang.

The circuit, upholding the associational prohibition, struck the rest of the condition. The "color prohibition" did not provide Green with "sufficient notice of the prohibited conduct. The range of possible gang colors is vast and indeterminate." One police department manual's list of gang colors includes white, blue, black or combination of the two, with red, green, brown and purple. "Eliminating such a broad swatch of clothing colors would make [Green's] daily choice of dress fraught with potential illegality. People of ordinary intelligence would be unable to confidently comply with this condition."

While the court held out the possibility that a sufficiently clear prohibition would pass constitutional muster, for example if it had a "limiting list of the colors or insignia" typically associated with "any particular gangs to guide Greene in his clothing choices," this condition lacked the necessary clarity.


Summary Summary

Here are two more summary orders of interest. Probably the last of this Term.

In United States v. Johnson, No. 06-2206-cr (2d Cir. July 28, 2010), the court ordered a resentencing because the district court did not comply correctly with a prior order vacating the sentence. The original order required a de novo resentencing, but the district court did not conduct one. It simply issued a new sentencing opinion imposing the same sentence. The circuit also remanded to different judge because "the number of errors that have attended defendant's repeated sentencing proceedings could lead a reasonable observer to question the court's impartiality."

In United States v. Bonczek, No. 09-3865-cr (2d Cir. August 19, 2010), the court noted that there is a circuit split on the question whether a judge issuing a search warrant in a child pornography case needs to view the images in order to find probable cause. The court did not reach the question itself, because it found that the officers acted on the warrant in good faith.

Saturday, August 21, 2010

Sorry, Right Number

United States v. Kumar, No. 06-5482-cr (2d Cir. August 12, 2010) (Walker, Sacks, Livingston, CJJ)

Sanjay Kumar and Stephen Richards, officers as a company called Computer Associates, engineered a huge accounting fraud that ended in October of 2000. Had that been the end of the story, their sentence would have been calculated under the November 1998 Guideline Manual (for obscure political reasons there is no November 1999 Manual), and their offense level would have been 30. However, the defendants engaged in additional criminal conduct associated with the government’s investigation of the accounting fraud - obstruction of justice, mainly - between 2002 and 2004.

Eventually, they pled guilty to everything and, in 2006, were sentenced under the November 2005 Guideline manual, which was in effect at the time, and under which the offense level for the fraud offenses had increased dramatically - from 30 to 50.

In this opinion, a divided circuit panel held that the district court’s use of the 2005 manual - correct under the so-called “one-book rule” - did not violate the Ex Post Facto clause.

The Majority's Opinion

The one-book rule, a longstanding Chapter One instruction, provides that if the defendant is convicted of two offenses, one committed before and one committed after the effective date of a revised edition of the Guideline Manual, the revised edition is to be applied to both offenses.

An ex post facto violation occurs where a later law is retrospectively applied to a defendant’s disadvantage. Here, the application of the 2005 Manual clearly disadvantaged the defendants by subjecting them to a higher range than that recommended by the 1998 edition. But the majority held that the application of the 2005 Manual was not “‘retrospective’ within the meaning of the Ex Post Facto clause.” The major policy concern animating the ex post facto prohibition - a “lack of fair notice and government restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated” - was not implicated here. The core right is to “fair notice,” and not to “less punishment.”

Since the one-book rule was adopted before the defendants committed the obstruction offenses, they were on notice of the consequences of committing that second offense, which included “the application of the post-amendment Guidelines to all offenses considered at the defendants’ sentencing.” The defendants could have “altered their conduct so as to avoid any heightened punishment imposed on the basis of the one-book rule by choosing not to obstruct the government’s investigation into their prior fraud.”

The majority also likened the one-book rule to a recidivist statute or “three strikes” law, which do not violate the Ex Post Facto clause. The situations are analogous even though the impetus for recidivism statutes is to “reflect the greater culpability associated with” the later offenses and the impetus for the one-book rule is to avoid “‘piecemeal’ sentencing.” This distinction “makes neither a practical nor a logical difference for purposes of an analysis under the Ex Post Facto clause.” Either way, “prior conduct becomes the basis for imposing a heightened sentence only upon conviction for a later criminal act.”

