Re: Joinder

United States v. Page, No. 10-3150-cr (2d Cir. September 16, 2011) (Walker, Hall, Chin, CJJ)

Defendant was tried on five drug counts and a felon-in-possession count. In the district court, he moved to sever the gun count so that the jury considering the drug charges would not learn that he had a felony conviction. The court denied the motion and the circuit, finding no prejudice, affirmed.

Background

In 2007 and 2008, Page was selling drugs - first crack, then heroin - in Norwich, Connecticut. During this time, he became involved in an altercation outside a bar, and brandished a gun; to avoid trouble, he stashed the gun at his girlfriend’s apartment. Agents raided the apartment the next day and found the gun and some drugs.

Page ultimately faced a six-count indictment; the first five counts alleged drug offenses - although the government ultimately dropped one of these - and count six charged the felon-in-possession. The district court refused to sever count six, noting that Page’s stipulation to the felony conviction did not describe its underlying facts, and that there would be a limiting instruction. These together assured a lack of undue prejudice. Page was convicted, and received a 210-month sentence.

The Circuit’s Decision

On appeal, Page argued that the gun count should have been severed, or at least bifurcated, from the others, citing United States v. Jones, 16 F.3d 487 (2d Cir. 1994). But the circuit found no abuse of discretion, particularly given the heavy burden of establishing prejudice by an allegedly improper joinder.

First, there was a “sufficient logical connection” between the drug counts and the gun count. The gun was recovered along with some of the drugs and Page admitted that both were his. For this reason, separate trials would have required “much of the same evidence.” Evidence of the presence of the drugs in his girlfriend’s apartment would have been probative of his knowing possession of the gun, while conversely, at a separate drug trial, evidence of the gun would have been admissible as a “tool of the trade.”

In addition, the district court took adequate measures to avoid prejudice. The stipulation was bare-bones and the limiting instruction was adequate, even though it did not specifically charge that the prior conviction could not be considered in relation to the narcotics counts.

Finally, there was overwhelming evidence against Page - his own confession and the testimony of the girlfriend.

The court also distinguished Jones on its facts. There, the felon-in-possession count appeared only in a superseding indictment after the jury deadlocked 10 to 2 for acquittal in a bank robbery case. Although the court reversed the bank robbery conviction because the felon-in-possession should have been severed, it did so because it looked to the court like the government had added the count only to “buttress its case” on the robbery. There was also a “retroactive misjoinder” problem with respect to a second felon-in-possession charge. But, since neither of those “unique circumstances” was present here, the district court did not abuse its discretion in refusing to follow Jones.

Jones does not stand for the proposition that a felon-in-possession count must always be severed or bifurcated from other charges. Where “there is a logical connection between” them, a “similarity in the evidence necessary to prove the different charges,” the trial court takes steps to limit the prejudice and gives a proper limiting instruction, and there is no unfair prejudice, it is not an abuse of discretion to refuse to sever or bifurcate. If, on the other had, the district court concludes that a bifurcation would “better protect the defendant from prejudice than a limiting instruction would” it is free to do so.

Mommy Dearest

United States v. O’Connor, No. 08-5968-cr (2d Cir. June 16, 2011) (Kearse, Pooler, Hall, CJJ)

Linda O’Connor began sexually abusing her daughter, S.O., when S.O. was ten years old. O’Connor also allowed her friend - he was also her occasional financial benefactor and sex partner - George Lang, to do so; O’Connor even sometimes joined in. Lang died of cancer before he could be prosecuted, and O’Connor then passed S.O. on to her landlord, co-defendant Dean Sacco, in lieu of paying rent. Sacco raped S.O. many times, and also took pictures of the abuse. Finally, on two occasions, O’Connor brought S.O. to a motel in Binghamton, where strangers raped her for money, while O'Connor looked on and ordered her to follow the men’s instructions.

O’Connor and Sacco were convicted of various sex trafficking and child pornography offenses; she was sentenced to 30 years and he to life. This opinion affirms their convictions.

Sacco

Sacco’s main claim on appeal was that the district court abused its discretion in denying his attorney’s motion to withdraw.

