Sunday, November 20, 2011

Making a Skilling in Albany

United States v. Bruno, No. 10-1887-cr (2d Cir. November 16, 2011) (Parker, Chin, CJJ, Korman, DJ)

The story of Joe Bruno, former New York State Senate Majority Leader, is fairly well known. Having seemingly turned his position into a veritable cesspool of self-interested profiteering, he was ultimately convicted of two counts “honest services” fraud - the jury hung on a third, and acquitted him of several others. Consistent with the law at the time, however, the fraud was charged only as a failure to disclose various conflicts of interest.

While Bruno’s appeal was pending, the Supreme Court decided United States v. Skilling, 130 S.Ct. 2896 (2010), which held that the honest services statute criminalizes only fraudulent schemes that are effectuated through bribery or kickbacks. In light of Skilling, was inevitable that Bruno’s convictions would have to be tossed. The only real suspense was whether the Circuit would acquit him or permit the government to retry him. Under this decision, the government can reindict and retry Bruno on all three counts.

Bruno first asked the circuit to dismiss the indictment for failing to charge a crime, becauase it did not allege a fraud grounded on bribery or kickbacks. Since the government advised the court that it would seek a superseding indictment, the court dismissed the indictment without prejudice.

The remainder of the opinion is framed in double jeopardy terms, since Bruno argued that the evidence was legally insufficient. For Count Three, the one on which the jury hung, the court did not conduct a sufficiency review. There is ordinarily no double jeopardy bar to ordering a retrial on a hung count - Bruno did not allege any of the circumstances where this is not so - and this “analysis does not change even if the prosecution’s evidence was insufficient to support a conviction.” The court accordingly ordered a retrial on Count Three.

For the counts of conviction, the court approached things differently. Breaking with most other circuits, the court conducted a sufficiency review, rejecting the government’s argument that it would be unfair to do so since the putative insufficiency was caused by supervening change in the law. While there might be “in some cases sound reasons for refusing to consider the sufficiency of the evidence when there has been a subsequent change in the law, they do not apply here.” The government had indicated that, on retrial, its evidence would be the same, and that it presented at Bruno’s first trial all of the evidence that it had “regarding quid pro quo.” Thus, here, a sufficiency review would not “deny the government an opportunity to present its evidence.”

That said, however, the court found that a rational jury could find sufficient evidence of a quid pro quo on both counts. For the first, Count Four, a rational jury could conclude that Bruno: “performed virtually non-existent consulting work for substantial payments” for a company that did business with the state; received “sham” payments under the consulting agreement; attempted to cover up both the payments and the underlying relationships, and; “understood that the consulting payments were made in return for official action.”

For the last count, there was similarly sufficient evidence of a quid pro quo. There, one of Bruno’s cronies paid him $40,000 for a race horse that was worth a fraction of that amount. A rational jury could find that this “was an illegitimate gift disguised as a horse payment.” Moreover, Bruno failed to disclose the transaction, and a jury could conclude that the payment was “structured to pay for Bruno’s continued assistance” to the crony and his business.

Accordingly, the court permitted a retrial on both counts of conviction, in addition to the count on which the jury hung.

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Saturday, November 12, 2011

Bed Gub

United States v. Simmons, No. 10-1526-cr (2d Cir. October 26, 2011) (Winter, Pooler, Parker, CJJ)

New York City police officers accompanied an individual to his apartment in the Bronx to retrieve his belongings. He was moving out because his roommate, defendant Simmons, had pulled a gun on him during an argument a few days earlier.

Inside the apartment, the officers found Simmons in his bedroom; the door was ajar, he was lying in bed and there was a “shiny object” next to him. Simmons got up and the officers pulled him out of the bedroom and into the hall. They asked him about his dispute with the roommate and the gun. Simmons told the officers the gun was in his bedroom and they went in, retrieved it, and arrested him.

The circuit found that the officers’ questions to Simmons about the gun were covered by the “public safety” exception to Miranda, but nevertheless, the majority held that the district court erred in finding that there were exigent circumstances supporting the seizure of the gun itself.

The court began with the “core premise” that a warrantless search of a home presumptively violates the Fourth Amendment particularly where, as here, the search occurs “in the middle of the night.” And the appellate court rejected the district court’s finding of exigent circumstances. “[T]he circumstances facing the officers at the time they searched the bedroom were not sufficiently exigent to fall within [that] narrow exception.”

Simmons had been completely secured by the time the officers searched his bedroom and one of the officers stood in the doorway, guarding the room and ensuring that Simmons could not reenter. Simmons was dressed only in his underwear, was very cooperative and, in any event, there were many other officers present. Thus, before conducting the search, the police had effectively allayed any safety concerns and neutralized any threat that Simmons or the gun might have posed. In doing so, they also eliminated the possibility of the destruction of evidence. And, finally, there was nothing to suggest that the officers feared the possible presence of a third person in Simmons’ bedroom.

Given this, it would not have been impracticable - or dangerous - to continue securing the location while the officers obtained a warrant. The circuit accordingly reversed the order denying suppression.

Judge Winter dissented. He would have found that there were exigent circumstances, since the officers were uncertain as to the gun’s exact location and there was thus a risk that Simmons “or an unknown third party might seek to grab the weapon.” Alternatively, Judge Winter would have found that Simmons consented to the search. His voluntary statement that there was a gun in his bedroom was, to him, “implied consent to the officer’s entering his bedroom and securing” the weapon.


Summary Summary

Well, it’s taken months, but at last there are three summary orders worth noting. So, in reverse order, here they are:

United States v. Persing, no. 10-638-cr (2d Cir. August 26, 2011), concerned the district court’s admission of a loan-shark’s computer records. Those records revealed the extent of his business, and other evidence showed that the defendant intervened to try to have those same loans repaid. The government argued he was trying to take over the business, while the defendant argued that he was trying to protect the debtors from the loan-shark. In order for the records to be admissible as a co-conspirator’s declarations, the district court needed to find that there was a single conspiracy that included both the loan-shark and the defendant. The district court did not; in fact, most of its findings on the question, although kind of confusing, seemed to support the defendant’s theory. The circuit refused to assume that the court made the necessary finding and simply assess the sufficiency of support for it because, here, a finding that the conspiracy existed might well have been clearly erroneous. Given the uncertainty, the circuit sent the case back on a Jacobson remand so that the district court could make an explicit finding and explain the evidentiary support for it. It further directed that if the court found no conspiracy, it should vacate the affected counts.

In United States v. Baadhio, no. 09-2395-cr (2d Cir. September 22, 2011), the sentencing judge omitted from the written judgment its recommendation that the BOP designate the defendant to a medical facility. Even though the defendant had been released, the court found a live question. It entertained the argument on the ground that “the presence of such an instruction may well have an effect on [defendant’s] supervised release.” The appellate court ducked the question of whether such a recommendation was an appealable “final order” noting that, regardless, it was “free to send the case back” for the district court to “consider whether, given all the circumstances, ... it thinks it is appropriate to conform its written judgment to its oral pronouncement.” The court ordered a limited remand for that purpose.

In United States v. Roy, no. 10-1733-cr (2d Cir. November 8, 2011), the defendant was sentenced without counsel, but the district court failed to conduct proper Faretta inquiry. It merely confirmed that the defendant had filed a motion to fire his trial counsel, then proceeded to sentence him pro se. The circuit vacated the ensuing 300-month sentence and remanded for a Faretta inquiry and resentencing.