That's What She Said

United States v. Carthen, No. 10-4817-cr (2d Cir. May 23, 2012) (Winter, McLaughlin, Cabranes, CJJ)

Defenant Tyrone Carthen appealed the government’s reliance on hearsay at his supervised release violation hearing. The circuit, finding no error, affirmed.

Carthen was charged with violating his supervised release by beating and threatening his ex-girlfriend, Marquita Cox. The matter was investigated by Carthen’s probation officer, Darcy Zavatsky, who interviewed Cox and other witnesses, and also reviewed various police and court records. At the VOSR hearing, however, the government called only Zavatsky, who was permitted to, over objection, describe what she had learned. Just before the hearing, it emerged that Cox, who had been cooperative at first, was refusing to testify because she did not want to be respnosible for sending Carthen back to jail. Just after the district court decided the case, Cox submitted a letter to the court asserting that she had "lied on Mr. Tyrone Carthen." Despite this, the district court refused to reopen the hearing.

The found no abuse of discretion in the admission of the hearsay. It found "significant indicia of reliability" in Cox’s statements accusing Carthen of assaulting her. Zavatsky interviewed her six times, and her interviews with other witnesses corroborated Cox’s claims. In addition, Cox bore a scar that was consistent with a would she had described. The reports that Zavatsky relied on were detailed and credible, and some were made under oath. Finally, Cox’s desire not to testify was "not an unusual reaction by a victim of domestic abuse."

Nor was there an abuse of discretion in the district court’s refusal to reopen in the wake of Cox’s seeming recantation. Witness recantations are generally viewed with "utmost suspicion," and here, the district court’s conclusion that Cox’s letter was not credible was sound given the considerable corroboration of her initial, contrary account.

SUMMARY SUMMARY

Summary orders do not have precedential effect. But, those filed after January 1, 2007, can now be cited as long as certain citation requirements are met. See Fed.R.Ap.Proc. 32.1 and Second Circuit Local Rule 32.1. In light of this, starting October 2007, the Second Circuit Blog is introducing a new feature, called Summary Summary. In it we briefly comment on summary orders of interest.

So, here we go!

United States v. Watson, No. 05-6184-cr (October 3, 2007)(summary order). During deliberations, a juror became convinced that the government’s main witness was the same man who had raped the juror’s daughter the year before, and the court discharged her. The court of appeals held there was “good cause” under for the discharge under Fed.R.Crim.Proc 23.1.

United States v. Tyson, No. 06-1727-cr (October 12, 2007)(summary order). Tyson appealed several aspects of his sentence, including an obstruction of justice enhancement. The court held that it needed “more specific findings by the district court” on this issue, and remanded the case under United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir. 1994).

This is perhaps the Blog’s first look at so-called “Jacobson remands,” so here are a few words about them. Once upon a time, when the Second Circuit believed that the district court had not made adequate findings in support of an a sentence enhancement, including the obstruction enhancement, it would file a published an opinion remanding the case. See, e.g., United States v. Williams, 79 F.3d 334 (2d Cir. 1996); United States v. Catano-Alzate, 62 F.3d 41 (2d Cir. 1995).

Meanwhile, in Jacobson, 15 F.3d at 21-22, the court described its procedure for seeking supplementation of a sentencing record while retaining appellate jurisdiction in cases where the reasons for the particular sentence were unclear. Jacobson did not involve a challenge to a particular enhancement; rather, there, the district court’s reasons for the particular sentence were alleged to be unconstitutional, and the appellate court remanded the case so that the district court could explain them better.

Somewhere along the way, the circuit decided that the Jacobson procedure could be used whenever the district court record was lacking, and not just in the specific circumstance when the reasons for the sentence were unclear. A quick search reveals twenty or so cases since 1996 that have utilized this procedure, with the vast majority of them occurring within the past three years.

So - is this a good thing or a bad thing? Probably bad. Remanding the case for a limited set of findingsrestricts what defense counsel can do once the case goes back to the district court. A resentencing, on the other hand, would give the defense a second bite at the apple.

Be that as it may - it looks as if the Jacobson remand is here to stay.