Sunday, September 09, 2012

The Thirty Years’ War


United States v. Broxmeyer, No. 10-5283-cr (2d Cir. August 28, 2012) (Jacobs, Winter, Raggi, CJJ)


Former high school athletic coach Todd J. Broxmeyer was originally convicted of five offenses involving child sex abuse and pornography, and received a 40-year sentence. On his first appeal, the circuit found that the evidence was insufficient to support three of the counts, and remanded the case for resentencing. See “Coach Bagged’ posted August 13, 2010.  In this opinion, an unusually bitterly divided panel affirmed the 30-year sentence imposed on the two remaining counts on remand.

The majority began with a long and highly disapproving survey of the totality of the conduct proven at trial - a girls’ field hockey coach, Broxmeyer sexually abused several of his charges over a multi-year period - and Broxmeyer’s sentencing strategy on remand. This included his continuing to dispute all of the allegations against him, disputing the sexual explicitness of some of the photographs he made the girls send him, and shifting blame back to the victims. At the resentencing, at which Broxmeyer failed to pursue or ask for a hearing on his factual objections, the district court sentenced him to concurrent terms of 10 years’ imprisonment on Count Three, , a child pornography charge,  and 30-years imprisonment on the Count Five, an attempted production count. This count had a 15-year mandatory minimum, which is the sentence Broxmeyer had sought.

To the majority, this was an easy case - the sentence was both procedurally and substantively sound. As to procedure, although he pursued on appeal some of his factual quibbles, Broxmeyer had waived them in the district court by not pursuing them there. The court also found no error in the guideline calculations. Most pertinent to this appeal was the “pattern of activity” enhancement in § 4B1.5(b)(1), which applies if the defendant committed prohibited sexual conduct with a minor on at least two separate occasions.  The enhancement applies even if the conduct was neither part of the offense of conviction nor occurred during the same course of conduct. Here, the majority found that the acts underlying one of the counts of conviction qualified, and that other evidence of Broxmeyer’s sex abuse of a 15-year-old girl also qualified, even though that conduct was part of one of the counts the court had previously reversed. It was particularly appropriate to consider it at Broxmeyer’s resentencing, since that count had been reversed only for failure to establish federal jurisdiction, and not for a defect in the trial proof as to whether the act occurred.

The majority also approved of the district court’s consideration of Broxmeyer's “extensive history of sexually abusing children” in imposing sentence, and did not see this comment as constituting an error in applying the pattern enhancement. This was part of the district court's general explanation for the sentence and properly included more than sexual assaults; Broxmeyer had a long history of encouraging minors to engage with him in sexually suggestive communications and to send him pornographic images of themselves and others. 

The majority also found the 30-year sentence to be substantively reasonable. Broxmeyer argued that a proper assessment of the totality of the circumstances should have produced a 15-year sentence.  Fifteen years is the legal minimum and was not an abuse of discretion for the sentencing court to assign weight to the aggravating factors in going above that minimum.  Here, the additional count of conviction alone provided a basis for imposing a sentence above the mandatory minimum. Similarly, the guidelines recommended a sentence above that, and it would be “unwarranted” to give no weight at all to that recommendation.  

The majority identified were “at least four” statutory aggravating factors: Broxmeyer’s pervasive abuse of the trust that the girls, their parents and the community had placed in him; the repetitiveness of the conduct; the abuse was “part of a larger pattern of sexual abuse”; and Broxmeyer’s “disturbing lack of remorse,” a circumstance warranting particular attention to the needs for specific deterrence and to protect the public.

Finally, the majority discounted Broxmeyer’s mitigation arguments. He argued primarily that since, some of the girls were 17, and could consent to sexual acts with him in under New York law, it was unreasonable to use their age to enhance his sentence for having them send him sexually explicit photographs, which was illegal under federal law because the girls were under 18. The majority speculated that the fact that a child pornography victim had passed the age of sexual consent might be a mitigating factor on some set of facts, but it was not an abuse of discretion for the sentencing judge, who saw and heard them, to conclude otherwise. Nor was the majority impressed with Broxmeyer’s citation to a study about the prevalence of “sexting” between and among teenagers themselves; as their coach, Broxmeyer was supposed to help them “develop good judgment.” That he instead encouraged this behavior hardly made him less culpable.

