Good Faith Reliance on Search Warrant Required Reversal of Suppression Order

United States v. Raymonda, No. 13-4899-cr (2d Cir. Mar. 2, 2013) (Walker, Lynch, and Chin), available here

Someone using defendant's IP address accessed thumbnail images of child pornography on the Internet. More than nine months later, government agents obtained a search warrant for defendant's  home and discovered over 1,000 files of child pornography. The district court granted the defendant's motion to suppress, holding that the government's evidence that defendant had accessed child pornography on a single occasion nine months earlier was too stale to establish probable cause that he would still possess illicit images at the time of the search.

The Circuit reversed, over a dissent by Judge Chin. The majority agreed with the district court that a single incident of access to thumbnail images of child pornography, absent any other circumstances suggesting that the suspect accessed those images deliberately or has a continuing interest in child pornography, fails to establish probable cause that the suspect will possess illicit images many months later.

But the majority held that suppression was not required, because the agents relied in good faith on a magistrate judge's independent determination of probable cause. The Court rejected the district court's finding that the search warrant affidavit was so "grossly negligent" as to preclude reliance on the good faith exception. Judge Lynch's majority opinion concluded that any errors in the affidavit were "neither intentionally false nor grossly negligent." Accordingly, the agents were entitled to rely in good faith on the warrant.

Judge Chin would have upheld the district court's finding that the lead agent had engaged in grossly negligent conduct. The evidence showed that the agent submitted a false and misleading affidavit to obtain the warrant, in conscious disregard of the truth and the defendant's Fourth Amendment rights. Accordingly, Judge Chin concluded that suppression was appropriate.


Statutory Rape Under New York Penal Law Section 130.40-2 Is Not Categorically a "Crime of Violence"

United States v. Van Mead, No. 12-4054-cr (2d Cir. Dec. 8, 2014) (Livingston, Lohier, and Stein), available here

Section 130.40-2 of New York's Penal Law provides that "[a] person is guilty of criminal sexual act in the third degree when . . . [b]eing twenty-one years old or more, he or she engages in oral sexual conduct or anal sexual conduct with a person less than seventeen years old."

The question presented by this appeal was whether the conduct prohibited by this statute qualified categorically as a "crime of violence" under Sections 2K2.1 and 4B1.2 of the Sentencing Guidelines. The Circuit said no.

The Court distinguished this case from its earlier ruling in United States v. Daye, 571 F.3d 225 (2d Cir. 2009), in which the Circuit held that violation of a Vermont law barring sexual contact with a minor aged fifteen or younger constituted a "violent felony" under the Armed Career Criminal Act. The Court noted that the New York statute lacked a "physical force element," and therefore could not be deemed a "crime of violence" under Section 4B1.2(a)(1)'s "physical force" clause. Similarly, because the law did not concern any of the "exemplar crimes," it could not be deemed a "crime of violence" under Section 4B1.2(a)(2)'s list of "exemplar crimes."

Finally, the Court held that, under Section 4B1.1(a)(2)'s "residual clause," the New York statute did not "otherwise involve[] conduct that presents a serious potential risk of physical injury to another." The Court noted that, because the statute imposed strict liability with respect to the age of the victim, the conduct prohibited by the statute had to be similar in kind and in degree of risk to Section 4B1.2's exemplar crimes to be deemed a "crime of violence." But unlike the Vermont law in Daye, the New York statute did not focus on all children through age 15, but principally on minors who were 15 and 16 years old. Given that difference, the Court was unable to conclude that violation of the New York law would, in the "ordinary" case, pose a "serious potential risk of physical injury to another" and involve "purposeful, violent, and aggressive" conduct. Thus, the conduct prohibited by the statute did not qualify categorically as a "crime of violence."    

Miscalculation Of Mandatory Minimum That “Has An Impact” On Sentence Is Plain Error

United States v. Sanchez, No. 11-2429-CR (2d Cir. Dec. 4, 2013) (Cabranes, Straub, and Livingston), available here

