Sunday, October 28, 2012

Stop and Flop

United States v. Wilson, No. 11-915 (2d Cir. October 25, 2012) (Jacobs, Calabresi, Pooler, CJJ)

Defendant Wilson was subject to a car stop near New York’s border with Canada. He was just outside of the St. Regis Mohawk reservation, not a member of the tribe, and the officers who stopped the car - which was registered to a known marijuana dealer - were members of the tribal police department. As tribal officers, under state law they were without authority to exercise police duties outside of the reservation, although one of them was also cross-designated as a U.S. Customers Officer by ICE. After a brief interview, in which Wilson admitted traveling into and out of Canada, and scoring a bit of weed while there, a U.S. Border Patrol Agent, who had arrived after the stop, searched Wilson’s car and found three bags of marijuana.

The district court suppressed the evidence, finding that the car stop violated the Fourth Amendment. The lower court concluded that the tribal officers lacked the authority to stop the car: as tribal police officers they could not act and, although one was designated a Customers Officer, the regulation covering such designations required him to obtain prior authorization to exercise customs authority, which he had not. 

On this, the government’s appeal, the circuit reversed.  The court held that the relevant Supreme Court Fourth Amendment precedents make clear that the legality of a stop turns on the existence of probable cause and not on the officers’ jurisdictional bounds. While a search or seizure based on probable cause might violate the Fourth Amendment if conducted in an “extraordinary manner” that is “unusually harmful to an individual’s privacy” or “physical interests,” that exception is not implicated by a run-of-the-mill car stop. “[T]he Fourth Amendment does not generally incorporate local statutory or regulatory restrictions on seizures and ... the violation of such restrictions will not generally affect the constitutionality of a seizure supported by probable cause.”

Here, the officers had probable cause to believe that Wilson had intentionally failed to enter the United States at a designated border crossing, a violation of federal law, and that he was driving with an obstructed license plate, in violation of New York’s Vehicle and Traffic Law.  And the ICE directive that would have given the tribal officer authority to act but that was not followed here was of no consequence to the analysis. “Nothing about the Fourth Amendment elevates an internal law enforcement agency directive regarding the chain of command to constitutional significance.” The agent’s failure to seek authorization did not result in the stop’s being conducted in an “extraordinary manner.” After all, he was indeed a Customs Officer at the time.

As a separate matter, the court also concluded that there was probable cause for the search of Wilson’s car, not just the stop. The officers knew that Wilson was driving a car registered to a marijuana dealer, and he admitted buying marijuana while in Canada.

Finally, this decision leaves open an important question: whether a violation of the state’s jurisdictional statute - under which the tribal officers lacked authority to act outside of the reservation - affected the reasonableness of the stop. The government’s position was that all that matters is the level of suspicion, but the court did not take on this question. Deciding whether local geographical jurisdictional limitations are relevant to the Fourth Amendment will have “far reaching effects,” and it was not necessary to decide the question here.

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Saturday, October 27, 2012

PC World

United States v. Oehne, No. 11-2286 (2d Cir. October 25, 2012) (Kearse, Katzmann, CJJ, Gleeson, DJ) (per curiam)

This latest per curiam looks at the pretrial ruling on a motion to suppress, and the long sentence imposed in a child pornography production and distribution case. Finding no error, the circuit affirms.

The suppression issue involved custodial statements.  Oehne claimed that he unequivocally invoked his right to counsel by telling the agents that he had an attorney in a separate, unrelated case. But the circuit reminded that the right to counsel is "offense specific." And, since Oehne never requested counsel at all in the case he was being questioned about, he did not invoke his right to counsel.  Nor did he invoke his right to remain silent by not signing the Miranda waiver form. The record here showed not that he refused to sign it - although even that might not constitute an invocation of the right - but that he was never asked to. In any event, since he later spontaneously spoke with the agents about the investigation, that itself constituted a voluntary waiver of his Miranda rights.

