Bail Doubt

United States v. Briggs, No. 12-2988-cr (2d Cir. October 5, 2012) (Calabresi, Carney, CJJ)

Antonio Briggs, charged in a large, multi-defendant drug conspiracy, was ordered detained in September of 2010, and remains in jail today. In this appeal, he claimed that this lengthy pretrial detention deprived him of due process. 

The circuit, although clearly concerned with the length of the delay, held that there was as yet no due process violation. However, the court directed that the district court either commence his trial, or set reasonable bail for him, on or before February 1, 2013.

The circuit noted that the reasons cited by the district court for detaining Briggs in the first instance were sound: it was a presumption case, and both Briggs’ sentencing exposure and the strength of the government’s evidence supported the initial detention order. And here, much of the two-plus-year-delay, although not necessarily Briggs’ fault, resulted from “repeated motions,” many of which Briggs joined, and abundant discovery. 

There is no “bright-line limit on the length of pretrial detention.” Due process requires a balancing among several factors: the length of the detention,  the complexity of the case, and the degree to which the government is responsible for the delay.  Here, the district court weighed these factors correctly and concluded that the “totality of the circumstances” did not support a finding that Briggs’ due process rights had been violated.

The circuit agreed, but “emphasize[d] that we are deeply troubled by the length of Briggs’ detention.” The appellate court’s “repeated statements” in other cases that the length of the detention alone “is not dispositive does not authorize "detnetions of any length simply because the other relevant factors weigh against the defendant.” Even though there is no “bright-line limit,” there is indeed a limit, and here Briggs’ case is “approaching the limits of what due process can tolerate.” Thus, as noted above, the court ordered the district court to either start the trial or set bail conditions by February 1, 2013.

SORNA Doom

United States v. Hester, No. 08-4665-cr (2d Cir. December 16, 2009) (Winter, Cabranes, Hall CJJ) (per curiam)

After pleading guilty to two sex offenses in New York State, Hester was required to register as a sex offender. He completed his initial registration - which included explicit instructions that Hester update if he moved or changed jobs - and four change of address forms. Then, in April of 2007, he disappeared. Three months later, Hester was arrested on unrelated charges in Florida. He had neither registered as a sex offender there nor updated his New York registration.

Hester pled guilty to violating the Sex Offender Registration Act, “SORNA,” 18 U.S.C. § 2250(a), and was sentenced to 37 months’ imprisonment. On appeal, he raised three unsuccessful challenges to the statute: a due process claim that he had unsuccessfully litigated below and Commerce Clause and vagueness challenges that he had not.

The due process argument had two prongs. First, Hester claimed that he lacked sufficient notice of SORNA’s requirements. But, since Hester was clearly aware of the state-law requirements that he update his New York registration and register in Florida when moved there, there was no due process violation in his not being specifically notified of SORNA. Hester also argued that it was impossible for him to comply with SORNA because neither New York nor Florida had SORNA-compliant registration systems in place. But both jurisdictions had sex offender registries and Hester could have complied with them. That those states had not yet met SORNA’s administrative requirements did not excuse Hester’s failure to register.

Hester’s Commerce Clause and vagueness arguments were waived by his plea agreement, in which he waived his right to appeal his conviction and any sentence of 51 months or less. The waiver had a carve-out for the district court’s decision denying his motion to dismiss, but Hester did not raise those arguments in the motion to dismiss.

Delay Gratification

United States v. Ray, No. 08-2795-cr (2d Cir. August 27, 2009)(Leval, Cabranes, Livingstone, CJJ)

In this decision, the court holds that an unexplained and prejudicial fifteen-year delay in imposing sentence amounted to a Fifth-Amendment due process violation, but did not violate the Sixth Amendment right to a speedy trial.