Defendant pleaded guilty to possession with intent to distribute more than 1 kilogram of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), an offense that carries a 10-year mandatory minimum.  The government filed a prior felony information pursuant to 21 U.S.C. § 851, arguing that defendant’s prior Connecticut narcotics conviction increased his mandatory minimum to 20 years.  Defendant did not object.  Without making any reference to the mandatory minimum, the district court (D. Conn.; Nevas, J.) sentenced defendant to 288 months, a downward variance from the Guidelines range of 360-life.
On appeal, the Circuit accepted the government’s concession that it was clear error to treat defendant’s prior as a qualifying predicate because the Connecticut and federal narcotics laws are not coterminous.  However, the Circuit rejected the government’s argument that the error was harmless in light of defendant’s 288-month sentence, which was well above the miscalculated mandatory minimum.  In the Circuit’s view, the miscalculation had an impact on defendant’s sentence because “the assumption of a 20-year minimum sentence permeates the record.”  (slip op, at 8).  For example, defendant’s counsel argued that the proper range for the district court to consider was 20 to 30 years (the government had agreed not to seek a sentence greater than 30 years).  Likewise, the government urged the district court, if it imposed a below-Guidelines sentence, to impose a sentence above the mandatory minimum, and not to “reward” defendant with a sentence of 20 years.  Finally, the 288-month sentence was closer to 20 years than 30 years.  Consequently, the error affected defendant’s substantial rights as well as the fairness and integrity of judicial proceedings.
Notably, the Circuit rejected the government’s position (based on United States v. Deandrade, 600 F.3d 115 (2d Cir. 2010)), that a sentence in excess of a miscalculated mandatory minimum is not plain error.  Rather, the Circuit distinguished Deandrade on the ground that there, the sentencing court expressly disavowed reliance on the mandatory minimum.  Similarly, the Circuit declined to address defendant’s argument that miscalculation of the mandatory minimum is always prejudicial under Alleyne v. United States, 133 S. Ct. 2151 (2013).  Thus, the Circuit takes the middle position that miscalculation of the mandatory minimum is plain error where, as here, the error “has an impact” on the actual sentence -- even if that sentence is greater than the miscalculated minimum and within the Guidelines range.

Appeal from Supervised Release Revocation Not Rendered Moot By Completion of Prison Sentence

United States v. Wiltshire, No. 13-3590-cr (2d Cir. Dec. 1, 2014) (Kearse, Straub, and Wesley), available here

The district court found that defendant violated her supervised release by making false statements to her probation officer and by leaving the district of her supervision without permission. She was sentenced to 90 days in custody, to be served on weekends, to be followed by five years of supervised release.

During the pendency of her appeal, defendant completed her custodial sentence, but her term of supervision had not yet run.

Did the expiration of defendant's custodial sentence render her appeal moot? The Court said no, because the district court's judgment directly exposed defendant to two additional years of supervised release. The appeal was thus not moot because a favorable appellate ruling might prompt the district court to reduce defendant's term of supervised release.

Unfortunately for defendant, however, the Circuit ruled on the merits that the district court properly found her to have violated the conditions of her supervised release. Accordingly, the Court affirmed.

Defendant Not Entitled To Suppression Of Evidence Obtained In Violation Of Wife’s Substantive Due Process Rights

United States v. Anderson, No. 13-4152-CR (2d Cir. Nov. 24, 2013) (Parker, Lynch, and Carney), available here 

Following a traffic stop of defendant’s car, Vermont state troopers arrested defendant’s wife Crystal, a passenger, believing that she had drugs hidden on her person.  The troopers brought Crystal to the state police barracks, handcuffed her to a chair, and told her that they were applying for a warrant for a body cavity search.  A state judge denied the application, but the troopers concealed this fact from Crystal.  Instead, over several hours of detention and interrogation, the troopers falsely told Crystal that she would be taken to a hospital where the body search would be performed, falsely told her that her husband had incriminated her in drug trafficking, and refused her repeated requests to see a signed warrant.  Ultimately, Crystal signed a Miranda waiver, admitted that there were drugs hidden in her vagina, removed the drugs, and surrendered them to the troopers.
Prior to defendant’s trial in D. Vt. (Crystal pleaded guilty), the district court (Reiss, C.J.) granted defendant’s motion to suppress the drugs, ruling that their admission would violate defendant’s substantive due process rights because they were obtained by law enforcement conduct that shocked the conscience. 
On appeal, the government conceded that the troopers’ conduct violated Crystal’s Fifth Amendment substantive due process rights, but argued that defendant could not base a substantive due process claim for suppression on what happened to his wife.  Relying on United States v. Payner, 447 U.S. 727, 735-37 n.9 (1980) (“[T]he limitations of the Due Process Clause ... come into play only when the Government activity in question violates some protected right of the defendant.”), the Circuit agreed and reversed.  In the Circuit’s view, Payner “precludes suppression, on substantive due process grounds, of physical evidence obtained through a flagrantly illegal search directed at someone other than the defendant.”  (slip op., at 11).
The Circuit left open the possibility that substantive due process might sometimes require suppression of physical evidence obtained through outrageous government conduct against a third party.  Such conduct, however, would have to be “torture” or otherwise “so beyond the pale of civilized society that no court could countenance it.”  (slip op, at 12).  Finally, rejecting defendant’s alternative argument for affirmance, the Circuit held that suppression was not authorized in the exercise of the district court’s supervisory powers, where suppression was not compelled by the Fifth Amendment.

