Sunday, January 29, 2012

Land of Enhancements

United States v. Watkins, No. 10-2971-cr (2d Cir. January 26, 2012) (Miner, McLaughlin, Pooler, CJJ)

Anthony Watkins was a 48-year-old homeless career criminal who lived in a baseball dugout in Schenectady, New York. Using a computer from the local public library, and posing as a 38-year-old, he began an on-line relationship with a 15-year-old girl who lived in Connecticut. Eventually he persuaded her to meet, and drove from Schenectady to her home; she sneaked out of her house and had sex with him in the car. Later that night, she ran away with him. He drove her back to New York and they spent the weekend in Schenectady, where they continued to have sexual contact. The girl called her parents from there, and eventually the police, acting on a tip, found them and arrested Watkins.

Watkins pled guilty to one count of transporting a minor in interstate commerce with intent to engage in criminal sexual activity. This appeal concerns his 233-month, top-of-the-range sentence.

Specifically, Watkins challenged three two-point Guideline enhancements. The court affirmed two of them easily - the § 2G1.3(b)(4)(A) enhancement for “commission of a sex act or sexual contact” and the § (b)(3)(A) enhancement for use of a computer to entice a minor.

However, Watkins' challenge the § (b)(2) enhancement for misrepresentation of identity resulted in a split decision and an interesting debate about the appellate court's role. The majority affirmed the enhancement, while Judge Pooler dissented on the ground that the lower court’s findings were inadequate.

The §(b)(2) enhancement applies if either (A) there was a “knowing misrepresentation of a participant’s identity to persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in prohibited sexual conduct” or (B) a participant “otherwise unduly influenced a minor” to do so. For § (b)(2)(A), the Guideline specifies that lying about one’s age can constitute a misrepresentation of identity, and for § (b)(2)(B), it creates a rebuttable presumption of undue influence if the age difference exceeds ten years.

The majority found that either theory would apply here. The district court did not make specific findings on the enhancement, but it did adopt the presentence report, which had concluded that Watkins “likely” held himself out as ten years younger “in order to persuade [the girl] into having sexual relations with him, presumably in belief that if the age difference were not as great, she would be more likely to engage in such conduct.” The majority found ample record support for the PSR's finding: Watkins’ primary objective in communicating with the girl was to induce her to have sex with him, and in some of his communications with her he tried to reassure her that a 20-year age difference was “common for couples.”

The majority also concluded, in dicta, that § (b)(2)(B) would apply as well. It rejected Watkins’ claim that the girl’s seeming eagerness to participate rebutted the presumption of undue influence, seemingly as a matter of law. And, apart from the age difference, the majority also found evidence of undue influence in Watkins’ “numerous instances of manipulative behavior,” such as picking up the girl at home, giving her gifts, meals and clothing, disparaging her age-appropriate boyfriend, and lying about his own personal circumstances.

Judge Pooler, in dissent, had a different view of the record. To her, the district court had simply concluded that the enhancement applied without making specific findings that Watkins’ conduct qualified. Adopting the presentence report only excuses a court from making specific findings if the findings in the PSR are “adequate to support the sentence.”

Here, with respect to the § (b)(2)(A) misrepresentation theory, the PSR found only that “it is likely” that Watkins’ lie about his age was intended to persuade the victim, “presumably in belief” that this would make her consent more readily. To Judge Pooler, this finding - that Watkins “probably qualified” for the sentencing enhancement - “is no finding at all in this context.” She also pointed out that the facts that the majority cited in upholding the enhancement were its own findings, not findings made, or relied upon, by the district judge.

As for the § (b)(2)(B) rebuttable presumption, Judge Pooler noted that, even though Watkins had objected and argued that record evidence rebutted the presumption, the district court “made no effort to weigh the evidence and determine if Watkins had rebutted the presumption of undue influence.” Instead, the district court merely adopted the PSR, which had noted only that Watkins was more than ten years older than the girl and that a 15-year-old cannot legally consent. To Judge Pooler, adopting this, without more, led to a “mandatory application of the enhancement” that was “wholly unsupported by” the Guideline or its commentary, both of which require particularized findings. She again faulted the majority for making the findings that the district court was supposed to - but did not - make.