In dissent, Chief Judge Jacobs saw the case quite differently.  He first noted that it was an “arresting irony” that, while Broxmeyer and the 17-year-old victim of Count Five would be treated as consenting adults in New York, the “only thing forbidden between [them] was photography.” He also found it ironic that the sentence was increased for “distribution” - the girl took a picture of herself to send to Broxmeyer. Thus, the offense of convicton was “a single act of attempted sexting.” 

To him, the majority’s opinion was “crude caricature of my views.” As he put it: “My objection is this: the offense of federal conviction has become just a peg on which to hang a comprehensive moral accounting. But in imposing a sentence that can be  upheld as reasonable, a court should not lose sight of the offense of conviction.” 

In very brief, the Chief Judge saw the sentence as extending so far beyond the bounds of the offense of conviction as to be unreasonable, particularly since much of the activity was for conduct that could not be charged in federal court. He also worried that much of the majority’s view of the case had been premised on findings that might not have been “actually made by the district court” at all.

He carefully catalogs five separate reasons for finding the 30-year sentence to be error. Those are: (1) the statutory range form 15 to 30 years calls for a calibration according to severity of the offense; (2) the ehnancements to base offense level do not bear the weight assigned to them; (3) the pattern ehnancement is unsustainable a a matter of law, (4) the sentence is substantively unreasonable, and (v) the sentence is not supported by the statutory factors.

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You Can Resist


United States v. Davis, No. 10-4104-cr (2d Cir. August 24, 2012) (Walker, Lynch, Droney, CJJ) 


Hoping to evade a drug arrest, Deitron Davis ran from an agent; during the chase the agent frequently caught up to him and struck him with a baton, but Davis - a very big guy - kept running. Eventually, other agents joined in. They caught Davis and pinned him to the ground, stomach down. He struggled and resisted being handcuffed, to no avail, but did not threaten or strike any of the agents. A jury convicted him both of the drug offense and of misdemeanor resisting arrest, in violation of 18 U.S.C. § 111(a). On appeal, however, the circuit agreed that the evidence was legally insufficient to make out this offense.  

The wording of § 111(a) is notoriously vexing: where the defendant “forcibly assaults resists, opposes, impedes, intimates, or interferes with” a federal officer in connection with his official duties, he is guilty of a Class A misdemeanor “where the acts ... constitute only simple assault.” There are also enhancements that, where present, render the conduct a felony.

The circuit had previously rejected a vagueness challenge to the “simple assault” provision, citing  the “settled principle of statutory construction” that, “absent contrary indications, Congress intends to adopt the common law definition of statutory terms.” The earlier case thus held that “simple assault,” as used in § 111(a) means “a crime, not involving touching, committed by either a willful attempt to inflict injury upon the person of other which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” It follows that, for a defendant to be guilty of the misdemeanor of resisting arrest under this section, he must necessarily have committed common law simple assault.

The circuit noted that some circuits have taken a different approach, concluding that to use only the common law definition of “simple assault” would be contrary to the statutory text, which enumerates a number of other criminal acts that would not by themselves be simple assaults. But the circuit decided to continue to apply only the common-law meaning, noting that the phrase “simple assault” has an “established” common law meaning and no contrary meaning “in the vernacular, the U.S. Code or elsewhere.”

The rest was easily resolved in a single paragraph. To the circuit, Davis’ conduct did not constitute common law simple assault. Although he resisted arrest, he did not strike blows - he resisted passively without punching or attacking any one. He merely “us[ed] his muscles to avoid [being] cuffed.” Absent evidence that Davis “engaged in any conduct ... that demonstrated a desire to injure an agent or would cause an agent to apprehend immediate injury,” the evidence was insufficient.

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Saturday, September 08, 2012

The Tipping Point


United States v. Contorinis, No. 11-3-cr (2d Cir. August 17, 2012) (Winter, Hall, Chin, CJJ)


In this appeal from an insider trading conviction, the defendant unsuccessfully challenged the jury instructions in which the district court defined “material, nonpublic information.”

Contorinis was a portfolio manager at a hedge fund, who befriended an investment banker at UBS. From late 2005 to January of 2006, the banker was providing information to several of his friends, Contorinis included, about the potential sale of the Alberstons grocery chain.  Contorinis bought and sold large blocks of Albertsons stock for his fund based on this information. The Albertsons deal had lots of false starts, but when it was finally publicly announced as a go, Contorinis sold all of the fund’s Albertsons stock making a net profit of $3 million.

