Viewing entries tagged
sufficiency

On Bank

United States v. Gyanbaah, No. 10-2441-cr (2d Cir. November 8, 2012) (Winter, Lynch, Carney, CJJ)



The appellant here was part of a group that, for more than three years, stole names and other identifying information, then used it to file thousands of fraudulent tax returns in those victims’ names. The group expected that about half of the refunds would be approved; having sought $2.2 million in refunds, they actually received more than $500,000. When they received a refund check, one of the fraudsters would forge the payee’s signature and endorse the check over to a group member, who would deposit the check into a controlled bank account and withdraw the money. 

Gyanbaah, the particular appellant here, was linked to deposits at three different banks and nearly seventy fraudulent tax returns.  A jury convicted him of five counts, including, in relevant part, one count of bank fraud and one count of aggravated identity theft relating to that bank fraud. On appeal, the circuit agreed that the evidence was legally insufficient to support the bank fraud charge and that both that count and the related identity theft count should be reversed.

Despite the brazenness of the scheme, and the centrality of banks to its success, the conduct was not bank fraud because the government failed to prove Gynabaah’s “intent to victimize” the banks, that is "expose the banks to losses" by fraud. Its evidence on this point consisted only of the testimony of a Secret Service agent who explained only that when a bank “transmits funds to be collected” and it “comes back” as a counterfeit or fraudulent check, the bank “will no longer get those funds back” because “most of the time” the bank has “already given out the funds” to whoever withdrew them. But, “when pressed about specific losses suffered by banks as a result of [Gyanbaah’s] specific use of accounts,” the agent “could not confirm that such losses occurred.” And, while he believed that banks might have to bear the loss from accepting for deposit fraudulently obtained treasury checks, he was “unsure” if that was actually so.

On appeal, to defend the convictions, the government punted. It pointed to conversations between Gyanbaah and others indicating their desire to select banks that would be least likely to detect the scheme. But those conversations showed only an intent to avoid detection, not an intent to injure the banks.

The government also relied on the banks’ claimed exposure to losses, citing cases in which a defendant fraudulent caused a bank to pay out some of a depositor’s funds held in an account in that bank by, for example, cashing a forged check. But in that type of situation the bank’s “direct legal exposure to losses is sufficiently well known” that “a jury may infer that the defendant intended to expose the bank to the loss.” 

Here, by contrast, there was no “clear,” much less “well-known exposure of the banks to loss.”  Until alerted by the Treasury, the banks might well have been holders in due course with the risk of loss borne entirely by the Treasury. After all, here, in one such transaction, the treasury check was real, the signature of the final endorsee was the authorized signature for the account - even though it was fraudulently created by Gyanbaah - and was the only signature the bank needed to very to take the checks as a holder in due course. There was no evidence that the Treasury dishonored the checks or sought reimbursement from the banks. 

Judge Lynch filed an opinion concurring in the result, agreeing that it was dictated by the court’s precedent. He wrote separately to “express [his] view that those prior decisions are predicated on an unwarranted and unwise judicial injection of an offense element that” is not in the statute. Judge Lynch did not believe that “an intent to harm the bank is a required element of” bank fraud, and that it would be poor policy to include it. “The government cannot adequately protect federal insured banks from loss without being able to prosecute criminals who, while undertaking scheme to obtain property under the control of such banks, are ignorant or insouciant about whom they will harm.”  

Fleeced Hampton

United States v. Litwok, No. 10-1985-cr (2d Cir. April 30, 2012) (Livingson, Lohier, CJJ, Koeltl, DJ)


An Eastern District jury convicted defendant Evelyn Litwok of one count of mail fraud, and three counts of tax evasion - for the years 1995, 1996 and 1997. The circuit found the evidence legally insufficient to support the conviction for the 1996 and 1997 tax evasions, and also found that the mail fraud and the 1995 tax evasion counts were improperly joined. The court remanded for a new trial on those counts.

Background

Litwok seems to have spent a good part of the mid-1990's involved in financial shenanigans in and around East Hampton. The mail fraud conviction arose from her involvement in a scheme to defraud an insurance company by making false claims for property damage and related losses at her two East Hampton homes. The tax evasion charges arose from private equity companies that she operated, also out of East Hampton, for the 1995, 1996 and 1997 tax years. Although she owed nearly $1.5 million in taxes, she failed to file a single tax return for those years.

The Tax Evasion Charges

In order to sustain a conviction for tax evasion, the government must prove: (1) the existence of a substantial tax debt; (2) a willful nonpayment, and; (3) an affirmative act performed by the defendant with the intent to evade or defeat the calculation or payment of the tax.