Judge Pooler closed by reminding: “We review a district court’s decision for errors; we do not fix its mistakes.”


Saturday, January 21, 2012

Summary Summary

The circuit consistently produces summary orders that are worthy of note. Here are the most recent three:

In L.M. v. United States, No. 10-371-cr (2d Cir. January 17, 2012), the court vacated the sentence that Judge Platt imposed on a cooperator. The facts of the case are truly exceptional. The defendant cooperated for seventeen years, brought down "a number of large-scale international drug dealers, and received several "credible threats of violence." The government, in its 5K1.1 motion, characterized him as "unique[]." L.M. also underwent an "admirable personal transformation" during this period. Nevertheless, with "little explanation" the district court gave him a-year-and-a-day in prison. The circuit found that the sentence was procedurally unreasonable because it was insufficiently explained. It was "particularly troubling" court did not even mention L.M.'s long period of rehabilitation. The court stopped short of finding that the sentence was substantively unreasonable, calling that a "thorny issue," but did remand the case under Jacobson, which means that if L.M. appeals again, the case will go back to the same panel.

In United States v. Swint, No. 11-66-cr (2d Cir. January 4, 2012), the court rejected the government's appeal of a
§ 3582(c)(2) sentence reduction in a crack case. Although the defendant had met the career offender criteria, it was clear that the district court sentenced him based on the crack cocaine guidelines and not the career offender guidelines. This decision was under Amendment 706, not Amendment 750, which might well preclude reductions in such cases. But, following its own decision in Rivera, the court held that the new version of 1B1.10 does not apply retroactively.

In United States v Murph, No. 10-1555-cr (2d Cir. December 19, 2011), the court remanded a sentence for the correction of various clerical errors, one of which might affect the length of the sentence. The district court failed to identify the four co-conspirators that served as the basis for an aggravating role enhancement. The circuit used the Jacobson procedure to send the case back for findings.

Parole Evidence

United States v. Barner, No. 10-3700-cr (2d Cir. (Sack, Raggi, CJJ, Eaton, JCIT)

This decision, a government appeal, reverses a district court order suppressing evidence obtained during a parole search.

Barner was released to New York State parole in 2007, and signed a Certificate of Release that included his consent to having his parole officer visit him at home and search and inspect his person, residence and property. Barner was also forbidden from possessing any sort of firearm, ammunition or body armor, and was subject to a curfew.

In early 2008, someone called Barner’s parole officer and told her that Barner had fired a gun at him. She and other officers tried to reach Barner at home that night - during his curfew period - but Barner was not there. This prompted Barner to obtain a parole violation arrest warrant. Two days later, Barner reported for his weekly appointment with his P.O., and was placed under arrest. Barner denied having any firearms, consented to a search of his residence, and gave the P.O. a key ring that had three keys - one to his apartment building, one to his apartment, and one to a storage area adjacent to the apartment. Barner was now in custody, and the officers brought him back to his apartment while they searched it. During that search, P.O.’s found various forbidden items, including a small bag of crack cocaine. One officer noticed the storage area, which was ten feet away from the entrance to the apartment, and used one of Barner’s keys to open it. Inside were four guns, a bulletproof vest, ammunition, a scale and some marijuana. Barner was charged in the Western District with being a felon in possession of the guns and ammo.

After a hearing, the district court suppressed the evidence. It held that the consent-to-search condition of Barner’s parole no longer applied because he was back in custody, and hence no longer on parole, and that the scope of the consent that Barner gave on the day of his arrest included his apartment only, and not the storage room.

The circuit disagreed. Given the “special needs” of supervising parolees, the relevant question was not the scope or validity of Barner's consent. It was “whether the conduct of the parole officer[s] was rationally and reasonably related to the performance of [their] dut[ies].” The P.O. began this investigation with information that Barner had possessed a gun and fired it at someone else, both criminal parole violations. It was “clearly reasonable” for the officer to investigate those allegations further, and it was reasonable for that investigation to include a search.

