Reefer Gladness

United States v. Needham, No. 06-5652-cr (2d Cir. May 14, 2010) (Cabranes, Katzmann, Parker, CJJ)

The three defendants here were part of a larger group that was in the business of robbing drug dealers of drugs and drug proceeds. They were all convicted of a Hobbs Act conspiracy, which included robberies of cocaine and heroin dealers, and each was also convicted of one substantive count involving the robbery of a marijuana dealer. Consistent with circuit law at the time, the district court instructed the jury that “all illegal drug activity, even if it is purely local in nature,” affects interstate commerce. While the defendants’ appeal was pending, the circuit held that this instruction was wrong: proof of drug trafficking does not automatically prove an affect on interstate commerce. Instead, “even in drug cases, the jury must find such an effect as part of its verdict.” Finding plain error in the interstate commerce jury charge here, a divided panel court reversed the defendants’ substantive, marijuana-related robbery convictions, but affirmed on the conspiracy count.

The Majority’s View

Under current circuit law, the interstate effect cannot be “presumed” when the object of a robbery is to obtain illegal drugs or drug proceeds. This element, like any other, must be found by jury beyond a reasonable doubt.

Accordingly, the court treated the error here as a charge error, because the charge withheld an element from the jury’s consideration. But, since this was a plain error case, rather than assessing the record to determine whether the error was harmless, the court considered whether the error “affected substantial rights”; that is, “whether the error was prejudicial.” To make this decision, the majority “closely examine[d] the record to determine whether the jury, had it been properly instructed, would have found the jurisdictional element satisfied, or whether the government failed to prove this element beyond a reasonable doubt.”

The entire panel found the interstate element satisfied for the defendants’ conspiracy conviction. A conspiracy that “targets cocaine and heroin, and the proceeds from their sale, undoubtedly meets” the relevant legal standard - the “possibility or potential of an effect on interstate commerce, not an actual effect” - because those drugs “cannot be produced in New York, and thus necessarily travel in interstate commerce.” Thus, even though the government introduced no evidence to support this proposition, the jury was “capable of concluding, based on its lay knowledge, that cocaine is imported into the United States.” This, according to the court, satisfied the jurisdictional element “beyond a reasonable doubt.”

But two judges had a different view of the substantive convictions involving robberies of marijuana dealers. Apart from the large amounts of money involved in those robberies, the government “offered no evidence to support an interstate nexus,” such as proof that the marijuana originated out of state, was sold to out-of-state-customers, or that the victims crossed state lines in conducting their business or would have purchased goods in interstate commerce with the proceeds.

And, according to the majority, “marijuana may be grown, processed, and sold entirely within New York.” Thus, “reviewing for prejudice,” the majority found that the erroneous jury charge “may very well have affected the outcome of the district court proceedings.” The proof was “simply too bare to establish, without more, the required interstate nexus,” even though that nexus need be only “subtle or slight.” The majority refused to find that effect based solely on the amount of money involved in the robberies: “the sheer amount of money, standing alone, does not demonstrate an interstate effect.”

The Dissent

Judge Cabranes had a different view. He agreed that the jury instruction was erroneous. But he had “no trouble concluding beyond a reasonable doubt that the jury would have returned the guilty verdict even absent the instruction that was given.” He found no possibility that “the jury in this case could have concluded that the robberies at issue involved marijuana that was grown, processed, and sold entirely within New York” and was “confident” that the jurors would have found that at least some of the drugs or proceeds derived from interstate or foreign commerce “based on their lay knowledge and common sense.”

Moreover, Judge Cabranes was also “confident that a properly instructed jury would have found the required effect on commerce even if the jury had assumed that the marijuana in question was grown, processed, and sold entirely within New York.” To him, Congress actually has Commerce Clause power to prohibit the local cultivation and use of marijuana, thus, the robbery of the proceeds of even homegrown marijuana is covered by the Hobbs Act.

Comment

This decision prompts a couple of issues that require some further thought.

First, this decision reveals a serious problem with current Second Circuit interstate commerce jurisprudence. According to the court, the government need not introduce any evidence at all of interstate commerce for robberies involving heroin, cocaine or their proceeds, even though this is an element of the offense. There is dangerous and a slippery slope here. Many federal crimes have an interstate commerce element as the jurisdictional hook, and there is a real danger that this “we don’t need any evidence, just the jurors’ common sense” approach could be extended to other criminal statutes. Could jurors use their “common sense” to conclude that, say, stolen property from other states so commonly ends up in New York that the government need not introduce evidence on this element? A better rule would be to require the government actually introduce evidence on interstate commerce in every case where it is an element, and not just some of them. This would hardly be a burden - any law enforcement officer who knows anything about drugs could be an “expert” on the question.

The second weird thing about this decision is the relief granted. Although the majority found a prejudicial charge error on the substantive counts, it did not vacate those counts and remand for a new trial, as it typically does when there is a charge error, even one that dilutes or eliminates an element. Instead, the court reversed the convictions on the marijuana-based counts, which is typically the relief granted only where the court has found the evidence insufficient. Why would the majority secretly treat this as a sufficiency case, and not say what it is doing?