The facts are quite unusual. Sacco had a court-appointed attorney, who worked on the case for about two months. He researched and investigated the case and reviewed voluminous discovery materials. Just days before the scheduled trial date, however, the attorney moved to withdraw, saying that the intensity of his personal feelings about the case would affect his ability to zealously represent Sacco.

The attorney cited in particular the recent disclosure of a single item of evidence: a used condom recovered from Sacco’s belonging that had S.O.’s DNA on the outside. The attorney said that this evidence had caused him to shift his “moral and technical perspective” on the case such that he could no longer be effective. The government opposed the motion to withdraw, while Sacco himself took “no firm position” on it. He was largely pleased with his attorney’s performance, although he expressed frustration that they had not communicated more. Sacco also indicated that he wanted to go to trial as quickly as possible, but questioned whether his attorney was truly ready. With this as the record, the district court found that there was an insufficient basis for the attorney to withdraw and denied the motion.

The circuit found no abuse of discretion. While the attorney had tried to based his arguments in the district court on New York’s then-applicable rules of professional responsibility, the circuit noted that the attorney never argued that he would be in violation of any Disciplinary Rule if he continued representing Sacco. And the relevant Ethical Considerations actually supported the district court’s ruling. While an attorney’s personal feelings might permit him to refuse an assignment, they do not permit withdrawal. Withdrawal must be for “compelling reasons,” which “do not include such factors as the repugnance of the subject matter of the proceeding.”

Here, the DNA evidence that prompted the motion to withdraw, whether it suddenly made the subject matter repugnant to the attorney or simply made him realize that his client was guilty, could not serve as a valid basis for withdrawal. Moreover, on appeal, represented by different counsel, Sacco could point to nothing in the record to suggest that his attorney’s representation was actually impaired.

O’Connor

O’Connor had two main appellate claims - sufficiency challenges and the denial of her motion to be severed from Sacco for trial. The circuit disposed of these challenges with little trouble. The sufficiency claims were all quite thin. And,for the severance claim, the circuit began by noting the great deference owed to district courts’ severance decisions.

Here, the nature of the charges “made the joint trial of O’Connor and Sacco particularly appropriate,” since O’Connor was charged with selling S.O. to Sacco for the purpose of producing child pornography. The court also rejected O’Connor’s claim that her defense was antagonistic to Sacco’s, since both defendants argued that S.O.’s testimony was not worthy of belief. Nor was there any risk of “spillover” prejudice. While there was highly damaging evidence admitted against Sacco alone, the judge carefully instructed the jury that each charge and each defendant had to be considered separately.

O’Connor also raised an interesting evidentiary issue. A witness with whom S.O. stayed for two months during the charged time period testified that, when cleaning S.O.’s room she found a note in S.O.’s handwriting that said, “I hate my mother. She used me,” although the witness had not preserved the note.

The circuit found no hearsay error. The district court had admitted the contents of the note under the “state of mind” exception in Fed. R. Evid. 803(3). But that covered only the “I hate my mother” sentence, and not “She used me.” But this latter statement was covered by Rule 801(d), the “prior consistent statement” rule, which makes a statement not hearsay if the declarant testifies, is cross-examined on the statement, and the statement is used to rebut a claim of recent fabrication. Here, both defendants had argued that S.O.’s fabrications began on a date after the note was written, so the prior consistent statement was admissible.

Government’s “Question[able],” “Troub[ling]” and “Disingenous” Conduct Results in an Affirmance. Huh?

United States v. Blech, No 05-3600-cr (2d Cir. April 23, 2008) (Sotomayor, Parker, Hall, CJJ).

Two defendants who were convicted of securities and related frauds appealed on the ground that their cases were misjoined, and one advanced a Brady claim. The court affirmed, but only out of apparent deference to the district court’s findings under the “abuse of discretion” standard.

The Severance Issue

This case went to trial on a thirteen-count indictment that alleged two separate fraud schemes. The first involved appellant Brandon, who, along with others, defrauded customers of Credit Bancorp of more than $200,000,000. The second scheme involved appellant Wexler, who also defrauded Credit Bancorp customers, but in a different way. The district court denied their severance motions, and both were convicted.

