Making a Skilling in Albany

United States v. Bruno, No. 10-1887-cr (2d Cir. November 16, 2011) (Parker, Chin, CJJ, Korman, DJ)

The story of Joe Bruno, former New York State Senate Majority Leader, is fairly well known. Having seemingly turned his position into a veritable cesspool of self-interested profiteering, he was ultimately convicted of two counts “honest services” fraud - the jury hung on a third, and acquitted him of several others. Consistent with the law at the time, however, the fraud was charged only as a failure to disclose various conflicts of interest.

While Bruno’s appeal was pending, the Supreme Court decided United States v. Skilling, 130 S.Ct. 2896 (2010), which held that the honest services statute criminalizes only fraudulent schemes that are effectuated through bribery or kickbacks. In light of Skilling, was inevitable that Bruno’s convictions would have to be tossed. The only real suspense was whether the Circuit would acquit him or permit the government to retry him. Under this decision, the government can reindict and retry Bruno on all three counts.

Bruno first asked the circuit to dismiss the indictment for failing to charge a crime, becauase it did not allege a fraud grounded on bribery or kickbacks. Since the government advised the court that it would seek a superseding indictment, the court dismissed the indictment without prejudice.

The remainder of the opinion is framed in double jeopardy terms, since Bruno argued that the evidence was legally insufficient. For Count Three, the one on which the jury hung, the court did not conduct a sufficiency review. There is ordinarily no double jeopardy bar to ordering a retrial on a hung count - Bruno did not allege any of the circumstances where this is not so - and this “analysis does not change even if the prosecution’s evidence was insufficient to support a conviction.” The court accordingly ordered a retrial on Count Three.

For the counts of conviction, the court approached things differently. Breaking with most other circuits, the court conducted a sufficiency review, rejecting the government’s argument that it would be unfair to do so since the putative insufficiency was caused by supervening change in the law. While there might be “in some cases sound reasons for refusing to consider the sufficiency of the evidence when there has been a subsequent change in the law, they do not apply here.” The government had indicated that, on retrial, its evidence would be the same, and that it presented at Bruno’s first trial all of the evidence that it had “regarding quid pro quo.” Thus, here, a sufficiency review would not “deny the government an opportunity to present its evidence.”

That said, however, the court found that a rational jury could find sufficient evidence of a quid pro quo on both counts. For the first, Count Four, a rational jury could conclude that Bruno: “performed virtually non-existent consulting work for substantial payments” for a company that did business with the state; received “sham” payments under the consulting agreement; attempted to cover up both the payments and the underlying relationships, and; “understood that the consulting payments were made in return for official action.”

For the last count, there was similarly sufficient evidence of a quid pro quo. There, one of Bruno’s cronies paid him $40,000 for a race horse that was worth a fraction of that amount. A rational jury could find that this “was an illegitimate gift disguised as a horse payment.” Moreover, Bruno failed to disclose the transaction, and a jury could conclude that the payment was “structured to pay for Bruno’s continued assistance” to the crony and his business.

Accordingly, the court permitted a retrial on both counts of conviction, in addition to the count on which the jury hung.

Rowe, Rowe, Rowe, You’re Toast

United States v Jackson, No. 07-0263-cr (2d Cir. August 4, 2011)
Leval, Lynch, CJJ, Korman, DJ)

Appellant Derrick Rowe, charged with a drug-related murder, had three trials. At the first, he was convicted of only drug trafficking and possession of ammunition, but the jury hung on three other counts - murder, § 924(c) and § 924(j). The court sentenced him to 32 years. At the second, the jury hung on all of the remaining counts. At the third, Rowe was convicted of the three open counts and received a 45-year concurrent sentence.

On appeal, his primary claim was that, at the third trial, the district court erred in allowing the government to play portions of his some of his prison phone calls without allowing him to play other portions under the Fed. R. Evid. 106 “rule of completeness.” The circuit found no abuse of discretion. In he first conversation, Rowe instructed a third party to tell a potential witness, named Battle, to keep quiet. But the portion he wanted to play, in which he said he was “not mad at” Battle would not have affected the jury’s “complete and proper understanding of the portion played by the government.”

