Penalty Blocks

United States v. Jacques, No. 11-2142-cr (2d Cir. July 9, 2012) (Winter, Chin, Droney, CJJ)

In this capital case, the district court entered an order excluding some evidence that the government intended to offer at the penalty phase. On this, the government’s interlocutory appeal, the circuit reversed in part and affirmed in part.

Background

Michael Jacques was charged with the kidnaping, rape and murder of a young girl. In the death notice, the government included aggravating factors that it would seek to prove at the penalty phase: allegations of prior rapes, and an attempt to obstruct justice by influencing the testimony of a victim/witness. The district court permitted evidence of two of the prior rapes - one of a juvenile and one of an adult - but struck three of the prior rape allegations, all of which involved juveniles (J2, J3 and J4), finding that the conduct was unadjudicated and more than twenty years old. The court also suppressed the evidence of the obstruction attempt, finding it was obtained in violation of the Sixth Amendment.  

The circuit affirmed the exclusion of two of the three rapes, remanded for further findings on the third, and reversed the Sixth Amendment Ruling.

The Rape Allegations

J2 was a younger relative of Jacques. In 1985, J2 became pregnant and told the authorities that Jacques, who was then 18, had raped her. Jacques ultimately admitted that he “experimented” with J2; he was arrested but never prosecuted. He was accused of raping J3 around the same time; she was a young girl who spent the night at Jacques’ home with a younger sibling.  The rape of J4, a friend of one of Jacques’ siblings, occurred in 1987. Jacques pled guilty to “lewd and lascivious conduct” and received a three-year deferred sentence.

The circuit could not find much to fault in the district court’ decision to exclude this evidence. The admissibility of evidence at the penalty phase of a capital trial is governed by 18 U.S.C. § 3559(c), not by the Federal Rules of Evidence. That section provides that information is admissible at a penalty trial regardless of its admissibility under the rules of evidence, but “information may be excluded if its probative value is outweighed by the danger of ... creating unfair prejudice.” The circuit observed that the standard for exclusion under this section is “broader” than that contained in Rule 403. Evidence can be excluded under Rule 403 only if its probative value is “substantially” outweighed by its potential for prejudice.

The circuit noted next that all three of the rapes were alleged to have occurred about twenty-five years ago and that this “remoteness reduces the reliability” of the evidence. The remoteness also reduced the probative value of the evidence with respect to Jacques’ character, because he was “a youth himself at the time.” In addition, in the J2 and J3 cases the reliability was further undermined by the lack of a “relatively contemporaneous adjudication,” and for J4, while there was an adjudication, it was not for rape.  There was also “murkiness as to each with regard to” the degree of coercion.

The circuit panel concluded that “although we might well have ruled otherwise were we in the district court’s position,” the court acted within its discretion. That said, however, since the district court ruled as if the J4 rape was unadjudicated, which was not true, the circuit remanded for reconsideration as to that allegation. It cautioned, however, that the district court would still be within its discretion to exclude the evidence.

The Obstruction of Justice Allegation

The court’s discussion of  this issue begins with the bizarre conduct underlying Jacques’ case, which began as a scheme, in 2003, to sexually abuse J1, who was nine years old. He did so by making her believe that a fictitious organization called “Breckenridge” would kill her and her family if she did not follow the group’s instructions. Some of those instructions induced J1 into believing that she had to submit to Jacques as her “sexual trainer.”  This continued until 2008, when she was 14. Also, in 2008, Jacques persuaded J1 that she had to help him abduct and kill a young girl named Brooke. With J1’s coerced assistance, Brooke was brought to a convenience store near Jacques’ home; he is charged with drugging, raping and murdering her.

Jacques was eventually arrested and charged with the kidnaping. While in custody, he reached out to a friend, Michael Garcia, asking for help. Amongst other things, he asked Garcia to pose as his civil attorney so that they could speak on an unmonitored phone line. Garcia went to the authorities, and eventually he made recorded calls to Jacques on the supposedly unmonitored attorney line. In those calls, Jacques tried to persuade Garcia to pose as a member of Breckenridge, reach out to J1 and induce her to inform the authorities and the media that Jacques was innocent. Garcia eventually met with Jacques in prison wearing a wire, and Jacques continued to give him instructions about his plans for J1. Garcia, throughout, was instructed by the FBI not to ask Jacques about the charged crimes. He mostly followed those instructions, although he at one point asked a few clarifying questions and, contrary to the instructions, also asked a question about some of Jacques’ past criminal conduct.