At issue here was only the third element. For one of the tax years at issue, 1995, the government established this element by showing that Litwok barred her accountant from taking  thesteps necessary to preparing and filing her tax return for that year.

But for 1996 and 1997, the government introduced no evidence at all on element three. It showed only that she failed to file her taxes for those years. At oral argument, the government came up with various arguments about how this element might have been established but, since it did not raise those claims either in the district court or in its brief, the circuit considered them forfeited. It reversed the judgment of conviction on the counts relating to those tax years.

Misjoinder

The court also remanded for a new trial on the mail fraud and 1995 tax evasion counts, concluding that they were misjoined. The government established no link between the insurance scam, which took place in 1997, and the unreported 1995 income.

The court also found prejudice in the misjoinder. The 1995 tax evasion count included evidence that Litwok cheated her investors out of millions of dollars for her personal gain, and caused the government to brand her "a cheat, a liar, and a thief." None of the tax fraud evidence would have been admissible at a trial only on the mail fraud, yet it "inevitably colored the jury’s view" of her role in that scheme. Moreover, the evidence against Litwok was not overwhelming, and the district court gave no limiting instructions.

Down for the Count

United States v. Desnoyers, No. 10-0447-cr (2d Cir. March 14, 2011) (Jacobs, Wesley, Chin, CJJ)

Mark Desnoyers was convicted of, inter alia, one count of conspiring to both violate the Clean Air Act (“CAA”) and to commit mail fraud, in connection with his asbestos abatement work. The district court, finding both factual and legal problems with the conviction on that count, entered a post-verdict judgment of acquittal. On the government’s appeal, the circuit reversed and reinstated the conviction.

The conviction on the conspiracy count related to asbestos abatement work in eight buildings. But, after trial, the government conceded that seven of the buildings were not subject to the CAA’s asbestos removal regulations. As for the eighth, the evidence was equivocal. The issue - whether that building contained enough asbestos to qualify - was not proven directly at trial because no witness actually took measurements there. Rather, the only evidence was a description of the abatement project that used trade jargon that was ambiguous.

The district court concluded that the guilty verdict on the conspiracy count could not stand, holding that the CAA object of the conspiracy “suffered from a factual defect,” and, alternatively, that the CAA object “suffered from a legal defect.”

The circuit disagreed on both theories, and reversed. A factual challenge to a conviction raises the standard question for sufficiency: could a reasonable jury find each element of the offense proven beyond a reasonable doubt. A legal challenge occurs when a defendant is “charged with conduct that is not legally actionable.” The difference is significant. Where a jury is considering alternative theories of guilt but renders a general verdict, a factual challenge fails as long as there was “sufficient evidence to support one of the theories presented.” But if the challenge is legal and“any of the theories was legally insufficient, then the general verdict must be reversed.

Under these standards, the conspiracy count was sound. As for factual insufficiency, Desnoyers did not challenge the mail fraud object at all. Thus, even if the CAA theory were insufficient, the conviction should still survive a factual challenge.

There is a “caveat” to this rule - the count should still be reversed when “an overwhelming amount of evidence relevant only to the unproved part of the conspiracy may have prejudiced the jury.” But the caveat did not apply here. There was not an overwhelming amount of evidence relevant only to the CAA object. Rather, most of the evidence was relevant both to the CAA object and the mail fraud object.

Desnoyer’s legal challenge to the count also failed. In fact, he did not “actually set forth a cognizable legal challenge” to the count at all. Rather, all he did was restate the factual objection - that the government could not prove that any of the eight projects was subject to CAA asbestos regulations - and cast it as a legal defect. The court rejected his claim that the jury was instructed “using an incorrect explanation of the law.”

Thus, while the circuit reversed a conviction for Hobbs Act extortion where the two of the three definitions of extortion in the jury charge did not satisfy the statutory definition of extortion, this case was different. All the jury was asked was whether his conduct violated the CAA, something that juries are “always asked” to do. There was no mistake about the law.

Coach Bagged

United States v. Broxmeyer, No. 09-1457-cr (2d Cir. August 3, 2010) (Jacobs, Miner, Wesley, CJJ)

Todd Broxmeyer, was a field hockey coach for teenage girls in upstate New York and elsewhere. For many years he engaged in sexual relationships with some of them , relationships that sometimes also involved the exchange of photographs. Eventually the axe fell, and he was tried and convicted of five count s- four relating to child pornography and one of aiding and abetting the transportation of a minor across state lines with the intent to engage in sexual activity. On appeal, he successfully challenged the legal sufficiency of the evidence as to three of the counts of conviction. The court reversed those counts and remanded the case for resentencing on the other two.

