Plain Terror

United States v. Marcus, No. 07-4005-cr (2d Cir. December 7, 2010) (Calabresi, Straub, Wesley, CJJ)

This is Marcus’ second go-round in the circuit. He won the first time, in August of 2008, (see “Sex Post Facto”, posted August 18, 2008). The government got cert, and the Supreme Court reversed, holding that the first panel had used an incorrect plain error standard. In this decision, on remand from the Supremes, Marcus had only a partial win.

The underlying conduct is particularly disturbing. From October of 1998 through June of 1999, Marcus was in a consensual, albeit kinky, sexual relationship with “Jodi.” This nature of the relationship changed in October 1999 when Jodi refused to recruit her sister to become one of Marcus’ “sex slaves.” In response, Marcus “punished” Jodi severely, and began to terrorize her regularly. With this, the relationship became nonconsensual.

In January of 2000, Marcus directed Jodi to move to New York and forced her to create a website called “Slavespace.” She worked eight or nine hours a day on the site but Marcus received all of the revenues. This was not a voluntary arrangement. Even after she found full time work of her own, Marcus made her continue working on the site, and would brutalize her physically and sexually if he was unhappy with her efforts. The trial evidence described a particularly harrowing “punishment” that occurred in April of 2001.

In March of 2001, Jodi told Marcus that she wanted to end their arrangement. He said he would let her go if she endured one final punishment, but she was so terrorized by the punishment that she did leave. A few months later, the woman with whom she was living told Marcus that she did not want Jodi there any more. Jodi moved out and their contact gradually diminished, ending entirely in 2003.

In 2007, the government charged Marcus with violating the federal forced labor statute, 18 U.S.C. § 1589, and the sex trafficking statute, 18 U.S.C. § 1591(a)(1). Those statutes were enacted on October 28, 2000, but the indictment charged Marcus with violating them from January of 1999 through October of 2001. Marcus did not seek a jury instruction based on the statutes’ enactment date, nor did he raise any issue about retroactive application in his Rule 29 motion.

On his appeal, however, he argued that the statutes were applied to him retroactively in violation of the Ex Post Facto Clause. The panel, reviewing this unpreserved claim, applied binding circuit precedent, under which plain error review required a new trial if there was “any possibility, how matter how unlikely,” that an “uninstructed jury would have convicted the defendant based exclusively on pre-enactment conduct.” It accordingly vacated the conviction on both counts. A concurrence, authored by then-Judge Sotomayor, pointed out that although the panel was bound by the circuit’s existing plain error test, this test was inconsistent with Supreme Court precedent. The concurrence would have vacated only the sex trafficking count and would have affirmed the forced labor count because for that count the was “no plausible argument” that the jury would have differentiated between Marcus’ pre-and post enactment conduct.

On the government’s appeal, the Supreme Court reversed and remanded because the “any possibility however remote” standard was indeed inconsistent with that Court’s plain error review precedents.

In this do-over, the original panel, with Calabresi substituting for Sotomayor, agreed with the original opinion’s concurrence. It found that there could only be plain error under the fourth prong of the plain error test - the error must have “seriously affected the fairness, integrity or public reputation of” the proceedings - if there was a “reasonable probability that the jury would not have convicted him absent the error.”

Here, with respect to the forced labor statute, there was no such “reasonable probability.” The government presented post-enactment evidence sufficient to satisfy the elements of that statute. The forced labor on the “Slavespace” began in January of 2000, before the statute’s October enactment, but continued into at least June of 2001 - the April 2001 punishment episode was itself post-enactment. Thus, the jury would have found that Marcus obtained Jodi’s labor through the threat of serious physical harm and actual physical harm - the statutory standard - after October of 2000. Nor would there have been any “reasoned basis” for a jury to differentiate between Marcus’ pre- and post- enactment conduct. Indeed, if anything Marcus’ use of force against Jodi increased post-enactment.

By contract, however, the court adhered to his original ruling on the sex trafficking conviction. In fact, the government conceded on this point. Marcus transported Jodi to New York in early 2000, before the statute was enacted. From then on, he harbored her there. Thus, the conduct supporting this conviction “differed materially before and after October 2000 such that there is a reasonable probability that the erroneous jury charge affected the outcome of the trial” and the “fairness integrity or public reputation of the proceedings.”

Max Facto

United States v. Ortiz, No. 08-2648-cr (2d Cir. September 1, 2010) (Newman, Pooler, CJJ, Rakoff, DJ)

Closing a an open question, the here court holds that the use of a more onerous guideline that is promulgated after the date of the offense can violate the Ex Post Facto Clause. But it also concludes that in this particular case there was no ex post facto violation.