The defendants’ severance claim was unusually strong. Although the two schemes shared some participants, and both targeted Credit Bancorp customers, they were otherwise completely distinct. Nevertheless, the appellate court found no error.

The court held that the joinder was permissible under Rule 8(b), even though the two schemes were not - and could not - have been charged as a single conspiracy. Rule 8(b) was still satisfied because the indictment alleged a sufficient overlap in parties and transactions. Nor were the defendants prejudiced by the joinder; the court cited the small risk of “spillover prejudice” and the district court’s limiting instructions.

Nevertheless, the court noted, “[W]e question the government’s decision to try the two conspiracies together.” Neither defendant knew of the other’s activities, it did not appear that one scheme would have been admissible background evidence during the trial of the other had they been severed, and the government unfairly “lump[ed] together all of the conspirators during its rebuttal summation.” So why did it affirm? The district court did not abuse its discretion “given the flexibility of the standard.”

The Brady Claim

Many, many months before trial, the government produced more than two hundred boxes of discovery. One week before trial, it provided to defendant Brandon exculpatory information - the grand jury testimony of a cooperating witness. It waited until the eve of trial to turn over even more Brady material - the FBI agent’s notes of that cooperator’s debriefing. These materials supported Brandon’s claim that he was unaware of the unlawful aims of the conspiracy with which he was charged.

Nevertheless, the circuit found no Brady violation, even though the government “disingenuous[ly]” argued that the material was not exculpatory. In fact, the court concluded that the evidence “quite obviously could be viewed as” favorable to Brandon. The government also disingenuously argued that the evidence was not exculpatory because there was other evidence of guilt, another ridiculous assertion that the court rejected.

But it still affirmed, because the district court found no bad faith (it seems that, here, the government reserved its bad faith for its appellate briefs), and “we do not go to far as to overturn that conclusion.” The court also noted that there was “no probability” that the late disclosure affected the outcome of Brandon’s case. It did provide, however, a stern warning that the government “should have” complied with Brady, but that, of course, gets Brandon nowhere.

Comment

Enough of the free passes! If the court is really serious about curtailing such sharp practice on the part of the government, it needs to start reversing convictions in cases like this.

Joint Pain

United States v. Shellef, No. 06-1495-cr (2d Cir. November 8, 2007) (Pooler, Sack, Wesley, CJJ)

In this decision applying Fed.R.Cr.P 8, the court held that counts were improperly joined against two separate defendants, and that the misjoinders were not harmless. The decision also has an interesting discussion of some unusual wire fraud theories.

Defendants Shellef and Rubenstein were tried together on tax and wire fraud charges. At the same trial, Shellef alone was tried on tax evasion charges relating to some of his personal and business dealings. Both were convicted of all counts.

The tax and mail fraud charges arose from the defendants’ efforts to purchase and resell CFC-113, a highly regulated, ozone-depleting industrial solvent upon which, Congress, in an effort to phase out its use, imposed an excise tax. However, the tax does not apply to CFC-113 reclaimed as part of a recycling process, or CFC-113 that is sold or manufactured for export.

The defendants were charged with attempting to avoid this excise tax, beginning in 1997 or 1998, through a series of complex business transactions. In very brief, they falsified documents so that it would appear that CFC-113 that they had purchased and resold was either reclaimed or was being shipped for export. Similar misstatements duped their suppliers into not charging them the excise tax.

Shellef alone was also charged with tax evasion - he understated his income and assets - relating to his personal and business returns for the 1996 tax year. At trial, Shellef moved to sever the 1996 tax counts from the others, and Rubenstein joined in the motion, all without success.

The circuit reversed. Tax counts can be joined with other crimes from which the tax offenses arose, as when a defendant is prosecuted for fraud and for not paying taxes on the proceeds. Here, however, Shellef’s 1996 tax counts were unrelated to the other charges. The government’s only claimed connection was that all related in some way to the sale of CFC-113 (a claim unsupported by the record for the 1996 conduct) and that all arose from the same businesses. But the circuit held that this was insufficient to support joinder in the prosecution of Shellef under Rule 8(a).