Plain Error For District Court To Consider Non-Shepard Documents In Determining Whether Prior Offenses Were Committed On "Different Occasions" Under ACCA

United States v. Dantzler, No. 13-2930-cr (2d Cir. Nov. 14, 2014) (Cabranes, Carney and Droney), available here

The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), mandates a 15-year minimum sentence for certain firearms offenses if a defendant “has three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another.”  In this case, the Circuit held that in determining whether prior offenses were “committed on occasions different from one another,” a district court is limited to consulting documents approved in Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2005).  That is, a district court may consider the fact of the prior conviction, the statutory definition of the offense, the charging document, the jury instructions, the written plea agreement, the transcript of plea colloquy, and any explicit factual finding by the trial court to which the defendant assented.  However, it is plain error for a district court to consider (as the court did here) non-Shepard court records, parole records, local PSRs, arrest reports, criminal complaints, or a federal PSR that incorporates information drawn from these sources.
Defendant pleaded guilty to felon in possession.  He had three prior New York State robbery convictions, two of which arose from conduct that occurred on the same day.  After reviewing non-Shepard materials -- in particular, criminal complaints attached to defendant’s sentencing submission -- indicating that the two robberies occurred an hour and a half apart, in different boroughs, and involved different victims, the district court (Garaufis, J.) determined that the robberies had been committed on “different occasions” for ACCA purposes.  Defendant did not raise a Shepard objection.
On appeal, the Circuit found plain error and reversed.  The Circuit noted that under Taylor/Shepard, a district court is limited to conclusive judicial records in determining whether a prior conviction is a “violent felony” for ACCA purposes, and saw no reason to apply a different rule in determining whether prior convictions were committed on “different occasions.”  On the contrary, maintaining the same rule would minimize judicial fact-finding and avoid the Sixth Amendment problems that would result from enhancing a sentence based on judge-found facts about the nature of prior convictions.  The error affected defendant’s substantial rights, as well as the fairness and integrity of judicial proceedings, because it increased his mandatory minimum sentence from 0 to 15 years and his Guidelines range from 92-115 to 168-210 months.  Defendant’s submission of and reliance on the New York criminal complaints was immaterial because the government always bears the burden of proving the applicability of an ACCA enhancement with Shepard-approved documents.
The Circuit did not foreclose the possibility that a district court could consider a PSR “derived in whole, or in large part,” from ­Shepard-approved documents.  Likewise, the Circuit acknowledged that materials provided in the parties’ sentencing submissions or incorporated into the PSR might be analogous to Shepard-approved documents, and remanded for the district court to consider that possibility in this case.  
[Disclosure: Federal Defenders of New York, Inc., represents the defendant, Zephaniah Dantzler, in this case.]

Acceptance of Guilty Plea to Gun Charge Based on Different Weapon From the One Specified in the Indictment Was Not Plain Error

United States v. Bastian, No. 13-1156-cr (2d Cir. Oct. 29, 2014) (Katzmann, Sack, and Lynch), available here

Defendant pled guilty to conspiracy to distribute crack cocaine and to possessing a firearm in connection with that drug-trafficking offense (18 U.S.C. § 924(c)(1)). But the plea to the gun charge was based on the possession of a different weapon from the one identified in the indictment. On appeal, defendant argued that the district court's acceptance of the plea constructively amended the indictment and that the court's failure to inform him of his rights under the Grand Jury Clause prevented him from entering a knowing and voluntary plea.

Because these claims were not raised in the district court, the Circuit reviewed them for plain error only. And defendant could not satisfy that rigorous standard. The Court noted that, while two circuits have held that variations from the specific weapon named in an indictment can constructively amend an indictment, several cases from other circuits (and from the Second Circuit) "counsel to the contrary." Judge Lynch's opinion for the Court states, "[T]his Court has never held that substituting a different weapon than that charged in the indictment constructively amends a § 924(c)(1) charge and indeed our cases have suggested that, in general, it does not."

Accordingly, because "the operative legal question is unsettled," defendant could not establish that any error was "clear or obvious" under current law, as required to show plain error. Similarly, because it was unclear that defendant even had a right to a superseding indictment, "it cannot have been plain error for the court not to have advised him of such a right, or sought its waiver." "At most," the Circuit concluded, "the district court failed to identify a novel legal issue that neither party brought to its attention, an omission that does not meet the standard of a plain error calling for relief from this Court."

District Court Properly Admitted Evidence of Witnesses' Beliefs That Defendants Were Connected To Organized Crime

United States v. Fazio, Nos. 12-3786-cr, 12-3799-cr, 12-3874-cr (2d Cir. Oct. 22, 2014) (Walker, Leval, and Wesley), available here

Anthony Fazio, Sr., Anthony Fazio, Jr., and John Fazio, Jr., were officers in Local 348 of the United Food and Commercial Workers International Union. They allegedly demanded that business owners employing Local 348 members make payments to the Fazios "to ensure a good working relationship with the union." The government claimed that the Fazios' demands for money were accompanied by threats of economic and physical harm.