The circuit also found no procedural error in the imposition of the sentence, which was 540 months' imprisonment. Relying on Dorvee, Oehne also argued that the sentence was substantively unreasonable, but the circuit noted important differences between Oehne's case and Dorvee. Oehne sexually abused the victim in this case for two years, starting when she was only eight years old, photographed the abuse and distributed it over the internet. To date, some 3,000 offenders had been found with some of those images. The district court also found that Oehne's conduct was part of a pattern, and that he was insufficiently remorseful. This was accordingly not one of the "run of the mill" cases identified in Dorvee; it was "among the most serious crimes we have."

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Saturday, October 20, 2012

The Wizards of I.D.

Young v. Conway, No. 11-830-cr (2d Cir. October 16, 2012) (Parker, Hall, Carney, CJJ)

While decisions on state prisoners’ federal habeas corpus petitions are not consistently covered on this site, this particular case is fascinating.  In it, the circuit agrees with the district court that the New York state courts misapplied federal law in finding that the victim of a home invasion robbery had an independent basis for her in-court identification of the petitioner, Rudolph Young.

In reaching this result, the circuit relies heavily on recent scientific findings about eyewitness identification furnished by The Innocence Project, amicus curiae here. Among those highlighted are: [1] even “subtle disguises” can “impair identification accuracy”; [2] the presence of a weapon during the crime “will draw central attention, thus decreasing the ability of the eyewitness to adequately encode and later recall peripheral details”; [3] “high levels of stress have been shown to induce a defensive mental state that can result in a diminished ability accurately to process and recall events”; [4] cross-racial identifications are “significantly prone” to error; [5] “prior identifications may taint subsequent in-court identifications due to a phenomenon known as the ‘mugshot exposure effect’ or ‘unconscious transference’”; [6] “the passage of time both degrades correct memories and heightens confidence in incorrect ones.”

There is much more to this long and thorough opinion, though; it is well worth the read.

You Don't Stay

United States v. Colasuonno, No. 11-1188-cr (2d Cir. October 12, 2012)(Kearse, Walker, Raggi, CJJ)

Answering a question of first impression, here the circuit holds that the automatic stay provisions of the bankruptcy code does not apply to either a restitution order or a probation violation proceeding based on a failure to comply with a restitution order.

The facts are fairly straightforward. A jury convicted Colasuonno of bank fraud offenses; he then pled guilty to an unrelated tax fraud. At a consolidated proceeding the district court imposed a noncustodial sentence, which included about $781,000 in restitution to the IRS on the tax case.  Colasuonno seemed to show little enthusiasm for making restitution payments. After two years, even with district court intervention, he had paid only about $6,600, even though his monthly income during that period was more than $7,000.

In July of 2009, Colasuonno and his wife filed a Chapter 7 bankruptcy petition, without letting the court or probation department know. He made a few more restitution payments, in decreasing amounts, before stopping altogether in February of 2010. By then, he had paid just under $12,000.

During an October 2010 violation hearing, he argued that the automatic stay provision had allowed him to stop making restitution payments until the bankruptcy was resolved. He also argued that he stopped paying on the advice of his bankruptcy attorney. The district court disagreed, and concluded that Colasuonno had willfully failed to pay. The court revoked his probation and sentenced him to four months’ imprisonment.

On appeal, the circuit affirmed. The relevant provisions of the bankruptcy code provide that the filing of a bankruptcy petition “operates as a stay” of, inter alia, “the commencement or continuation” of certain judicial or administrative actions against the debtor. However, that statute contains an exception for the “commencement or continuation of a criminal action or proceeding against the debtor.”  In the district court, Colasuonno argued primarily that the bankruptcy statute meant that he did not have to make payments at all; on appeal, his argument was primarily that the automatic stay provision barred the district court from revoking his probation based on a failure to pay restitution.

The circuit disagreed, finding that “proceedings to enforce a probationary sentence" constitute the “continuation” of a “criminal action” against the debtor.  Obviously, the underlying case was a “criminal action.” And that action “did not end when the judgment of conviction became final.” It continued “through satisfaction of the judgment because all duties imposed on the defendant, as well as the court’s authority to hold [him] to account for those duties, derive from, and in that respect continue, the original criminal action.” 

