Saturday, January 29, 2011

Swept Away

United States v. Hassock, No. 09-5193-cr (2d Cir. January 28, 2011) (Miner, Parker, Raggi, CJJ)

In November of 2009, the district court granted Hassock’s motion to suppress the gun that he was charged with possessin, finding that it was the fruit of an unreasonable search of his bedroom. On the government’s appeal, the circuit agreed that the search could not be justified under the “protective sweep” doctrine and affirmed.


In late 2008, an informant told an ICE agent named Christopher Quinn that someone known as “Basil” - in reality, Hassock - had a gun in his basement apartment in the Bronx. Quinn and other members of an inter-agency task force were unable to identify “Basil,” so on November 25, 2008, they went to the location specified by the informant. Their purpose was to conduct a “knock and talk” - that is, to interview the residents, try to confirm the information they had, and conduct any necessary follow-up, including arresting “Basil” if they could.

At first Quinn and the others conducted surveillance from their vehicle. Seeing nothing, they simultaneously knocked on the front and rear doors of the apartment, which was located in the basement. Eventually, a woman opened the back door. She told them that she had just woken up and did not know if anyone else was in the apartment. When they asked if they could “look around,” the woman “said yes.”

Conducting what the government claimed was a "protective sweep," Quinn and a task-force detective went directly to what they believed was Basil’s bedroom. Quinn looked under the bed and found the gun.

After an evidentiary hearing, the district court suppressed the gun. It found that the search of Hassock’s bedroom was unreasonable and could not be justified by the protective sweep doctrine, because the doctrine did not apply. The officers were not in the apartment to "execute a warrant, enforce an order of protection, or pursuant to exigent circumstances."

The Circuit’s Ruling

The court of appeals affirmed. It began with Maryland v. Buie, 494 U.S. 325 (1990), in which the Supreme Court held that police officers executing an arrest warrant could conduct a “quick and limited search of [the] premises” to protect their safety, but that such a search must be “narrowly confined to a cursory visual inspection of those places in which a person may be hiding.” A Buie protective sweep is analogous to a Terry patdown - it is permissible when the “searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.”

The Second Circuit has extended Buie to police activity other than the execution of an arrest warrant, authorizing protective sweeps when the entry was pursuant to “lawful process,” such as a protective order. But the requirement of a “specific facts as to the presence of a lurking danger” remains. While there is an open question - and a potential circuit split - over whether a consent entry alone can justify a protective sweep, here the circuit found that it did not need to resolve the question.

The officers here had “no legal process,” although they went with a “legitimate purpose” - the questioning and possible arrest of Hassock. But since Hassock did not answer the door, that “purpose could not be pursued until Hassock was found.” On these facts, “the sweep cannot be viewed as a reasonable security measure incident to Hassock’s interrogation or arrest.” Rather, the sweep itself “became the purpose for the agents’ continued presence on the premises insofar as they thereby searched the location for Hassock.”

At the time they conducted the sweep, the agents had no information that the woman who admitted them had the authority to consent to a full search of the premises. They had “no authority of any kind to enter Hassock’s bedroom.” Thus, the “original purpose of the ‘knock and talk’ thereupon became an illegitimate search for Hassock incident to no other lawful police conduct.” This “cannot be characterized as a protective sweep.”


PC World

This week’s per curiam opinions both deal with sentencing matters.

First is United States v. Johnson, No. 08-4093-cr (2d Cir. January 28, 2011) (Kearse, Winter, Hall, CJJ) (per curiam).

Here, three defendants challenged the district court’s denial of their crack resentencing motions under 18 U.S.C. § 3583(c)(2). After a trial, the district court found that each defendant was personally responsible for their organization’s total sales, approximately 88 kilograms. The district court sentenced two defendants to life in prison; for the third, the court downwardly departed to fifteen years. The circuit held that the district court properly denied the § 3583(c)(2) motions, because the ameliorating amendment did not change the base offense level for offenses involving 4.5 kilograms or more of crack.

On appeal, the defendants tried to persuade the circuit that they were not actually responsible for that quantity. But the circuit found no error in the district court’s drug quantity determinations.

Next is United States v. Cossey, No. 09-5170-cr (2d Cir. January 28, 2011) (Kearse, Walker, Pooler, CJJ) (per curiam).