Sexually Charged

United States v. Rivera, No. 06-4946-cr (2d Cir. October 15, 2008) (Jacobs, Kearse, Katzmann, CJJ)

Carlos Rivera was convicted of various offenses relating to the sexual exploitation of children. One count involved the production of child pornography for which Rivera, a recidivist, received a mandatory life sentence. His primary argument on appeal was that the district court incorrectly charged the jury on the definition of “lascivious” with respect to that count. Finding no error, the court of appeals affirmed.

At issue were six photographs that Rivera took of a sixteen-year old boy lying naked on a hotel bed, in various suggestive poses. The statute, 18 U.S.C. § 2251(a), prohibits coercing or enticing a minor to engage in “sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” “Sexually explicit conduct” is defined to include the “lascivious exhibition of the genitals or pubic area of any person.”

Courts have struggled to define “lascivious,” which is “not self-defining.” Here, the district court relied on United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), in which the district court cited six factors that should be considered in addition to any others relevant to the particular case: (1) was the focal point of the visual depiction the child’s genital area; (2) was the setting sexually suggestive; (3) was the child depicted in an unnatural pose or inappropriate attire given his age; (4) the degree of nudity; (5) did the image suggest sexual coyness or a willingness to engage in sexual activity; (6) was the image intended to elicit a sexual response from the viewer.

In its charge here, the district court gave a general definition of “lascivious exhibition,” noting that “[n]ot every exposure of the genitals or pubic area constitutes a lascivious exhibition.” It then told the jury to consider the Dost factors.

The court of appeals affirmed this charge. It noted that Dost has “provoked misgivings,” although most of those misgivings have pointed out that the Dost factors are over-generous to the defendant. Here, the court addressed the fifth and sixth factors in particular. As for the fifth factor, many courts have noted that the focus should not be on the characteristics of the child photographed but of the exhibition that the photographer sets up. The sixth factor has been criticized as the most confusing, because it shifts the focus from the photograph to the viewer.

Here, the court held that “[n]otwithstadning” these valid criticisms about Dost, there was no error in the charge. Jurors need “neutral references and considerations to avoid decisions based on individual values or the revulsion potentially raised in a child pornography prosecution.” The Dost factors are not definitional, and do not purport to be. Rather, they are factors to consider in a particular case that are not “mandatory, formulaic or exclusive” and serve to “mitigate the risk that jurors will react to raw images in a visceral way, rely on impulse or revulsion, or lack any framework for reasoned dialogue in the jury room.” They therefore “impose useful discipline on the jury’s deliberations,” albeit “imperfectly.” Thus, is it “no error” for a district court to recommend the Dost factors as considerations, making any adaptations or allowances warranted by the facts and charges in a particular case.

Romeo and "Julie"

United States v. Joseph, No. 06-5911-cr (2d Cir. September 9, 2008) (Newman, Walker, Sotomayor, CJJ)

Dennis Joseph, through an internet chat room called “I Love Older Men,” met “Julie,” an FBI agent posing as a thirteen-year-old girl. He began exchanging messages with her describing sexual acts he wanted to perform with her, and over time, they made a plan to meet at a café in Manhattan. As the meeting date grew closer, Joseph balked, but “Julie” made him promise that he would really show up. He did, and was arrested. In a post-arrest statement, he indicated that he had no intention of having sex with “Julie.”

Joseph was charged with enticement, under 18 U.S.C. § 2422(b). At trial, he pursued a lack-of-intent defense. Both he and his wife described him as having a proclivity for muscular women, and asserted that he used the internet primarily for role-playing purposes. Indeed, Joseph explained to the jury that he first believed that “Julie” was a sexually experienced adult who was, like him, role-playing. As their interactions evolved, however, he began to worry that she might actually be thirteen. If so, he planned to tell her that he thought she had been an adult, and that he was too old to be involved with her.

A jury convicted him, and Judge Owen sentenced him to ninety-seven months’ imprisonment.

On appeal, Joseph challenged the jury charge as well as two evidentiary rulings. A divided panel tossed his conviction based on the charge, but also criticized the district court’s evidentiary rulings.

1. The Jury Charge

In its instruction on the “enticement” element of the statute, the court charged: “The government only need to show, beyond a reasonable doubt, that the defendant attempted to convince or influence the person he believed was a 13 year old girl to engage in a sexual act with him, or made the possibility of a sexual act with him more appealing.”

The court found that this last clause was reversible error. Most of the charge properly focused on the defendant’s intent to entice; that is, the attempt to get the girl to have sex with him. However, the “more appealing” language did “not reflect the requirement of an intent to entice.” According to the circuit, this language permitted the jury to convict “even if Joseph did not intend to entice ‘Julie’ into engaging in a sexual act with him.”

Where an instruction defining one of two alternative grounds is legally erroneous, the conviction should be reversed unless the reviewing court “can determine with absolute certainty that the jury based its verdict on the ground on which it was correctly instructed.” Here, the court could not. The government’s summation improperly shifted the jury’s attention from Joseph’s intent to “Julie”’s, and even invited the jury to convict solely on the “more appealing” alternative.