Following a jury trial in the Southern District of New York (Forrest, J.), defendants were convicted of all counts, which included racketeering conspiracy and extortion conspiracy.  On appeal, they challenged: (1) a ruling admitting evidence that certain witnesses believed that defendants were connected to organized crime, (2) the denial of a requested jury charge that the "fear" element of extortion cannot be satisfied by a threat of loss of economic advantage to which the victim was not legally entitled, and (3) the dismissal during trial of a juror.

The Court rejected all three contentions and affirmed the convictions. First, the Circuit held that the district court properly admitted evidence that the defendants had a reputation for being connected to organized crime. Such evidence was relevant to the fear reasonably experienced by the victims, an element of extortion.

Second, the district court properly refused to instruct the jury that it could not find the "fear" element of extortion unless the victim feared losing an advantage to which he was legally entitled. "This instruction," the Circuit held, "misstates the law." The Court wrote: "None of our precedents require that the economic advantage that the victim fears losing to have been legally obtained by the victim. Our cases require simply that the victim be coerced into making the payments out of a reasonable fear of economic harm."

Finally, the district court did not abuse its discretion by dismissing a juror. The juror had repeatedly violated the court's instructions, thus providing "reasonable cause to believe that the juror could no longer serve according to her oath." Accordingly, dismissal of the juror was proper.

Admission Of Defendant's Social Media Profile Was Error Absent Sufficient Authentication

United States v. Zhyltsou, No. 13-803-cr (Wesley, Livingston, and Lohier), available here

At defendant’s trial for unlawful transfer of a false identification document, the government introduced a printed copy of a webpage that it claimed was defendant’s profile page from the Russian social network  The printout contained defendant’s photograph, as well as information (defendant’s Skype ID, places of employment, and birthplace) that corroborated testimony of the cooperating witness on whom the government’s case depended.  In particular, the profile listed defendant’s Skype ID as “Azmadeuz,” which was significant because the false identification document at issue had been emailed to the cooperating witness from the address “”  A State Department special agent testified that he had printed the profile page off the Internet, but acknowledged that he did not know who had created the page.  Defendant objected, contending that the page had not been authenticated as his, so the printout was inadmissible under Federal Rule of Evidence 901.  The district court (Glasser, J.) disagreed, ruling that the webpage was defendant’s and it was “fair to assume” that the information it contained “was provided by him.”  

Following defendant’s conviction, the Circuit reversed, concluding that there was insufficient evidence to authenticate the profile page as defendant’s.  Although there was information about defendant on the page, there was no evidence that defendant himself created the page or was responsible for its contents.  Had the government introduced “a flyer found on the street that contained [defendant’s] Skype address and was purportedly written or authorized by him,” the Circuit reasoned, “the district court surely would have required some evidence that the flyer did, in fact, emanate from [defendant].”  The same was true here, but “the mere fact that a page with [defendant’s] name and photograph happened to exist on the Internet” at the time of trial “does not permit a reasonable conclusion that this page was created by the defendant or on his behalf.”  The Circuit noted that the contents or “distinctive characteristics” of a document can sometimes provide circumstantial evidence sufficient for authentication under Rule 901(b)(4), but only where the contents of the document are “obscure” enough that they are “not a matter of common knowledge.”  Here, the information about defendant was general and known to people with motives to create a false page, including the cooperating witness.  Nor was there evidence that identity verification was necessary to create the profile page.

The error was not harmless because the only evidence linking defendant to the false identification document at issue was the profile page and the cooperating witness’s testimony.  The cooperator’s credibility was questionable because he had pleaded guilty to three felonies involving deceit, and the jury could have believed that the cooperator had used his own expertise in fabricating identities and documents to create false evidence substantiating his testimony against defendant.  The profile page, in particular, the “Azmadeuz” Skype ID, corroborated the witness’s testimony on the principal contested issue at trial, namely, that the “” account that sent the false identification document was defendant’s.

[Disclosure: Federal Defenders of New York, Inc., represents the defendant, Aliaksandr Zhyltsou, in this case.]

