Sunday, October 31, 2010

Dread Herring

United States v. Rosa, No. 09-0636-cr (2d Cir. October 27, 2010) (Walker, Livingston, CJJ, Kaplan, DJ)

Back in June, in a case called Julius, after finding a Fourth Amendment violation, the circuit remanded the case so that the district court could perform a cost-benefit analysis in deciding whether to apply the exclusionary rule. See Julius’ Seizure, posted June 19, 2010. According to Julius, such an analysis is now required under the Supreme Court’s decision in Herring v. United States, 129 S. Ct. 695 (2009). Here, the court took Julius one step further, performing its own Herring analysis and concluding that the exclusionary rule should not apply.


Defendant Rosa was suspected by upstate police officers of molesting local children. Before arresting him, the officers obtained a search warrant for his apartment. While the materials supporting the warrant specified the kinds of offenses of which Rosa was suspected and the particular items sought, the warrant itself did not contain those details and did not incorporate the supporting materials.

Rosa was ultimately charged in federal court with producing child pornography, based on materials recovered from the search. He moved to suppress based, inter alia, on a claim that the search warrant lacked particularity. After the district court denied the motion, he pled guilty pursuant to a conditional plea agreement, and was sentenced to 120 years’ imprisonment.

The Circuit’s Opinion

1. The Warranted Was Invalid

The search warranted here did indeed violate the Fourth Amendment’s particularity requirement. It “lacked the requisite specificity to allow for a tailored search of [Rosa's] electronic media” because it “failed to link the items to be searched and seized to the suspected criminal activity.” As a result, the “warrant directed officers to seize and search certain electronic devices, but provided them with no guidance as to the type of evidence sought.” Nor did it matter that the warrant application was sufficiently particular; the warrant itself was facially invalid - “unincorporated, unattached supporting documents” do not “cure an otherwise defective search warrant.”

2. The Exclusionary Rule Does Not Apply

Nevertheless, however, the circuit affirmed, after performing a Herring cost-benefit analysis. First, the court concluded that a “reasonably well trained officer” would not be “chargeable with knowledge that this search was illegal” under the circumstances present here. Moreover, the unincorporated, unattached supporting documents indicated that the officers acted in good faith. Those materials were put together during a short time period, and make clear the purpose of the search. The affiant officer also helped execute the search and was therefore “intimately familiar with the contemplated limits of the search.” Finally, there was no evidence that the officers searched for or seized any items that were unrelated to the crimes for which probable cause had been shown, or that the affiant “somehow misled the town justice regarding the facts of the investigation and intended scope of the search.” Thus, applying the exclusionary rule would “serve little deterrent purpose in this case.”

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Saturday, October 30, 2010

PC World

United States v. Drachenberg, No. 09-3114-cr (2d Cir. October 2, 2010) (Kearse, Pooler, Hall, CJJ) (per curiam)

The court’s latest per curiam puts to rest several recurring tax-protester argumenst. Representing himself pro se, Drachenberg argued that federal courts had no jurisdiction over him because “New York is not subject to the legislative or territorial jurisdiction of the United States” and thus that as a “native-born” New Yorker he was under no obligation to pay income taxes “unless and until the United States has conquered or subsumed New York.”

The circuit called this argument “as frivolous as it is hackneyed.” Congress had authority to enact the statute of conviction, and the constitution clearly authorizes Congress to collect taxes. “In sum, the United States was not in want of jurisdiction."

The court also summarily rejected Drachenberg’s arguments that he was not a “person” subject to income tax - he obviously is - and that the government was required to first obtain an administrative determination of a tax deficiency before initiating a tax-evasion prosecution. The deficiency arises by operation of law on the date a tax return is due but not filed. Finally, Drachenberg’s arrest warrant was valid even though it did not itself contain a written oath or affirmation in support of probable cause. These requirements are satisfied by a grand jury indictment.

Deal Or No Deal?