The district court also erred in concluding that Barner’s full Fourth Amendment rights were restored to him once he was arrested; to the contrary, the allegation of a parole violation and the issuance of the arrest warrant placed him “one step farther from the constitutional protection enjoyed by ordinary citizens.” Thus, Barner’s arrest for a parole violation did not render the search unreasonable. While it is possible that a search “conducted days or weeks after a parolee’s arrest and detention” might be “so attenuated from the parole officers’ duties” as to render it unconstitutional, Barner's not such a case.

By focusing on the “special needs” doctrine, and not the specifics of the consent, the circuit easily concluded the search of the storage room was lawful. That search was “reasonably related to the parole officers’ duties” and was “performed in furtherance” of them.

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PC World

United States v. Baker, No. 10-1925-cr (2d Cir. January 12, 2012) (Pooler, Parker, Carney, CJJ) (per curiam)

This latest per curiam affirms an Armed Career Criminal Act (“ACCA”) sentence, rejecting the defendant’s claims that his Vermont prison escape convictions were not ACCA predicates. The statute at issue contains two distinct offenses - failure to report to custody, which is not a predicate, and escape from custody. Baker agreed that his convictions were for escape from custody, but argued that the district court should have looked beyond the charging instruments to determine whether his actual conduct posed a sufficient degree of risk to qualify.

The circuit disagreed. While a sentencing court can, and sometimes must, look beyond the charging instrument, it cannot go beyond the judicial record evidence. Where the defendant pled guilty, the offense is a predicate if the record establishes that his plea necessarily admitted elements of a predicate offense. Here the judicial record evidence established that Baker pled to an escape from custody, and the circuit held that this kind of offense categorically, “in the ordinary case,” presents a serious potential risk of injury to another, rendering it an ACCA predicate. Prisons are dangerous places and escape attempts can have “explosive consequences.” Thus, such attempts present a risk of violent confrontation that is “at least as great as that of a burglary.” Correction officers have a duty to confront and challenge an escaping inmate, which increases the likelihood of a violent encounter. Indeed, Sentencing Commission statistics reveal that more than 15 per cent of federal escapes involved force, more than 30 per cent involved a dangerous weapon, and more than 10 percent involved injury. By contrast there were no instances of injury or force in cases of failure to report or return.

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Sunday, January 15, 2012

Ex Parte Line

United States v. Collins, No. 10-1048-cr (2d Cir. January 9, 2012) (Calabresi, Chin, Carney, CJJ)

A jury convicted defendant Collins of several counts of fraud. The circuit ordered a new trial based on the district court’s handling of a series of jury notes relating to difficulties in deliberations.


Something about this trial inspired great turmoil during jury deliberations. It began with a report, after five days of trying, of difficulty reaching a verdict. The district judge gave a tepid reply, but later that day a CSO heard a disruption in the jury room and, when he entered, one juror told him that another had threatened him. The judge brought the jury in and urged civility.

The next day brought two more notes. One, from Juror 4, indicated that Juror 9 had threatened to “cut off [his] finger” and have her “husband take care of [him].” The second, from the foreperson, indicated that both Juror 4 and Juror 9 were at fault. The judge responded by note, although that note did not reach that jury until the next morning.

The next afternoon, the judge received two more notes. One was a routine request for exhibits and testimony. The second was another from the foreperson, decsribing Juror 4's “odd behavior” during deliberations. It accused of him of bartering his vote on one count for a vote on another, suggested that this was the cause of the altercation between him and Juror 9, and also suggested that Juror 4 was refusing to deliberate further. The district judge did not disclose the content of this note to the attorneys, and simply indicated, over objection, that he would be speaking with Juror 4 privately. A court reporter took down the judge’s interview with the juror and, once the interview concluded, the judge read the note and the interview into the record. This prompted defense counsel to move for a mistrial.

The court denied this, and the next day the jury indicated that it could not reach a unanimous verdict on all counts. The court took a partial verdict - guilty of five counts - and eventually sentenced Collins to eight-four months’ imprisonment, which was stayed pending appeal.

The Circuit’s Opinion

The appellate court ordered a new trial, concluding that the district court’s handling of the situation violated Collin’s right to be present, and was not harmless error.