To the court, this “plain meaning” resolution was “reinforced” by the statute’s legislative history, which stressed that the bankruptcy laws were not to be “a haven for criminal offenders.”

The appellate court also rejected the Colasuonno’s creative argument that a probation revocation proceeding was not a “criminal proceeding” because the defendant did not have the same procedural rights there as at a criminal trial. The circuit found nothing in the language of the bankruptcy statute to suggest that the “scope of the exception is determined by the rights afforded to a defendant in a particular proceeding.”

Finally, the district court did not abuse its discretion in rejecting Colasuonno’s “advice-of-counsel” defense. The district court found that Colasuonno had not told his bankruptcy attorney that the restitution order he was obliged to pay arose from a criminal conviction, and this finding was not clearly erroneous. Since the defense requires that the person invoking it had “fully and honestly laid all the facts before his counsel,” the defense did not apply here.

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Sunday, October 14, 2012

PC World

United States v. Ageloff, No. 11-2474-cr (2d Cir. October 10, 2012) (Pooler, Wesley, Lohier, CJJ) (per curiam)

This short per curiam opinion affirms the district court’s authority, under the All Writs Act, 28 U.S.C. 1651, to retrain a convicted defendant’s property - here, some $536,000 of Ageloff's money - in anticipation of ordering restitution. Preventing a defendant from “frustrating collection of the restitution debt” is a legitimate goal that may be furthered under the Act.  Here, the defendant had agreed that his fraud caused a loss of $80 million or more and, later, was convicted of laundering millions of dollars in proceeds from the same scheme. Nor was it an answer that Ageloff wanted the money to pay for counsel; the restraining order did not arbitrarily interfere with his opportunity to retain counsel, and he was “ably represented by CJA counsel.” 

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Bail Doubt

United States v. Briggs, No. 12-2988-cr (2d Cir. October 5, 2012) (Calabresi, Carney, CJJ)

Antonio Briggs, charged in a large, multi-defendant drug conspiracy, was ordered detained in September of 2010, and remains in jail today. In this appeal, he claimed that this lengthy pretrial detention deprived him of due process. 

The circuit, although clearly concerned with the length of the delay, held that there was as yet no due process violation. However, the court directed that the district court either commence his trial, or set reasonable bail for him, on or before February 1, 2013.

The circuit noted that the reasons cited by the district court for detaining Briggs in the first instance were sound: it was a presumption case, and both Briggs’ sentencing exposure and the strength of the government’s evidence supported the initial detention order. And here, much of the two-plus-year-delay, although not necessarily Briggs’ fault, resulted from “repeated motions,” many of which Briggs joined, and abundant discovery. 

There is no “bright-line limit on the length of pretrial detention.” Due process requires a balancing among several factors: the length of the detention,  the complexity of the case, and the degree to which the government is responsible for the delay.  Here, the district court weighed these factors correctly and concluded that the “totality of the circumstances” did not support a finding that Briggs’ due process rights had been violated.

The circuit agreed, but “emphasize[d] that we are deeply troubled by the length of Briggs’ detention.” The appellate court’s “repeated statements” in other cases that the length of the detention alone “is not dispositive does not authorize "detnetions of any length simply because the other relevant factors weigh against the defendant.” Even though there is no “bright-line limit,” there is indeed a limit, and here Briggs’ case is “approaching the limits of what due process can tolerate.” Thus, as noted above, the court ordered the district court to either start the trial or set bail conditions by February 1, 2013.

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You've Been Trumped

United States v. Carter, No. 11-3605-cr (2d Cir. September 28, 2012) (Leval, Cabranes, Katzmann, CJJ)

The “parsimony clause” of 18 U.S.C. § 3553(a) requires that the court impose a sentence that is not “greater than necessary” to serve the goals of sentencing. Many offense statutes, however, contain a  mandatory minimum sentence: a “blunt directive that may require judges to give sentences that they consider unduly punitive.”