At Ortiz’ sentencing for firearms and narcotics offenses, the district court used the amended guideline for an obliterated serial number - the Sentencing Commission had increased the enhancement from two to four levels - even though that amendment was adopted after the date of his offense. On appeal, for the first time, he argued that this violated the Ex Post Facto Clause.

The circuit noted that there is a circuit split on whether the retrospective application of a harsher, but non-mandatory, guideline implicates the Ex Post Facto Clause. It then adopted the D.C. Circuit’s standard, under which there can be an ex post facto violation if the defendant can show that using the amended guideline “created a substantial risk that” the sentence would be more severe. The court found this standard to be “faithful to Supreme Court jurisprudence explaining that the Clause protects against a post-offense change that ‘creates a significant risk' of increasing the punishment.” But this standard does not “invalidate every sentence imposed after a Guidelines range has been increased after the date of the offense”; it merely recognizes that there may be circumstances “where an amended Guidelines can influence a sentence that violates the Ex Post Facto Clause.”

Here, the “substantial risk” standard does not benefit Ortiz. He received a sentence well below the bottom of the sentencing range, thus there was “no risk at all” that the sentencing judge would have imposed an even lower sentence had she applied the unamended guideline.

Sorry, Right Number

United States v. Kumar, No. 06-5482-cr (2d Cir. August 12, 2010) (Walker, Sacks, Livingston, CJJ)

Sanjay Kumar and Stephen Richards, officers as a company called Computer Associates, engineered a huge accounting fraud that ended in October of 2000. Had that been the end of the story, their sentence would have been calculated under the November 1998 Guideline Manual (for obscure political reasons there is no November 1999 Manual), and their offense level would have been 30. However, the defendants engaged in additional criminal conduct associated with the government’s investigation of the accounting fraud - obstruction of justice, mainly - between 2002 and 2004.

Eventually, they pled guilty to everything and, in 2006, were sentenced under the November 2005 Guideline manual, which was in effect at the time, and under which the offense level for the fraud offenses had increased dramatically - from 30 to 50.

In this opinion, a divided circuit panel held that the district court’s use of the 2005 manual - correct under the so-called “one-book rule” - did not violate the Ex Post Facto clause.

The Majority's Opinion

The one-book rule, a longstanding Chapter One instruction, provides that if the defendant is convicted of two offenses, one committed before and one committed after the effective date of a revised edition of the Guideline Manual, the revised edition is to be applied to both offenses.

An ex post facto violation occurs where a later law is retrospectively applied to a defendant’s disadvantage. Here, the application of the 2005 Manual clearly disadvantaged the defendants by subjecting them to a higher range than that recommended by the 1998 edition. But the majority held that the application of the 2005 Manual was not “‘retrospective’ within the meaning of the Ex Post Facto clause.” The major policy concern animating the ex post facto prohibition - a “lack of fair notice and government restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated” - was not implicated here. The core right is to “fair notice,” and not to “less punishment.”

Since the one-book rule was adopted before the defendants committed the obstruction offenses, they were on notice of the consequences of committing that second offense, which included “the application of the post-amendment Guidelines to all offenses considered at the defendants’ sentencing.” The defendants could have “altered their conduct so as to avoid any heightened punishment imposed on the basis of the one-book rule by choosing not to obstruct the government’s investigation into their prior fraud.”

The majority also likened the one-book rule to a recidivist statute or “three strikes” law, which do not violate the Ex Post Facto clause. The situations are analogous even though the impetus for recidivism statutes is to “reflect the greater culpability associated with” the later offenses and the impetus for the one-book rule is to avoid “‘piecemeal’ sentencing.” This distinction “makes neither a practical nor a logical difference for purposes of an analysis under the Ex Post Facto clause.” Either way, “prior conduct becomes the basis for imposing a heightened sentence only upon conviction for a later criminal act.”

Since the “actual crime” triggering the one-book rule was the obstruction of justice, and since the defendants had prior notice of its consequences, the application of the one-book rule was proper.

The Dissent

Judge Sack dissented. In his view, since the defendants did not have “fair notice” of the severity of the penalties to which they might be subjected under the later Guidelines at the time they committed the fraud offenses, the application of the one-book rule constituted an ex post facto violation. To him, the notice that the defendants received was for the “wrong crime: not as to the fraud ... for which punishment was revised markedly upward, but the subsequent obstruction offenses for which the Guidelines have not changed. This notice was inconsequential because the defendants were not subjected to an increased sentence for obstruction; they were subjected to an increased sentence for already completed frauds.” Moreover, while the defendants had notice of the fraud enhancement before they committed the obstruction offenses, they did not have that notice before they committed the original fraud.