Car Parked Outside Victim's House Is Within Victim's "Presence" For Purposes of Federal Carjacking Statute

United States v. Soler, No. 12-2077-CR (2d. Cir. July 22, 2014) (Katzmann, Walker, and Droney), available here

The federal carjacking statute, 18 U.S.C. § 2119, criminalizes the forcible taking of an automobile “from the person or presence of another.”  Following decisions by all the other Courts of Appeals to have addressed the question, the Circuit here held that an automobile is in the “presence” of a victim “if it is so within his or her reach, inspection, observation, or control that he or she could, if not overcome by violence or prevented by fear, retain possession of it.”  
Defendants robbed a house and, on the way out, demanded that one of the occupants give them the keys to a car parked in front of the house.  The car was parked on a curb 10-15 feet, or a 5-second walk, from the front door to the house.  The victim testified that the car could be seen from the front door, but that she could not see the car at the time defendants demanded the keys because she was lying on the floor.  Other trial evidence revealed that the interior of the house was separated from the car by a solid front door, a short driveway, a wrought iron fence, and a sidewalk.  The car could be unlocked from the front door with a remote keychain.
On appeal, the Circuit rejected defendants’ argument that the statutory term “presence” means “in front of, or in the area immediately around, a person,” adopting instead the more expansive definition above.  Nonetheless, this definition of presence “is not boundless,” but “implies a degree of physical proximity between the victim and the vehicle.”  Citing with approval decisions of other Courts of Appeals affirming carjacking convictions where the automobiles stolen were parked outside the premises where the victims were robbed, the Circuit concluded that the evidence in this case likewise sufficed to prove presence.
[Disclosure: Federal Defenders of New York, Inc., represents one of the defendants, William Soler, in this case.]

Modified Allen Charge Not Required Where Jury Poll Reveals Non-Unanimity

United States v. McDonald, No. 12-2056-CR (2d Cir. July 22, 2014) (Cabranes, Sack, and Lynch), Available Here

During deliberations in defendant’s fraud trial, the jury announced that it had reached a guilty verdict. When the jury was polled, Jurors 1-10 so confirmed, but Juror No. 11, asked whether guilty was her verdict, answered “no.” With the parties’ agreement, the trial court (Koeltl, J.) told the jury that he would “send you back to deliberate to see whether you can reach a unanimous verdict, in light of all the instructions I have given you.”

After deliberations resumed, the court told the parties that he had identified a model instruction (Sand ¶ 9.12) applicable where a jury poll reveals a lack of unanimity. The first part of the model instruction tracks what the jury had already been told. The second part, however, contains a modified Allen charge, encouraging the jurors to consult with one another and to change their minds if convinced of a new view, while admonishing them not to surrender sincerely held convictions. With the parties’ agreement, the court declined to give that modified Allen charge, and the jury (unanimously, this time) convicted an hour later.

On appeal, the Circuit held that the court’s instruction was appropriate and its failure to admonish the jurors not to surrender conscientiously held beliefs was not error, let alone plain error. The court only asked the jurors “to see whether” they could reach a unanimous verdict. The charge was not coercive because it did not suggest that unanimity was required, did not urge jurors to change their views or try to persuade each other, and left open the possibility that no verdict would be reached. Thus, although an Allen charge generally requires an accompanying admonition, this was not an Allen charge, so no admonition was necessary.

Notwithstanding Sand’s commentary that instruction ¶ 9.12 should be given “whenever” a jury poll reveals a lack of unanimity, the Circuit observed that the instruction given here was “a sensible and manageable alternative.” Finally, the Circuit added cautionary language regarding Allen charges generally, noting that trial courts “should be mindful of presenting them in a way that aids, rather than confuses the jury,” especially “after a jury poll reveals a lone dissenter.”

District Court Did Not Abuse Discretion by Admitting Documents as "Self-Authenticating," Despite Government's Failure to Comply With Rule 902

United States v. Komasa, No. 13-1534-cr(L) (2d Cir. Aug. 28, 2014) (Pooler, Hall, and Lohier), available here

Rule 902 of the Federal Rules of Evidence provides that certain items of evidence are self-authenticating; "they require no extrinsic evidence of authenticity in order to be admitted." Fed. R. Evid. 902. These items include certified domestic records. But the rule requires the proponent of the evidence to give an adverse party, before trial, "reasonable written notice of the intent to offer the record -- and [to] make the record and certification available for inspection -- so that the party has a fair opportunity to challenge them." Fed. R. Evid. 902(11).

In this case, a prosecution for mortgage fraud, the district court admitted the pertinent loan files as self-authenticating under Rule 902(11), even though the government never gave the defendants the "written notice" required by the Rule.

The Circuit nevertheless found no error. The Court noted that the defendants admitted that they had oral notice of the government's intent to offer the records and an opportunity to challenge the Rule 902(11) evidence.

The Court concluded its opinion by warning that "parties fail to comply with ... Rule 902(11)'s written notice requirements at their own risk." But, given the Court's readiness to overlook the government's failure to comply with the Rule -- which the government easily could have done -- that warning is likely to ring hollow.

Commentary: It's hard to see how the failure to comply with the plain language of a rule of evidence isn't error. The Circuit would have been on stronger ground if it acknowledged the error, and then evaluated whether the error was harmless.  