The district court concluded that the evidence of Jacques’ attempt to obstruct justice was obtained through a knowing circumvention of Jacques’ right to counsel, in violation of the Sixth Amendment, and suppressed it.

The circuit, however, reversed because Jacques did not show that Garcia “took actions amounting to an ‘indirect and surreptitious interrogation’ ... with regard to the kidnaping/rape/murder offenses.”  Jacques’ conversations with Garcia occurred at Jacques’ own insistence, and Garcia was “entirely passive” when Jacques explained how Garcia could help him. The few questions that Garcia asked were not of a “probing nature” with respect to the underlying charges and did not alter the fundamental nature of the exchange, which was Jacques’ enlisting Garcia’s help. Since Jacques “shared information on his own initiative and on his own terms,” Garcia was nothing more than the classic “listening post.”

Tamper Proof

United States v. Simels, No. 09-5117-cr (2d Cir. August 12, 2011) (Newman, Calabresi, Hall, CJJ)

Former defense attorney Robert Simels appealed his conviction, after a jury trial, of various counts relating to a witness-tampering scheme, and his fourteen-year sentence. The circuit dismissed two minor counts as insufficient but otherwise affirmed.

The case arose from Simels’ representation of one Shaheed Khan, a Guyanese narcotics trafficker, who was detained at the MCC. The case against Simels had three main components. First, he lied to prison officials in an effort to speak to another prisoner, David Clarke, whom he believed to be a witness against Khan, by saying he was Clarke’s attorney. Second, an associate of Khan’s, Selwyn Vaughn, had several conversations with Simels, in which Simels discussed bribing and threatening potential witnesses against Khan. Vaughn had approached the DEA when he learned that Simels was reaching out to him, and wore a wire during these discussions. Third, the government recorded conversations between Simels and Khan in an attorney-client visiting room at the MCC.

Khan ultimately pled guilty and, in doing so, waived any claim that the government violated the Fourth, Fifth and Sixth Amendments in investigating him. He also also waived his work-product and attorney-client privilege claims with respect to the investigation of Simels.

Simels raised a number of significant issues on appeal about the way the evidence against him was gathered, but the circuit affirmed.

Evidentiary Issues

Simels' first argument was based on the Sixth Amendment. The court agreed that the use of an informant to meet with him and discuss his defense of Khan “potentially raise[d] serious issues concerning the Sixth Amendment rights of the lawyer’s client and other issues arising from intrusion into the attorney-client relationship.”

Simels asserted third-party standing over Khan’s Sixth Amendment rights. But the court, having identified the importance of the standing question, did not really resolve it. The court held that the “law is unclear” on the point, but would “assume that Simels can assert a Sixth Amendment right on behalf of his client” for the purposes of his own appeal.

As to the merits of the Sixth Amendment claim, the opinion is similarly inconclusive. It wonders whether investigators who believe that an attorney is attempting to obstruct justice in the course of representing a client “are constitutionally required to have a reasonable basis for their suspicion of possible obstruction before sending an informant to contact the lawyer,” but stops short of holding that the requirement exists. Instead, it concludes only that “the existence of such a basis adequately allays any concern that the attorney-client relationship has been improperly invaded.”

And here, the district court’s finding that the DEA had reasonable basis was adequate. It relied on Simel’s deception so that he could meet with Clarke, and Vaughn’s initial report to the DEA that he believed that Khan and Simels wanted to recruit him to assist in intimidating Clarke and others.

Simels also raised an interesting wiretap issue. The district court had held that the government obtained the recordings of Simels and Khan at the MCC in violation of Title III and suppressed them. But the court allowed the government to use the recordings to impeach Simel on cross-examination. The circuit again affirmed. Although 18 U.S.C. § 2515 provides that illegally obtained wire communications may not be “received in evidence in any trial,” Title III was not meant to provide more protection than the Fourth Amendment, and it has long been recognized that evidence obtained in violation of the Fourth Amendment can be used for impeachment purposes.

