Bad Sport

United States v. Mason, No. 11-544 (2d Cir. September 4, 2012, (Walker, Pooler, Livingston, CJJ)

In this part of the country, the “lawful sporting purposes” provision of U.S.S.G. § 2K2.1(b)(2) and Application Note 6 - a downward adjustment that the defendant bears the burden of proving - is rarely invoked. Indeed, this decision is only the Circuit’s second look at it.  Here, the court concludes that the district court misapplied the provision, but that the error was harmless.

Rodney Mason, resident of Vermont, pled guilty to being a felon in possession. He had four firearms and, in connection with his sentencing hearing, introduced some evidence that, at least for three of them, he kept the guns for hunting purposes. The district court nevertheless refused to apply the enhancement, finding that Mason had not shown that he actually used the guns for hunting.  This was error because the focus of the provision is the purpose of the defendant’s possession of the gun or guns, and not necessarily whether he can prove that he actually used them for a lawful sporting purpose. The guideline “state[]s no requirement that a defendant produce evidence of his actual use of the firearms in question.” 

But here, the error was harmless. Mason introduced evidence relating to only three of the four guns he had, and the guideline requires such proof for “each firearm at issue.” Mason denied possessing the fourth at all; by doing so, he “cannot be said even to have claimed,” let alone proven,” that he “possessed that firearm for lawful sporting purposes.”  Thus, since the district court would have rejected the adjustment even absent its interpretative error, the error was harmless.

What’s In A “Same”?

United States v. Feldman, No. 10-2275-CR (2d Cir. August 1, 2011) (McLaughlin, Pooler, Sack, CJJ)

Defendant Feldman sought appellate review of four sentencing enhancements. The government argued that the court should not review them because the district court had indicated that it would impose “the same sentence” even without some of the errors. The circuit rejected this argument, reviewed the claims, found no error, and affirmed.

Background

The facts of the case are particularly unpleasant. Feldman was a psychiatrist who, in the 1990's, operated mental health facilities in Florida. These facilities proved to be Medicare/Medicaid fraud mills and, just as Feldman was negotiating a plea agreement, he fled to the Philippines.

There, he set up an even more egregious scheme. Through a website called www.liver4you.org, he fraudulently offered kidney and liver transplants in the Philippines. Desperate patients and their families wired him tens of thousands of dollars and traveled to the Philippines, but did not receive what they were promised. Eventually, Feldman was deported from the Philippines and prosecuted in the Northern District of New York, the locus of the bank accounts to which the victims wired their money. In NDNY, he was sentenced on both the transplant case and the Florida conduct. With enhancements, the district court found that the rage was 151 to 188 months, and sentenced Feldman at the top.

During the hearing, the court noted that “even if some of my rulings ... are inaccurate, there is no question that I still would give the same sentence I am about to give.” Citing this, the government argued in the circuit that the court “should decline to consider Feldman’s claims of procedural error at sentencing.”

The Circuit’s Decision

While noting that a guideline error can be harmless if “it could not have supported any lesser sentence,” the court held that the district court’s “same sentence” statement did not moot Feldman’s claims of error. The key, according to the circuit is ambiguity. Unless there is “unambiguous indication to the contrary,” the court will not assume that a sentence will be the same absent a guideline error. The court did not think that the district court’s “same sentence” statement was unambiguous because it referred only to “some” of the challenged enhancements “without stating which enhancement - or which combination of enhancements - would not affect Feldman’s sentence.”

While this disposed of the matter, the court went on to discuss the policy considerations. Given the importance of the guideline range to the selection of the sentence, the court “cannot lightly assume that eliminating enhancements from the guidelines calculation would not affect the sentence.” The court will be “especially wary of making such an assumption” where the appellate claims would have a dramatic effect on the sentence. Here, for example, if Feldman had prevailed on all of his arguments the range would have been 63 to 78 months, less than half of the range calculated by the district court.

Finally, the court noted that district courts “generally should not try to answer the hypothetical question of whether or not it definitely would impose the same sentence on remand if this Court found particular enhancements erroneous.” Criminal sentences cannot and should not be “exempted from procedural review with the use of a simple incantation.”

That said, however, the court found no merit to any of Feldman’s appellate claims. Those claims - objections to characterizing his website as mass marketing, the loss amount, the risk of death enhancement and obstruction of justice - tread no new ground, and the court’s resolution of them is not summarized here.

