Sunday, February 12, 2012

Five and Time

United Sates v. Culbertson, 10-1766-cr (2d Cir. February 3, 2012) (Hall, Lynch, Lohier, CJJ)

Defendant Culbertson was arrested during an investigation into the importation of heroin and cocaine into the United States from Trinidad, after his girlfriend was arrested at the airport. He was charged with offenses that, based on the drug type and quantity alleged - 100 grams or more of heroin and five kilograms or more of cocaine - carried a ten-year mandatory minimum.

Culbertson was a difficult guy - he went through so many appointed attorneys that the district court finally forced him to go pro se- and consistently disputed the quantity of drugs attributable to him. At his plea, Culbertson insisted that the offense involved only “three kilos” of cocaine - that is what he said his girlfriend had been recruited to import, even though she in fact had more than five in her luggage - and said he did not know anything at all about any heroin. He then asked for a Fatico hearing on drug quantity, but when the government said that it would be relying on the girlfriend’s five kilograms, the district court denied the request “as moot.” Thus, although Culbertson’s guidelines were 57 to 71 months - the government gave him “minimal” role - the court sentenced him to the ten-year mandatory minimum.

On appeal, the circuit vacated the conviction, finding that the guilty plea did not have an adequate factual basis as to drug quantity. In a drug conspiracy, the plea allocution must establish that drug type and quantity that trigger the statutory penalties were at least reasonably foreseeable to the co-conspirator defendant. But, typically, where a defendant has explicitly challenged the statutorily prescribed drug type or quantity, the circuit has concluded that the record of the plea did not provide an adequate factual basis to enter judgment against the defendant on the charged crime.

This case was no different. Culbertson specifically declined to plead guilty to the five-kilogram quantity. His “persistent disavowal of responsibility for any amount in excess of three kilograms of cocaine compels us to conclude that the District Court lacked a factual basis for his plea.” Nor was this cured by the government’s proffer; it is “error” for the court to find that a factual basis exists “when the defendant actively contests a fact constituting an element of the offense.”

Finally, the error was not harmless. Disputes over drug quantity in a plea allocution are “presumptively significant” given the impact of quantity on the length of the term of imprisonment. Accordingly, the court vacated the judgment of conviction.

The circuit also examined the district court’s handling of Culbertson’s repeated requests for a change of counsel. It is not unreasonable for a court to “require an intractable defendant either to proceed with the current appointed lawyer, or to proceed pro se.” Nevertheless, in such situations, before forcing a defendant to go pro se, the court must undertake a Faretta colloquy to ensure that a defendant poing pro se “knows what he is doing” and makes the choice “with his eyes open.” Accordingly, here, on remand, if the court still deems it appropriate to deny Culberton’s request for new counsel, it must follow the Faretta procedure.


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It Tolls for Thee

United States v. Knight, No. 09-5195-cr (2d Cir. February 1, 2012) (Walker, Straub, Livingston, CJJ)

While a Western District grand jury was investigating defendant’s involvement in a “high yield” investment scheme, the district court granted the government’s application pursuant to 18 U.S.C. § 3292 to toll the statute of limitations while it sought the assistance of Hungarian authorities in obtaining records relating to transfers of some of the scheme’s proceeds into Hungarian bank accounts. The circuit affirmed that order as a proper application of the tolling statute.

Under § 3292, the court must grant the government’s application and suspend the statute of limitations if the application asserts that evidence of an offense being investigated by a grand jury is in a foreign country and it reasonably appears, by a preponderance of the evidence, that such evidence has been officially requested.

The government satisfied the statute here. It gave the district court a copy of the government’s official request to Hungary, a transcript of a victim’s grand jury describing how he had been defrauded, and the affidavit of an FBI agent describing transfers of proceeds from a U.S. bank account to a Hungarian bank account.