In the other conversation, the government played a portion of a conversation with Battle's mother that reflected Rowe’s anxiety that the Battle had been arrested. Rowe wanted the court to play portions of the conversation that showed other reasons why Rowe might have been agitated but, again, the court found no abuse of discretion in precluding them.

Rowe also pursued a double jeopardy claim, arguing that the drug trafficking offense of which he was convicted at the first trial was a lesser included offense of the murder charge that the first jury hung on, and of which he was not convicted until the third trial. The court punted on whether this claim was legally correct, instead holding that it did not matter. Given the hung juries, for double jeopardy purposes, the second and third trials “are properly seen as continuations of the initial trial, and did not expose Rowe to double jeopardy.” Nor was there an Ashe v. Swenson-type collateral estoppel problem, since Rowe was not acquitted of the drug trafficking charge.

A Pattern Emerges

United States v. Basciano, NO. 09-0281-cr (2d Cir. March 23, 2010) (Walker, McLaughlin, Raggi, CJJ)

On this interlocutory appeal, the circuit found that an indictment charging Basciano, who had previously been convicted of racketeering in conducting the affairs of the Bonanno crime family, with a successive racketeering count violated the Double Jeopardy Clause, because both counts alleged the same pattern of racketeering.

Background

1. The 2003 Indictment

Basciano and several co-defendants were originally charged in a 2003 Indictment with racketeering conspiracy and several other counts. The jury convicted Basciano of the racketeering conspiracy, but was unable to reach a verdict on some of the other counts. In preparing to retry him on the 2003 Indictment, the government superseded and added a substantive racketeering count. That count alleged that, from January 1979 through November 2004, Basciano conducted and participated in the conduct of the affairs of the Family through a pattern of racketeering activity. It described the structure and purpose of the Family and Basciano’s role - he started as an associate and rose to acting boss. The 2003 Indictment alleged six predicates - three homicide-related offenses, a marijuana distribution conspiracy, an illegal lottery, and an illegal sports betting ring.

In 2007, a jury convicted Basciano of all counts and found that all of the predicates had been proved. The judge sentenced him to life imprisonment.

2. The 2005 Indictment

In the meantime, after Basciano’s 2004 arrest, another Family member told the government that Basciano was continuing his criminal activity from prison. He had ordered the murder of one person, and was actively soliciting the murder of an AUSA. While Basciano was awaiting retrial on the 2003 Indictment, the government filed the 2005 Indictment, which it then superseded several times. In the version at issue here, it charged Basciano with substantive racketeering on behalf of the Bonanno Family between February 1997 and June 2005. It described the Family as a racketeering enterprise and repeated the 2003 Indictment’s allegations about Basciano’s role, although it gave more detail.

The pattern it alleged included eleven racketeering acts, although Basciano was named in only five of them. The 2005 Indictment also alleged, inter alia, two counts of conspiracy to murder in aid of racketeering (the “Murder Counts”).

3. The Motion to Dismiss

Basciano moved to dismiss the substantive racketeering count and the Murder Counts of the 2005 Indictment on double jeopardy grounds. The district court denied the motion.

The Appeal

On appeal, Basciano partially succeeded. The court found that the substantive racketeering count of the 2005 Indictment violated the Double Jeopardy Clause, but that the Murder Counts did not.

1. The Legal Standard

The Double Jeopardy Clause protects against successive prosecutions for offenses that are “the same in fact and in law.” Basciano’s first claim was that the Murder Counts violated double jeopardy with respect to the 2003 Indictment's racketeering conspiracy count. As to this claim, since the statutes were different, the question turned on whether the crimes were “the same in the legal sense, as defined by Congress" under the “same-elements test” of Blockburger/Dixon. For the substantive racketeering claim, since the 2003 Indictment and the 2005 Indictment alleged violations of the same statute, the issue turned on whether the crimes “are the same in fact,” that is, whether a “reasonable person familiar with the totality of the facts and circumstances would construe the substantive racketeering” pled in the 2003 Indictment “to include the substantive racketeering” pled in the 2005 Indictment.