The circuit began with a warning against responding to jury notes ex parte; such communications are “pregnant with possibilities for error.” Of particular concern is that the judge will give a supplemental instruction, for which the defendant should always be present, or will “generate unintended and misleading impressions of the judge’s subjective personal views.”

The district court first deprived Collins of his right to be present when it chose note to disclose the contents of the note that prompted the private conference with Juror 4. The court should have “instructed the jury to stop deliberating while it read the Note into the record and consulted counsel on how to proceed.”

The court also violated Collins’ right to be present by interviewing Juror 4 ex parte because some of what the court told the juror constituted supplemental instruction. The judge stressed the importance of reaching a resolution. This was a “direct supplemental instruction,” a staple of the modified Allen charge.

Finally, the circuit concluded that Collins was prejudiced. “Because of the delicate nature of jury deliberations, even seemingly innocuous ex parte communications between the court and the jury can amount to reversible error.” Here, the court could not say with “fair assurance” that the district court’s errors “did not substantially affect the verdict. The court singled out a dissenting juror, and emphasized to him the importance of reaching a verdict. We cannot ignore the possibility that Juror 4 walked out of the ex parte conference with the impression that he should not stand in the way of a prompt resolution of the case.” The district judge also failed to acknowledge Juror 4's complaints of harassment; this “exacerbated the potential for prejudice” by possibly giving Juror 4 the impression that the judge “was taking sides against him” and by sending “a signal to the rest of the jurors that the court condoned their behavior towards Juror 4.”

Nor did the fact that the jury deliberated for another full day after the ex parte conference render the error harmless. In the context of a “highly complex fraud case involving fourteen counts, one day of deliberations is not a significant amount of time.”


Citizen Gain

Garcia v. USICE, No. 09-4211-pr (2d Cir. December 29, 2011) (Miner, Wesley, Chin, CJJ)

This interesting derivative citizenship decision - although not a criminal case - is a great read, and flags a potentially important issue for defense lawyers.

Carlos Garcia was born in the Dominican Republic, and his family brought him to the United States when he was five years old. He soon became a permanent resident, and lived with his family on West 107th Street in Manhattan.

Four years after the family emigrated, they vacationed in the D.R. and, while they were there, his parents divorced. The divorce decree gave Garcia’ smother “personal guardianship” over him. Despite the divorce, however, the parents continued to live together on West 107th when they returned to New York. One year later, the whole family moved to West 109th Street and, five years later - six years after the divorce - the mother moved into her own apartment. In 1996, when Garcia was not yet 18, his father naturalized.

As a young man, Garcia had trouble with the law several times, and eventually faced removal. He applied for derivative citizenship based on his father’s naturalization, asserting that he lived with his father, not his mother, when the father naturalized in 1996, and thus that the father had “actual uncontested custody” of him. ICE denied the petition based on the Dominican divorce decree, which gave the mother, not the father, “legal custody.” After losing his administrative appeal, Garcia filed a pro se habeas petition in the Western District, which denied it. Relying on the wording of the divorce decree, the court held that Garcia could not demonstrate that he was in his father’s sole legal custody when the father naturalized. He appealed, and now assisted by appointed pro bono counsel, the circuit reversed.

In the case of a foreign-born child whose parents have separated, the applicable statute - it has since been repealed - granted citizenship to the child if the parent having “legal custody” naturalized before the child turned eighteen. Here, there was no dispute that, when Garcia’s father naturalized, Garcia was under eighteen and the parents were legally separated. The disagreement was only over the “legal custody” requirement.

This question turns on federal law, but the analysis is guided by state law if there is “no extant body of federal common law.” Thus, in the past, for example, the circuit has looked at New York law - which requires a formal act - to determine whether there has been a “legal separation.” But the court was less certain that looking at state law would be helpful in determining “legal custody.” “Decisions about the marital relationship tend to be final; custody decisions, in contrast, tend to be fluid and frequently change depending on the parents’ situations and well-being.” Requiring a “formal act” to change custody would also be contrary to the obvious parental goal after a divorce - ensuring the child’s best interest.