A. Production of Child Pornography

In 2007, Broxmeyer began a sexual relationship with A.W., who was then seventeen years old. The relationship was
legal, because it occurred in in New York, where the age of consent is seventeen. Part of the relationship involved “sexting” - the exchange of sexually explicit pictures via cell phone. Counts One and Two of the indictment related to two specific photographs that A.W. took of herself and texted to Broxmeyer. Based on those photographs, Broxmeyer was convicted of violating 18 U.S.C. § 2251(a) which criminalizes the production of child pornography.

But the appellate panel unanimously agreed that the government introduced no evidence that Broxmeyer “persuaded, induced or enticed” A.W. to take the subject photos, as required by the statute. The statutory terms are “words of causation; the statue punishes the cause when it brings about the effect.” Thus, Broxmeyer must have induced, etc., A.W.'s taking of the photos before she took them. Here, the trial record showed only that A.W. turned seventeen in January of 2007; she took the photos when she was 17 and she began a sexual relationship with Broxmeyer in the spring of 2007. The only evidence tying Broxmeyer to the photos was that “he received them when she transmitted them.” There was simply no evidence that Broxmeyer “inspired” the “production” of the photos.

Since the government never asked A.W. when the photos were taken or whether that occurred before or after Broxmeyer asked her to send him pictures of herself, the jury was “left to speculate or guess,” which is improper. No inference that A.W. took the particular photos at Broxmeyer’s urging was available, because the government “presented no evidence bearing on” the question. Nor was it relevant that there was evidence that Broxmeyer induced A.W. to send sexually explicit pictures of herself. Section 2251(a) covers production, not distribution.

B. Interstate Transportation of a Minor

Another of Broxmeyers’ players was K.M. She lived in Pennsylvania, but would sometimes go with a friend to his practices in Binghamton, New York. She planned to attend a New York practice on Saturday, December 8, 2007. Her father, L.M., was to drive her to the practice; she would spend the night at the home of a friend, J.B., who would also attend the practice, then L.M. would return to pick her up on Sunday afternoon. Eventually, the plan changed and J.B.’s parents offered to drive K.M. halfway home, where L.M. would meet them and pick up K.M.

When Broxmeyer learned that K.M. was coming to New York, he offered to drive her back to Pennsylvania on Sunday morning, on his way to another practice in New Jersey. L.M. and K.M. consented, and the trip went forward as planned, with one hitch. One the way back to PA on Sunday morning, Broxmeyer made a stop at a sports facility in New York to pick up some equipment. K.M. went with him and, once inside, Broxmeyer “caused [her] to perform oral sex on him.” He then drove her the rest of the way home. Because K.M. was only fifteen, the sex act was illegal, regardless of her consent.

Broxmeyer was convicted of aiding and abetting a violation of 18 U.S.C. § 2423(a), which makes it a crime to transport a minor across state lines to engage in illegal sexual activity. The panel majority held that neither trip - the one from PA to NY or the one back - violated this statute.

The PA to NY trip was easy: As the majority viewed the evidence, Broxmeyer did not bring about K.M.’s attendance at the December 8 practice, and her attendance was not contingent on Broxmeyer’s offer to driver her home the next day.

The NY to PA trip was likewise insufficient. The majority held that a conviction under § 2423(a) cannot lie where the unlawful sexual act occurs before the crossing of state lines, absent proof of some intent to commit a sexual act when state lines are crossed. The “plain wording of the statute requires that the mens rea of intent coincide with the actus reus of crossing state lines.”

Judge Wesley dissented on this count, focusing only on the PA to NY trip. As he framed the issue, the only question was whether there was sufficient evidence to support the jury’s finding that Broxmeyer caused L.M. to transport K.M. across state lines by promising to bring her home the next day. After a very detailed discussion of L.M.’s testimony, Judge Wesley found that it sufficiently supported this inference.

Ordinary People

United States v. Heras, No.09-3150-cr (2d Cir. June 18, 2010) (Raggi, Lynch, Wallace, CJJ)

On this government appeal, the circuit vacated a district court order granting a Rule 29 motion that misconstrued the “ordinary consequences” rule and remanded the case for reinstatement of the verdict.

Background

Defendant Heras was arrested in the parking lot of a Queens hotel, after dropping off the target of a controlled cocaine delivery. When the agents told him what was going on, he said that “[w]hatever happened” in the hotel “has to do with [the target]. That has nothing to do with me.” He first told the agents that he had taken the target there to meet a woman, but then admitted that he knew the target was a drug dealer who had gone to the hotel to pick up drugs. He also admitted that he expected the target to compensate him, as he had done in the past, by connecting Heras with suppliers for his own marijuana operation.