A Bad Call

United States v. Gomez, No. 08-3829-cr (2d Cir. August 4, 2010) (Leval, Pooler, Parker, CJJ)

Here, the improper admission of indirect hearsay resulted in a new trial.

Background

Fred Rivas and a confederate sold 5,000 Ecstacy pills to a confidential informant. They were arrested, and Rivas agreed to cooperate. A New York City detective, Michael Ryan, was permitted to testify about the nature of Rivas’ cooperation; specifically, Ryan testified that he asked Rivas to “call the person who had given him that 5,000 pills,” and that Ryan then dialed Gomez' number from Rivas’ phone and recorded their conversation. The district court denied Gomez’ hearsay objection to this testimony, and the government ended up using it in summation to directly implicate Gomez as the supplier.

The Circuit’s Decision

The court found that Ryan’s testimony constituted prejudicial hearsay, and rejected with unusually strong language the government’s claim that it admitted the testimony for a non-hearsay purpose - as “background” evidence.

Here, there was simply no non-inculpatory alternative to explain why Ryan chose Gomez’ number after he instructed Rivas to call his supplier. Indeed, that testimony “provide[d] background that would aid the jury in understanding why Gomez was called only if we assume that Rivas told Ryan that Gomez was his supplier, which we cannot do.” And, if the jury “inexplicably” missed this “obvious point,” the AUSA “drove it home with her ... summation.”

The testimony was also “completely unnecessary” as background. Ryan testified that Rivas was arrested and agreed to make recorded phone calls. That was “sufficient background” for the calls themselves.

In a footnote, the court remarked that, while Ryan’s instruction to Rivas to call his supplier did not include hearsay (one might quibble with this conclusion since, although Ryan was subject to cross-examination, he gave the instruction when he was not, and it was offered, at least in part, for its truth) the instruction’s connection to Rivas’ call to Gomez nevertheless communicated the hearsay message that Rivas identified Gomez as his supplier. The court directed that, on retrial, the district court “should exclude the officer’s instruction.”

The court also found that the admission of the hearsay was not harmless. While the evidence was legally sufficient, it was “hardly overwhelming as to” Gomez’ involvement in that particular transaction. Although Rivas’ recorded conversation with him likely related to a drug deal, a “reasonable juror” would “not have been compelled to conclude that Gomez was the supplier for the earlier sale” because the call did “not clearly indicate that Gomez supplied the 5,000 pills.” It should be noted that this particular analysis would be easier to follow if the court had quoted at least some of the recorded conversation. But, alas, it did not.

Moreover, while the district court gave a limiting instruction, that did not render the hearsay error harmless. The court will not presume that a jury has followed a limiting instruction where “there is an overwhelming probability” that the jury would be unable to and “the evidence is devastating to the defense.” Both were true here. Gomez’ jury was “confronted with an instruction that they should not consider Ryan’s testimony as proof that Gomez was Rivas’ supplier despite the fact that there was no apparent reason for the testimony other than to show that Ryan dialed Gomez’ number” because Rivas had identified Gomez as the supplier. Moreover, the limiting instruction did not cover the most damaging portion of the testimony - that Ryan called Gomez’ number only after instructing Rivas to call his supplier. It covered only Ryan’s instructions to Rivas and Rivas’ actions in response.

Finally, while the court did not rule on Gomez’ Confrontation Clause argument, it noted that “the very concerns embedded in the Confrontation Clause are part and parcel of our harmless error analysis.” Specifically, it considered the “importance of the wrongly admitted testimony,” and found Rivas’ untested accusation to be “significant.”

A Study In Contradictions

United States v. Ramirez, No. 07-2912-cr (Calabresi, Cabranes, Parker, CJJ) (2d Cir. June 29, 2010)

In this case, the circuit found that the district court erred in applying the “impeachment by contradiction” doctrine. But since the error was harmless, it affirmed.

Background

At his drug conspiracy trial, defendant Jose Luis Rodriguez testified that he was not knowingly involved in the drug trafficking of which he was accused. He claimed that he was merely the driver for Jose Adames, the group’s ringleader, and never saw or knew of any cocaine on their trips. Rodriguez testified that he served as Adames’ chauffeur until late 2004, when he received a warning that Adames was involved with drugs, at which time he stopped driving for him.