The court rejected the defendant’s argument that, since the relevant Hungarian bank had offices in the United States, the records could have been obtained by subpoena. Nothing in § 3292 suggests that the tolling is limited to situations where the foreign evidence is obtainable only through diplomatic channels. Nor is does it matter that the evidence sought might be immaterial; as long as evidence of an offense is located abroad, the limitations period will be tolled, even if the grand jury would otherwise have sufficient evidence to indict.

Lastly, the court rejected the claim that the district court should not have acted on the application ex parte. The statute does not give the party whose statute of limitations is being suspended the right to notice or a hearing. To the contrary, grand jury proceedings are typically non-adversarial and secret.

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Cain is Able

United States v. Cain, 09-0707-cr (2d Cir. January 31, 2012) (Newman, Lynch, CJJ, Restani, JCIT)

This is a case, oddly enough, about trees. Appellant David Cain, Jr., proprietor of David’s Tree Service, assisted by his brother, Chris Cain, a cousin, Jamie Soha, and others, was trying to corner the tree service and logging market in northwestern New York State. To get there, they engaged in acts of violence, extortion and even arson, and were convicted of substantive and conspiracy RICO counts and of other, related crimes.

All convictions were affirmed except for Chris Cain’s on the RICO counts. The circuit found that the district court’s “pattern” instruction was erroneous and, as to Chris Cain, the error, although not flagged below, was plain.

The RICO statute requires proof of a “pattern of racketeering activity” - at least two acts, the last of which occurred within ten years after the commission of the one before it. But the Supreme Court requires more than just temporal proof - the prosecution must prove that the racketeering acts are “interrelated” and that there is “continuity or a threat of continuity.” The Second Circuit has distilled this rule into two distinct parts: “horizontal relatedness” means that the acts must be shown to be related to one another; “vertical relatedness” means that the acts must be shown to have a nexus to the enterprise (this concept includes “continuity”). Here, the district court charged only the statutory language with respect to timing. This was error, both as to the substantive RICO count and the RICO conspiracy count, since the conspiracy statute includes the pattern requirement.

Turning to plain error review, the circuit easily concluded that there was (1) an “error” that was (2) “plain,” that is, “obvious,” since the circuit’s rule on relatedness and continuity had been “well established” by a “substantial body of case law” long before this trial took place.

The third prong - whether the error affected a defendant’s “substantial rights” - was a “closer question.” To meet this test, the error must be “prejudicial, which means that there must be a reasonable probability that the error affected the outcome of the trial.” For David Cain and Soha, there was “no such possibility. The jury independently convicted them of several counts of extortion that were also RICO predicates, and those verdicts “overwhelmingly demonstrated that the same objective motivated each act of extortion” - to increase David Cain’s market share and “enrich [his] associates.” The extortions were also clearly not aimed uniquely at the victims; their purpose was to secure David Cain’s dominance in the tree service business in the area, a goal that plainly posed a threat of future acts, as needed, to eliminate other competitors or new entrants into the market.

For Chris Cain, however, the court reached a different result. He was not charged in the three extortions that made up the core of the RICO case against his brother, and the evidence connecting Chris Cain’s unlawful activities to the criminal enterprise was “remarkably thin.” The only RICO predicate that both Chris and David were convicted of was a 1994 vehicle arson, which the government had conceded on appeal was insufficiently proven. And the remaining racketeering acts that the jury found to have been proven as to Chris were “not so clearly linked to each other or to the enterprise itself” that a rational jury, properly instructed, could necessarily have found that they constituted a pattern of racketeering activity.

Those acts were: a marijuana distribution conspiracy , the arson of a residence, a different arson and insurance fraud in connection with a rental property owned by Cain’s parents and a home invasion robbery. But none of those offenses involved David Cain, his tree service business or the other participants in the racketeering acts, and there was no “apparent connection” among the crimes themselves.

Finally, prong four, the court held that the erroneous instruction “seriously affect[ed] the fairness, integrity [and] public reputation of judicial proceedings” pertaining to Chris Cain, such that the circuit was warranted in exercising its discretion to correct it.

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