After the jury convicted Heras, the district court granted his Rule 29 motion, holding that the evidence was insufficient to establish that Heras had the specific intent to distribute the drugs.

The Appeal

The circuit disagreed. Here, a “jury could reasonably infer Heras’s intent to distribute from evidence indicating that he knew that the object of the charged drug possession was [the target’s] distribution of the contraband and that, with that knowledge, he agreed to facilitate the crime.”

The court also noted that the law is generally willing to let a jury infer that a defendant intends the ordinary consequences of his actions. The district court had held that, under a footnote in United States v. Nelson, 277 F.3d 164 (2d Cir. 2002), in the face of “exculpatory evidence” - Heras’ claim that the target’s activities had “nothing to do with me” - more than a presumption of ordinary consequences was necessary to demonstrate Heras’ intent.

But the district court misconstrued the Nelson footnote. That footnote amplified a text sentence holding about this inference by noting that “where a jury infers intent by deciding that a given defendant meant to bring about the consequences of his actions, that defendant cannot (without pointing to countervailing evidence that the jury ignored) unseat this finding by challenging the sufficiency of the evidence.” This statement indicates only that “no sufficiency challenge to a finding of intent based on an ordinary consequences presumption can be mounted in the absence of countervailing evidence.” It does not hold that “any proffer of countervailing evidence renders an ordinary consequences presumption insufficient as a matter of law” on the question of intent.

Package Deal

United States v. Torres, No. 09-1771-cr (2d Cir. May 5, 2010)(Kearse, Hall, CJJ, Rakoff, DJ)

Every once in a while, when the judge and jury refuse to acquit an innocent defendant, the circuit steps in and sets things right. This is such a case. Finding that the evidence was insufficient to establish that Torres knew that there were drugs in some UPS packages that he went to great lengths to pick up, the court reversed the conviction and remanded for entry of a judgment of acquittal.

Background

On April 30, 2008, a UPS deliveryman attempted to deliver two large “high value” packages to “Jose Torrez” at an address in Yonkers. Two men intercepted the driver near that address and asked for the packages. The driver asked for identification, but because it showed an address in Brooklyn, he would not release the packages.

The men were persistent. They followed the truck to its next destination and tried again. The driver checked with his supervisor, who told him not to release the packages. The driver later turned the packages over to a loss prevention specialist, who brought them to a UPS facility in Mount Vernon, where a security specialist opened them. The packages contained kitchen cabinets with secret compartments that contained about ten kilograms of cocaine, worth as much as $ 1 million.

Working with law enforcement, UPS arranged a controlled delivery. They called the addressee’s telephone number and spoke with “Jose Torrez” who, after expressing frustration about the earlier refusal to deliver the packages, agreed to pick them up at a UPS store in a Yonkers strip mall. An hour later, defendant Torres rode up to the sore in a van driven by someone else and went in to pick up the packages. He showed a New York State ID card in the name “Torres, Jose, A” with a Brooklyn address, and began to load the packages onto a hand truck, rebuffing all offers of assistance.

In the meantime, after noticing police nearby, the driver of the minivan fled. Torres, now with both packages loaded, looked in vain for his ride. For ten or fifteen minutes he explored the parking lot, returning frequently to the packages. He finally went into the store to call a cab, all the while looking over his shoulder. After he made the call, officers arrested him. Post-arrest, Torres said that “this is what happens when you do favors for somebody,” and that a “man in a Yonkers bodega had paid him to pick up the packages.” He later said that he worked at the bodega and was homeless.

The trial evidence also included various UPS documents, and phone records showing numerous calls between the addressee’s telephone number and telephone numbers in Puerto Rico.

The jury convicted Torres of a drug trafficking conspiracy, but acquitted him of a substantive count. Asked whether five kilograms or more of cocaine could be attributed to him, the jury answered, “No.” Judge Gardephe, after denying Torres’ Rule 29 motion, sentenced him to 78 months’ imprisonment.

The Circuit Reverses

In a conspiracy case based on circumstantial evidence, there must be “circumstantial evidence of knowledge and specific intent” and to be “sufficient to sustain a conviction [it] must include some indicia of the specific elements of the underlying crime.” The jury’s inferences must be “reasonably based on evidence presented at trial, not on speculation.”

Here, the evidence was sufficient for the jury to conclude that there was, in fact, a conspiracy to distribute cocaine. It also established that Torres had a connection with the packages containing the drugs and, given his highly suspicious behavior, that he “was most likely aware that the [p]ackages contained contraband of some kind.”