To rebut this, the government called a police officer who testified that he saw Rodriguez handle cocaine during an unrelated traffic stop after the charged conspiracy had ended. Specifically, the officer saw Rodriguez outside a car putting plastic bags containing cocaine into a box. Rodriguez was arrested, but was not prosecuted in that case.

The Appeal

The circuit held that the admission of the account of the drug arrest was error. The officer's testimony was extrinsic evidence of Rodriguez’ past conduct, which is prohibited by Fed.R.Evid. 608(b). And the court rejected the government’s effort to shoehorn the testimony into the “impeachment by contradiction” doctrine, which provides that where a defendant testifies on direct about a specific fact, the prosecution is entitled to prove that he lied as to that fact.

Here, the rebuttal testimony did not in fact contract Rodriguez. Rodriguez did not testify that he had never seen or handled drugs. Rather, he testified that he did not see or handle drugs during the time he worked for Adames, while the impeachment testimony concerned a later event. Since the government could not identify any point in the record where Rodriguez “forswore, as a universal matter, ever having seen drugs of any kind,” the testimony should have been precluded under Rule 608(b).

However, despite its concerns over the prejudicial impact of evidence of an unrelated drug arrest - which “can prove extremely damaging to a defendant at trial” because it “functions essentially as evidence of criminal propensity” - the court found the error to be harmless. The remainder of the government’s evidence was “sufficiently conclusive and its case [was] sufficiently robust.” In addition to Rodriguez’ confession, a string of co-conspirators took the stand and described Rodriguez’ knowing involvement in Adames’ operation.

Something Barrow-ed

United States v. Oluwanisola, No. 08-4442-cr (2d Cir. May 21, 2010)(Leval, Pooler, Parker, CJJ)

Taking a case to trial after the client has proffered is a difficult thing to do. Most proffer agreements have a clause permitting the government to introduce the defendant’s proffer statements to rebut evidence offered or elicited, or factual assertions made by, the defense. In United States v. Barrow, 400 F.3d 109 (2d Cir. 2005), the court held that such rebuttal clauses apply to all factual assertions, including those made in counsel’s arguments and cross-examination, but are not triggered by arguments that challenge the sufficiency of the evidence. Here, having found that the district court misapplied Barrow at Oluwanisola’s heroin trafficking trial, the court vacated the judgment and remanded the case for a new trial.

The appellate court identified several problems with the district judge’s approach. First, the judge ruled that arguing that specific elements of the crime had not been proven would trigger the rebuttal clause. The circuit noted that Barrow did not make this distinction and there is “no rationale that would compel such a result.” Interpreting the rebuttal clause in this way “would leave the defendant, for all practical purposes, defenseless.” Here, the ruling improperly compelled defense counsel to limit his opening statements to “generalized statements” about the burden of proof, but prohibited him from arguing that the government would be unable to sustain its burden with respect to any particular elements of the offense.

The trial judge also made erroneous rulings with respect to cross-examination. First, defense counsel was not permitted to cross-examine one witness about whether he had made a written report about an event that he testified he observed. The circuit held that this did not contradict - directly or indirectly - proffered facts. “The defendant’s admission in his proffer statement of the facts the witness testifies to having observed is not an admission that the witness observed those facts.” In addition, the judge based a second cross-examination ruling on a clearly erroneous fact. He prohibited counsel from cross-examining an agent about a matter that Oluwanisola mentioned in a post-arrest statement, not in his proffer.

Collectively, these rulings violated Oluwanisola’s Sixth Amendment right to counsel, and the error was not harmless. While the evidence was legally sufficient, defense counsel's ability to challenge evidence on drug quantity and Oluwanisola’s knowledge of what was in the packages he was involved with was severely hampered. The appellate court could not “conclude with fair assurance” that the errors “did not substantially influence the jury.”

Hire Today, Gone Tomorrow

United States v. Lee, No. 05-1684-cr (2d Cir. December 3, 2008) (Straub, Hall, CJJ, Haight, DJ)

Here, a divided panel found that a Crawford error required a new trial for two defendants convicted in a murder-for-hire conspiracy, although the evidence was legally sufficient.