On this appeal, Carter, who received a ten-year mandatory drug sentence - five years doubled due to his prior felony conviction - argued that this minimum did not bind the district court because the drug statute did not expressly override the parsimony clause.  The circuit disagreed, and affirmed.

Carter relied on 18 U.S.C. § 3551(a), which states that, “except as otherwise specifically provided,” a sentence must comport with § 3553(a). He also noted that many other statutes that prescribe a mandatory minimum contain a phrase like “notwithstanding any other provision of law.” But to the circuit, the absence of this phrase in the drug statutes did not matter. The “general sentencing provisions in § 3553(a)” must “give way to specific mandatory sentencing provisions elsewhere in the criminal code.” The considerations in § 3553(a), therefore, “cannot override” a statutory mandatory minimum.  

And § 3551(a) does not require mandatory minimum provisions to specifically disclaim the applicability of § 3553(a). A statutory provision that specifically describes how a defendant “‘shall be sentenced’ trumps the general sentencing considerations in § 3553(a).”


Barnes Ignoble

United States v. Barnes, No. 10-3099-cr (2d Cir. September 4, 2012) (Kearse, Parker, Hall, CJJ).

Tuere Barnes and his co-defendants faced a thirty-eight count superseding indictment charging them with racketeering and several violent crimes in aid of it, including murder. The case moved fairly slowly - the original indictment was from 2004 and the superseder dropped in 2006. But by late 2007, it emerged that Barnes and his CJA attorney were not getting along. The district court conducted several hearings about this between November 2007 and March of 2008. By that time, Barnes’s position was that he did not want his CJA attorney, did not want to proceed pro se, did not want a different CJA attorney, and would not consent to a psychiatric evaluation.

A few months later, in July of 2008, Barnes formally asked the court to allow him to proceed pro se. In preparation for the necessary Faretta hearing, Barnes at last consented to a psychiatric evaluation. That evaluation, which took place the following month, concluded that Barnes was competent to represent himself.  Nevertheless, over the ensuing months, neither Barnes nor his counsel ever mentioned the subject again, despite the fact that there were several court appearances and written communications between counsel and the court between the summer of 2008 and the trial, which commenced in April of 2009.  As a result, the district court never formally ruled on the matter.

On appeal, Barnes argued that the court had denied him his Sixth Amendment right to represent himself because the court’s failure to rule on the request was “the equivalent of its denial.” But, finding that Barnes had abandoned the request through his own inaction, the circuit disagreed and affirmed.

Where a defendant’s request to go pro se has not been clearly denied, his failure to reassert it and his apparent cooperation with his appointed counsel constitutes a waiver of the right. Here, Barnes did not “in any way” pursue the request, despite ample opportunity to do so between August of 2008 and April of 2009.  Thus, his silence in the wake of the psychiatric evaluation finding him competent and his “post-evaluation conduct in allowing [counsel] to represent him with no further mention of his self-representation request” showed that he abandoned the request to proceed pro se.


Bad Sport

United States v. Mason, No. 11-544 (2d Cir. September 4, 2012, (Walker, Pooler, Livingston, CJJ)

In this part of the country, the “lawful sporting purposes” provision of U.S.S.G. § 2K2.1(b)(2) and Application Note 6 - a downward adjustment that the defendant bears the burden of proving - is rarely invoked. Indeed, this decision is only the Circuit’s second look at it.  Here, the court concludes that the district court misapplied the provision, but that the error was harmless.

Rodney Mason, resident of Vermont, pled guilty to being a felon in possession. He had four firearms and, in connection with his sentencing hearing, introduced some evidence that, at least for three of them, he kept the guns for hunting purposes. The district court nevertheless refused to apply the enhancement, finding that Mason had not shown that he actually used the guns for hunting.  This was error because the focus of the provision is the purpose of the defendant’s possession of the gun or guns, and not necessarily whether he can prove that he actually used them for a lawful sporting purpose. The guideline “state[]s no requirement that a defendant produce evidence of his actual use of the firearms in question.” 