Mob Informant Beats Government on Appeal

United States v. Mergen, No. 12-2873-cr (2d Cir. Aug. 21, 2014) (Katzmann, Jacobs, and Duffy), available here

Volkan Mergen worked for years as a paid FBI informant operating inside mob families. In 2006, he participated with mob members in an arson without alerting the FBI in time to abort the crime.

Mergen then entered into a cooperation agreement by which he would plead guilty to a Travel Act offense in connection with the arson in exchange for a Section 5K1.1 "substantial assistance" letter. One provision of the agreement tolled the statute of limitations for prosecutions resulting from Mergen's breach and "premised upon, among other things," his statements to the government, his testimony, or leads derived therefrom. 

When Mergen breached the agreement, the government successfully prosecuted him in the Eastern District of New York for the Travel Act offense and other crimes (drug distribution, attempted robbery, firearm possession, and related conspiracies) that the government learned about from persons who had been convicted based on Mergen's cooperation.

On this appeal, the Circuit granted a new trial on the Travel Act count and reversed the rest of Mergen's convictions.

Though the panel held the evidence sufficient to support the Travel Act conviction, the Court ruled that the district court committed reversible error by excluding a recorded conversation between the defendant and his FBI handler. In the recording, the FBI agent assured the defendant that he had not done "anything wrong" the night of the arson. This recording should have been admitted at trial, the Circuit ruled, because it impeached the agent's testimony denying that he ever told the defendant that he did "nothing wrong." Accordingly, the recording was a "prior inconsistent statement offered for impeachment," and thus, by definition, was not hearsay. The Court also held that the error was not harmless because the evidence of the defendant's intent was ambiguous, the case against him depended largely on whether the jury believed the defendant or the FBI agent, and the recording would have undercut the agent's credibility.

The Circuit also reversed the defendant's other convictions. It agreed with the defendant that the limitations waiver in the cooperation agreement, which had to be construed strictly against the government, did not toll the statute of limitations for offenses that the government learned about from people Mergen helped convict.  If the government wished to reserve its right to prosecute the defendant for any offense he ever committed, without regard to any statute of limitations, then it should have drafted the agreement to say so expressly and unambiguously. 

Commentary: Notably, this was the defendant's second appeal. On the first appeal, the Circuit ruled that the recorded conversation between the defendant and the FBI agent "should not have been excluded on the basis of either hearsay or lack of authentication." The district court apparently did not get the message, for it again excluded the recording on these same improper grounds, prompting reversal.   

Excluding Defendant's Parents from Trial During Victim's Testimony Did Not Violate Right to Public Trial

United States v. Ledee, No. 13-2363-cr (2d Cir. Aug. 8, 2014) (Walker, Pooler, and Wesley), available here

The defendant was convicted of crimes stemming from participating via webcam in the sexual abuse of an eight-year-old girl by her mother. At trial, the district court granted the government's motion to close the courtroom during the victim's testimony to all persons who were not directly involved in the trial, including the defendant's parents.

On appeal, the defendant argued that the courtroom closure violated his Sixth Amendment right to a public trial. The Circuit, over a dissent by Judge Pooler, disagreed and affirmed. [Disclosure: Federal Defenders of New York, Inc., represents the defendant in this case.]

For a courtroom to be closed to the public in compliance with the Sixth Amendment, four requirements must be met: (1) the closure must "advance an overriding interest that is likely to be prejudiced;" (2) the closure must be "no broader than necessary to protect that interest;" (3) the trial court must consider "reasonable alternatives to closing the proceeding;" and (4) the court must make "findings adequate to support the closure." See Waller v. Georgia, 467 U.S. 39, 48 (1984).

The panel majority found these requirements satisfied. First, it ruled that the interest at risk of being prejudiced -- the victim's ability to effectively communicate about her abuse -- was sufficient to justify the "relatively narrow closure here."

Second, the Court found that the closure was not overly broad, even though it included the defendant's parents. According to the panel, the trial judge reasonably determined that the parents had to be excluded from the courtroom to ensure the victim's effective testimony.

Third, the Court ruled that the trial court adequately considered reasonable alternatives to closure because it said that "[t]he parties have not advised the court of any [such] alternatives..., and the court is not aware of any."

Finally, the Court ruled that the district court made adequate findings, supported by an affidavit from the victim's father, to support the courtroom closure.

In dissent, Judge Pooler concluded that the district court failed to make an adequate record of what alternatives to closure it considered and why those alternatives were deemed inadequate.   