In this case, the defendant pled guilty to possessing child pornography, and the district court sentenced him to seventy-eight months in prison and a life term of supervised release. In selecting this sentence, the district court concluded that the defendant was “genetically predisposed to view child pornography,” and rejected two separate psychological evaluations finding that the defendant was at a “low to moderate risk to re-offend.” The district court predicted that “fifty years from now” the offense would be discovered to be “caused by a gene you were both with” that “you can[not] get rid of.”

The circuit found the district court’s fixation on this as-of-yet undiscovered gene to be plain error. “Where a district court relies on its own scientific theories of human nature to sentence a defendant, as it [did] here, a finding of plain error is warranted.” The court also remanded to a different judge because the "extent of the discussion concerning Cossey’s genetic predisposition to re-offend has raised serious concerns over the objectivity of the judge."

You Can't Go Home ... Again

United States v. English, No. 10-3258-cr (2d Cir. January 18, 2011) (Kearse, Winter, Hall, CJJ).

The defendants in this case, charged with narcotics and firearms offenses, sought bail from a magistrate and two district judges. Each time they were ordered detained. This opinion is the result of their effort to get the circuit to release them. The circuit affirmed.

The defendants were arrested in April of 2010. They faced a twenty-plus kilogram cocaine conspiracy charge and two firearms offenses. They first sought bail from a magistrate judge. At the hearing, the AUSA cited several factors indicating that the defendants were a danger, including characterizing a gun recovered from the defendants’ stash house as appearing to be a machine gun. The magistrate ordered the defendants detained finding that they had not overcome the presumption that they posed a danger to the community.

The defendants then appealed to the Part I judge, Judge McKenna. At that hearing, the AUSA confirmed that the gun was indeed a machine gun. Judge McKenna found that the defendants overcame the presumption of being a flight risk but, based on the government's description of the gun, found that the defendants posed a danger. He ordered them detained. A few days later, the government sent the defendants a letter indicating that the gun was not a machine gun. It was a “pistol” that was “not operable.” Since the nature of the gun was the basis for the detention order, the defendants asked Judge McKenna to reconsider. In the interim, however, the defendants were indicted and their case was assigned to Judge McMahon. Judge McKenna referred the bail matter to her.

Before Judge McMahon, the AUSA described the case as involving 27 kilograms of cocaine, which prompted the judge to say that “in a 27-kilo case I don’t think I’ve ever let anybody out.” Nevertheless, the defendants persisted, and each had a bail hearing. Judge McMahon told them that she would not review Judge McKenna’s findings and that they were “starting over” with her. She also said that she was going to “ignore” the gun. For defendant Anderson she found both a risk of flight and a danger to the community, based on the nature of the charges, the penalty he faced and the weight of the evidence against him. She also detained defendant English, again finding him to pose both a risk of flight and a danger, citing essentially the same factors.

On appeal, the defendants complained that Judge McMahon erred in reviewing the case de novo and that she was improperly “predisposed” against them. The circuit affirmed.

It found first that Judge McMahon was not bound by Judge McKenna’s findings that the defendants did not pose a flight risk. A district judge considering bail should consider all of the statutory factors and make all of the findings required. Judge McMahon correctly concluded that she was not supposed to review Judge McKenna’s findings as an appellate court might. “As both Judge McMahon and Judge McKenna are judges of the court having original jurisdiction over defendants’ offenses, neither is authorized to review a detention order issued by the other.”

The court also rejected the claim that Judge McMahon’s remark that she had never granted bail in a case like this demonstrated some sort of judicial bias. Reviewing the comment in the context of the “record as a whole,” the court found no bias. She granted each defendant a prompt hearing, agreed not to consider evidence of the gun, and carefully considered and responded to each argument for bail that the defendants proffered. She “simply concluded, as she was entitled to do,” that the bail packages the defendants proposed did not overcome the statutory presumption against them. “Her reasons were explicitly tied to the facts before the court and were fully explained on the record.”

Finally, the court, reviewing the merits, agreed that the defendants should be detained. Judge McMahon’s findings on flight risk and danger were “amply supported by the evidence” and the detention orders were “proper.”


Saturday, January 22, 2011

Belgian Awful

United States v. Weingarten, No. 09-1043-cr (2d Cir. January 18, 2011) (Cabranes, Wesley, Livingston, CJJ)

Defendant Weingarten, who sexually abused one of his daughters for years, successfully challenged the applicability of 18 U.S.C. § 2423(b), which makes it a crime to travel in "foreign commerce" with the intent to engage in sexual activity that would be illegal in the United States, to one of the counts of conviction.


