Not Much Moore

United States v. Moore, No. 10-2740-cr (2d Cir. February 22, 2012) (Jacobs, Cabranes, Livingston, CJJ)

This decision marks the circuit’s latest effort to sort out a “two-step” interrogation in the wake of Missouri v. Seibert, 542 U.S. 600 (2004).

Chauncy Moore, having evaded a Connecticut police officer who had a warrant for Moore’s arrest, tossed a gun onto the roof of a house. He was apprehended on the warrant early the next day, but did not receive Miranda warnings. He spent the morning in a police station lockup, but was not brought to court due to a paperwork glitch. Later that day, still at the precinct, Moore twice asked to speak with a detective, but none was around. In the afternoon, he was moved to a cell with a pay phone, from which he spotted a narcotics officer he knew, Ronald Pine, and called him over. Pine was not involved in Moore’s case, but knew that it involved a gun. Pine asked Moore to tell him where the gun was, and Moore declined. An ATF agent happened to be nearby, and Pine called him over. Pine told Moore that he could talk to the ATF ageant after Moore helped them find the gun.

Moore agreed, told them where he tossed the gun, and drew a map. The two officers went to the location, where they were joined by detectives, and recovered the gun. Pine told the detectives that Moore wanted to speak to them and, about ninety minutes after Moore first started talking to Pine, they returned to the station house and interviewed him, this time giving him Miranda warnings. Moore waived his rights and confessed.

The district court held that the initial, un-Mirandized statements should be suppressed, but also held that the later, warned statement was admissible. On Moore’s appeal, the circuit, after surveying Seibert and its progeny, affirmed.

Here, there was no subjective evidence that Pine and the ATF agent were trying to circumvent Miranda. Rather, while the “public safety” exception to Miranda might not have applied on the facts here, the “undoubted public safety considerations [of a discarded gun] plausibly account for the conduct of the police in a way that militates against finding that the first interview was a premeditated attempt to evade Miranda.” Similarly, the “objective evidence,” including the narrowness of the overlap between the subjects of the two interrogations, the participation of different officers, and the elapse of more than ninety minutes “decidedly points against concluding that the government engaged in a deliberate two-step process designed to undermine Moore’s Fifth Amendment rights." Finally, the circuit noted that it was clear that Moore’s later statement was entirely voluntary, and that the Miranda waiver was itself valid.

Moore also argued, alternatively, that the questioning occurred in violation of his Sixth Amendment right to counsel. The circuit agreed with the district court, however, that there was no Sixth Amendment violation because the right to counsel had not yet attached to the federal gun charge to which he pled guilty.

Five and Time

United Sates v. Culbertson, 10-1766-cr (2d Cir. February 3, 2012) (Hall, Lynch, Lohier, CJJ)

Defendant Culbertson was arrested during an investigation into the importation of heroin and cocaine into the United States from Trinidad, after his girlfriend was arrested at the airport. He was charged with offenses that, based on the drug type and quantity alleged - 100 grams or more of heroin and five kilograms or more of cocaine - carried a ten-year mandatory minimum.

Culbertson was a difficult guy - he went through so many appointed attorneys that the district court finally forced him to go pro se- and consistently disputed the quantity of drugs attributable to him. At his plea, Culbertson insisted that the offense involved only “three kilos” of cocaine - that is what he said his girlfriend had been recruited to import, even though she in fact had more than five in her luggage - and said he did not know anything at all about any heroin. He then asked for a Fatico hearing on drug quantity, but when the government said that it would be relying on the girlfriend’s five kilograms, the district court denied the request “as moot.” Thus, although Culbertson’s guidelines were 57 to 71 months - the government gave him “minimal” role - the court sentenced him to the ten-year mandatory minimum.

On appeal, the circuit vacated the conviction, finding that the guilty plea did not have an adequate factual basis as to drug quantity. In a drug conspiracy, the plea allocution must establish that drug type and quantity that trigger the statutory penalties were at least reasonably foreseeable to the co-conspirator defendant. But, typically, where a defendant has explicitly challenged the statutorily prescribed drug type or quantity, the circuit has concluded that the record of the plea did not provide an adequate factual basis to enter judgment against the defendant on the charged crime.