2. No Double Jeopardy Violation For The Murder Counts

The court rejected Basciano’s argument that the Murder Counts were barred because those crimes were “legally subsumed” in the 2003 Indictment’s racketeering conspiracy, which charged him with conspiring to conduct the affairs of the Bonanno Family through a pattern of racketeering that included murders.

Basciano argued that the court should apply a“same-conduct” test, and not the traditional Blockburger/Dixon same-elements test. He noted that, in one post-Dixon case, the circuit had left open the possibility in dicta that in situations “where one of the statutes covers a broad range of conduct,” examination of “the allegations of the indictment rather than only the terms of the statutes” would be appropriate to a double jeopardy assessment. Here, the court declined this invitation, noting that it has consistently construed Dixon to preclude fact-based assessments of double jeopardy claims based on successive prosecutions under different statutes.

Here, under Blockburger/Dixon, the result was easy. The racketeering conspiracy statute charged in the 2003 Indictment has different elements from the murder-in-aid-of-racketeering statutes charged in the Murder Counts. They were thus “legally distinct offenses no implicating double jeopardy concerns.”

3. Double Jeopardy Barred The Substantive Racketeering Count of the 2005 Indictment

Finding that the substantive racketeering count in the 2005 Indictment charged Basciano with conducting the affairs of the same enterprise through the same pattern of racketeering as the substantive racketeering count in the 2003 Indictment, the court reversed and remanded for dismissal of that count.

For successive substantive racketeering prosecutions to place a defendant twice in jeopardy for the same offense, both the enterprise and the pattern of racketeering activity must be the same. Here, the government conceded that the enterprise in the 2003 Indictment was the same as that in the 2005 Indictment - the Bonanno Family. The circuit concluded, however, that the patterns were also the same.

The court first noted that Basciano had made a strong preliminary showing that the two Indictments alleged the same pattern. They used “identical language to describe” the Family’s criminal methods and the means by which its affairs were conducted. Moreover, the Indictments relied on common predicates and the government had proved some of the predicates alleged in the 2005 Indictment to “complete the story” of the racketeering charge at the trial on the 2003 Indictment. The circuit noted that the “story” being “completed” was that of the broad pattern of racketeering engaged in by the Bonanno Family.

Thus, the government failed to establish that the pattern in the 2003 Indictment was different from that alleged in the 2005 Indictment. The court rejected the government’s claim that the pattern in the 2005 Indictment was narrower than, and distinct from, that in the 2003 Indictment, because the later pattern was defined by a limited time and purpose - defending the family after it was threatened by a series of 2004 arrests, including Basciano’s own.

Here, the pattern alleged in the 2003 Indictment was described at the “highest level of generality” - the predicates were alleged simply to be related to the activities of the Bonanno Family. Although it would have been possible to plead a narrower pattern by defining it with other unifying principles, such as time or purpose, the government did not do so.

When the government first prosecutes a defendant for conducting the affairs of an enterprise through the broadest possible pattern of racketeering, which gives the government the greatest latitude to rely on a wide rage of crimes to make it case, the government’s choice has consequences. Such a pattern provides the “broadest shield against a successive racketeering prosecution based on other criminal activities fitting within that pattern.”

Given this, the court did not agree that the language of the 2005 Indictment alleged a distinct, narrow pattern. First, that count alleged a pattern of activity from February 1997 to June 2005; it hardly supported “a preponderance finding that the charged pattern is defined by the limited goal of defending the Family ... in the wake of [Basciano’s] arrest,” which occurred in 2004. Similarly, while the 2005 Indictment alleged that Basciano continued to participate in the Family’s affairs after his arrest, it “nowhere asserts that the pattern through which he conducted the Family’s affairs after his arrest is distinct from, as opposed to a mere continuation of, the pattern through which he conducted the Family’s affairs before his arrest.” While it might have been possible to plead a distinct pattern of conduct based on Basciano’s post-arrest activity, the 2005 Indictment “as it stands does not support a conclusion that the alleged pattern more likely than not is distinct from that charged" in the 2003 Indictment.