Comment

This is an extremely interesting issue, one on which the circuits are divided. But it also implicates a more fundamental ex post facto question that has not yet been resolved: does the clause apply at all to the Sentencing Guidelines now that they are advisory? The circuits are split on the question, and the Second Circuit has not yet ruled on it.

Here, the government took the position in the district court that Booker eliminated any ex post facto concerns with respect to the Sentencing Guidelines, and the district court’s ruling was based in large part on that. But, on appeal, the government abandoned that position, which permitted the panel to assume without deciding - and both the majority and the dissent did - that the Ex Post Facto clause still forbids the retrospective application of a more severe Guideline Manual.

Given the circuit split on the issue presented here, the defendants might well seek certiorari in this case. But it seems likely that the broader question ex post facto will have to be resolved by the Supreme Court before the question presented here can be addressed.

An Unwelcome Edition

United States v. Gilmore, No. 07-0349-cr (2d Cir. March 17, 2010)
(Leval, Katzmann, Livingston, CJJ)

In 2005, Gilmore pled guilty to producing child pornography. He faced a fifteen-year mandatory minimum and a thirty-year maximum sentence. His plea agreement included a non-binding estimate that indicated that his guideline sentence was life imprisonment but that, since this exceeded the statutory maximum, the applicable guideline sentence would be thirty years. This estimate was based on the 2004 Edition of the guideline manual, the version in effect at the time of Gilmore’s sentencing, but the government later realized that this was erroneous because it resulted in a harsher sentence than the 2003 Edition, which was in effect at the time of the offense.

Gilmore’s PSR used the 2003 Edition, under which the guideline range was ninety-seven to 121 months’ imprisonment. Since this was less than the mandatory minimum, the PSR concluded that the guideline sentence was fifteen years.

At sentencing, however, the district court upwardly departed to thirty years due to the nature of the conduct. On Gilmore’s first appeal, the circuit vacated the sentence on the ground that the district court did not give Gilmore notice of its intent to impose an above-guideline sentence.

On remand, the district court imposed the same sentence. It gave several reasons for the sentence, including its recognition that the guideline manual in effect at the time of sentencing recommended a life sentence. While the district court found no ex post facto problem in looking to the 2004 Edition, it made clear that the guideline range it was using came from the 2003 Edition and that the sentence it selected was a non-guideline sentence under § 3553(a). The court noted that the fact that the 2004 Edition would have recommended a life sentence “support[ed] the reasonableness” of the thirty-year term.

On this, Gilmore’s second appeal, the circuit affirmed. Even though the government joined in the request for a remand on this point, the circuit found no violation of the Ex Post Facto Clause in the district court’s reference to the 2004 Edition for guidance. The court ducked the thornier issue of whether the Ex Post Facto Clause even applies to the guidelines in the wake of Booker, and instead agreed with the district court that there was no violation in looking to a later edition of the guideline manual to evaluate the seriousness of Gilmore’s offense and the reasonableness of the sentence imposed. Here, the district court “explicitly recognized” that the 2003 Edition applied and its reference to the 2004 Edition “was not a part of its analysis of” Gilmore’s guideline range. Since the 2004 Edition was not applied here, merely consulted, there was no ex post facto problem.

Let The Burglar Beware

United States v. Johnson, No. 08-2296-cr (2d Cir. February 25, 2009) (Cabranes, Wesley, CJJ, Korman, DJ) (per curiam)

Defendant Johnson stole a firearm during a burglary, and pled guilty to being a felon in possession of that same gun. At sentencing, he received a four-level enhancement for possessing it in connection with “another felony,” the burglary. The district court based the enhancement on a 2006 application note that provides that the “another felony” enhancement applies where a defendant finds and takes a firearm during a burglary. Johnson argued that this violated the Ex Post Facto clause, since his offense occurred before the application note was promulgated.

The circuit affirmed. The application note was added to the guidelines to resolve a circuit split on the applicability of the enhancement, and was intended merely to “clarify” that it applied to burglaries involving the theft of firearms. The note neither “altered the law of this Circuit nor otherwise changed a prior binding interpretation of” the relevant guideline. Therefore, it did not implicate the Ex Post Facto clause.

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.”