Here, the court’s the first step was determining whether a judicial decree or statutory grant awarded custody to the naturalizing parent. If there is none, then, under longstanding Board of Immigration Appeals precedent, the parent having “actual uncontested custody” is the one that has “legal custody” for the derivative citizenship purposes. And here, the circuit agreed with Garcia that the Dominican custody award was not enforceable in New York, and thus that the “actual uncontested custody” standard applied. At the time of the Dominican divorce, New York was the family’s home state, and thus New York had jurisdiction to determine custody, not the D.R. The circuit held that the Dominican custody award was not made in “substantial accordance” with New York law - although it did not really explain why - and thus that New York would not recognize that award.

Even acting pro se in the district court, Garcia introduced “largely uncontradicted” evidence that he was in his father’s “actual uncontested custody” when the father naturalized in 1996. At that time, the father lived on West 109th Street, and both Garcia and his parents filed affidavits - unrebutted by the government - that he lived there then, too. School records obtained by Garcia’s appellate counsel further supported this, as did Garcia’s 2003 Alien Change of Address form, which listed th3 109th Street address as the “old” - that is, pre-change, address.

This government’s evidence was limited to an assertions that statements in some of the father’s pre-naturalization tax and immigration documents were inconsistent with his current claim that he had custody of Garcia in 1996. The circuit has not particularly convinced by the government's evidence, but rather than simply holding for Garcia, it concluded that there was a “genuine dispute of material fact” over which parent had uncontested custody over Garcia when the father naturalized. It accordingly vacated and remanded for an evidentiary hearing, and also took the unusual step of ordering the district court to appoint counsel for Garcia.


Saturday, January 14, 2012

Beware of Greeks Bearing Writs

Skaftouros v. United States, No. 11-0462-cv (2d Cir. December 20, 2011) (Cabranes, Hall, Lohier, CJJ)

Dimitrious Skaftouros is charged in Greece, his native country, with murdering a sixteen-year-old boy after a botched kidnapping. The crime took place in March of 1990; Skaftouros fled Greece that May, and ultimately ended up in the United States. He was arrested here in 2008, and the Greek government then sought his extradition to face the charge of “complicity in the murder of a minor.”

After unsuccessfully challenging his extradition in front of a magistrate judge, Skaftouros filed a habeas corpus petition under 28 U.S.C. § 2241. The district court granted the habeas petition, and also his “motion to dismiss” the extradition proceedings. It held that Skaftouros had not been “charged” with an offense under the extradition treaty with Greece because the warrant was invalid under Greek law and because the Greek statute of limitations had expired. The court held that the government bore the burden of proof on each of these issues and had failed to sustain it. It later denied the government’s motion for reconsideration; the government then appealed to the circuit, which reversed.

Extradition proceedings are not intended to serve as an adjudication of the defendant’s guilt or innocence, only to ensure that a valid extradition treaty exists, the crime charged is covered, and whether the evidence marshaled in support of the complaint for extradition is sufficient. Review is narrow, and the treaty obligations are liberally construed in the interests of international comity. Thus, the extradition judge should avoid making determinations of foreign law, including reviewing whether the demanding country has complied with its own law.

Here, the circuit identified one principal error in the district court’s treatment of the case - its allocation of the burden of proof to the government. This was a habeas proceeding, and thus Skaftouros bore the burden of proving by a preponderance of the evidence that he was being held contrary to law. This does not mean that the district court is a “rubber stamp,” however. It must take seriously the obligation to ensure that both the treaty and the applicable American statutes are complied with.

Here, had the district court properly allocated the burden of proof to Skaftrourous, it would have denied the writ. As to the validity of the warrant, all the treaty requires is a “duly authenticated warrant” sufficient to show that Skaftouros was “charged.” This requirement was satisfied, as there was a warrant for Skaftouros' arrest authenticated by the U.S. Ambassador to Greece. The district court went further, however, and required the government to show that the warrant was also technically valid as a matter of Greek law. This was error. The problems with the warrant that Skaftourous cited- that it did not contain the signature of the Clerk or a sufficiently detailed description of his face - were “technical,” and not a reason to block his extradition, even if they might entitle him to relief in Greece.