To get around this problem, the government argued that the pattern alleged as to Basciano in the 2005 Indictment should be defined only by the predicate acts ascribed to him, since he was not placed “in jeopardy” by the predicates attributed to others, an argument that the Court dismissed as an effort to “rewrite the indictment.” First, a racketeering indictment does not put a defendant in jeopardy for any predicate acts; it puts him in jeopardy only for conducting an enterprise though a pattern of activity that is defined by its related predicates. Thus, the pattern charged against Basciano cannot be limited to the predicates attributed to him on the theory that he is not being put in jeopardy for acts attributed to others. Moreover, in a single-count racketeering case, a court cannot identify the charged pattern by reference only to those predicates attributed to a particular defendant. This would risk the identification of multiple racketeering patterns rather than the single, common pattern alleged by the grand jury. Only the grand jury can decide whether an individual defendant should be charged with a pattern different from his co-defendants. Finally, the government’s argument ignores those cases holding that evidence beyond a defendant’s own predicate acts is relevant to establishing the charged pattern of racketeering.

Having found that Basciano satisfied his initial burden, the court turned to the multi-factor Russotti test for determining whether, under the totality of the circumstances, the “reasonable person” test was met. This test considers: (1) the time of the various activities charged as parts of separate patterns; (2) the identity of the persons involved in the activities under each charge; (3) the statutory offenses charged as racketeering activities in each charge; (4) the nature and scope of the activity the government seeks to punish under each charge; and (5) the places where the corrupt activity took place under each charge.

Here, (1) as to timing, there was a partial overlap of nearly eight years. Although this “did not necessarily signal identical patterns,” the court noted that all of the predicates charged in the 2003 Indictment occurred during the time period of the 2005 Indictment. Thus the timing of the predicates did not “permit a preponderance finding” that the 2005 Indictment pattern was narrower than and distinct from that in the 2003 Indictment. (2) In terms of participants, the 2003 Indictment named Basciano and “unnamed others," while the 2005 Indictment charged Basciano and two named co-defendants. But, warning against exalting form over substance, the court noted that in viewing the two counts together, “a number of overlapping participants” could be discerned. (3) The similarity of the statutory offenses charged in the two Indictments supported the same conclusion. “Where racketeering activity consists of similar offenses, distinct patterns are not foreclosed, but their likelihood diminishes.” (4) The court’s discussion of the “nature and scope” prong was its most detailed. It first found similar motives in the two patterns. Both the 2005 Indictment and the 2003 Indictment included murders committed with the specific objective of exerting and preserving Bonanno authority whenever its leadership fell vulnerable to law enforcement. The court thus concluded that the totality of the predicates established that the two patterns were not distinct. Finally, (5) as to location, there was no real dispute that both Indictment alleged activities that took place in the metropolitan area.

The Acquittal That Wasn't

United States v. McCourty, No. 07-3862-cr (2d Cir. April 9, 2009) (Miner, Sotomayor, Katzmann, CJJ)

Background

At McCourty’s drug trial, one of the counts in the indictment alleged that he possessed with the intent to distribute both a quantity of cocaine and more than five grams of crack. The facts underlying this count were unusual: McCourty ran away from some police officers and dropped a bag containing a small amount of both drugs on the street. Twenty minutes late, the officer found him at his grandmother’s apartment wearing a backpack that contained more than five grams of crack.

Before trial, defense counsel noted a duplicity “problem” with this count and asked for a “special interrogatory” to avoid a general verdict that would not reveal the type or quantity of drugs the jury found that McCourty had possessed. The district judge addressed this problem in the verdict sheet, which split the count into two questions. Part (a) asked whether McCourty possessed drugs with the intent to distribute on the street and part (b) asked whether he possessed drugs with intent to distribute in the apartment. Part (b) had a follow-up: if the jury answered “guilty” on this question, it had to decide whether there was more than five grams of crack. In the end, the jury could not reach a verdict on question (a) and acquitted on question (b). Post-trial, the defense moved for a directed verdict on question (a), since the wording of original count mentioned “five grams or more” of crack on that date. The defense argued that the acquittal on question (b) precluded further prosecution as to the events of that date.