But here, the error was harmless. Mason introduced evidence relating to only three of the four guns he had, and the guideline requires such proof for “each firearm at issue.” Mason denied possessing the fourth at all; by doing so, he “cannot be said even to have claimed,” let alone proven,” that he “possessed that firearm for lawful sporting purposes.”  Thus, since the district court would have rejected the adjustment even absent its interpretative error, the error was harmless.

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Monday, October 08, 2012

White Out

United States v. White, No. 11-772-cr (2d Cir. August 30, 2012) (Jacobs, Calabresi, Pooler, CJJ)

Here, a divided circuit panel concluded that two evidentiary errors prejudiced the outcome of Lance White’s felon-in-possession trial. The court vacated the conviction and remanded the case for a new trial.

1. Erroneous Preclusion of Others Arrests and Charging Decisions

The case involved the stop of a minivan that contained White and four women. Officers found three firearms, one supposedly in White’s right front pocket. Two others were recovered from a purse belonging to one of the women, Jennings. Initially, all five individuals were charged in state court with possessing all three guns. Eventually the state dropped all charges against three of the women. For Jennings, the state pursued charges only for the guns in her purse. Over White’s objection, the district court granted the government’s motion to preclude White from introducing evidence of the initial decision to charge all of the women with all of the guns, finding that such evidence was categorically inadmissible.

But the circuit found that this was error.  A criminal defendant has a broad right to introduce evidence “tending to prove that another person may have committed the crime” with which he is charged. Such evidence may include the government’s charging decisions - such decisions “may be proper subjects for cross-examination and argument if otherwise admissible,” although they are not per se admissible. “District courts may not automatically exclude such evidence without an inquiry into its relevance and probative value.” 

Here, the evidence was relevant to whether White possessed a firearm  - “evidence that the other occupants of the vehicle were charged with possession of the firearm allegedly found in White’s pocket was plainly relevant to the question of [his] possession.” Those charging decisions “might very well” have “caus[ed] a jury to doubt the officers’ testimony that they recovered the firearm at issue from White’s person," particularly since this was the only “significant issue at trial.” In

 New York the so-called “ automobile presumption” creates a presumption that all occupants of an automobile possessed a firearm found there, except where the weapon is “found upon the person of one of the occupants.” Thus, that the state originally charged all four women with all of the guns, including the one supposedly found on White’s person supported his theory that “none of the firearms was found on his person” and discredited “the officers’ testimony to the contrary.”

Nor was the district court in rejecting reject this relevant evidence under Rule 403.  Indeed the court’s 403 balancing was fatally skewed by virtue of its holding that such evidence was, per se, not relevant at all. Here, the probative value of the evidence was, in fact, “high” - “crucial to proving” the defense theory. Accordingly, the preclusion was error.

2. Restriction of Cross-Examination

The district court also erred in preventing the defense from cross-examining one of the arresting officers about an adverse credibility finding against him in a different federal felon-in-possession case. The circuit now employs a “non-exhaustive list of factors that bear on the admissibility of prior credibility findings.” The district court here erred by relying on the rigid, two-part test rejected by the circuit’s later precedents. 

Here, the totality of the factors weighed strongly in favor of admissibility. The prior testimony that was found to be false “was made under oath in a judicial proceeding” and “plainly involved an important matter at issue” in the prior case. The prior false testimony took place “just months before White’s trial” and the officer’s motives were the same in both cases - an “attempt[] to secure a conviction.” Finally, the officer gave “no explanation for the previous inconsistencies in his testimony.”  Thus, the prior adverse credibility finding was “relevant and highly probative” here.

3. The Errors Were “Far From” Harmless

Here, the evidence the district court precluded “spoke directly to a critical element of the” government’s case; the preclusion “prevented White from presenting a complete defense.”  This is true even though other officers also claimed that they recovered a gun from White’ pocket. It was “certainly possible” that the jury, “if presented with reasons to doubt” one officer’s testimony “might similarly have questioned the testimony of the” others. 