Since the “actual crime” triggering the one-book rule was the obstruction of justice, and since the defendants had prior notice of its consequences, the application of the one-book rule was proper.

The Dissent

Judge Sack dissented. In his view, since the defendants did not have “fair notice” of the severity of the penalties to which they might be subjected under the later Guidelines at the time they committed the fraud offenses, the application of the one-book rule constituted an ex post facto violation. To him, the notice that the defendants received was for the “wrong crime: not as to the fraud ... for which punishment was revised markedly upward, but the subsequent obstruction offenses for which the Guidelines have not changed. This notice was inconsequential because the defendants were not subjected to an increased sentence for obstruction; they were subjected to an increased sentence for already completed frauds.” Moreover, while the defendants had notice of the fraud enhancement before they committed the obstruction offenses, they did not have that notice before they committed the original fraud.


This is an extremely interesting issue, one on which the circuits are divided. But it also implicates a more fundamental ex post facto question that has not yet been resolved: does the clause apply at all to the Sentencing Guidelines now that they are advisory? The circuits are split on the question, and the Second Circuit has not yet ruled on it.

Here, the government took the position in the district court that Booker eliminated any ex post facto concerns with respect to the Sentencing Guidelines, and the district court’s ruling was based in large part on that. But, on appeal, the government abandoned that position, which permitted the panel to assume without deciding - and both the majority and the dissent did - that the Ex Post Facto clause still forbids the retrospective application of a more severe Guideline Manual.

Given the circuit split on the issue presented here, the defendants might well seek certiorari in this case. But it seems likely that the broader question ex post facto will have to be resolved by the Supreme Court before the question presented here can be addressed.

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Saturday, August 14, 2010

We Can Recall

United States v. Rojas, No. 09-3007-cr (2d Cir. August 12, 2010) (Jacobs, Wesley, Chin, CJJ)

Nicholas Rojas was convicted of participating in crack conspiracy. On the written verdict form, the jury found that he was involved with five grams or more of a mixture or substance containing “cocaine base.” However, when the courtroom deputy polled the jury, he misread the verdict form, describing the drug as “cocaine,” not “cocaine base.”

The error was discovered only after the poll was completed and the jury had been “discharged” and returned to the deliberation room to “await the thanks of the court for its service.” Although the defense did not consent to having the jury returned to the courtroom to be re-polled, the judge nevertheless recalled the jury. He explained to the recalled jurors what had happened, had the deputy the verdict again, re-polled them, and discharged them again.

On Rojas’ appeal, the circuit, closing an open question, held that a district court can recall a jury that has been declared “discharged,” but that has not dispersed, to correct a technical error in the reading of the verdict.

Rojas had relied on Fed.R.Crim.Proc 31(d), which provides that the court must poll the jury “[a]fter a verdict is returned but before the jury is discharged.” But if the jury has not dispersed, this rule does not prevent the court from recalling it to correct an error in reciting the written verdict, at least not in cases where there is no prejudice to the defendant and no risk that the court’s or public’s confidence in the verdict will be undermined. In Rojas’ case, there was no uncertainty about what the verdict actually was or whether the jury’s verdict was unanimous.

In fact, a 1926 Fourth Circuit case went the same way, noting that a jury “may remain undischarged and retain its function” even if “discharge” has been “spoken by the court,” if it remains “undispersed” and within the “control of the court with no opportunity to mingle with or discuss the case with others.”


A Bad Call

United States v. Gomez, No. 08-3829-cr (2d Cir. August 4, 2010) (Leval, Pooler, Parker, CJJ)

Here, the improper admission of indirect hearsay resulted in a new trial.


Fred Rivas and a confederate sold 5,000 Ecstacy pills to a confidential informant. They were arrested, and Rivas agreed to cooperate. A New York City detective, Michael Ryan, was permitted to testify about the nature of Rivas’ cooperation; specifically, Ryan testified that he asked Rivas to “call the person who had given him that 5,000 pills,” and that Ryan then dialed Gomez' number from Rivas’ phone and recorded their conversation. The district court denied Gomez’ hearsay objection to this testimony, and the government ended up using it in summation to directly implicate Gomez as the supplier.