United States v. Marks, No. 08-1207-cr (2d Cir. October 19, 2010) (Leval, Hall, Livingston, CJJ)

Defendant Chad Marks was convicted after a jury trial of drug trafficking offenses and two § 924(c) counts, and was sentenced to the resulting 40-year mandatory minimum. The trial came after months of plea negotiations, including an offer by the government to resolve the case with a 20-year sentence.

Before trial, Marks had filed a motion with the district court seeking to compel the government to follow up on a different plea offer that, apparently, was in the nature of a cooperation agreement. The court denied the motion and the case proceeded to trial.

But after trial, Marks’ counsel renewed that motion and, this time, the government’s opposition indicated that the government had extended a 20-year offer before trial. Before sentencing, Marks filed a pro se habeas corpus petition under 18 U.S.C. § 2241 claiming that (1) his counsel had never told him about the 20-year offer and (2) that Marks would have accepted the offer had he known about it. His specific allegation was that counsel had been ineffective.

The district court refused to hear the petition before sentencing, concluding that the argument should instead be raised in a § 2255 motion afterwards. Marks filed an interlocutory appeal, which the circuit dismissed without prejudice to any direct appeal or subsequent 2255. The district court then imposed sentence.

On this, Marks’ direct appeal, the circuit held that it was error for the district court to consider sentencing as a prerequisite to reviewing Marks’ claim of ineffectiveness. Here, there was no reason to wait, since the district court was “in a position to take evidence, if required, and to decide the issue pre-judgment.” Thus, the court held, “when a claim of ineffective assistance of counsel is first raised in the district court prior to the judgment of conviction, the district court may, and at times should, consider the claim at that point in the proceeding.”

The factors for a district court to consider in deciding whether to adjudicate such a claim include the potential disruption to the proceedings and whether a new attorney would need to be appointed. But here, the district court “should have considered” the claim prior to sentencing. It had already relieved the attorney alleged to be ineffective and thus had “no good reason to postpone inquiry” into the merits of Marks’ claim. Moreover, the claim was “facial[ly] plausibl[e].” The AUSA confirmed that he had extended the 20-year offer before trial; when asked, defense counsel “equivocated” as to whether he had communicated the offer to Marks; there was a “significant ... disparity” between the sentence to which Marks was exposed and that contemplated by the offer; and Marks had consistently indicated that he would have accepted the offer had he known about it and was “persistent in his efforts” to secure a plea deal before trial.

On these facts, the district court erred in concluding that it was required to defer consideration of Marks’ claim to a post-judgment § 2255 motion and remanded the case for further proceedings on the issue.

The court also discussed the remedy. If the district court were to find that Marks’ counsel did not extend the 20-year offer and that Marks would have accepted it, the district court “would be required to place [him] in the position he would occupy had counsel been effective,” which means giving him “the opportunity to accept the never-communicated plea offer.”

Finally, in a footnote, the circuit agreed with the district court that a § 2241 petition is the incorrect vehicle for raising a pre-judgment ineffectiveness claim. The proper procedural avenue is a motion for a new trial under Fed.R.Cr.P. 33. But, since Marks was acting pro se, the court “should have denominated Marks’ § 2241 petition a Rule 33 motion, and it should have, at least in these circumstances, proceeded to reach the substance of the claim.”

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Friday, October 29, 2010

No Angry Men

Portolatin v. Graham, No. 07-1599-pr (2d Cir. October 18, 2010) (en banc)

Earlier this year, a Second Circuit panel held that New York’s persistent felony offender (PFO) statute violated the right to a jury trial under Apprendi. See The Persistents of Apprendi, posted April 9, 2010. In this en banc opinion, authored by Judge Wesley, the full court changed course and held that the PFO scheme does not, in fact, violate Apprendi. The members of the original panel, along with Judge Pooler, dissented.