Background

Defendant Williams was the head of a crack-cocaine ring operating in the Bronx. Defendant Lee was one of his dealers. The target of the conspiracy was Kawaine Ellis, who stabbed Lee in the chest in June of 2001. In November of 2001, Williams rented three cars at Newark Airport. Lee was pulled over while driving one of them, and was carrying a gun, which he told the police he had for “protection.” Around that same time, Williams spoke to another member of his crew, Jason Lawton, and told him to return a gun to Williams because Lee had “just got bit,” meaning that he had been stabbed or shot.

About two months later, Maurice Clarke was arrested on gun charges. He told a detective that he had been hired to kill Ellis; he was given a gun and was driven around by someone else who was looking for Ellis, whom they could not find, and was paid for his time. Clarke later said that he would invoke his Fifth Amendment rights if called to testify, so his statement was admitted into evidence through the detective as a statement against Clarke’s penal interest.

In March of 2002, one month after Clarke’s arrest, Orlando Gordon, one of Lee’s drug associates - he bought crack from and sold marijuana to Lee - was assaulted by “Mel,” a member of Lee’s crew. Gordon and Lee spoke about their respective assailants, Ellis and Mel, and discussed a “body for body” swap, under which Lee would deliver Mel to Gordon and Gordon would deliver Ellis to Lee. Gordon, a confidential informant, recorded a conversation with Lee about this plan and, during the conversation, Lee could be overheard placing a call to someone else asking for a “favor” to be “taken care of” - the shooting of Ellis. Lee and Gordon discussed this plan a bit more, but nothing came of it.

The Crawford Error

The court of appeals agreed that the admission of Clarke’s statement through the detective was a Confrontation Clause error under Crawford. Moreover, the error was preserved - although the trial was pre-Crawford, the defense expressly mentioned Confrontation Clause concerns when arguing against the admission of the statement. The court also concluded that the error was harmless.

Effect of the Error on Williams

The majority had little trouble concluding that the admission of Clarke’s statement “contributed to the verdict” against Williams. The only evidence against Williams, absent the hearsay, was that he rented a car and gave it and a gun to Lee, and that he later retrieved a gun from another member of the crew because Lee had “just been bit.” Only Clarke’s statement tended to suggest that Williams gave the car and gun to Lee to help Lee get back at Ellis. “Without the Clarke testimony there is absolutely no indication that the ... car and gun incidents involved a hired killer.” This was true even though Clarke’s statement did not explicitly mention Williams or Lee. A “reasonable juror” could have drawn precisely this inference, and the prosecutor encouraged the jury to do so. Since Williams was not implicated in Lee’s later discussions with Gordon about having Ellis shot, Clarke’s statement was “critical to Williams’ conviction.”

Effect of Error on Lee

The harmless error question was “closer” as to Lee because his conversation with Gordon made is clear that he was “orchestrating a plot to have Ellis shot.” Nevertheless, the majority vacated Lee’s conviction because there was very little evidence that the plan with Gordon included promising something of value to the shooter, an element of the offense of conviction. When Lee called the shooter during his conversation with Gordon, he spoke of shooting Ellis as “a favor for a favor.” This was not sufficient to establish the pecuniary value element.

While there was some other evidence that might have referred to the pecuniary value element - a mention that Lee was “spending more money” - the probative force of that evidence was weak, given that Lee was purchasing marijuana from Gordon at the time of their interactions. Moreover, the government repeatedly referred to Clarke as a “hired killer” who was “paid” to kill Ellis. Since Clarke’s statement “clearly” established the pecuniary value element and the other “money” reference was ambiguous, the government did not establish beyond a reasonable doubt that Clarke’s statement did not contribute to the verdict against Lee.

The Dissent’s View

Judge Straub disagreed. On his review of the record, Clarke’s statement did not contribute to the verdict against either defendant. He viewed the statement as “relatively unimportant to the” government’s case since, it did not “connect either defendant to a murder for hire conspiracy.” Rather, it “only established how far such a conspiracy, irrespective of its participants might have progressed.”