The Circuit’s Decision

The court found that Ryan’s testimony constituted prejudicial hearsay, and rejected with unusually strong language the government’s claim that it admitted the testimony for a non-hearsay purpose - as “background” evidence.

Here, there was simply no non-inculpatory alternative to explain why Ryan chose Gomez’ number after he instructed Rivas to call his supplier. Indeed, that testimony “provide[d] background that would aid the jury in understanding why Gomez was called only if we assume that Rivas told Ryan that Gomez was his supplier, which we cannot do.” And, if the jury “inexplicably” missed this “obvious point,” the AUSA “drove it home with her ... summation.”

The testimony was also “completely unnecessary” as background. Ryan testified that Rivas was arrested and agreed to make recorded phone calls. That was “sufficient background” for the calls themselves.

In a footnote, the court remarked that, while Ryan’s instruction to Rivas to call his supplier did not include hearsay (one might quibble with this conclusion since, although Ryan was subject to cross-examination, he gave the instruction when he was not, and it was offered, at least in part, for its truth) the instruction’s connection to Rivas’ call to Gomez nevertheless communicated the hearsay message that Rivas identified Gomez as his supplier. The court directed that, on retrial, the district court “should exclude the officer’s instruction.”

The court also found that the admission of the hearsay was not harmless. While the evidence was legally sufficient, it was “hardly overwhelming as to” Gomez’ involvement in that particular transaction. Although Rivas’ recorded conversation with him likely related to a drug deal, a “reasonable juror” would “not have been compelled to conclude that Gomez was the supplier for the earlier sale” because the call did “not clearly indicate that Gomez supplied the 5,000 pills.” It should be noted that this particular analysis would be easier to follow if the court had quoted at least some of the recorded conversation. But, alas, it did not.

Moreover, while the district court gave a limiting instruction, that did not render the hearsay error harmless. The court will not presume that a jury has followed a limiting instruction where “there is an overwhelming probability” that the jury would be unable to and “the evidence is devastating to the defense.” Both were true here. Gomez’ jury was “confronted with an instruction that they should not consider Ryan’s testimony as proof that Gomez was Rivas’ supplier despite the fact that there was no apparent reason for the testimony other than to show that Ryan dialed Gomez’ number” because Rivas had identified Gomez as the supplier. Moreover, the limiting instruction did not cover the most damaging portion of the testimony - that Ryan called Gomez’ number only after instructing Rivas to call his supplier. It covered only Ryan’s instructions to Rivas and Rivas’ actions in response.

Finally, while the court did not rule on Gomez’ Confrontation Clause argument, it noted that “the very concerns embedded in the Confrontation Clause are part and parcel of our harmless error analysis.” Specifically, it considered the “importance of the wrongly admitted testimony,” and found Rivas’ untested accusation to be “significant.”

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Friday, August 13, 2010

PC World

United States v. Shyne, No. 08-0865-cr (2d Cir. August 5, 2010) (Kearse, Sack, Hall, CJJ) (per curiam)

An unusual discovery issue is the theme of this per curiam opinion.

Three defendants went to trial on bank fraud and money laundering charges. Before trial, the government provided notice that it would offer statements of five other individuals as co-conspirators' declarations under Fed.R.Evid.801(d)(2)(E), although it was not planning to call them as witnesses. The government also provided Giglio material as to these declarants. In response, the defendants demanded the declarants' 3500 material - specifically their proffer notes - even though they would not be testifying at trial. The district court denied the application and, here, the circuit affirmed.