Weingarten, a United States citizen, moved his family to Antwerp, Belgium, in 1984. Starting in about 1991, he began sexually abusing his oldest daughter, who was then nine or ten. The abuse went on for years - the daughter moved for England for a time - but when she returned to Belgium it resumed. In 1997, Weingarten moved the family to Israel, but the abuse continued. He also brought her to Brooklyn, to visit his father, and abused her there, too.

Weingarten was charged years later, when the abuse came to the attention of the FBI. Four counts charged him with traveling in or transporting the daughter in foreign commerce with the intent to engage in unlawful sexual activity. These related to the trips between Brooklyn and Belgium. But one count charged him with a traveling in foreign commerce with respect to his travel between Belgium and Israel when he moved his family in 1997.

The Circuit’s Ruling

The court agreed with Weingarten the phrase “travel[] in foreign commerce” in § 2423(b) did not apply to travel between two foreign countries when the conduct did not involve any territorial nexus with the United States. It accordingly reversed Weingarten's conviction - and the associated ten-year consecutive sentence - on that count.

The court first held that § 2423(b) can apply to conduct occurring outside the territorial jurisdiction of the United States. Although there is a presumption against extraterritoriality, this section “manifestly expresses Congress’ concern with conduct that occurs overseas.” The law prohibits traveling with the intent to engage in sexual activity that would be illegal if it occurred in the United States regardless of whether the planned activity is to take place outside the United States.

Nevertheless, however, the statute does not cover travel between foreign nations when the conduct involves no territorial nexus to the United States. The statute’s language - “travel[] in foreign commerce” - is ambiguous. The statute that defines the phrase “foreign commerce,” 18 U.S.C. § 10 merely says that it “includes commerce with a foreign country.” While this definition might include something more than commerce between the United States and a foreign country, the circuit concluded that it did not. The current § 10 was a recodification of a prior law that specifically limited the definition to transportation between the United States and a foreign country, and there was insufficient evidence that the recodification was “meant to effectuate a substantive change.”

Moreover, the phrase has not been extended to activity exclusively occurring between foreign countries in other statutes that use it, such as the kidnapping statute, 18 U.S.C. § 1201. It would be “anomalous” to construe it differently in § 2423(b).

The court also noted that the government could point to “any precedent suggesting” a different outcome. Even the relevant pattern jury instructions limited the definition of “foreign commerce” to commerce involving “some nexus to the United States.”

Finally, the court recognized that construing the statute in this manner would “avoid[] the necessity of addressing whether such an exercise of Congressional power would comport with the Constitution.”


Wednesday, January 05, 2011

PC World

United States v. Brown, No. 09-4991 (2d Cir. January 5, 2011) (Calabresi, Sack, Katzmann, CJJ) (per curiam)

The court's latest per curiam holds that assaulting a correction officer, in violation of Conn. Gen. Stat. § 53a-167c(a), satisfies the "catch-all" definition of "violent felony" in the Armed Career Criminal Act. Under Circuit law, an offense qualifies under the catch-all if it is both similar "in kind" and in "degree of risk posed" to the listed offenses of burglary, arson, extortion and the use of explosives.

The Connecticut offense is similar "in kind" because it requires the offender to intentionally prevent an officer from performing his duties, primarily in a prison setting, where "the act of injuring an employee for the purpose of preventing her from performing her official duties tends to entail especially violent consequences."

As for the degree of risk posed, the court noted that the statute only applies where the officer has suffered physical injury. This "certainty" of "injury to another" clearly meets the statutory definition.

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Tuesday, January 04, 2011

Be Careful What You Fish For

United States v. Bengis, No. 07-4895-cr (2d Cir. January 4, 2011) (Feinberg, Cabranes, Hall, CJJ)

Three defendants pled guilty to various offenses arising from their South African lobster fishing businesses; they illegally harvested large numbers of rock lobsters from South African waters for export to the United States, conduct that violated both South African and United States law. This opinion addresses the government’s appeal of the district court’s legal conclusion that South Africa was not entitled to restitution. The Circuit reversed.

The district court had first held that South Africa did not have a property interest in the illegally harvested lobsters. The appellate court disagreed. Under South African law, lobsters caught illegally are not the property of those who caught them. They are subject to seizure by the government, which can then sell them and keep the proceeds. Thus, the defendants’ conduct, which included evading the seizure of overharvested lobsters, deprived South Africa of that income stream.

The district court also held that South Africa was not a “victim” under the restitution statues because it failed to show that it suffered any loss caused by the defendants’ conduct. The Circuit again disagreed, even though the defendants pled guilty only to importing the lobsters into the United States. By smuggling the lobsters out of South Africa knowing that they had been unlawfully harvested, the defendants still deprived South Africa of the potential income from any seized, overfished lobsters.