Judge Walker dissented. After a detailed examination of the trial transcript, he concluded that the error in the charge had not been preserved, and that it did not rise to the level of plain error. In a responsive a footnote, the majority suggested that it would have found plain error if it thought that the error was unpreserved.

2. Evidentiary Rulings

a. Defense Precluded

During his testimony, Joseph said that he had visited a website called “Muscleteens,” and used this to corroborate his claim that his primary sexual interest was in muscular women. He also said that the site mostly contained pictures of girls aged eighteen or older. In rebuttal, the government called an FBI agent who had joined that same site, and who located numerous photos of younger girls. The district court admitted those photos, but prevented the defense from establishing that there was no evidence that Joseph had ever looked at them, or even arguing the point in summation.

The circuit was not pleased. It observed that if those photos “become relevant at a retrial,” Joseph “must be accorded an opportunity to present evidence that he did not view them.”

b. Expert Testimony Precluded

A major theme in Joseph’s defense was that he used the internet primarily for fantasy and role-play. He proffered an expert witness who was going to explain the internet’s distinct fantasy culture, but the district judge precluded the testimony as irrelevant.

The circuit disagreed. It held that this testimony appeared to be “highly likely to assist the jury” in understanding the evidence, and urged the district court to “give a more thorough consideration of” the testimony if offered at a retrial.

Flight Cancellation

United States v. Mundy, No. 06-1190-cr (2d Cir. August 21, 2008) (Kearse, Leval, Cabranes, CJJ).

In this decision, the court all but eliminates the “flight as consciousness of guilt” jury instruction from Second Circuit jurisprudence.

The facts here were somewhat unusual because it was the the defendant who sought the instruction with respect to a co-defendant. The defendant was trying to bolster his argument that drugs and guns in they apartment where they were both arrested belonged to the other guy. Naturally, the government objected.

On appeal, the circuit held that district court did not err in refusing to give the instruction. But it also went on to map out the multitude of reasons why such an instruction, if objected to, should not be given, regardless of which party is seeking it.

First, there are many inferences that can be drawn from a person’s flight and, while the standard instruction points this out, it still gives “higher prominence to the inference of consciousness of guilt than to other competing inferences.” Moreover, this is just the kind of issue that counsel can and should discuss in summation: “Whether inferences should be drawn from the evidence, and if so, which inferences, are matters of logic and experience” and are not legal matters that need to be addressed in the jury charge.

Thus, “[a]bsent special circumstances, where there is an objection to the request for the instruction, it is not clear to us that any benefit from the giving of the instruction outweighs the potential harms.” The benefits of such a charge are minimal, since judges are no better at interpreting human behavior than jurors are. And the harms are considerable; in a flight instruction, the court gives its seal of approval to one particular inference, and risks “unwittingly ... tak[ing] sides.”

Finally, the court notes that such instructions are a “vestige” of an earlier era, when it was “common practice” for judges to comment on the evidence. But, “[f]or good reason,” that practice has fallen out of favor.

The court closes by noting that there may be cases where a defendant might, for tactical reasons, agree to such an instruction. But if the instruction is objected to it is to be discouraged. “[W]e urge courts to think carefully whether the charge serves a useful and proper purpose or whether it simply gives court imprimatur to one side’s factual contention.”

TRUTH EXTRACTION

United States v. Glover, No. 05-5047-cr (2d Cir. January 4, 2008) (Pooler, Raggi, CJJ, McMahon, DJ)

At this firearms trial, the judge charged the jury, over objection, that “the crucial, hard-core question” to answer was, “Where do you find the truth?” He also instructed: “The only triumph in any case, whether it be civil or criminal, is whether or not the truth [has] triumphed.” One defendant was acquitted; the other was not and appealed.

The circuit affirmed. It agreed that these instructions, in isolation, would be error because they do not ensure that the jury will have a correct understanding of the presumption of innocence or the government’s burden of proof. In addition, the court strongly discouraged their use in the future: “[T]o the extent that a trial court thinks it appropriate in a criminal case to identify for the jury a single ‘crucial, hard-core question,’ that question should be framed by reference not to a general search for truth but to the reasonable doubt standard . . . .”

Here, however, the error was harmless. The court’s review of the entire jury charge found “no reasonable likelihood” that the jury would think it could return a guilty verdict on anything less than proof beyond a reasonable doubt. The charge as a whole referenced the reasonable doubt standard “at least twenty-seven times.” It also correctly instructed that the presumption of innocence lasted “throughout the trial and even into jury deliberations.”

The court was unmoved by the fact that the erroneous language came at the conclusion of the charge. The jury had a full copy of the charge at its disposal during deliberations, and there was a later, supplemental charge that correctly defined the jury’s task.

Comment: One hopes that this case will put an end to off-the-wall instructions on the bedrock due process issues relating to the burden of proof and the presumption of innocence. What is interesting about the decision is that the court missed the most obvious indication that the error was harmless - despite the “search for truth” charge, the jury acquitted one of the defendants.