The Jencks Act, 18 U.S.C. § 3500, by its very terms applies only to a "witness" who has "testified on direct examination," and is not "trumped" by Fed.R.Evid 806, which provides that the credibility of a Rule
801(d)(2)(E) declarant may be "attacked ... by any evidence which would be admissible for those purposes if" he had testified. That a non-testifying declarant's statement comes into evidence against a defendant does not "convert that declarant into the equivalent of a witness who has appeared and testified under oath." Rule 806 does not have its origin in the Jencks Act; rather, it is a codification of the due process considerations articulated in Brady and Giglio. Thus, "[a]lthough for impeachment purposes, Rule 806 treats a declarant speaking in furtherance of the conspiracy as if he were a witness who gave live testimony as if he were a witness, we do not believe that also means that a declarant whose statement is being repeated and a witness who gives live testimony are equal under the Jencks Act." To hold otherwise would contravene the express language of § 3500, which states that no disclosure is authorized until the witness "has testified on direct examination in the trial of the case."

Nor does the constitution require otherwise. The Jencks Act is a statutory requirement, not a constitutional one, thus an analogy between "non-testifying declarants and testifying witnesses does not work."

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Coach Bagged

United States v. Broxmeyer, No. 09-1457-cr (2d Cir. August 3, 2010) (Jacobs, Miner, Wesley, CJJ)

Todd Broxmeyer, was a field hockey coach for teenage girls in upstate New York and elsewhere. For many years he engaged in sexual relationships with some of them , relationships that sometimes also involved the exchange of photographs. Eventually the axe fell, and he was tried and convicted of five count s- four relating to child pornography and one of aiding and abetting the transportation of a minor across state lines with the intent to engage in sexual activity. On appeal, he successfully challenged the legal sufficiency of the evidence as to three of the counts of conviction. The court reversed those counts and remanded the case for resentencing on the other two.

A. Production of Child Pornography

In 2007, Broxmeyer began a sexual relationship with A.W., who was then seventeen years old. The relationship was
legal, because it occurred in in New York, where the age of consent is seventeen. Part of the relationship involved “sexting” - the exchange of sexually explicit pictures via cell phone. Counts One and Two of the indictment related to two specific photographs that A.W. took of herself and texted to Broxmeyer. Based on those photographs, Broxmeyer was convicted of violating 18 U.S.C. § 2251(a) which criminalizes the production of child pornography.

But the appellate panel unanimously agreed that the government introduced no evidence that Broxmeyer “persuaded, induced or enticed” A.W. to take the subject photos, as required by the statute. The statutory terms are “words of causation; the statue punishes the cause when it brings about the effect.” Thus, Broxmeyer must have induced, etc., A.W.'s taking of the photos before she took them. Here, the trial record showed only that A.W. turned seventeen in January of 2007; she took the photos when she was 17 and she began a sexual relationship with Broxmeyer in the spring of 2007. The only evidence tying Broxmeyer to the photos was that “he received them when she transmitted them.” There was simply no evidence that Broxmeyer “inspired” the “production” of the photos.

Since the government never asked A.W. when the photos were taken or whether that occurred before or after Broxmeyer asked her to send him pictures of herself, the jury was “left to speculate or guess,” which is improper. No inference that A.W. took the particular photos at Broxmeyer’s urging was available, because the government “presented no evidence bearing on” the question. Nor was it relevant that there was evidence that Broxmeyer induced A.W. to send sexually explicit pictures of herself. Section 2251(a) covers production, not distribution.

B. Interstate Transportation of a Minor

Another of Broxmeyers’ players was K.M. She lived in Pennsylvania, but would sometimes go with a friend to his practices in Binghamton, New York. She planned to attend a New York practice on Saturday, December 8, 2007. Her father, L.M., was to drive her to the practice; she would spend the night at the home of a friend, J.B., who would also attend the practice, then L.M. would return to pick her up on Sunday afternoon. Eventually, the plan changed and J.B.’s parents offered to drive K.M. halfway home, where L.M. would meet them and pick up K.M.

When Broxmeyer learned that K.M. was coming to New York, he offered to drive her back to Pennsylvania on Sunday morning, on his way to another practice in New Jersey. L.M. and K.M. consented, and the trip went forward as planned, with one hitch. One the way back to PA on Sunday morning, Broxmeyer made a stop at a sports facility in New York to pick up some equipment. K.M. went with him and, once inside, Broxmeyer “caused [her] to perform oral sex on him.” He then drove her the rest of the way home. Because K.M. was only fifteen, the sex act was illegal, regardless of her consent.