With respect to the statute of limitations, the treaty does not permit extradition where the “criminal is exempt form prosecution” due to “lapse of time.” Thus, it was proper for the district court to examine Greek law for the “limited purpose” of determining whether its statute of limitations had expired. But, had the court properly placed the burden of proof on Skaftouros, it would have concluded that the prosecution was not time barred.

The Greek statute of limitations is ordinarily twenty years, but can be extended for five years if the prosecutor shows that the defendant cannot be prosecuted, inter alia, because he is a fugitive. On the facts here, the five-year swing would have made a difference. The government established that the Greek authorities served the indictment on Skaftourous’ mother and that, since he was a fugitive, he did not appear to answer the charges. A Greek order was entered suspending the proceedings and noted the “legal service” of the indictment. This was sufficient to extend the statute under Greek law.

The district court accordingly erred in accepting Skaftouros’ assertion that the failure to obtain the original certificate of service of the indictment indicated a failure to show that the limitations period had been extended. He supported position this only with the “unsworn and unsupported assertion of his own lawyer in Greece.” This was insufficient to satisfy his burden of proving that the statute of limitations had not been extended.


Many Unhappy Returns

United States v. Cadet, No. 10-4220-cr (2d Cir. December 20, 2011) (Miner, Cabranes, Wesley, CJJ)

An Eastern District jury convicted Joseph Cadet of 16 tax offenses based on his preparation of dozens of false tax returns for his "clients" between 2003 and 2006. Although the court affirmed his conviction - he challenged only the admission of Rule 404(b) evidence, a perennial loser in this circuit - it vacated and remanded the sentence due to a host of sentencing errors.

First, the district court imposed a 41-month prison sentence and a three-year term of supervised release on each of the 16 counts of conviction. But the statutory maximum term of imprisonment for each violation of 26 U.S.C. § 7206(2) was three years’ imprisonment to be followed by one year of supervised release.

The court also made several incorrect restitution rulings. First, the restitution order included losses sustained by New York City and State, but the district court did not make an “explicit finding” as to whether those entities were “proper victims entitled to restitution.” Second, the court erroneously failed to deduct from the restitution amount payments that the taxpayer-clients made to the IRS to settle outstanding tax assessments. And third, the district court erroneously included losses associated with an uncharged tax return.


"Vigor" Mortis

United States v. Bourke, No. 09-4704-cr (2d Cir. December 14, 2011) (Pooler, Hall, CJJ)

Defendant Bourke was convicted of violating the Foreign Corrupt Practices Act, the Travel Act, and § 1001 atfer his involvement in a complex bribery scheme arising from the late 1990's privatization of Azerbaijan’s state-owned oil company, SOCAR. Although it noted that that Bourke “vigorously attack[ed]” his conviction, the circuit affirmed.

Bourke mounted several unsuccessful challenges to the jury instructions. First, the district court was not required to instruct the jury that it needed to agree unanimously on the specific overt act committed in furtherance of the conspiracy charge. The "jury did not need to agree on a single overt act to sustain a conspiracy conviction,” and the overt act “need not [even] be a crime.” Nor did the district court err in giving a conscious avoidance instruction - there was “ample evidence to support a conviction” on this theory, including Bourke’s awareness of the pervasiveness of corruption in Azerbaijan, the unsavory reputation of some of his confederates, and his creation of shell companies to shield himself from liability for bribery payments. In addition, the wording of the charge itself was correct, and did not allow the jury to convict Bourke based solely on negligence. Bourke also challenged the mens rea charge, but the charge was correct. It instructed the jury that, to convict, it must find that Bourke knew of the conspiracy’s object and that he intended for that object to be accomplished, and also correctly defined the mens rea elements of the object offenses. Finally, the court did not err in giving a separate “good faith” instruction, because it covered the concept elsewhere in the charge.