What the court “d[id] not see in the record, however, [was] any evidence that Torres knew that the [p]ackages contained narcotics.” After all, there was no cooperating witness testimony, no evidence of any drug records implicating him, and no proof of any narcotics-related conversation to which Torres was a party. Moreover, the cocaine “was well concealed and not visible.”

Nor was it true that the addressee’s telephone number was proven to be associated with Torres. It was registered in a different name and was used after Torres was in custody. Moreover, that numerous calls were made from that phone to numbers in Puerto Rico did not matter. There was no evidence that Torres was a party to or from any of those calls.

Finally, the court rejected the government's argument that Torres must have known what was in the packages because otherwise the conspirators would not have trusted him to receive $1 million worth of cocaine. There was no evidence of “the nature of Torres’ associations with the persons who shipped the cocaine or with the persons who expected to distribute it.” Nor was evidence that Torres received a payment commensurate with the value of the drugs, or of evidence of “any conduct by Torres other than his efforts to gain possession of” the packages, which “did not show that he had knowledge of” their contents. Moreover, the evidence showed that Torres was not placed in a position of trust. The packages were addressed to a location that he did not control, and he was always accompanied by at least one other person when he tried to pick them up. The only time he was alone with the packages was when the driver of the van spotted the police and fled.

In sum, the court concluded, “viewed as a whole and taken in the light most favorable to the government,” the evidence was “insufficient to permit the jury to find beyond a reasonable doubt that Torres knew that the packages addressed to him contained narcotics, and hence was insufficient to establish that he had knowledge of the purposes of the conspiracy of which he was accused.”



The Things We Do For Love

United States v. Caraballo, No. 08-4640-cr (2d Cir. November 5, 2009) (Leval, Raggi, Livingston, CJJ)

Gilberto Caraballo was a large-scale drug supplier in the Sunset Park section of Brooklyn. In September of 2000, he started dating Quincy Martinez, former girlfriend of Jose Fernandez, a dealer who worked for Caraballo. Three months into their relationship, Martinez asked Caraballo to murder Fernandez because he had been abusive toward her. Caraballo answered, “Say no more.”

Caraballo recruited one of his former drug dealers, Aguilar, and Aguilar’s associate, Taylor, to help do the job. Caraballo had previously cut off Aguilar’s supply over an unpaid drug debt, but promised to forgive the debt and resume supplying to him in exchange for the hit. Taylor, who realized that his own sales would increase once Caraballo started supplying Aguilar again, agreed to help and was to receive $5,000 in cash or drugs.

Aguilar, Taylor and Caraballo did the deed and, as promised, Caraballo gave Taylor cocaine and ecstacy pills, forgave Aguilar’s drug debt and arranged for both of them to begin receiving drugs on consignment. As a result of this arrangement, Caraballo was convicted of violating 21 U.S.C. § 848(e)(1)(A), which makes it a crime for “any person engaging in” a specified drug crime to kill or solicit a killing.

On appeal, although he conceded that the evidence supported his conviction for the predicate drug offense, Caraballo argued that the evidence was insufficient to support a finding that he committed the murder while “engaging in” the drug conspiracy.

The circuit affirmed. It first noted that the statutory language - “engaging in” - would seem to require only a temporal connection between the murder and the drug crime. But the Second Circuit, like every other court, has concluded that the government must prove a “substantive, and not merely temporal, connection” between the murder and the drug predicate. This requirement saves the statute from a possible Commerce Clause challenge and furthers the law’s purpose, which is to “target drug-related killings.”

Previously, the court has held that the “engaging in” element is satisfied by proof that there was a drug-related motive for the killing, although the court has made clear that it does not have to be the “primary” motive, or even of equal importance to any non-drug-related motive. But here, the court rejected Caraballo’s argument that these precedents required that the government prove that the killing was, at least in part, in furtherance of the drug crime.

Rather, the court explained, those precedents are simply illustrations of one type of substantive connection; they do not hold that proof of a drug-related motive is the only way to establish it. Nor is there any legitimate policy reason for limiting the scope of the statute to cover only killings that are specifically motivated by the predicate drug crime.

With that as a background, the court had little trouble finding the evidence sufficient here. “[W]e see no reason why [the substantive connection] is not also proved by evidence that the defendant used qualified drug dealings to procure the murder.” Thus, here, while the motive for the killing - Caraballo’s romantic relationship with Martinez - was not drug-related, using the drug conspiracy’s proceeds as a tool to procure the killing was “sufficient to permit a reasonable jury to find that Caraballo killed Fernandez while ‘engaging in’ the charged drug conspiracy.”