The court further held that the government failed to show that this misjoinder was harmless. The 1996 conduct would have been inadmissible at a trial on the other counts under Rule 404(b), because the earlier acts would have led the jury to “reason that if Shellef was willing to lie to the IRS in 1996 he would be willing subsequently to lie to others” or to interpret the 1996 conduct as an “indication of Shellef’s general mendacity.” The court also held that, for similar reasons, the 1996 evidence probably prejudiced the jury’s assessment of the other counts. The absence of any limiting instructions on these issues compounded this prejudice.

After a much less detailed analysis, the court also held that Shellef’s 1996 tax counts were misjoined against Rubenstein. The court simply noted that this was true for “many of the same reasons” that they were misjoined against Shellef, but did not give any specifics. Interestingly, and with no real analysis at all, the court held that Shellef’s 1996 misdeeds posed an “arguably greater” potential for prejudice against Rubenstein, even though that conduct had nothing at all to do with him.

This opinion is also notable for its discussion of the theories of wire fraud advanced in the indictment, the “no-sale” theory and the “tax liability” theory. The no-sale theory posited that Shellef’s misrepresentations to his supplier constituted fraud because the supplier would not have made the sale if it knew of his true plans to improperly sell the chemical domestically. However, the court held that this is not enough. A scheme that does no more than cause a victim to enter into a transaction it would otherwise avoid is not fraud. Fraud is present only if the scheme depends “for [its] completion on a misrepresentation of an essential element of the bargain.” Here, because the indictment alleged only that Shellef’s misrepresentation induced his supplier to enter into the transaction, but did not charge that the misrepresentation had “relevance to the object of the contract,” the indictment was legally insufficient on a “no sale” theory.

The indictment was sufficient, however, on the alternative “tax liability” theory. This theory was that Shellef induced his supplier to continue to sell the chemical without paying the excise tax or including it in the sales price. This was sufficient because it deprived the supplier of money it should have been entitled to - the tax - and it is irrelevant that that money was to be passed on to the IRS. It was sufficient that the supplier “had a right to” the money and that Shellef’s scheme was intended to deprive the supplier of it.

33 SKIDOO

United States v. Owen, Docket No. 06-1078-cr (2d Cir. September 4, 2006 [sic]) (Parker, Raggi, Wesley, CJJ)

In case you were wondering, Rule 33 applies only to "newly discovered" evidence, and not "newly available" evidence.

Facts: Lance Owen and two co-defendants loaded five years worth of marijuana into a truck from a warehouse in the Bronx. Owen was pulled over while driving the truck, and explained, not very convincingly, that he was a mover, in the process of moving personal items to Florida for a client. When DEA agents found the marijuana in the truck, they arrested him.

Owen and the two others, Samuels and Baroody, went to trial. No defendant testified, but each, through counsel, pointed his finger at the others. All were convicted, and Judge Patterson sentenced Owen to five years’ imprisonment.

At Samuels’ sentencing, before sentence was imposed, Samuels exculpated Owen. He said that he had “hired him for a job” but that Owen “didn’t know anything about drugs.” Samuels also said that he told the government that Owen was innocent during a proffer. Owen then, pro se, moved for a new trial under Fed.R.Crim.P. 33, characterizing Samuels’ statements as newly discovered evidence, and Judge Patterson granted the motion.

The Court's Ruling: On the government’s appeal, the Circuit reversed. It characterized the evidence as “newly available,” and not “newly discovered,” rejecting Owen’s claim that he was unaware of Samuels’ ability to exculpate him until Samuels did so. If in fact Samuels never told Owen that there was marijuana in the boxes he was transporting, Owen “would have known prior to trial” that Samuels could testify to that fact. The court then declined to extend Rule 33 to newly available evidence, rejecting the First Circuit’s minority holding on this point.

Comment: Despite the bad outcome for Owen, this case nevertheless has a few helpful nuggets. First, it seems to endorse severance as the proper relief where “a codefendant’s assertion of privilege deprives the defendant of exculpatory testimony” at trial. Moreover, ths case does not completely shut the door to this type of Rule 33 motion, noting that there “may be” cases where a codefendant’s post trial testimony “does indeed constitute newly discovered evidence.”