Sufficiency Issues

The circuit had no trouble finding that there was sufficient evidence to support the bulk of the counts of conviction - the attempted obstruction of various individual witnesses - but agreed that two counts relating to the importation and possession of certain electronic surveillance devices had to be tossed. The evidence established that the devices were inoperable, and the circuit concluded that the statute - 18 U.S.C. 2512 - which covers devices “which can be used to intercept” communications, excludes inoperable equipment. But, since Simels received time served and no supervised release on these counts, and since there was no “prejudicial spillover" affecting the other counts, all that was necessary was a limited remand for the entry of a corrected judgment reflecting the dismissal of these counts.

Sentencing Issues

Of Simels’ three sentencing claims, one stands out. He received a fourteen-year sentence and, at his request, the judge recommended that he be housed at the camp at FCI Otisville. At the time of sentencing, the judge was unaware that the BOP will not designate a prisoner to a camp, absent a BOP waiver, if the defendant is sentenced to more than ten years’ imprisonment. The judge only learned this after Simels was sentenced. Even so, for reasons unexplained, “the sentence was not imposed under a misunderstanding of facts that would impair the validity of the sentence.”

Object Permanence

United States v. Marte Robles, No. 07-1013-cr (2d Cir. April 9, 2009)(Straub, Hall, CJJ, Eaton, DJ)(per curiam)

In this case, the court was called upon to construe Application Note 4 to U.S.S.G. § 1B1.2. Section 1B1.2(d) provides that a “conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit.” The application note advises that “[p]articular care must be taken” when applying this subsection because there are cases where “the verdict or plea does not establish” which offenses were “the object of the conspiracy. In such cases, [subsection(d)] should only be applied with respect to an object offense alleged in the conspiracy count” if the court, were it sitting as the trier of fact, “would convict the defendant of conspiring to commit that object offense.”

After a jury trial, defendant Marte was acquitted of several substantive Hobbs Act robbery charges. He was convicted only of a single Hobbs Act conspiracy count that alleged, generally, that he and others robbed drug dealers in the Bronx and Manhattan, but did not identify any specific robberies as the object of the conspiracy. At sentencing, however, the district court concluded that the government had proven beyond a reasonable doubt that he conspired to commit two particular robberies, considered them to be the offenses that were the object of the conspiracy, and took them into account when calculating Marte’s guideline range.

On appeal, Marte argued that this was a misapplication of § 1B1.2(d) and Note 4, because those provisions prohibit sentencing enhancements based on the objects of a conspiracy are not specifically identified in the conspiracy count of the indictment.

On its face, Marte’s position would seem reasonable, since it appears to be consistent with the plain language of the application note. But the circuit disagreed. It held that the emphasis of Note 4 was “not on the specificity of the conspiracy charge but on the standard of proof that must be satisfied to permit a court to find that a defendant conspired to commit particular object offenses and then to treat such findings as a sentencing factor in determining the defendant’s offense level.”

The court also rejected Marte’s Sixth Amendment challenges to the sentence. There is no Sixth Amendment violation in a conspiracy sentence that is based on objects not alleged in the conspiracy count of an indictment. Nor was it true that the district court based the sentence on “the same conduct” that Marte was acquitted of. The substantive commission of a robbery is not “the same conduct” as conspiring to commit that robbery.

Gimme Shelter

United States v. Stein, no. 07-3042-cr (2d Cir. August 28, 2008) (Jacobs, Feinberg, Hall, CJJ)

This case arose from a 2004 investigation into KPMG’s suspected creation and sale of illegal tax shelters. Although KPMG’s counsel recommended a “cooperative approach” in its dealings with the government, the firm still, initially, promised to pay the attorneys' fees of any current or former member of the firm who was under investigation.

