United States v. Esso, No. 11-570-cr (2d Cir. June 27, 2012) (Walker, Lynch, Droney, CJJ)

The published opinion in this case is a short and fairly unremarkable decision holding that the district court did not err in allowing the members of a deliberating jury to take the indictment - it charged conspiracy to commit wire and bank fraud and substantive bank fraud - home with them to read overnight. The judge instructed the jurors that they must not show the indictment to - or discuss it with - anyone else, or conduct any outside research, and that the indictment was not evidence. 

 That said, however, the circuit strongly “question[ed] the wisdom of the practice,” and “urge[d] caution on district courts considering it.” The practice increases the chance that jurors will be exposed to outside influences in a way that the court cannot monitor and also risks overemphasizing the significance of the indictment itself. But, nevertheless, here, it did not deprive the defendant of a fair trial. Jurors are permitted to think about the case before them on their own time, and the jurors received very thorough instructions, which there was no evidence that they disregarded. 

 But the decision that is of real interest in this case is the accompanying summary order, bearing the same docket number, that vacates Esso’s sentence, finding an unwarranted disparity between his sentence and that imposed on a co-defendant, Persaud. Both defendants were convicted on all counts.  The district court sentenced Esso first. It deemed him the “least culpable participant” in the scheme, and imposed a below-Guideline sentence of one year and one day in prison.  Three weeks later, the same judge sentenced Persaud to 12 weekends in a halfway house, but no jail. Esso then moved for resentencing, and the court denied the motion on the ground that it lacked jurisdiction, while noting that it was “tempted to say that it would have given” Esso a lower sentence if it could.

 The circuit agreed that Esso’s sentence was procedurally unreasonable. The district court, having concluded that Esso was the “smallest player,” did not explain why his sentence was longer than Persaud’s. And, to the circuit, apart from their distinct roles in the offense (Persaud faced higher Guidelines, too), the defendants seemed to be similarly situated.  The circuit accordingly vacated Esso’s sentence so that the district court could either better explain it or “correct its mistake and exercise its discretion anew.”