Bourke had no better success with his claims that the district court made erroneous evidentiary rulings. The court did not err in concluding that the testimony of a proposed defense witness was irrelevant; that witness had not participated in any of the relevant transactions. The court also did not violate the “rule of completeness” in admitting part of a written memorandum as one witness’ prior consistent statement. The omitted portions of the memorandum were irrelevant

Wednesday, January 04, 2012

PC World

Several Interesting per curiams rounded out 2011:

In United States v. Steppello, No. 10-4527-cr (2d Cir. December 23, 2011) (Jacobs, Cabranes, Wesley, CJJ) (per curiam) the court reversed a Northern District order granting suppression of cocaine seized from the defendant’s person when arrested, and, later, from his home pursuant to a search warrant, and his post-arrest statements. The district court had found that the initial arrest of the defendant was not supported by probable cause, and that everything else was a tainted fruit. But the circuit found "significant errors” in the district court’s assessment of the evidence. First, it “failed to examine the totality of the circumstances, and instead, considered individual facts in isolation.” Second, the court “failed to evaluate the facts in light of the training and experience of the arresting agents.” The district court also erred in discounting the reliability of information provided by an otherwise untested informant and in so doing “employed an incorrect legal standard.” The informant was a participant in the crime, gave the information to the agents in person after they had caught him red-handed and hence “was motivated to be truthful to receive leniency.” His information was also “specific and corroborated.”

The circuit also, interestingly, remanded to a different judge. This judge had made nearly identical errors in an earlier case, which resulted in a published opinion reversing him. And yet, when the government pointed out that opinion in a motion to reconsider, the district court “denied the motion without comment.” These circumstances “might reasonably cause an objective observed to question” the judge’s “impartiality.”

In Rivera v. Cuomo, No. 10-221-pr (2d Cir. December 16, 2011) (McLaughlin, Pooler, Parker, CJJ) (per curiam), the court did a highly unusual about-face. Back in August, the same panel granted Rivera’s habeas corpus petition, holding that the district court, which denied relief, had erred in its application of New York State “depraved indifference” law, and that the evidence was legally insufficient. With this per curiam, on the state’s petition for rehearing, the panel “after much reflection,” changed its mind. A supervening Supreme Court case, Cavazos v. Smith, 132 S.Ct. 2, 5 (2011), stressed the federal courts’ obligation to defer to state courts and juries in habeas cases. Here, the panel, looking at the state court outcome with greater deference, concluded that the evidence, while “slim,” was sufficient.

United States v. Dugan, No. 10-4248-cr (2d Cir. December 5, 2011, Walker, Katzmann, Wesley, CJJ) (per curiam) rejected the defendants' claim that they were entitled to a jury trial for violating the Freedom of Access to Clinic Entrances Act, an offense with a maximum possible prison term of six months' imprisonment and a maximum fine of $10,000. The circuit held that the fine amount did not make this otherwise petty offense "serious" for the purposes of the Sixth Amendment right to a jury trial, even though it is possible that a very large maximum fine might implicate the Sixth Amendment.

United States v. Leon, No. 10-4090 (2d Cir. November 23, 2011) (Jacobs, Wesley, CJJ, Sullivan, DJ) (per curiam) closed an open question on an interesting, if infrequently occurring, supervised release question. On September 13, 1994, Congress enacted 18 U.S.C. § 3583(h), which expressly authorizes district courts to impose a new term of supervised release to follow the prison sentence imposed on a supervised release violation. For old-law cases, like this one, the authority to impose post-imprisonment supervised release on a supervised release violation is governed by Johnson v. United States, 529 U.S. 694 (2000). Johnson held that, while there is no statutory authority for a new term of post-imprisonment supervision in old-law cases, some supervised release can still be imposed because the remainder of the original term of supervised release survives its revocation. Here, despite the language of Johnson, the circuit upheld a post-imprisonment term of supervised release that was longer than the remainder of the original term. The court relied on the “clear import” of the old-law statute, which was to “deny credit with respect to the entire term of supervised release regardless of how the court allocates that term between imprisonment and supervised release.” It also relied on the one of “purposes of release on supervision,” which is to keep an eye on defendants who need supervision the most. To the circuit, a defendant who has violated the terms of his supervision clearly needs supervision: “no prisoner needs it more than one who has already tried it and failed.”