In a footnote, however, the court reiterated its view - still dicta, since it has not yet come up - that a drug dealer who killed a spouse in a purely non-drug-related domestic dispute would not satisfy the “engaging in” requirement of § 848(e)(1)(A).





The Pursuit of Happy Ness

United States v. Ness, No. 05-4401-cr (2d Cir. May 8, 2009) (Winter, Calabresi, Pooler, CJJ)

Samuel Ness was convicted of money laundering offenses in connection with his armored car business, which received and distributed millions of dollars in narcotics proceeds. He was sentenced to 15 years in prison. On his first appeal, the circuit affirmed. He then sought certiorari in the wake of Regalado Cuellar v. United States, 128 S.Ct. 1994 (2008), and the Supreme Court vacated the affirmance and remanded the case for further consideration. This time, the circuit found that the evidence was insufficient and reversed the conviction.

Cuellar held that, for transportation money laundering offenses, the government must prove that the defendant’s purpose, “in whole or in part, was to conceal the nature, location, source, ownership or control of the funds.” A showing that a defendant hid funds during transportation is not sufficient to support a conviction, since there is “a difference between concealing something to transport it, and transporting something to conceal it.”

Ness was convicted of two counts. A substantive transaction money laundering count under 18 U.S.C. §§ 1956(a)(1)(B)(i), and a conspiracy with three objects:transaction money laundering, transportation money laundering under 1956(a)(2)(B)(i), and engaging in monetary transactions in unlawful funds under 18 U.S.C. § 1957(a).

With respect to the § 1956 charges, the circuit found no evidence that Ness’ “purpose in transporting the [drug] proceeds was to conceal” the nature, location, source, ownership or control of the money. All the government proved was “how” Ness moved the money, not “why.” Even Ness’ “avoidance of a paper trial” by hiding the proceeds and using code words showed “only that he concealed the proceeds in order to transport them. Under Cuellar, such evidence is not sufficient to prove transaction or transportation money laundering.”

A different analysis doomed the § 1957 object. This statute requires the government to prove a “monetary transaction” that involved a “financial institution.” Here, the evidence on that element was insufficient. “Financial institution” has a long and complex definition, comprising the twenty-six types of institutions listed in 31 U.S.C. § 5312, plus several others described in related regulations. Neither Ness nor his armored car company qualified under any of these definitions.

On appeal, the government relied solely on one of the regulations, 31 C.F.R. § 103.11, which covers money transmitters and the like. The circuit first held that since the government did not present this theory to the jury it “cannot support an affirmance.” In any event, it lacked merit, since Ness’ business lacked the features that the regulation requires of a money transmitter.






A Small Triumph

United States v. Hertular, No. 07-1453-cr (2d Cir. April 6, 2009) (Straub, Raggi, CJJ, Session, DJ)

Robert Hertular was convicted after a jury trial of running a large-scale cocaine importation ring, obstruction of justice, and misdemeanor assault of a federal officer under 18 U.S.C. § 111. He was sentenced to 400 months’ imprisonment on the drug counts, 120 months concurrent on the obstruction, and 12 months concurrent on the assault. On appeal, the circuit agreed that the evidence was insufficient on the assault count. It reversed that conviction and remanded the case for resentencing.

Background

Hertular was originally arrested by local authorities in Belize, and charged with cocaine trafficking. Once released on bail, he initiated contact with a DEA agent, Vincent Williams, who was stationed in Belize, and expressed an interest in cooperating with American authorities. After two meetings in 2001, Williams told Hertular that the DEA would not use him as an informant.

In 2003, Williams was involved in a different drug investigation. Hertular appeared on the scene and met with the DEA’s informant. Hertular told the informant that the DEA was nearby and offered to “get rid of” the agents. After Hertular left, Williams followed him, and pulled him over, warning him to “be mindful of his associations.” In response, Hertular told Williams that he was “willing to kill a DEA agent” or US Embassy employee. Williams reported the threat to the Embassy, which implemented extra security measures. Hertular was not charged with this threat.

At the end of 2003, the DEA opened a formal investigation into Hertular’s drug activity. On December 25, 2003, Hertular called a second DEA agent, Raymond Kelly, on his cell phone and requested a meeting. Both Kelly and Williams attended the meeting, which took place in Kelly’s car. Hertular told them that he knew he was a target and was likely to be indicted soon. When the agents denied this, he played them a recording of a telephone conversation between Kelly and an informant regarding one of Hertular’s co-conspirators. He told the agents that DEA telephones had been tapped, that he had a source of information within the Embassy, and that he knew the identities of several DEA informants.