The PFO scheme provides for dramatic sentencing enhancements for certain recidivists, and those that are deemed PFO’s can be subject to a sentence far greater than statutory maximum they would otherwise face. Application of the PFO statute is a two-step process. The first step requires the prosecution to prove that the defendant has two or more qualifying prior felonies. Once this is established, the second step is for the sentencing judge to assess whether a PFO sentence is warranted, taking into account the defendant’s “history and character” and the “nature and circumstances of his criminal conduct.” The original panel concluded that step two violated Apprendi, which “prohibits ... judicial factfinding” beyond the fact of a prior conviction that “result[s] in enhanced sentences.” But the en banc court disagreed.

Or, perhaps more accurately, the en banc court concluded that the New York courts’ conclusion that the PFO scheme did not violate Apprendi - because sentencing courts can impose a PFO sentence based on step one alone - was not an unreasonable application of federal law. Since the New York Court of Appeals “has interpreted step two of the PFO sentencing scheme as a procedural requirement that informs only the sentencing court’s discretion, the New York courts were not unreasonable to conclude that this consideration is unlike the factfinding[s]” that are impermissible under Apprendi and its progeny.

And, while there might be an argument that step two requires a court to consider subsidiary facts about a defendant’s criminal history that stray beyond the boundaries of Apprendi’s fact-of-conviction rule, federal courts have not been uniform in applying that rule. Absent a clear Supreme Court holding on the question, in a habeas case, such an argument goes nowhere. “[I]f our Court cannot divine a clear answer from the [Supreme] Court’s existing holdings, AEDPA prevents us from faulting a state court for selecting one reasonable conclusion over another.”

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Wednesday, October 27, 2010

Summary Summary

This is hot off the presses - today, in a summary order, the court held that the Fair Sentencing Act is not retroactive, since it "contains no express statement that it is intended to have retroactive effect nor can we infer such intent from its language." The case is United States v. Baldwin, No. 09-1725-cr (2d Cir. October 27, 2010) (summary order).

Saturday, October 23, 2010

Summary Summary

Well, it's been a while, but the court has finally issued a couple of summary orders of interest.

In United States v. De La Cruz, No. 09-4641-cr (2d Cir. October 21, 2010), the district court, in imposing sentence, remarked that a "Guideline sentence by definition really can't create unwarranted sentencing disparity." The circuit agreed with the defendant's argument that this was incorrect; under Kimbrough "a Guidelines sentence can create an unwarranted disparity." But here, since the sentencing decision did not depend in any way on an improper view that a Guideline sentence was by definition reasonable, there was no error.

In United States v. Faison, No. 09-1519-cr (2d Cir. September 14, 2010), the court remanded for recalculation of defendant's criminal history. The district court used the Guidelines in effect at the time of the offense, but those in effect at the time of sentencing would likely have produced in a lower score.

Sunday, October 03, 2010

PC World

United States v. Folkes, No. 09-3389-cr (2d Cir. September 29, 2010) (Newman, Hall, CJJ, Restani, JCIT) (per curiam)

A conceded plain error in applying the definition of “crime of violence” in the illegal reentry Guideline is the subject of the court’s most recent per curiam.

Before he was deported, Walford Folkes had been convicted in New York State of criminal possession of a weapon in the third degree and burglary in the third degree. When sentenced for his illegal reentry, received a sixteen-level enhancement for having reentered after sustaining a conviction for a crime of violence.

On appeal, the circuit vacated the sentence, holding that the enhancement did not apply. The illegal reentry guideline’s definition of “crime of violence” is unique. While it covers more or less the same enumerated categories of offenses as other such definitions - such as that in the career offender Guideline and the Armed Career Criminal Act - unlike those, it lacks a broad residual clause, along the lines of “any other offense that otherwise involves conduct that presents a serious risk of physical injury to another.” Rather, the Guideline’s catch-all only covers offenses that have “as an element” the use of force - or its attempt or threat - against another.

Thus, Folkes’ prior convictions are not for crimes of violence. First, burglary in the third degree in New York is not categorically a “crime of violence,” because the Guideline definition covers only the burglary of a dwelling, but the New York statute covers burglary of a “building,” including, obviously, non-dwelling buildings. And the offense is not covered by the Guideline’s catch-all, because third-degree burglary does not have a force element. Criminal possession of weapon in the third degree is likewise not a crime of violence because the state statute covers only simple possession.