In subsequent meetings with Southern District prosecutors, however, the government started putting pressure on KPMG to not pay attorneys' fees. It cited the “Thompson Memorandum,” a directive to federal prosecutors intended to give guidance on when to prosecute business organizations, which instructs prosecutors to consider whether the firm was protecting culpable employees through, inter alia, “the advancing of attorneys fees.” Bowing to this pressure, KPMG’s counsel told the government that it would not pay the fees of employees who failed to “cooperate” with the government or who invoked their Fifth Amendment rights. Later, KPMG amended its fee-payment policy to expressly cover only employees who “cooperated,” and only until the time of indictment.

Over the next year, the government would complain to KPMG when employees refused to proffer, and KPMG would in turn warn them that payment of their attorneys fees would stop unless they cooperated. Those who continued to invoke their Fifth Amendment rights were fired, and the firm stopped paying their attorneys' fees altogether.

KPMG was seeking a non-prosecution agreement, but the government balked. Eventually, by repeatedly touting its commitment to force employees to cooperate by threatening to terminate payment of their attorneys' fees, KPMG avoided indictment, and was permitted to enter into a deferred prosecution agreement. It paid a large fine and agreed to continue cooperating in the future.

The day KPMG executed that agreement, the government indicted several KPMG employees, including the thirteen defendants on this appeal. They moved to dismiss the indictment based on the government’s interference with KPMG’s payment of their attorneys' fees - KPMG admitted that it had been “substantially influenced” by the government to stop paying - and the court granted the motion.

The government appealed, and the circuit affirmed.

First, the court held that the district court’s findings of fact were not clearly erroneous. It specifically upheld - and relied on - the court’s central finding that “[a]bsent the Thompson Memorandum and the actions of the USAO, KPMG would have paid the legal fees and expenses of all of its partners and employees both prior to and after indictment, without regard to cost.”

Next, the court held that, since the government did not cure the violation, dismissal was only remedy that would restore defendants to the position they enjoyed before government’s unconstitutional conduct. The court noted that four defendants were deprived of counsel of their choice because they could not longer afford those attorneys once KPMG stopped paying. The others, who continued with their counsel at their own expense, had to limit their defenses for economic reasons, and would not have been so constrained if KPMG had continued paying.

The supposed “cure” advanced by the government was that, two years later, in court, the government invited KPMG to exercise its “business judgment” in deciding whether to resume paying the attorneys fees. The circuit was unimpressed. This “isolated and ambiguous” statement, made in a proceeding to which KPMG was not a party, did not restore the defendants to the status quo ante. Moreover, when asked whether KPMG’s resuming paying fees would affect the government’s view as to whether KPMG had complied with its deferred prosecution agreement, the government did not answer. In any event, it was simply “unrealistic to expect KPMG to exercise uncoerced judgment in March 2006 as if it had never experienced the government’s pressure in the first place.”

Third, the court agreed with the district court that, with respect to this issue, KPMG was not a private actor. The firm was so deeply influenced by the USAO that its actions were attributable to the government. The relevant legal standard asks whether there is a “close nexus” between the government and the private action. The state is responsible for the private entity’s actions where it exercises coercive power, or even “significant encouragement” over them. Here, “KPMG ‘operate[d] as a willful participant in joint activity’ with the government” and “the USAO ‘significant[ly] encourage[d]’ KPMG to withhold legal fees from defendants upon indictment.”

The circuit thus agreed that the government “forced” KPMG to adopt a constricted fees policy. Indeed, “the prosecutors steered KPMG toward their preferred fee advancement policy and then supervised its application in individual cases.”

Finally, the court agreed that the government, through KPMG, violated the defendants’ Sixth Amendment rights when it ceased paying their attorneys' fees upon indictment. This deprived the defendants both of the counsel of their choosing and the right to use their own funds - they had a property interest in the expectation that KPMG would pay their fees - to mount their defense as they saw fit.

This was true even though much of the government’s misconduct occurred before the defendants were indicted, and thus before the Sixth Amendment attached. The government’s “pre-indictment conduct was of a kind that would have post-indictment effects of Sixth Amendment significance, and did.”