This case was no different. Culbertson specifically declined to plead guilty to the five-kilogram quantity. His “persistent disavowal of responsibility for any amount in excess of three kilograms of cocaine compels us to conclude that the District Court lacked a factual basis for his plea.” Nor was this cured by the government’s proffer; it is “error” for the court to find that a factual basis exists “when the defendant actively contests a fact constituting an element of the offense.”

Finally, the error was not harmless. Disputes over drug quantity in a plea allocution are “presumptively significant” given the impact of quantity on the length of the term of imprisonment. Accordingly, the court vacated the judgment of conviction.

The circuit also examined the district court’s handling of Culbertson’s repeated requests for a change of counsel. It is not unreasonable for a court to “require an intractable defendant either to proceed with the current appointed lawyer, or to proceed pro se.” Nevertheless, in such situations, before forcing a defendant to go pro se, the court must undertake a Faretta colloquy to ensure that a defendant poing pro se “knows what he is doing” and makes the choice “with his eyes open.” Accordingly, here, on remand, if the court still deems it appropriate to deny Culberton’s request for new counsel, it must follow the Faretta procedure.

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.”

Unattached

United States v. Worjloh, No. 06-3129-cr (2d Cir. October 8, 2008) (Parker, Raggi, Hall, CJJ) (per curiam)

Although not yet charged with a federal offense, Worjloh was questioned by federal agents while he had state drug charges pending. The state charges were ultimately dismissed, and a federal indictment was returned. On appeal, he argued that his statements to the federal agents were obtained in violation of his Sixth Amendment right to counsel.

The circuit disagreed. Because Worjloh was not subject to federal charges when the feds questioned him, “no Sixth Amendment right to counsel had attached as to the then uncharged federal conduct.” The Sixth Amendment rights related to the state offenses did not “serve to restrict the ongoing investigation into uncharged federal crimes where, as here, that investigation is not tied to the state’s conduct.” It might be different if the federal prosecutors had sought to admit evidence obtained by state authorities in violation of the Sixth Amendment, but here, “there is no suggestion that Worjloh’s case was simply handed off from one sovereign to another.”

Breach Blanket Bingo

United States v. Bell, No. 07-0715-cr (2d Cir. June 10, 2008) (Jacobs, Calabresi, Sack, CJJ) (per curiam)

In this case, the circuit had to sift through competing claims as to which party breached the plea agreement.

Defendants Brumer and Klein pled guilty to various offenses relating to healthcare fraud. Their agreements with the government stipulated to a loss amount, and specified that neither party would seek a departure or adjustment other than those contained in the agreement. Based on the proof at a related trial, however, the government offered to amend the agreement and reduce the loss amount. The defendants rejected this offer, and instead sought a Fatico hearing, after which the court held them accountable for a significantly lower loss amount. In exchange, the government sought adjustments for mass marketing and vulnerable victims that were not part of the plea agreement.

So who breached first? The defendants. According to the court of appeals, the government’s original offer to reduce the loss amount, which would have benefited the defendants, was not a material breach. Rather, the defendants breached the agreement by seeking a Fatico hearing and putting the government to its proof, causing it to lose the benefit of its bargain. Accordingly, since the defendants breached first, the government was entitled to treat the agreements as unenforceable and to seek the additional sentencing enhancements.

This decision also contains an interesting discussion of some issues relating to the increasingly common practice of having of magistrate judges preside over felony guilty plea allocutions. First, the court held that defendants do not have the right to be present when the district judge reviews the transcript of the allocutions and signs an order accepting the plea. The court also held that the provisions of 28 U.S.C. § 636(b)(1) and (b)(1)(C), which require the filing of proposed findings and recommendations of the court, do not apply to Rule 11 proceedings.

Finally, the court rejected Klein’s argument that he was denied his Sixth Amendment right to the counsel of his choice when the district court refused to allow him to substitute retained counsel. The request came six years after the indictment and four years after the guilty pleas, and would have meant replacing Klein’s sixth attorney with a seventh. Under the circumstances, the court’s refusal to allow the change was not an abuse of discretion.