Contorinis’ defense at trial was that, although he and the banker spoke often, the banker never gave him any information about the deals he was working on. The banker, a government witness, had testified otherwise.  Contorinis also objected to the court’s jury charge on “material, nonpublic information.” He claimed that it was incomplete because it did not contain language instructing, in substance, that “general confirmation of an event that is ‘fairly obvious’ to knowledgeable investors is not material, nonpublic information,” and that it erroneously instructed that the “confirmation by an insider of unconfirmed facts or rumors - even if reported in a newspaper - may itself be inside information.”

The circuit found no error. The charge “conveyed to the jury that material, nonpublic information is information that either is not publicly available or is sufficiently more detailed and/or reliable than publicly available information to be deemed significant, in and of itself, by reasoanble investors.”

The circuit did find error, however, in the forfeiture order, because it included profits that Contorinis "never received or possessed.” The proceeds included in the forfeiture order here were acquired by the hedge fund itself, not by Contorinis. Even though a forfeiture order may include proceeds received by actors in concert, it it may not include proceeds that “go directly to an innocent third party and are never possessed by the defendant.”

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The Cartridge Family


United States v. Graham, No. 09-2819-cr (2d Cir. August 15, 2012) (Cabranes, Livingston, Carney, CJJ)



Title 18, U.S.C. § 844(h) makes it a separate offense to use “an explosive” to commit a federal felony. During an attempted extortion of one of his fellow-gang members - a dispute over some robbery proceeds - defendant Graham fired a cartridge from his 9-millimeter semi-automatic into the ground. A jury convicted defendant Graham under this section, amongst other offenses; his 50-year sentence included the ten-year mandatory consecutive sentence that the statute requires.

On appeal, however, the circuit agreed that the single cartridge in his semi-automatic handgun did not constitute an “explosive.” It reversed the conviction on the § 844(h) count and remanded the case for resentencing.

Superficially, it would seem like firing a bullet might well trigger the statute (bad pun, I know). Section 844(j) defines “explosive” for purposes of § 844(h) as, inter alia, “gunpowders, powders used for blasting, ... and any chemical compounds [and similar mechanical mixtures or devices] that fire, by friction, by concussion, by percussion, or by detonation of the compound [etc.]” and “may cause an explosion.”  And, at Graham’s trial, an ATF described the mechanics of firing a semi-automatic pistol as a “mini-explosion”: the gun’s hammer falls, causing the firing pin to strike the ammunition and ignite the “very volatile” primer, which lights a propellant that burns “very rapidly,” creating a lot of gas and heat. The gas, looking for an area to escape, causes the bullet to “exit the firearm down the barrel.”

Nevertheless, the circuit examining the statute’s plain meaning “by looking to the statutory scheme as a whole and placing the particular provision within the context of that statute,” held that the cartridge was not an “explosive.” 

First, the court, while noting that the gun here expelled bullets by the combustion of gunpowder, also noted that § 844(j) did not list single cartridges or ammunition generally as a form of “explosive.”  Instead, it used the phrase “gunpowders, powders use for blasting, al forms of high explosive,” and other more extreme terms. Since “words ... are known by their companions,” the circuit “deem[ed] it significant” that the word “gunpowders” was accompanied by other materials used in “detonation, a particularly fierce and explosive chemical reaction” that produces a “vigorous evolution of heat and spakrs or flame” moving through the material detonated. To the circuit, this meant things more like dynamite or TNT. And, even though, in quantity, gunpowder can also be a “powerful explosive” like those, the court concluded that “a person carrying a single unspent pistol cartridge in his pocket” is not, in “ordinary usage” thought to be “armed with gunpowder or an explosive,” even if the cartridge contains a small amount of gunpowder.

The circuit also rejected the argument that the cartridge was “device” containing ingredients “such that ignition could cause an explosion.”  The circuit was concerned that this would expand the statute beyond its intended reach, for example, to the unarmed getaway driver in a bank robbery, since the internal combustion engine of his car relies on a “mini-explosion” to run. 

Finally, the court noted that discharging a firearm in connection with a crime of violence, under 18 U.S.C. § 924(c), is a separate offense with a separate penalty. The circuit viewed § 844(h) as a “counterpart” to this - to cover cases not covered by § 924(c) - and did not see any congressional intent to heighten the penalty for the firearms offense merely because the gun  “happened to contain at least one cartridge.” 

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