Later, Hertular became confrontational. He told the agents that it would be in their “best interest to back down from the investigation because he would have to protect himself.” When Kelly asked whether DEA agents in Belize were in jeopardy, Hertular said that they had better “protect” themselves and “watch [their] backs, because [his] organization would hire hit men from Colombia or Mexico to take [the agents] out.”

About two weeks later, Hertular was indicted in the Southern District of New York. In July of 2004 was extradited to the United States.

The Insufficient Evidence of Assault

The circuit held that the evidence was insufficient on the assault charge because 18 U.S.C. § 111 “requires some proof of the assailant’s present ability to inflict injury giving rise to an objectively reasonable apprehension of immediate harm."

The statute makes it a crime to “forcibly” assault, resist, oppose, impede, intimidate or interfere with a federal officer engaged in the performance of official duties. The word “forcibly” limits the scope of the statute to “fewer acts than would fit the definition of the unmodified verbs alone.” Although the actual use of force is not necessary to satisfy the force element of § 111, the threat must “objectively inspire fear of pain, bodily harm, or death that is likely to be inflicted immediately.”

Here, the evidence was sufficient as to the first prong - inspiring fear - but not for the immediacy prong. An “implied threat to use force some time in the indefinite future” is insufficient to support a § 111 conviction. Here, that is all the government proved.

Hertular’s threats to the agents “did not indicate by word or deed that he was then armed or even that he was contemplating any present action against” them. Rather, he threatened them with “death at some unspecified future time.” Indeed, the threat would only come to fruition if the DEA continued its investigation of Hertular and Hertular’s organization hired hit men from other countries and brought them to Belize to carry out the threat. Since these conditions “suggest[ed] the passage of some time, a jury could not reasonably find that, when Hertular threatened the agents, he had the apparent present ability to take their lives.”

Obstruction of Justice

This same conduct was sufficient, however, to satisfy the obstruction of justice statute, 18 U.S.C. § 1512(b)(3), which makes it an offense to use threats or intimidation to hinder the communication of information relating to a federal crime to a law enforcement officer. “On this record, a reasonable factfinder could easily have concluded that when Hertular told the agents it was in their ‘best interest to back down’ from the investigation and warned them that ‘hit men from Colombia or Mexico’ would be hired to take [them] out,’ ... his specific intent was to hinder or prevent not simply the filing of an indictment but any communication to or among federal law enforcement officials that could lead to his indictment.”

The Remedy

Generally, when the circuit overturns even one count of a multi-count conviction it remands the case for de novo sentencing proceedings. Here, although the reversal of a single misdemeanor count made little change to the “factual mosaic” of the case, the change to the “constellation of offenses” relevant to sentencing was sufficient to warrant resentencing. It is up to the district court to decide whether a conviction on three, rather than four, counts, affects its assessment of the statutory sentencing factors.

Hart's Desire

United States v. Draper, No. 07-2301-cr (2d Cir. January 20, 2009)(Newman, Calabresi, Sotomayor, CJJ)

Defendants Hart and Draper were members of LRP, a drug gang that operated in Brooklyn. In July of 2001, LRP members robbed and murdered a rival. One of the LRP members involved in the killing, Clinton Davy, was picked up and questioned by New York City police officers. Over the next several months, Davy implicated another LRP member, Cory Marcano, ultimately giving information that led to Marcano’s arrest. After Marcano’s arrest, Davy was assaulted on three separate occasions for being a “snitch.”

Relevant to this appeal is the third such beating, which occurred on August 8, 2003. Hart, Draper and other LRP members entered Davy’s apartment and beat him with “a clothing iron, electrical cords, and bleach.” They discussed shooting him too, but the police arrived before they had the chance. Two days later, on April 10, Davy, who had been meeting only with local police and prosecutors, met with federal agents and prosecutors for the first time.

After a jury trial, Hart and Draper were convicted, inter alia, of retaliating against a witness, in violation of 18 U.S.C. § 1513(b)(2) and (f). On appeal, the court held both that the district court improperly charged the jury and that the evidence was insufficient on those counts.

The statute makes it an offense to harm someone, or threaten to do so, “with intent to retaliate” against him for giving information about the commission of a federal offense to a “law enforcement officer.” A “law enforcement officer” is defined specifically as one employed by the federal government. Thus, where the witness initially had contact with state authorities, “the government must provide sufficient evidence that the witness’s contact with law enforcement officials extended beyond her initial contact with the local police, and involved federal officers.”