Broxmeyer was convicted of aiding and abetting a violation of 18 U.S.C. § 2423(a), which makes it a crime to transport a minor across state lines to engage in illegal sexual activity. The panel majority held that neither trip - the one from PA to NY or the one back - violated this statute.

The PA to NY trip was easy: As the majority viewed the evidence, Broxmeyer did not bring about K.M.’s attendance at the December 8 practice, and her attendance was not contingent on Broxmeyer’s offer to driver her home the next day.

The NY to PA trip was likewise insufficient. The majority held that a conviction under § 2423(a) cannot lie where the unlawful sexual act occurs before the crossing of state lines, absent proof of some intent to commit a sexual act when state lines are crossed. The “plain wording of the statute requires that the mens rea of intent coincide with the actus reus of crossing state lines.”

Judge Wesley dissented on this count, focusing only on the PA to NY trip. As he framed the issue, the only question was whether there was sufficient evidence to support the jury’s finding that Broxmeyer caused L.M. to transport K.M. across state lines by promising to bring her home the next day. After a very detailed discussion of L.M.’s testimony, Judge Wesley found that it sufficiently supported this inference.

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Court Reads the Riot Act

United States v. Johnson, No. 08-5245-cr (2d Cir. August 2, 2010) (Cabranes, Parker, CJJ, Amon, DJ)

In this split decision, the majority held that a conviction for the Connecticut offense of “Rioting at a Correctional Institution” is a “violent felony” under the “otherwise involves” clause of the Armed Career Criminal Act (“ACCA”).

In getting there, the majority looked beyond the statute’s title - which “suggests an obvious answer ” - to examine the conduct that the statute actually proscribes. The Connecticut statute provides that a person is “guilty of rioting at a correctional institution when he incites, instigates, organizes, connives at, causes, aides, abets, assists or takes part in any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of such institution.” Connecticut courts have “clarified” the meaning of the statute, holding that it is “specifically directed” at those who lead or plan prison disturbances and those who “follow in the proscribed activity.”

In Begay, the Supreme Court held that the “otherwise involves” clause applies only to offenses that are similar “in kind” as well as “in degree of risk posed” to the offenses that are listed in ACCA - burglary, arson, extortion, and the use of explosives.

First, for “in kind” similarity, the test is whether the conduct proscribed by the statute “typically involves purposeful, violent and aggressive behavior.” The court held that the rioting statute satisfies this test, rejecting the defendant’s argument that the statute could cover “many forms of passive and nonviolent conduct.” The court found that it was not a strict liability statute, but rather required proof of “general intent,” which satisfied the “purposeful conduct” requirement of Begay. The court also had “little doubt” that rioting at a correctional institution “typically involves” violent and aggressive conduct. In every reported decision under the statute, the conduct involved either use of a weapon or injury to another person, or both.

To the majority, it did not matter that some arguably nonviolent conduct - such as a hunger strike - might violate the statute, or that some unreported cases might have involved nonviolent conduct. Under the majority’s reading of the statute, each of the acts proscribed by the statute “typically involves violent and aggressive behavior.” To find that the Connecticut statute was not categorically violent would require a realistic probability, not a theoretical possibility, that the state would apply the statute to nonviolent conduct. But the majority found no evidence that Connecticut “regularly” applies the statute to nonviolent conduct.

The majority had an even easier time on the “degree of risk” analysis. The statute “in the ordinary case” presents a serious potential risk of injury to another because prisons are “inherently dangerous institutions” and the conduct proscribed by the rioting statute “renders confrontation with guards or other law enforcement authorities a virtual certainty.”

Judge Parker dissented. In his view, the majority incorrectly concluded that each of the acts proscribed by the Connecticut statute is violent. In fact, the statute “sweeps broadly,” punishing such nonviolent infractions as “disregarding an order to move, engaging in a work stoppage, or counseling another inmate to disobedience.” Judge Parker would have applied the “modified categorical approach” and required the government to “show what part of the statute Johnson actually violated.” To him, unless the underlying conviction had been for “actually rioting,” it is “far from obvious that such an offense” is an ACCA predicate.

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