The court denied the motion and, after a retrial, McCourty was convicted of what was left of this count - the possession of cocaine and crack on the street. The court sentenced him to seventy-eight months’ imprisonment, the bottom of the guideline range.

The Appeal

On appeal, McCourty argued that by splitting the count, the district court constructively amended the indictment, in violation of the Fifth Amendment’s Grand Jury Clause. In addition, he argued that the acquittal on question (b) was an acquittal of the entire “offense,” and thus that the Double Jeopardy Clause should have prohibited a retrial on question (a). The circuit disagreed and affirmed.

First, it held that there was no constructive amendment because “neither the trial evidence nor the jury charge altered” the count, which itself identified two separate bases for the offense - that the district court “distinguished the two bases of liability is of no consequence.” All the verdict sheet did was identify the apartment as the place of one instance of drug possession and the street as another. This did not “alter any element of the single crime of drug possession occurring on that date.” “Indeed” - according to the circuit -“we have encouraged such special verdict sheets or interrogatories in cases where the indictment may be ambiguous.”

As for the double jeopardy claim, the court held, “Where the jury is directed to make specific findings as to the separate bases of liability set forth in the indictment, we see no danger of a double jeopardy violation.” Accordingly, a defendant may be retried for a portion of a count “to which he was neither acquitted nor convicted provided the jury is particular about its findings with respect to the different theories of liability contained in that count.”

At the brighter side, however, the court granted McCourty a Regalado remand.

Child-Like

United States v. Irving, No. 07-1312-cr (2d Cir. January 28, 2009)(Kearse, Sack, Raggi, CJJ)

Stefan Irving is a former physician who was convicted, after a jury trial, of child pornography offenses, and several other counts relating to his travel to Mexico and Honduras to engage in sexual acts with children. The district court sentenced him to 262 months’ imprisonment, the top of the Guideline range. A 2005 Second Circuit decision disposed of his trial-related claims. This opinion, which arose in the context of the district court’s decision to adhere to the original sentence after a Crosby remand, disposes of his sentencing claims.

Irving’s Guidelines claims are not particularly interesting. First, he unsuccessfully challenged the district court’s choice of Chapter 2 offense conduct guidelines, but the court’s choices were clearly correct under the relevant instructions in the Guidelines manual.

He also challenged the “vulnerable victim” enhancement, claiming that his victims’ vulnerability was already covered by the Chapter 2 enhancement for victims under the age of twelve. The circuit agreed with the district court that other aspects of Irving’s victims, apart from their age - they were homeless and were without “parental or other appropriate guidance” - made them unusually vulnerable.

Finally, the court, on its own, raised the question whether it violated the Double Jeopardy Clause to sentence Irving for both possessing and receiving the same images of child pornography. The court recognized that two circuits have held that this is a double jeopardy violation, and also noted that, so far, the Second Circuit has ducked the question. Here, the court did so again, finding that Irving did not satisfy the plain error standard.

Who's SORA Now?

Willette v. Fischer, No. 06-1422-pr (2d Cir. October 29, 2007) (Meskill, Newman, Sotomayor, CJJ)

Although the Blog does not regularly report on decisions in state prisoners’ habeas corpus proceedings, this nifty case has relevance to federal criminal practice.

Steven Willette, a convicted sex offender in New York State, was tried and convicted, inter alia, of multiple violations of New York’s Sex Offender Registration Act (SORA). During 1997 and 1998, Willette was living with his girlfriend but, on the four occasions that he was supposed to report his address (SORA prescribed ninety-day intervals), he falsely stated that he was still living with his father. Willette was found guilty of four SORA counts of failing to report change of address. He received a six-month misdemeanor sentence on the first SORA count, and three consecutive felony sentences on the others, for a total of ten and one half to twenty-one years’ imprisonment.

