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.

    

You Can Resist

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

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

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

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

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

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

A Small Triumph

United States v. Hertular, No. 07-1453-cr (2d Cir. April 6, 2009) (Straub, Raggi, CJJ, Session, DJ)

Robert Hertular was convicted after a jury trial of running a large-scale cocaine importation ring, obstruction of justice, and misdemeanor assault of a federal officer under 18 U.S.C. § 111. He was sentenced to 400 months’ imprisonment on the drug counts, 120 months concurrent on the obstruction, and 12 months concurrent on the assault. On appeal, the circuit agreed that the evidence was insufficient on the assault count. It reversed that conviction and remanded the case for resentencing.

Background

Hertular was originally arrested by local authorities in Belize, and charged with cocaine trafficking. Once released on bail, he initiated contact with a DEA agent, Vincent Williams, who was stationed in Belize, and expressed an interest in cooperating with American authorities. After two meetings in 2001, Williams told Hertular that the DEA would not use him as an informant.

In 2003, Williams was involved in a different drug investigation. Hertular appeared on the scene and met with the DEA’s informant. Hertular told the informant that the DEA was nearby and offered to “get rid of” the agents. After Hertular left, Williams followed him, and pulled him over, warning him to “be mindful of his associations.” In response, Hertular told Williams that he was “willing to kill a DEA agent” or US Embassy employee. Williams reported the threat to the Embassy, which implemented extra security measures. Hertular was not charged with this threat.

At the end of 2003, the DEA opened a formal investigation into Hertular’s drug activity. On December 25, 2003, Hertular called a second DEA agent, Raymond Kelly, on his cell phone and requested a meeting. Both Kelly and Williams attended the meeting, which took place in Kelly’s car. Hertular told them that he knew he was a target and was likely to be indicted soon. When the agents denied this, he played them a recording of a telephone conversation between Kelly and an informant regarding one of Hertular’s co-conspirators. He told the agents that DEA telephones had been tapped, that he had a source of information within the Embassy, and that he knew the identities of several DEA informants.

Later, Hertular became confrontational. He told the agents that it would be in their “best interest to back down from the investigation because he would have to protect himself.” When Kelly asked whether DEA agents in Belize were in jeopardy, Hertular said that they had better “protect” themselves and “watch [their] backs, because [his] organization would hire hit men from Colombia or Mexico to take [the agents] out.”

About two weeks later, Hertular was indicted in the Southern District of New York. In July of 2004 was extradited to the United States.

The Insufficient Evidence of Assault

The circuit held that the evidence was insufficient on the assault charge because 18 U.S.C. § 111 “requires some proof of the assailant’s present ability to inflict injury giving rise to an objectively reasonable apprehension of immediate harm."

The statute makes it a crime to “forcibly” assault, resist, oppose, impede, intimidate or interfere with a federal officer engaged in the performance of official duties. The word “forcibly” limits the scope of the statute to “fewer acts than would fit the definition of the unmodified verbs alone.” Although the actual use of force is not necessary to satisfy the force element of § 111, the threat must “objectively inspire fear of pain, bodily harm, or death that is likely to be inflicted immediately.”

Here, the evidence was sufficient as to the first prong - inspiring fear - but not for the immediacy prong. An “implied threat to use force some time in the indefinite future” is insufficient to support a § 111 conviction. Here, that is all the government proved.

Hertular’s threats to the agents “did not indicate by word or deed that he was then armed or even that he was contemplating any present action against” them. Rather, he threatened them with “death at some unspecified future time.” Indeed, the threat would only come to fruition if the DEA continued its investigation of Hertular and Hertular’s organization hired hit men from other countries and brought them to Belize to carry out the threat. Since these conditions “suggest[ed] the passage of some time, a jury could not reasonably find that, when Hertular threatened the agents, he had the apparent present ability to take their lives.”

Obstruction of Justice

This same conduct was sufficient, however, to satisfy the obstruction of justice statute, 18 U.S.C. § 1512(b)(3), which makes it an offense to use threats or intimidation to hinder the communication of information relating to a federal crime to a law enforcement officer. “On this record, a reasonable factfinder could easily have concluded that when Hertular told the agents it was in their ‘best interest to back down’ from the investigation and warned them that ‘hit men from Colombia or Mexico’ would be hired to take [them] out,’ ... his specific intent was to hinder or prevent not simply the filing of an indictment but any communication to or among federal law enforcement officials that could lead to his indictment.”

The Remedy

Generally, when the circuit overturns even one count of a multi-count conviction it remands the case for de novo sentencing proceedings. Here, although the reversal of a single misdemeanor count made little change to the “factual mosaic” of the case, the change to the “constellation of offenses” relevant to sentencing was sufficient to warrant resentencing. It is up to the district court to decide whether a conviction on three, rather than four, counts, affects its assessment of the statutory sentencing factors.

Coffe, Tea or Jail?

United States v. Delis, No. 08-0641-cr (2d Cir. March 5, 2009) (McLaughlin, Calabresi, Livingston, CJJ)

On a flight from Zurich to JFK, Pierre Delis, upset that the meal service ran out of chicken, got into a scuffle with a flight attendant during which, at a minimum, he pushed her hand away from his face. He was charged with simple assault, in violation of 18 U.S.C. § 113(a)(5), and his defense was a lack of intent to injure. After a bench trial, a Magistrate Judge convicted him, holding that intent to injure was not an element of the offense, and finding that Delis had the intent to “engage in an offensive touching.” He appealed first to the district court, which affirmed, and then to the circuit, which affirmed as well.

Section 113(5) criminalizes “simple assault,” a term with common-law origins. At common law, a battery was the “unlawful application of force to the person of another.” That offense did not require the specific intent to injure or touch offensively, only a general intent to commit the unlawful act. Common-law assault, on the other hand, was either an attempted battery or the deliberate infliction upon another of a “reasonable fear of physical injury,” and was a specific intent crime.

But the terms assault and battery have long been used “interchangeably.” Even at common law, a completed battery, performed with only a general intent, or even one that arose from mere criminal negligence, also constituted an assault. Thus, the common-law definition of simple assault includes a completed common-law battery, which does not require a specific intent to injure.

This conclusion is supported by the statutory language itself. Subsections 1 through 3 of § 113(a) expressly require a particular specific intent. The omission of a specific intent element from § 113(a)(5) suggests this section does not require the specific intent to injure.