Background

In 1991, Ray pled guilty to her role in a $200,000 bank fraud. In 1992, the district court, unmoved by her family circumstances, sentenced her to twelve months’ imprisonment, the bottom of the then-mandatory range. Ray, who was free on bail, appealed. While her appeal was pending, the court of appeals decided a different case that eased somewhat the standard for family circumstances departures. As a result, with the government in agreement, Ray moved for a remand. The circuit granted the motion on January 21, 1993, but neither the district court nor the government took any further action on the case.

Ray herself caused the case to be reopened in 2007 when she applied for a city job, and needed documentation as to the resolution of her 1992 conviction. She contacted the court clerk, an action that prompted the district court to set a “re-sentence” date of March 5, 2008.

By this time, Ray had fully rehabilitated. Living openly in the Eastern District, she had been employed for the entire fifteen-year period and had never been rearrested. She raised three children, owned a home and a car and was in college, as were two of her children.

At the resentencing hearing, the court faulted both the defendant and her attorneys - but not itself or the government - for the delay. The government, on its part, raised the question of whether the delay violated Ms. Ray’s right to a “speedy sentencing.” After the parties had briefed the issue, the court found no violation and imposed sentence: one day in prison plus three years of supervised release. The court ordered six months in a halfway house as a condition of the supervision, even though counsel pointed out that the only available facility was far from both Ray’s job and her home.

The Appeal

On appeal, the court first held that the district court erred in finding that it had been Ray’s own responsibility to return to court and face resentencing. A “defendant does not bear the burden of seeking her own sentencing.” With this, the court went on to analyze the constitutional issues.

1. No Sixth Amendment Violation

Both the government and the defense took the position that the Sixth Amendment right to a speedy trial included the right to a speedy sentencing. This is significant, since under the Speedy Trial Clause, the remedy is “categorical: dismissal of the charges.”

The Supreme Court and several circuits - including this one - have assumed without deciding that the Speedy Trial Clause includes a right to a speedy sentencing. But this panel's own examination led it to hold otherwise. It began by noting a tension in the precedents - Speedy Trial Clause violations require a dismissal, but the Supreme Court has held that dismissal of the charges is an inappropriate remedy for a sentencing error. This tension evaporates if the Sixth Amendment does not cover delays in sentencings.

Next, the court considered the original meaning of the word “trial” in the Speedy Trial Clause, looking both to Blackstone and early American court decisions. It had little difficulty concluding that the American court system has always “distinguished between trial and sentencing.” Thus, “the word ‘trial,’ as understood at the time of the Founding, would not have encompassed sentencing proceedings.” Moreover, modern authorities, such as the Federal Rules of Criminal Procedure, and the Speedy Trial Act - which does not include sentencing proceedings in its time calculations - have preserved this “basic divide between trial and sentencing.”

Finally, the court looked at the interests protected by the Speedy Trial Clause - oppressive pretrial incarceration, the defendant’s anxiety, and the possibility that the defense will be impaired by the passage of time - and found that “these harms do not arise when there is a delay between conviction and sentencing.” While other harms can arise from a delayed sentencing, for example, the defendant and victim are left “in limbo concerning the consequences of conviction,” these concerns are “not the same as those that animate the Speedy Trial Clause.”

2. Fifth Amendment Violation

The court found a better fit in the Due Process Clause of the Fifth Amendment, which “has a limited role to play in protecting against oppressive delay.” The court considered two factors to determine whether Ray was deprived of her “due process right to a prompt sentencing”: (1) the reasons for the delay; and (2) the prejudice to the accused.

Here, the specific reasons for the delay were unknown, and the court treated the delay as the result of “ordinary negligence on the part of the government.” But the court held this against the government, and reiterated that it was not Ray’s duty to see that she was speedily sentenced.

The court next held that to prevail Ray had to show “substantial and demonstrable” prejudice. But the court weighed the extraordinary length of the delay in Ray’s favor, particularly since she underwent a “complete rehabilitation” in the interim. The court concluded that removing Ray “from her current life and compel[ling] her to reside for six months in a halfway house would undermine her successful rehabilitation,” since the restrictions imposed on the liberty of a halfway house resident are “substantial.”