Here, the circuit agreed with Willette’s claim that his “multiple punishments” for “more than one violation of a single statute” violated the Double Jeopardy Clause. Based on a close reading of the relevant statutes, the court rejected the state’s claim that the relevant “unit of prosecution” for this type of SORA violation was “each day that a sex offender fails to report a new address.” For Willette, who lived with his girlfriend four about fourteen months, this “daily offense” theory would have exposed him to 3,000 years in prison. Thus, while the six-month sentence on the first SORA violation was valid, the court vacated the consecutive sentences imposed on the three additional SORA counts.

The relevance to federal practice is that there are now various federal statutes that require sex offender registration, and impose criminal penalties for the failure to do so. See, e.g., 42 U.S.C. § 16913 and 42 U.S.C. § 14072. This decision should be kept in mind in those cases when the feds try to charge multiple violations.

Double Trouble, But Not Double Jeopardy

United States v. Dionisio, Docket No. 06-0908-cr (2d Cir. September 17, 2007) (Calabresi, Wesley, CJJ, Oberdorfer, DJ)

This case presented a question open that the Circuit has never addressed: does jeopardy attach to counts that were dismissed with prejudice by the government pursuant to a plea agreement? Reviewing the framework set by a line of Supreme Court cases, the Circuit concluded that the answer to this question is “possibly, but not here.”

Dioniso pled guilty in 2001 under plea agreement in which the government agreed to dismiss certain racketeering charges with prejudice, and ultimately did so. In 2004, despite its promise, the government indicted him on suspiciously similar charges, and he moved to dismiss the new indictment as a violation of the Double Jeopardy Clause. The district court held that, per se, jeopardy never attaches to a pretrial dismissal.

The Circuit disagreed with this ruling, although not the ultimate outcome, taking a much more nuanced approach. To resolve this complex question the court “look[ed] beyond formalistic labels” and “scrutinize[d] the substantive resolution underlying that disposition.” Neither an actual acquittal nor conviction is a necessary to trigger double jeopardy; the crucial question is “whether the defendant faced the risk of a determination of guilt” and thus whether the disposition of the indictment “entailed findings of facts on the merits such that the defendant was placed in genuine jeopardy by the making of such findings.” Thus, there must be an adjudication of “some facts that go to the merits” of the charge before it can be said that the defendant was placed in “actual jeopardy.” (emphasis in original).

Here, it was easy for the court to conclude that no jeopardy had attached to the dismissed charges, since the dismissal arose exclusively from an agreement between the parties, and there was no record evidence that the dismissal entailed a resolution of any factual elements that went to the merits, nor of a process that put the defendant at risk of conviction.

The door is not completely shut for Dionisio. He would seem to have a strong claim that the government breached its plea agreement by reviving, in barely disguised form, counts that it had promised to dismiss. But that will have to wait. Double jeopardy claims can be heard in an interlocutory appeal, which this was. A claim that the government breached a plea agreement cannot.

Attorney's Quick Change Of Heart Saves The Day

United States v. Razmilovic, No. 06-4198-cr (2d Cir. August 27, 2007) (Miner, Kaztmann, CJJ, Murtha, DJ).

Here, the district court’s precipitate grant of a mistrial barred the reprosecution of the defendants under the Double Jeopardy Clause.

At the end of a six-week fraud trial, and only 3 days of deliberation, the jury sent out a note, its first of this kind, saying that it was “at a dead lock. We have exhausted all our options.” The only action Judge Wexler took was to ask whether any defendant sought a mistrial. When two defendants so moved, the judge granted it.

Covering well trod ground, the Circuit concluded that there was no “manifest necessity” for a mistrial at such an early point, and thus that the two defendants who objected to the mistrial could not be reprosecuted. The court considered the complexity of the trial, the length of the deliberations, the fact that the district court took no action at all with respect to the jurors, and the overall lack of evidence “that further deliberations would have risked producing a verdict that the jurors would not have otherwise supported.”

Of perhaps more interest in this appeal is the court’s discussion of one of the two defendants, Borghese, who initially joined in his co-defendants’ motion for a mistrial, then quickly changed his mind and announced that he opposed it. The Circuit held that Borghese did not consent to the mistrial, and thus could not be retried. The change of position was immediate - it occurred “within seconds” of the declaration of the mistrial. In addition, the objection was made before the jury was discharged, and thus the court could have changed its decision.