Sufficiency of the Evidence

On the other hand, the court held that the evidence against the defendants, including the Clarke statement, was sufficient. For this, the court turned to United States v. Hardwick, 523 F.3d 94, 101 (2d Cir. 2008), a highly similar case (blogged below under the title For Your Consideration), which held that sufficiency review should take into consideration improperly admitted evidence - a principal not without controversy. Here, a reasonable trier of fact could have found that Williams rented the car and gave the gun to Lee as part of plan for Lee to avenge his stabbing by Ellis. Clarke’s statement could reasonably be interpreted as relating to that plan, and thus that Williams and Lee were “involved in a conspiracy to pay Clarke to murder Ellis.”

The Three Racketeers

United States v. Riggi, No. 06-1280-cr (2d Cir. September 4, 2008) (Jacobs, Calabresi, Sack, CJJ)

Defendants Vitabile, Abramo and Schifilliti were all long-time members of the Decavalcante crime family. Vitabile was consignliere for thirty-five years, Abramo had been a captain since the late 1980's and Schifilliti had held that same title since 1991. They were also part of the family’s administration. After a three-week trial, a jury convicted them of racketeering and racketeering conspiracy - comprising ten predicate acts - and five substantive counts. Included in the mix were several murder conspiracies, extortion, loansharking and securities fraud.

At trial, to bolster the testimony of its cooperating witnesses and augment some otherwise underwhelming recordings, the government introduced into evidence the plea allocutions of eight non-testifying co-defendants. On appeal, the circuit agreed that this violated Crawford and that the violation amounted to plain error. It vacated the convictions and remanded for a new trial.

The court spent little time on the first two prongs of plain error analysis: the district court made an error that was, at least in retrospect, plain. But the circuit also concluded that the error affected the defendants’ substantial rights because the plea allocutions “undoubtedly prejudiced the jury and influenced” the verdict.


1. The Impact of the Allocutions

First, the court held that “prejudice arose from the sheer number of plea allocutions admitted to prove the multiple conspiracies in this case.” The “repetitive nature” of the eight allocutions “suggested that the conspiracy was so widespread that it would be plausible for the jury to assume” that these defendants were participants too, “simply by their long and close association” with those who had pled.

Also, many of the conspiracies described by the allocutions “were overlapping such that evidence of one tended to support the existence of another.” Plea allocutions “confirming the existence of one of the linked conspiracies naturally reinforced the evidence of the others.” This created an “echo chamber of implied guilt” and magnified the prejudicial effect of the pleas.

Third, the detailed content of the allocutions “corresponded to elements of the crimes charged,” which bolstered the government’s proof in those areas. In some instances the allocutions “touched directly” on issues that were central to the defense. Other allocutions undermined specific defense arguments, and still others “contained detailed information that invited the jury to make improper assumptions regarding the defendants’ roles in the crimes.”

2. Error Not Cured by Limiting Instructions

Here, the district court gave the standard pre-Crawford limiting instruction that told the jury that it could consider the allocutions as proof that the particular conspiracy under consideration existed, but that it would have to look to other evidence to determine whether any defendant was a member. Here, however, the appellate court found conclusive evidence that the jury could not follow those instructions - the jury convicted the defendants on every substantive count supported by a plea allocution, but where no allocution was offered in support of a substantive account, the jury acquitted. Moreover, this same “general pattern” held for the RICO predicates. “The correlation between the verdicts and the plea allocutions strongly suggests that the jury was improperly influenced by the inadmissible evidence.”

3. The Government’s Evidence Was Otherwise Weak

Here, the court found that the government’s case was not overwhelming, and thus that it was likely that the allocutions substantially influenced the jury. The testimony of the cooperating witnesses “contained inconsistencies and contradictions” and the government, anticipating these, promised in its opening that their accounts would be corroborated by “other evidence,” including the eight allocutions.

The government also seemed to “betray[] anxiety” about its physical evidence, admitting in its opening that the taped conversations the jury would hear did not really implicate these defendants.

4. Use and Misuse of the Allocutions Pervaded the Government’s Summation

Perhaps most importantly, the court noted that the government repeatedly referred to the allocutions in its summation and rebuttal summations, and sometimes held them out as proof of something more than the mere existence of the conspiracies that they described.

For example, the government on numerous occasions told the jury that allocutions bolstered the cooperating witnesses’ testimony as to specific crimes.