Unlicensed Striver

United States v. Mazza-Alaluf, No. 09-3940-cr (2d Cir. September 22, 2010) (Sack, Raggi, Lynch, CJJ)

Mazza-Alaluf operated an unlicensed money-transfer business that, while based in Chile, sent millions of dollars through New York, Illinois and Michigan, without acquiring the appropriate state licenses. After a bench trial, the district court convicted him of violating 18 U.S.C. § 1960(a) and (b)(1)(A), which make it a crime to conduct an “unlicensed money transmitting business.” The statue defines this phrase as any such business that affects interstate or foreign commerce and “is operated without an appropriate money transmitting license in a State where such operation is [a crime] whether or not the defendant knew [that a license was required].”

On appeal, Mazza-Alaluf argued that the evidence was legally insufficient because the government failed to prove that his company was a “money transmitting business,” as referenced in 31 U.S.C. § 5313, which relates to “domestic financial institution[s].” But the circuit disagreed that this language applied to § 1960(b)(1)(A) prosecutions at all. The actual definition of “money transmitting business” is contained in 31 U.S.C. § 5330(d)(1)(B), but that section expressly provides that its definitions apply only for “purposes of this section.” And the court “declined to apply a definition from one statutory provision to another under such circumstances.”

Accordingly, the trial evidence supported Mazza-Alaluf’s conviction “without respect to whether” his business was a “domestic financial institution” operating as a “money transmitting business.” In any event, even if the statute of conviction applied only to “domestic financial institutions,” the district court’s finding that the business’ “substantial activities in the United States” made it a “domestic financial institution” was correct.

Mazza-Alaluf also argued, in the alternative, that he was not subject to the licensing requirements in New York, Illinois and Michigan because his business was “Chilean to its core.” The court disagreed. His firm conducted substantial money transmitting business those states, thus it had to be licensed in each.

First, New York: Mazza-Alaluf brought cash from Chile to the United States, deposited it into domestic bank accounts and transmitted it in New York. The relevant New York criminal statute clearly required a license for this. Illinois also has a statute requiring a license to “engage ... in the business of ... transmitting money.” Mazza-Alaluf deposited more than $200 million into an Illinois bank and transferred it out. Since the statute covers persons both located in and “doing business in” Illinois, the trial evidence supported the district court’s finding that he operated a money transmitting business there without an appropriate license. Finally, Michigan also requires anyone who “provide[s] money transmission services” there to obtain a license. Mazza-Alaluf ran about $42 million through a Michigan bank account, and it did not matter that the transactions were directed from Chile.

Mazza-Alaluf also challenged his forty-two month, below-Guideline sentence. Although he had completed the sentence and was awaiting removal, the court concluded that the challenge was not moot: Mazza-Alaluf was still in the country, might on some theory be able to reenter, and the district court could “presumably” shorten his term of supervised release on remand.

That said, however, the court affirmed the sentence. Mazza-Alaluf’s primary argument had to do with unwarranted sentencing disparities: he claimed that (1) a defendant in an unrelated, but arguably similar case received a sentence of one year of probation, and (2) that he would not have faced any federal criminal sanction at all if he had operated in different states. Here, however, the district court expressly noted that it had considered § 3553(a)(6) and its findings were not erroneous.

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Saturday, October 02, 2010

Gender Contender

United States v. Paris, No. 08-5071-cr (2d Cir. September 17, 2010) (Jacobs, Wesley, Chin, CJJ)

This interesting Batson decision deals with gender-based peremptory challenges, a subject that the circuit has not previously discussed.


For about five years, Dennis Paris ran a multi-state prostitution ring centered in the Hartford, Connecticut, area and recruited teenage girls to work for him. He was charged with criminal sex trafficking and conspiracy offenses, and took the case to trial.