The Sixth Amendment was accordingly violated here because these defendants would have had their fees paid but for the government’s interference. The government is forbidden from interfering with attorney-client financial relationships, and is also also forbidden from interfering with client relationships with any third parties who are paying their attorneys' fees. “In a nutshell, the Sixth Amendment protects against unjustified governmental interference with the right to defend oneself using whatever assets one has or might reasonably and lawfully obtain.”

Here, there was no justification for the government’s interference, such as a need to avoid a conflict of interest. Accordingly, the indictment was properly dismissed against all defendants, both those who could no longer afford their chosen counsel at all, and the rest, who continued with the same counsel, but were forced to limit their defense for economic reasons.

Role of Certs

This pair of decisions, both arising from 2255 motions, gives helpful guidance on counsel’s obligations to file a petition for a writ of certiorari.

In Pena v. United States, No. 06-0218-pr (2d Cir. June 12, 2008) (Jacobs, Parker, Wesley, CJJ)(per curiam), the court held that a retained attorney was not ineffective for failing to advise his client of the right to seek certiorari. While the Sixth Amendment right to counsel covers a first-tier appeal, there is no constitutional right to counsel beyond that. Seeking certiorari is the first step in the non-Sixth Amendment discretionary appeal, and not the last step in the first-tier appeal. Accordingly, Pena’s counsel was not ineffective in failing to inform him of his right to seek certiorari.

The court noted that the Criminal Justice Act imposes greater obligations on appointed counsel. But since Pena’s counsel was retained, that statute did not apply. That said, the court advised that “as a matter of sound professional practice, retained counsel representing federal criminal defendants” in the Second Circuit “should, like their [appointed] counterparts, inform their clients of the availability of, and the process for, pursuing certiorari review and assist them with filing appropriate certiorari petitions, if retained to do so.”

In Nnebe v. United States, No. 05-5713-pr (2d Cir. June 12, 2008), the same panel, this time in a decision authored by Judge Parker, considered the same issue in a case where counsel was appointed.

After Nnebe’s conviction was affirmed by the circuit, appointed counsel wrote to him and explained that the next step was to seek certiorari. Counsel enclosed a draft cert petition and a form motion for IFP status. Nnebe returned the IRP motion, but counsel did not respond and, without telling his client, never filed the cert petition. Nnebe ultimately sought 2255 relief.

The circuit held that Nnebe’s counsel violated the Criminal Justice Act, which sets out appointed counsel’s duties with respect to cert petitions. The difficulty here was Nnebe had sought relief under § 2255. But there was no constitutional violation, and the “complete miscarriage of justice” exception for non-constitutional errors did not apply because Nnebe could not show prejudice. His cert petition would “almost certainly” have been denied.

Taking its cue from Wilkins v. United States, 441 U.S. 468 (1979), the court construed Nnebe’s appeal as a “motion to recall the mandate and vacate [its] judgment so that a new one can be entered,” which it granted. This will give Nnebe a chance to file a timely cert petition. Given its “construction” of the appeal, the court indicated that it would be “illogical” to continue treating the case as if based on a § 2255 motion, thus Nnebe was relieved of the need to show prejudice.

The court’s final word was a reminder that “recalling a mandate is an unusual remedy intended for extraordinary circumstances.” But this case was extraordinary. The defendant acted with diligence and “proffered compelling documentary evidence” in support of his claim.

Venue Wish Upon A Star

United States v. Rommy, No. 06-0520 (2d Cir. November 6, 2007) (Jacobs, Walker, Raggi, CJJ).

Henk Rommy, a Dutch national, was tried in this district on charges that he managed a vast ecstasy importation scheme from Europe. The scheme’s ties to this district were quite thin - although the goal was to get the drugs to New York, only five things actually occurred here: a call from a cooperating witness in Manhattan to Rommy in the Netherlands; a second call between Rommy and the New York informant about one year later, although there was a dispute as to who initiated it; a call to a local FBI agent from Rommy and the informant, both in Europe, although there was a dispute as to whether Rommy or the informant placed the call; and, finally, two calls from the agent in Manhattan to Rommy in Europe.