Also, after the defendants argued that the allocutions proved only that the defendants who pled guilty were murders, the government rebutted by telling the jury that those allocutions showed that the cooperators were not “the only violent guys in the Decavalcante family.” In a similar vein, the government improperly used the allocutions to rebut defense arguments that the defendants’ conversations about murdering certain victims were not serious. The government rebutted that the defendants must have meant what they said because others involved in those same conversations pled guilty.

Finally, the government’s “last words” to the jury were “(again) to consider the plea allocutions as evidence of the crimes charged against the defendants, and not merely of evidence of the existence of the conspiracies.”

5. Sufficiency of the Evidence

Two defendants also argued that the evidence against them was insufficient as to certain discreet offenses. The court, following its usual - and probably wrong - rule that sufficiency review includes improperly admitted evidence, had little trouble finding legally sufficient evidence. That said, however, the court expressed “no opinion” as to whether there would be sufficient evidence without the improperly admitted allocutions.

Et Tu, Brute - NOT!

United States v. Brutus, Docket No. 06-2710-cr (2d Cir. October 2, 2007) (Jacobs, Walker, Calabresi, CJJ)

Waline Brutus testified at her drug importation trial. During the charge, Judge Glasser instructed the jury, in relevant part, that she had a “deep personal interest in the outcome of the case” that “creates a motive to testify falsely.”

Following in the footsteps of its recent decision in United States v. Gaines, 457 F.3d 238 (2d Cir. 2006), the court held that this instruction was error. This case is significant because there had been a tension between Gaines and United States v. Tolkow, 532 F.2d 853 (2d Cir. 1976), which upheld very similar language. Here, the court very neatly cuts through the confusion and overrules Tolkow, creating a “prophylactic rule” that any “instruction that the defendant’s interest in the outcome of the case creates a motive to testify falsely impermissibly undermines the presumption of innocence” and is error. When the defendant testifies, the district court should simply tell the jury to evaluate her credibility in the same way it judges the testimony of any other witness.

Unlike the defendant in Gaines, however, Brutus did not win her case. The government, which bore the burden of establishing harmlessness beyond a reasonable doubt - the standard for a preserved constitutional error - did so. The circuit viewed this as “not a close case” and characterized Brutus’ trial testimony as “manifestly incredible.” In fact, Judge Glasser called it “the most incredible perjury I’ve ever heard in any case I’ve ever tried in this court.”

Too bad. Brutus, who has two small children, received a ten-year sentence, and will be a guest of the American taxpayers for at least eight and one half years before being deported back to Haiti. Perhaps if she had won her appeal something shorter could have been negotiated for her.

Crawford's Eleven

United States v. Becker, Docket No. 06-1274-cr (2d Cir. September 13, 2007) (Calabresi, Parker, Wesley, CJJ)

At Becker’s stock fraud trial, the government introduced into evidence the plea allocutions of eleven (yes, eleven) of his co-defendants, supposedly for the “limited purpose” of establishing that the conspiracy charged in the indictment existed. The Circuit concluded that this was a Confrontation Clause violation under Crawford and, for the first time, found that such a violation was not harmless.

The court rejected the government’s claim that the district court’s limiting instructions cured the error, finding that the sheer number of allocutions and their repetitive nature suggested that the conspiracy was widespread, “making it plausible for the jury to assume that Becker was a participant simply by association with” the other conspirators, despite the instructions. In addition, the content of the allocutions was “far reaching and detailed” and significantly undermined Becker’s defense that his actions were driven by credulity and inexperience, rather than greed. The court also faulted the limiting instructions themselves, noting that they might have left jurors open to assuming that the allocutions could be considered on the issue of Becker’s intent.

Finally, the court concluded that the other evidence of Becker’s intent and membership in the conspiracy was “far from overwhelming.” Significantly, the court made clear that its finding that evidence as to these issues was legally sufficient did render an error affecting them harmless. This is an important distinction to which the Circuit has not always adhered.

Becker’s case is all the more remarkable in that arose in the context of a 2255 petition, and not a direct appeal, which means that he successfully overcame several procedural hurdles: the law of the case doctrine, since the court had, on his pre-Crawford direct appeal, rejected the Confrontation Clause claim, and a Teague problem. Fortunately for Becker, his case was not yet final (by a mere ten days) when Crawford was decided.

One note: Becker has already served his entire prison sentence and most of his term of supervised release. Let’s hope that the government does the right thing and drops the case entirely.