After balancing all of the factors, the court held that, in light of Ray’s “successful and prolonged rehabilitation, and the upset that a custodial sentence would now entail,” she had successfully established a Due Process Clause violation. The remedy the court selected was to vacate the six-month halfway house portion of her sentence.

Commitment Issues

United States v. Magassouba, No. 06-2628-cr (2d Cir. September 19, 2008) (Parker, Raggi, Wesley, CJJ)

Defendant Magassouba has been in custody since at least August of 2003, when he was ordered detained on heroin trafficking charge that carried a ten-year mandatory minimum sentence. Between approximately January of 2004 and May of 2005 he was subject to various competency evaluations, all of which concluded that he was not competent to stand trial, but that he could be restored to competency through appropriate medication. Since Magassouba refused to take any medication, his evaluators recommended that he be medicated involuntarily.

Although the competency evaluations themselves ended in May of 2005, the district court’s final order in the matter, and subject of this appeal, was not entered until May of 2006. In that order, the court directed that Magassouba be re-hospitalized for continued treatment, and that he be forcibly mediated.

Magassouba raised a host of appellate challenges to his treatment by the BOP and the court.

1. Interlocutory Appeal

Magassouba first had to surmount the strict limitation on interlocutory appeals in criminal cases. Here, court had no trouble concluding that the appeal could be heard under the “collateral order doctrine.”

The circuit has long held that orders committing criminal defendants for competency proceedings are immediately appealable. Here, while Magassouba’s primary complaint was over the timeliness of the order, as opposed to its suitability, the collateral order doctrine still applies. The order at issue extended his period of commitment and directed his involuntary medication, and this brings it within the collateral order doctrine.

2. Timeliness

Magassouba’s main complaint was over the timeliness of the 2006 commitment order.

A few months after he was arrested, Magassouba was examined at the MDC by a private doctor, who pronounced him incompetent to stand trial due to a delusional disorder. In late 2004, after a hearing, the court ordered the BOP to hospitalize Magassouba under 18 U.S.C. § 4241(d)(1) at a suitable facility for treatment and evaluation. That section authorizes a commitment of up to four months, but the court committed him for only sixty days, then later extended it to four months, at the BOP’s request. Magassouba arrived at Butner in December of 2004, and the BOP issued its report in May of 2005.

This triggered more than a year of legal wrangling over the issue of involuntary medication. All parties agreed that it was advisable, but the court repeatedly asked for additional information and urged Magassouba to accept medication voluntarily. Finally, in June of 2006, the court entered an order pursuant to § 4241(d)(2)(A) ordering additional custodial treatment and involuntary medication.

On appeal, Magassouba claimed that this order was untimely because it was not entered within the four-month period authorized by the original commitment order under § 4241(d)(1). The circuit disagreed, holding that the four-month period of §4241(d)(1) is a limitation on the amount of time the BOP can hold a criminal defendant in custodial hospitalization for a competency or restoration determination. There is nothing in the statute that indicates that a district court lacks the jurisdiction to order additional hospitalization for treatment under § 4241(d)(2)(A) unless it acts within that four-month period.

3. Excess Hospitalization

Here, while it is true that the BOP hospitalized Magassouba for more than the statutory four-month period, it exceeded that limit by only a few weeks. On the circuit’s reading of the record, the custodial hospitalization did not commence until his December 22, 2004 arrival at Butner. The district court gave Butner until April 20, 2005, to complete the evaluation, but it was not finished until May 3, 2005, and Magassouba was returned to the MCC on May 12, 2005. Thus, the hospitalization overstay was only from April 20 to May 12.

Magassouba sought dismissal of the indictment over this, but the circuit found the BOP’s error in hospitalizing him for three extra weeks was harmless. He was, after all, otherwise detained, without objection, under the Bail Reform Act, and did not claim that he was subject to any greater restriction of his liberty at Butner than he would have experienced as a regular pretrial detainee. Moreover, and in any event, a dismissal remedy based on a violation of the statutory time periods is not authorized by the competency statutes.