Finally, the district court had concluded that calculating a restitution award would overly complicate and prolong the proceedings. But the Circuit noted that experts in the district court had already calculated likely loss amounts using two different methodologies. The Circuit selected the higher of the two and held that it “seems to us a sufficient loss calculation methodology under the circumstances presented by this case.” Unfortunately for the defendants, that methodology produced a loss in excess of $61 million.



United States v. Preacely, No. 09-2580-cr (2d Cir. December 21, 2010) (Raggi, Lynch, Wallace, CJJ)

In this unusual, three-opinion decision the majority remanded for resentencing, finding that the record was ambiguous as to whether the district judge understood his departure authority.


Jamar Preacely pled guilty to a five-year-mando crack conspiracy pursuant to a cooperation agreement. Twenty-seven years old when he was arrested, he had sustained several drug convictions when he was younger, and was categorized by the Sentencing Guidelines as a “career offender.”

He spent about two years in custody on the federal case, then was released on bail. For the next three years, it seems, Preacely turned his life around. He entered and excelled at several rehabilitation programs, stopped using drugs, and actively cooperated in several criminal investigations.

At sentencing, as a career offender, he faced an offense level of 31 and was automatically placed in criminal history category VI, with a sentencing range of 188 to 235 months. Despite a very strong government § 5K1.1 motion and the vigorous arguments of his counsel, the district court sentenced him to 94 months’ imprisonment.

Judge Wallace’s Opinion

A two-judge majority vacated the sentence. For his part, Judge Wallace found that the record was unclear whether the sentencing judge understood that he had the authority to depart “horizontally” from Category VI, even though the record made clear that the judge understood that he could downward depart in other ways.

What concerned Judge Wallace was that the judge repeatedly harped on the fact that Preacely was in category VI, and made it seem as if he did not understand that career offender treatment was not mandatory. For example, after hearing a summary of Preacely’s extraordinary rehabilitation, the judge answered: “I am dealing with a Category VI career offender, regardless of all of what you said.”

The Circuit remanded so that the district court could expressly consider departing from career offender treatment based on “an individualized consideration” of Preacely’s case.

Judge Lynch’s Opinion

Judge Lynch concurred, citing the same ambiguity in the record. The sentencing court was required to consider both Preacely’s evidence of rehabilitation and his designation as a “category VI” offender, not merely the latter. Judge Lynch also added some interesting language about the severity of career offender treatment, calling the resulting sentence here “distinctly inflated”: “[E]ven for a man with a history of multiple (if mostly minor) criminal convictions (almost exclusively tied to the possession and sale of narcotics), a sentence of nearly sixteen years in prison for the possession of a few thousand dollars worth of cocaine seems remarkably severe.”

Judge Raggi’s Opinion

Judge Raggi dissented because she did not see the any ambiguity in the record. The district court “frequently - and correctly - ... put Preacely in Category VI because he qualified as a career offender.” Moreover, the district court “manifested an understanding of its complete discretion to sentence outside the Guidelines.” Even if there were an ambiguity, however, Judge Raggi would have remanded for “clarification,” not for resentencing.

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Sunday, January 02, 2011

Waiving Bye-Bye

United States v. Arevalo, No. 09-0576-cr (2d Cir. December 21, 2010) (Jacobs, Kearse, Straub, CJJ)

Defendant Manuel Vigil pled guilty to conspiracy to commit murder in aid of racketeering and using a firearm in connection with a crime of violence. He did so pursuant to a plea agreement that contained an appeal waiver - he promised not to “file an appeal or otherwise challenge” his conviction or sentence if the district court imposed a sentence of 195 months’ imprisonment or less.

When he was sentenced, although Vigil disputed certain facts in the presentence report, the district court did not resolve any of the disputes. It ultimately sentenced him to 157 months’ imprisonment.

Despite the waiver, Vigil filed a pro se notice of appeal. His attorney then filed an Anders brief, but the circuit bounced it. After counsel repeatedly ignored the court’s orders to cure the Anders brief, the court appointed new appellate counsel, who argued that the district court violated Rule 32(i)(3) by not resolving the factual disputes, and that this was not covered by the appellate waiver.

That Rule requires the district court to either “rule on” or deem immaterial “any” dispute relating to the presentence report. The Second Circuit had not previously decided whether an appellate waiver covered Rule 32 errors. Here, however, it held that the waiver applied. The language of the waiver that Vigil agreed to “plainly includes a waiver of his right to claim errors arising out of the ... crafting of Vigil’s sentence.”