4. The Dissent

Chief Judge Jacobs dissented on both points. For the charging decision, he believed that the evidence was properly excluded under Rule 403. The “vexing” explanations of state law involved in admitting the evidence might well have confused the jury.  And, while Judge Jacobs agreed that the district court applied an incorrect legal standard to assess the admissibility of the prior credibility finding, he would have ordered a Jacobson remand to allow the district court to apply the right test.

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PC World

United States v. Reyes, No. 10-1400-cr (2d Cir. August 29, 2012) (Katzmann, Wesley, CJJ, Underhill, DJ) (per curiam)

Closing the question left open by United States v. Rosa, 507 F.3d 142, 156 (2d Cir. 2007), this per curiam opinion concludes that it was plain error for the district court to rely solely on the presentence report’s uncontested description of a prior offense in determining whether the defendant was a career offender, where the statute of conviction described some offenses that met the definition of crime of violence and some that did not. Even where the defendant does not contest the PSR’s factual description of the prior offense, the “modified categorical approach” still requires more. The PSR, after all, described only what the defendant did, not what he was convicted of. The circuit accordingly vacated the sentence and remanded for resentencing to give the government the “opportunity to introduce evidence demonstrating that” the prior conviction was indeed for a crime of violence.


One Statute, Indivisible

United States v. Beardsley, No. 11-2206-cr (2d Cir. August 27, 2012) (Newman, Straub, Lynch, CJJ)

For purposes of recidivism enhancements, the statutes underlying prior convictions can be categorized into two distinct groups. “Divisible” statutes are those that identify distinct offenses, some of which would trigger the enhancement and some would not.  “Indivisible” statutes, by contrast, identify a single offense but are worded so broadly as to encompass conduct that might or might not fall within the relevant definition.  This important decision holds that for “indivisible” statutes, the traditional “categorical approach” is the only available means of determining whether the enhancement applies. The more expansive “modified categorical approach” can only be used with divisible statutes, in an effort to ascertain which of the possible predicate offenses the defendant was convicted of.

Here, the particular enhancement was that in a child pornography statute, 18 U.S.C. § 2252A. For offenses involving the receipt of child pornography, there is a five-year mandatory minimum. But, if the defendant has a prior state conviction under a law “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor,” the mandatory minimum is fifteen years. § 2252A(b)(1). Beardsley’s prior was a New York conviction for endangering the welfare of a child under N.Y. Penal Law § 260.10. While the charging instrument in that case specified that the conduct involved “sexual contact” with an 18-month-old child, the statute itself does not mention sexual activity. It simply makes it a crime to “knowingly act[] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old.”

The district court employed a modified categorical approach; by looking at the charging instrument, it concluded that Beardsley was subject to the enhanced sentence. On appeal, the circuit agreed with Beardsley that this was error. The state statute is “merely broad, not divisible.” Since it was not, itself, a state law “relating to aggravated sexual abuse,” etc., of a minor, Beardsley was not subject to the fifteen-year mandatory minimum.

The circuit took the lead from the Supreme Court’s precedents, concluding that the categorical approach - a simple examination of the way the statute defines the offense - is the preferred method. The modified categorical approach applies only where the “statute of prior conviction covers multiple subjects,” and is “the exception” to the “general rule.” The modified approach “is available only where a statute of prior conviction is divisible into predicate and non-predicate offenses.” 

The circuit has adhered to this distinction in ACCA and immigration cases “at least in practice,” and has applied the modified categorical approach “only to situations where the statute of prior conviction described qualifying and non-qualifying offenses in distinct subsections or elements of a list.” While not having had occasion to consider the enhancement in § 2252A(b)(1), the court also noted that every circuit save one has “applied the modified categorical approach only where the state statute of conviction was divisible into predicate and non-predicate offenses, and not where the state statute was merely broad.” 