Cost of Incarceration Is Not a Permissible Factor In Deciding Whether To Impose Imprisonment

United States v. Park, No. 13-4142-cr (2d Cir. July 9, 2014) (Cabranes, Carney, and Droney) (per curiam), available here

Convicted of filing a false corporate tax return, Park was sentenced to three years' probation, including six months' home detention. The district court (Judge Block) explained that it was imposing this sentence -- below the 15-to-21 month Guidelines range of imprisonment -- solely because of the "government shut-down" in place at the time of sentencing.  The court said that it was not imposing imprisonment "only because of the economic plight that we are facing today."

On the government's appeal, the Circuit held that the probationary sentence was both procedurally and substantively unreasonable. On the procedural side, the district court erred by considering only the cost of incarceration, rather than all of the sentencing factors set forth in 18 U.S.C. § 3553(a).  Indeed, the Circuit held, the court should not have considered the cost of incarceration at all, because that factor is not an appropriate basis for deciding whether imprisonment is warranted.  "We conclude," the Court wrote, "that the cost of imprisonment is not a sentencing factor enumerated in § 3553(a), nor is it an additional factor upon which district courts may rely in deciding whether to impose a term of incarceration under 18 U.S.C. § 3582(a)."

The Circuit also held that a probationary sentence was substantively unreasonable, at least on the existing record. "We . . . hold that, in light of the need for deterrence and just punishment and the District Court's own conclusion that, based on the record before it, a term of imprisonment was warranted, the probationary sentence imposed here was substantively unreasonable." The Circuit emphasized that its decision was based on "the record currently before us," and that imposition of a probationary sentence again on remand, after proper consideration of the § 3553(a) factors, would not necessarily be substantively unreasonable.   

Admission of Lineup Identification of Defendant Was, At Most, Harmless Error

United States v. Reed, No. 13-0359(L) (2d Cir. June 25, 2014) (Jacobs, Calabresi, and Pooler), available here

Reed was convicted after trial of various federal charges arising from the shooting and attempted robbery of a rival drug dealer. Reed argued on appeal that the district court should have suppressed a state court lineup identification of him as the assailant, on the grounds that the lineup was conducted in violation of his Sixth Amendment right to counsel.

On appeal, the Circuit found it unnecessary to decide whether the lineup identification should have been suppressed, holding that its admission at trial was harmless beyond a reasonable doubt. The Court concluded that the independent evidence linking Reed to the shooting and robbery was overwhelming and that the jury necessarily credited the testimony of a cooperating witness identifying Reed as a participant in the charged crimes. The Court also noted that one of the victims had fingered Reed as the assailant in a photo array nearly 18 months prior to the questionable lineup, thus rendering the lineup identification "merely cumulative." Accordingly, the Court affirmed Reed's convictions.


Supreme Court's Peugh Decision Not Retroactive To Cases on Collateral Review

Herrera-Gomez v. United States, No. 14-1166 (2d Cir. June 17, 2014) (Winter, Walker, and Cabranes) (per curiam), available here

Petitioner, a federal prisoner convicted of conspiracy to distribute heroin, moved in the Circuit for leave to file a successive 28 U.S.C. § 2255 motion in the district court based on the Supreme Court's decision in Peugh v. United States, 133 S. Ct. 2072 (2013). The Circuit, however, denied leave, holding that the rule announced in Peugh was not "a new rule of constitutional law . . . made retroactive to cases on collateral review by the Supreme Court." 28 U.S.C. § 2255(h)(2).  

Peugh held that a "retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation." 133 S. Ct. at 2804. In seeking leave to file a successive § 2255 motion based on Peugh, petitioner contended that the case announced "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h)(2).

The Circuit rejected petitioner's argument. Though Peugh arguably announced a new rule of constitutional law, the Circuit held, the Supreme Court has not yet made the Peugh rule retroactive to cases on collateral review. Peugh did not establish a "watershed rule of criminal procedure" that "alter[s] our understanding of the bedrock procedural elements" of the adjudicatory process. Nor did Peugh place "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe." Teague v. Lane, 489 U.S. 288, 311 (1989). Instead, Peugh "simply changed the discretion afforded to judges in determining which Guidelines to apply at sentencing." Accordingly, the Circuit held, it could not authorize the filing of petitioner's successive § 2255 motion under Peugh


Evidentiary Error and Government Misconduct Required New Trial

United States v. Certified Environmental Services, Inc., No. 11-4872(L)-cr (2d Cir. May 28, 2014) (Raggi, Carney, and Rakoff), available here

Defendants, consisting of an asbestos air monitoring company, five of its employees, and an employee of an asbestos abatement contractor, were convicted collectively of 15 counts of conspiracy, mail fraud, and false statements. The charges related to a scheme to violate various state and federal environmental regulations and to certify falsely that proper air monitoring had been conducted.

The appealing defendants argued that (1) the district court improperly excluded evidence that they acted in the good-faith belief that they were complying with applicable state regulations; and (2) the prosecutors engaged in misconduct.