Before jury selection, his attorney notified the district court that Paris would exercise peremptory challenges primarily against women, because he believed that male jurors would be “fairer to Mr. Paris than female jurors will be.” Sure enough, after the challenges for cause were resolved, Paris used his first four peremptory challenges against women. When the government registered a Batson objection, defense counsel conceded that gender was “absolutely” one of the reasons for the strikes.

The court held that gender-based strikes violated Batson, but when counsel provided gender-neutral reasons, the court allowed the strikes to stand. Defense counsel persisted, striking two more women, and asking the court to reconsider its ruling. When the court refused, counsel struck one woman and one man on the second-to-last round, and did the same on the last round. For each, however, he indicated that he would have only struck women if the court had permitted him to consider gender.

At the same time, the government used its first four peremptories to strike men, causing the defense to make its own Batson objection. The government offered to give gender-neutral reasons for its challenges, but the district court held that, particularly since the government had not announced any intention to strike men, the defense had not made out a prima facie case of discrimination.

A jury consisting of eight women and four men convicted Paris of all counts. After being sentenced to thirty years’ imprisonment, Paris appealed.

The Appeal

On appeal, Paris argued both that he should have been able to strike prospective jurors based on their gender and that the district court erred in finding that there was no prima facie Batson violation in the government’s using its first four peremptories against men. The circuit affirmed.

1. Defendant’s Gender-Based Strikes

Neither the Supreme Court nor the Second Circuit has decided a case in which a criminal defendant sought to make gender-based peremptory challenges. Here, Paris argued that gender is different from race, relying on language in an O’Connor concurrence that the only the government should be forbidden from gender-based peremptories. He also pointed out that courts scrutinize gender classifications less closely than racial classifications.

The court disagreed, holding that, under the Supreme Court’s Batson cases, “the Constitution bars a defendant in a criminal case from exercising peremptory challenges based on gender.” First, discriminatory jury selection harms both the parties to the case and the prospective jurors. It also affects the entire community by undermining public confidence in the justice system. These principles are true whether the case is civil or criminal and whether the discriminatory strike is exercised by the government or the defendant.

Moreover, the Supreme Court rejected any distinction between race and gender under Batson when it held that gender-based strikes are unconstitutional. As with race-based strikes, the rationale for gender-based strikes is grounded in the very stereotype that the that “the law condemns.”

Finally, the court noted that three other circuits - and the Supreme Court, albeit in dictum - are already in agreement on this point.

2. The Government’s Strikes

With respect to Paris’ claim that the district court erred in not finding a prima facie case of discrimination against the government - “step one” of a trial court’s Batson inquiry - the court first had to settle on a standard of review. There is a split on the question - The First and Ninth Circuits review the issue for clear error, while the Seventh Circuit treats it as a mixed question and reviews it de novo.

Here, the circuit went its own way, holding that “a district court’s determination whether a party has established a prima facie case under Batson” is a “mixed question of law and fact,” but should be reviewed for abuse of discretion. The trial court is “entitled to some deference, as there clearly is an element of fact-finding to the determination,” but it is “not entirely factual, as the question of whether an inference of discrimination can be drawn ... is often more a question of law than fact.” But the court rejected two-step review - clear error for the factual part and de novo for the legal - out of concern that the “inquiries often are not clearly delineated.” The “better course is to apply an abuse of discretion standard of review.”

Applying that standard here, the court found no abuse of discretion. The mere fact that the government’s first four challenges were against men, even though clearly a pattern, was not enough. At the start of jury selection, more than half of the prospective jurors were men, and Paris used seven of his first eight strikes against women. This “increased the percentage of men in the jury pool and the statistical likelihood that the Government would use its peremptory challenges against men.” Moreover, unlike Paris, the government did not announce in advance that it would strike men. Thus, given the district court’s “broad latitude to consider the totality of the circumstances when determining whether a party has raised an inference of discrimination,” there was no abuse of discretion.

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