The court accordingly adopted that approach here. The district court “should have limited itself to the categorical approach, because the New York statute of conviction is not divisible into predicate and non-predicate offenses, listed in separate subsections or a disjunctive list.” That the statute was “merely broadly worded, so as to encompass conduct that might match the federal predicate offenses, does not suffice.”

In fact, the language of § 2252A(b)(1) itself strongly suggests “some version of the categorical approach,” since it is predicated on “the laws of any State,” and not on the defendant’s particular actions that led to the conviction. Accordingly, the “statute underlying the prior conviction must itself relate to sexual abuse of minors for the enhancement to apply.”  Since the statute here was not a “law dealing with sexual misconduct, evidence establishing that the defendant violated that statute by a sexual act would demonstrate only how he committed the crime, but not what crime he committed.”


Sunday, October 07, 2012

As Seen On TV

United States v. Salim, No. 10-3648-cr (2d Cir. August 24, 2012) (Walker, Lynch, CJJ)

Mamdouh Salim, incarcerated on terrorism charges, stabbed and nearly killed an MCC guard in a misguided attempt to induce the district court to grant him a change of counsel. For that crime, he pled guilty to conspiracy to murder, and the attempt to murder, a federal official. At his sentencing, the court refused to apply the guidelines’ terrorism enhancement - it sentenced him to 32 years’ imprisonment - then declined to resentence him on a  Crosby remand.  In the circuit’s first decision in the case, which was a cross-appeal, the court rejected Salim’s challenges to his sentence, but agreed with the government that it was error not to apply the terrorism enhancement. See “How Not To Seek A Change of Counsel,” posted December 6, 2008.

This opinion concern’s Salim’s appeal after the resentencing, in which the district court sentenced him to life without parole. The circuit affirmed.

Before the resentencing, Salim’s counsel had written to the court and asked that Salim’s presence be waived or, alternatively, that Salim be present by videoconference. The court agreed to this latter proposal, and conducted a brief colloquy over the video feed at which Salim explained that he did not wish to be brought back to the Southern District because the last time that happened prison guards beat him. When the court asked whether he waived his right to be present, he said, “I don’t want to come to the Court. So I’m not going to be subjected to being beaten up ...,” and“[t]herefore, ... I am waiving my right to appear before you.”

The circuit agreed with Salim that this was not a valid waiver. The court began by holding that the constitutional right to be present, codified in Fed.R.Cr.P. 43, requires physical presence and is “not satisfied by participation through video conference.” While the right to presence can be waived, the waiver must be knowing and voluntary. Moreover, although it is possible that an attorney can waive the right on the defendant’s behalf, Salim’s attorney’s letter did not demonstrate a knowing and voluntary waiver. It merely said that counsel had “recently spoken to” Salim and that Salim wished to be allowed to waive his personal presence. Since this letter did not address knowingness and voluntariness, it was not a valid waiver.

Salim’s remarks during his colloquy with the court were no better. His stated desire to avoid coming to court so that he would not be beaten by local prison guards suggested that his waiver was the result of “fears of intimidation and physical abuse,” and not of his own free will. And there was no record evidence to suggest that Salim was lying about his fear or that the fear he expressed was not “reasonably grounded.” The record also suggested that he might have wished to attend in person if his “safety could be reasonably assured.” By analogy to a Faretta colloquy, the circuit held that the district court should have done more to assure that Salim’s waiver was knowing and voluntary.

That said, however, the circuit concluded that this error was subject to plain error review and that Salim could not establish that he was prejudiced. Salim probably satisfied the first two parts of the plain error test - there was an “error” that was “plain.” But he did not satisfy the third and fourth because he did not prove that his presence would have affected the outcome of the proceeding. Here, the district court had issued a written opinion in advance of the sentencing rejecting his arguments for leniency and explaining that its earlier decision to impose a sentence less than life had been infected by legal error.  In addition, Salim’s appearance by video did not prevent him from making “any statement [seeking leniency] he chose” to the court. 

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