At trial, Rommy claimed lack of venue. The court charged the jury that if it found that, after the conspiracy was formed, “a telephone call in furtherance of the conspiracy was made to a location in the [district] that would be sufficient, ... even if the call was made to an undercover agent or some other nonconspirator.” During deliberations, the jury sent the court a note asking if venue could be proved by a call from the agent to Rommy. The court answered in the affirmative - as long as the conspiracy was already formed and the call furthered it. The court also instructed that venue could be established if nonconspirator made the call, again, as long as the call was induced by the conspiracy or furthered it.

On appeal, the court upheld the instruction, a question of first impression here, agreeing with the First and Seventh Circuits that “a telephone call placed by a government actor within a district to a conspirator outside the district can establish venue within the district provided the conspirator uses the call to further the conspiracy.” In fact, the court stressed, who placed the call, just like its direction, is irrelevant. What matters is whether the conspirator used the telephone call to further the objectives of the conspiracy. By doing so, he “effectively propels not only his voice but the scheme itself beyond his own physical location into that of the person with whom he is speaking.”

The court also held that Rommy did not need to have actual knowledge that the call affected this district; reasonable foreseeability is sufficient.

This decision leaves open the somewhat mythical defense of “manufactured venue.” The defense arises from a footnote in a 1982 case, but the court has never actually applied it. Although two other courts have outright rejected it, and one more has questioned it, here the court did not weigh in because the “evidence clearly does not support its application to this case.”

Rommy’s case also contains an interesting discussion of evidence obtained in a foreign country through the Mutual Legal Assistance Treaty (“MLAT”) between the United States and the Netherlands. Like his venue claim, this issue was ultimately unavailing for Rommy: the actions complained of did not violate U.S. law, and the treaty does not create “any judicially enforceable individual right that could be implicated by the government’s conduct here.”

Lastly, Rommy claimed that his interview with a DEA agent while Rommy was in prison in Spain violated the Fifth and Sixth Amendments. But here there was no Miranda issue because Rommy’s statements were voluntary, and thus the interview did not constitute “interrogation.” His Sixth Amendment claim was a closer call; he was interviewed after having been indicted, and did not expressly waive counsel. The court ducked the issue by characterizing the interview as “a meeting that [Rommy] had requested with persons he knew were law enforcement officers [where he] was asked a few neutral follow-up questions in the course of a lengthy volunteered statement.” It held that, even if these “follow-up” questions violated the Sixth Amendment, any error in admitting Rommy’s statement was harmless.

Crawford's Eleven

United States v. Becker, Docket No. 06-1274-cr (2d Cir. September 13, 2007) (Calabresi, Parker, Wesley, CJJ)

At Becker’s stock fraud trial, the government introduced into evidence the plea allocutions of eleven (yes, eleven) of his co-defendants, supposedly for the “limited purpose” of establishing that the conspiracy charged in the indictment existed. The Circuit concluded that this was a Confrontation Clause violation under Crawford and, for the first time, found that such a violation was not harmless.

The court rejected the government’s claim that the district court’s limiting instructions cured the error, finding that the sheer number of allocutions and their repetitive nature suggested that the conspiracy was widespread, “making it plausible for the jury to assume that Becker was a participant simply by association with” the other conspirators, despite the instructions. In addition, the content of the allocutions was “far reaching and detailed” and significantly undermined Becker’s defense that his actions were driven by credulity and inexperience, rather than greed. The court also faulted the limiting instructions themselves, noting that they might have left jurors open to assuming that the allocutions could be considered on the issue of Becker’s intent.

Finally, the court concluded that the other evidence of Becker’s intent and membership in the conspiracy was “far from overwhelming.” Significantly, the court made clear that its finding that evidence as to these issues was legally sufficient did render an error affecting them harmless. This is an important distinction to which the Circuit has not always adhered.

Becker’s case is all the more remarkable in that arose in the context of a 2255 petition, and not a direct appeal, which means that he successfully overcame several procedural hurdles: the law of the case doctrine, since the court had, on his pre-Crawford direct appeal, rejected the Confrontation Clause claim, and a Teague problem. Fortunately for Becker, his case was not yet final (by a mere ten days) when Crawford was decided.

One note: Becker has already served his entire prison sentence and most of his term of supervised release. Let’s hope that the government does the right thing and drops the case entirely.