The Circuit agreed, holding that the district court erred by excluding the proffered evidence of good faith, and that, as the government conceded on appeal, the prosecutors committed multiple instances of misconduct throughout the trial. The misconduct included: (1) improper bolstering of government witnesses based on their cooperation agreements; (2) improper vouching in summation; (3) improper extra-record references in rebuttal summation; and (4) improper appeals in rebuttal summation to the consequences the jury's verdict would have. 

The Court also found the prejudice resulting from the district court's erroneous evidentiary ruling and the prosecutors' misconduct sufficient to violate the defendants' right to fair trial. The panel noted that "evidentiary errors and prosecutorial misconduct infected every stage of the trial," that the improprieties were "not insubstantial," and that the curative measures taken by the district court were not sufficient to eliminate the prejudice. The Court also stated that, though the government's case was "quite strong," it was "not overwhelming." Accordingly, the Court vacated the convictions and ordered a new trial.

Finally, on a sentencing appeal by the government with respect to two non-appealing defendants, the Court held that the district court miscalculated the amount of  restitution and committed procedural errors in determining the applicable guidelines range. Resentencing was therefore required for these two defendants.

Commentary: This is one of those rare situations where the Circuit reverses based (in part) on prosecutorial misconduct. Judge Rakoff's opinion for the Court contains great language regarding the rules against bolstering, the bounds of permissible summation, and the importance of the defendants' evidence of good faith.     

Evidence of Domestic Transactions Was Sufficient To Sustain Securities Fraud Convictions

United States v. Mandell, No. 12-1967-cr(L) (2d Cir. May 16, 2014) (Wesley,  Carney, and Wallace) (per curiam), available here 

Ross Mandell and Adam Harrington were convicted, after a jury trial, of various substantive and conspiratorial counts of securities fraud, wire fraud, and mail fraud. Mandell was sentenced principally to 144 months in prison; Harrington got 60 months.

The defendants' central contention on appeal was that the government failed to present sufficient evidence of domestic securities transactions under Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010), and United States v. Vilar, 729 F.3d 62 (2d Cir. 2013). The Circuit disagreed, citing evidence that certain investors in certain transactions were required to submit purchase applications and payments to a company in the United States. The Court, viewing the evidence in the light most favorable to the government, held that a rational jury could have found the essential elements of the offenses, including the domestic nature of the fraudulent transactions, beyond a reasonable doubt.

The Circuit also rejected the defendants' challenge to the jury instructions regarding extraterritoriality. The Court appeared to agree that the instructions were flawed under Morrison, but concluded that the error was harmless because the evidence of domestic fraud was sufficient to convict, "which means that if the jury had been instructed [properly], it would still have necessarily reached the verdict it did."

The Court went on the reject the defendants' other challenges to their convictions, including claims that the jury should have been instructed regarding foreign law, that the jury instructions improperly allowed the jury to convict absent an "actual misrepresentation," that the evidence was insufficient to establish any "material misrepresentation" or a duty to disclose commission payments, and that witnesses were improperly allowed to testify that certain conduct was illegal.

Finally, the Court upheld the reasonableness of the defendants' sentences, except for a forfeiture order, which should have made the defendants jointly and severally liable.

Commentary: This decision contains a serious legal error. The panel held that the apparently flawed instruction under Morrison was harmless simply because the evidence was sufficient to convict when viewed most favorably for the government. The sufficiency standard, however, has no place in harmless-error analysis. The question in harmless-error analysis is not whether any rational juror could have convicted the defendants absent the error, but rather whether the error likely affected the defendants' "substantial rights" by influencing the actual jury's decision. "The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). And the Supreme Court has expressly declared that "harmless-error inquiry is entirely distinct from a sufficiency-of-the-evidence inquiry." United States v. Lane, 474 U.S. 438, 450 n.13 (1986).

In light of these Supreme Court decisions, the Circuit was wrong to hold that the alleged instructional error was harmless simply because the evidence of domestic transactions, when viewed most favorably for the government, was sufficient to convict. And it was wrong to say that the mere fact that the evidence was sufficient to convict "means that if the jury had been instructed [properly], it would still have necessarily reached the verdict it did."

The defendants have both filed petitions for rehearing and rehearing en banc. Stay tuned for further developments.

Circuit Issues Important New Fourth Amendment Decision

United States v. Ganias, No. 12-240-cr (2d Cir. June 17, 2014) (Hall, Chin, and Restani), available here

Yesterday, the Circuit handed down what Professor Orin Kerr has already called "a very important new Fourth Amendment case." In an opinion by Judge Chin, the Court held that the government violates the Fourth Amendment when it indefinitely retains computer files that were seized pursuant to a search warrant but are not responsive to the warrant. For a fuller discussion of this noteworthy decision, see the article at this link.