4. Due Process Violation

Finally, Magassouba claimed that by May of 2006, when the district court entered the order continuing his treatment and authorizing involuntary medication, his continued confinement for the purpose of restoring competency was no longer reasonable, and hence violated due process.

The court agreed that the entire period of his confinement - from October of 2004, when he was first found incompetent, to the May 2006 order, a period of nineteen months - should be considered for due process purposes. The court also agreed that this was a “not insignificant” period of time. But nevertheless, it was not constitutionally unreasonable because much of that time was taken up with Magassouba’s refusal to accept treatment voluntarily, and with the district court’s subsequent need to address the sensitive due process concerns relating to involuntary medication.

In addition, for almost all of this time conscientious attention was being paid to Magassouba’s condition, either by the court of the BOP. In addition, up to May of 2006, his counsel never complained about the length of the confinement; rather, he actively supported it. And, finally, Magassouba did not claim any prejudice either with respect to his ability to gain competency or to defend the case at trial.

Deficiency Expert

United States v. Ellett, No. 07-3682-cr (2d Cir. May 23, 2008) (per curiam)

James Ellett was a tax protester, who stopped paying his federal income tax after reading a book called “Vultures in Eagle’s Clothing,” which purported to describe a lawful way of avoiding taxes. He claimed to have read the book more than 100 times, and spent additional hours studying the subject in a law library. Between 2000 and 2004, Ellett failed to pay more than $64,000 in federal income tax based on his belief that, as a “citizen” of New York State who worked for a private employer, he was not subject to taxation.

At trial, his defense was a lack of willfulness, which the jury rejected. On appeal, he argued that due process required that he be given an opportunity to litigate his position within the tax system before being prosecuted for tax evasion. Under this theory, the existence of a tax deficiency, one of the elements of 26 U.S.C. § 7201, could only be established if the government first adjudicated the matter civilly or administratively, which did not happen here.

The circuit disagreed. The tax deficiency element “arises by operation of law the date a tax return is due but not filed; no formal demand or assessment is required.” Thus, the government need not obtain a civil or administrative determination of the tax deficiency before bringing a criminal tax evasion case.

Impact Victim

United States v. Eberhard, No. 05-3431-cr (2d Cir. May 5, 2008) (Jacobs, Calabresi, Sack, CJJ)

Todd Eberhard, a former stock broker, pled guilty to various fraud charges. Under his plea agreement, the stipulated guideline range was 97 to 121 months’ imprisonment. The presentence report added a 4-level aggravating role enhancement, but then recommended a below-guidelines 96-month sentence. Judge Sweet issued a pre-sentencing opinion indicating that he would impose a 151-month sentence. But, at sentencing, after hearing from victims, who asserted their right to address the court under 18 U.S.C. § 3771(a) (2004), which was enacted after Eberhard pled guilty, the judge imposed a 160-month sentence.

The circuit affirmed the sentence. First, it rejected an ex post facto challenge to the application of § 3771(a). District courts have always had the discretion to consider victim statements, and there is nothing about the new legislation - which requires district courts to hear from the victims of financial crimes - that implicates the Ex Post Facto Clause. The new legislation did not create a new crime, aggravate or increase the penalty for an existing crime, or alter the rules of evidence to dilute the quantum of evidence necessary for the government to secure a conviction.

The court also rejected an interesting due process claim: Eberhard argued that the government violated the plea agreement by presenting victim testimony that made sentencing arguments “by proxy” that the government was barred from making in the plea agreement. The circuit disagreed, since nothing in the plea agreement prevented the government from presenting victim impact testimony and the victims’ pleas for a harsher sentence “were incidental to presentation of facts.”

Finally, Eberhard argued that the court should not have imposed an aggravating role enhancement. Unfortunately for him, he did not contest the enhancement at sentencing and the circuit deemed it “waived.”