Nor did the Rule 32 error void the appellate waiver, even though a defendant’s interest in the accuracy of the presentence report continues after sentence is imposed. The harm associated with potential errors in the report - primarily relating to decisions made by the Bureau of Prisons based on the report’s contents - does not amount to a due process violation, unlike, say, a district court’s reliance on such erroneous information.

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United States v. Abu-Jihaad, No. 09-1375-cr (2d Cir. December 20, 2010) (Raggi, Hall, Chin, CJJ)

Defendant Hassan Abu-Jihaad, whose birth name was Paul R. Hall, was convicted of communicating national defense information about the movement of a Navy battlegroup to unauthorized persons. On appeal, his primary challenge was to the use of evidence that the government obtained pursuant to the Foreign Intelligence Surveillance Act (“FISA”). The circuit affirmed.


Despite changing his last name from “Hall” to “Abu-Jihaad,” which, according to the court, means “Father of Jihad,” the defendant enlisted in the Navy in January of 1998 without any trouble. For the next four years he was cleared to receive classified national defense information. But a chain of circumstantial evidence revealed that, in 2001, he passed classified information about the movement of Navy ships headed for the Persian Gulf to other jihad supporters.

The investigation of Abu-Jihaad began after the 2003 search of the bedroom of one Babar Ahmad, a London-based individual with ties to Azzam publications, an organization that in 2001 maintained several pro-jihad websites. Authorities found a computer disc containing a file with a three-page document describing the anticipated spring 2001 deployment of ten Navy ships carrying about 15,000 people from the Pacific coast to the Persian Gulf.

The evidence proving that Abu-Jihaad had been the source of this information was strong, even if circumstantial. First, he had access to the information - out of hundreds of potential individuals, he was one of only forty with access to the relevant transit plan. Second, he had communicated with Azzam via email during the relevant period, and in those communications had revealed his personal support for jihad, even against the United States. Third, in 2006, he made statements in wiretapped telephone conversations in which he all but admitted what he had done.

After a jury trial, Abu-Jihaad was convicted and sentenced to the statutory maximum of ten years’ imprisonment.

The Appeal

On appeal, Abu-Jihad challenged the use of evidence obtained through court orders issued under FISA. He argued primarily that the statute, 50 U.S.C. 1801, et seq., as amended by the PATRIOT Act, was unconstitutional on its face.

FISA permits a special FISA court to authorize electronic surveillance “for the purpose of obtaining foreign intelligence information.” As originally enacted in 1978, FISA required a high-ranking executive branch official to certify that this was “the purpose” of the warrant. Courts, including the Second Circuit, noted that FISA intended for the gathering of foreign intelligence information to be the “primary” objective of the surveillance. But the 2001 PATRIOT Act changed this standard. Under the PATRIOT Act’s amendments to FISA, foreign intelligence gathering need no longer be the “primary” purpose of the requested surveillance; it need only be “a significant purpose.”

Abu-Jihad argued the “primary purpose” requirement was essential to the constitutionality of FISA surveillance under the Fourth Amendment, but the circuit disagreed. All the Fourth Amendment’s warrant requirement demands is a “showing of probable cause reasonable to the purpose being pursued.” But if multiple purposes are being pursued - such as both foreign intelligence gathering and a criminal investigation - the Fourth Amendment “does not require the government to identify a primary purpose or limit its ability to secure a warrant to satisfaction of the standards for that purpose.” Rather, the government may “secure a warrant under the probable cause standards applicable to any purpose that it pursues in good faith.”

The PATRIOT Act did not modify the standards underlying FISA’s warrant requirement. It only changed the degree to which foreign intelligence gathering must be the purpose of the surveillance. The change from certifying foreign intelligence gathering as a “significant” rather than a “primary” purpose of the surveillance is not unreasonable under the Fourth Amendment. Indeed, when the circuit first identified the “primary purpose” standard it was identifying Congress’ intent in enacting FISA, not creating a constitutional mandate.

But, in any event, there is no constitutional problem with the “significant purpose” requirement, because it sufficiently protects against the possibility that the government will be able to obtain surveillance warrants for criminal investigations without demonstrating probable cause. The Fourth Amendment does not require the government to segregate foreign intelligence gathering from law enforcement efforts. As long as foreign intelligence gathering is a “bona fide” purpose of the surveillance the Fourth Amendment is satisfied.

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