Here, the jury charge did not require the government to prove that “at least one of the law enforcement officials” that Davy contacted before being beaten was an “officer or employee of the Federal Government.” This was error. In addition, the undisputed facts were that Davy did not have contacts with federal agents prior to his attack. He testified that his first contact with the feds was two days after the attack.

The court accordingly reversed the convictions on the retaliation counts and ordered their dismissal.

Comment

This case is noteworthy for a surprising reason: the defendants did not raise this issue themselves, either in the district court or on appeal. They did not object to the incorrect jury instruction, and their sufficiency argument on appeal was that there was insufficient evidence that they had retaliatory intent. Here, the circuit itself flagged the issue and ordered post-argument briefing on it. Thus, this reversal overcame both the plain error rule and the rule that “ordinarily” arguments not raised on appeal are “deemed abandoned.” The court invoked its “discretion to overlook such failure if a manifest injustice would otherwise result.”

Another tidbit: There is some dispute as to whether the sufficiency of the evidence is to be measured against the charge as given. Under this opinion, it is not.


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.”

A Crime of Violins

United States v. Sprysak, No. 07-3353-cr (2c Cir. October 22, 2008) (Newman, Calabresi, Parker, CJJ)

Adam Potocki was convicted of conspiracy to sell stolen property, a Stradivarius violin that was later determined to be fake. The court of appeals held that the evidence was insufficient on two elements: whether Potocki believed the violin was worth at least five thousand dollars, and whether the offense involved goods that moved in interstate commerce.

Background

Potocki was an associate of Krzysztof Sprysak, who was part of a Brooklyn criminal gang known as the “Greenpoint Crew.” Sprysak called Potocki in December of 2005 to tell him that he might have a Stradivarius violin to sell. He said that the violin had been brought from Europe illegally and was stolen. Potocki agreed to show an antiques dealer a picture of the violin so that it could be appraised, and said that the dealer might be able to sell the violin as well.

In later conversations, Potocki said that the appraiser needed to see the violin itself, not just a photograph, because there are “many fakes.” In their final conversation, Potocki pressed Sprysak to bring the violin to him quickly. Nothing ever happened, and they never spoke about the violin again.

Unbeknownst to Potocki, Sprysak began looking into selling the violin through two other people, one of whom was an informant. In early 2006, the Sprysak and his new conspirators brought the violin from New Jersey to Manhattan to meet with an appraiser, who was actually and undercover detective. It was ultimately determined to be counterfeit, worth no more than one thousand dollars.

Discussion

The court first held that the government failed to prove beyond a reasonable doubt that Potocki believed that the violin was worth at least five thousand dollars, a requirement of the statute, 18 U.S.C. § 2315. The conversations between Potocki and Sprysak only showed that Potocki “anxiously entertained the possibility” that the violin might be valuable, even as he noted that there were many counterfeit Strads. He never expressed a belief that the violin was both genuine and valuable; rather, he merely hoped that these would both be true. Potocki’s “serious questions” about the “provenance and value of the violin” meant that the government “failed to prove beyond a reasonable doubt Potocki’s belief that the instrument was worth at least five thousand dollars.”

The government also failed to prove the interstate commerce element of § 2315, which requires that the stolen goods must have “crossed a State or United States boundary after being stolen.” Here, the government attempted to satisfy this element by showing that the instrument had been brought from New Jersey to New York for the 2006 meeting. But there was no evidence that Potocki knew that the meeting occurred, let alone its background, participants or purpose.

Thus, there was no evidence that Potocki’s discussions with Sprysak months earlier were part of a broader “collective venture” to help Sprysak sell the violin in 2006. Rather, Sprysak abandoned the possibility of working with Potocki and “sought out other avenues to achieve a sale.” Thus, this was not a “classic conspiracy” - an “overarching illegal enterprise with multiple members and sustained, organized objectives.”

Comment

Judge Calabresi wrote a short opinion, concurring dubitante - which means, roughly, “doubting the correctness of the decision.” He felt that the evidence might reasonably show that Potocki attributed a value of more than $5000 to the violin since, “[e]ven if Potocki held only a 1 in 100 hope that the violin was a Stradivarius (which he told Sprysak, could fetch 1.5 million dollars), the expected value to him would still be $15,000, well above the $5000 required by the statute.” Since the government did not advocate this approach, however, the court was not really wrong to reject it, although he found the matter “a tad puzzling.”

Puzzling to this commentator is Judge Calabresi’s agreement with the majority - and the majority’s view itself - on the interstate commerce element. Here, the evidence was clear that when Sprysak first approached Potocki he told him that the violin had been brought from Europe and was stolen. Potocki must therefore have believed that the violin was stolen in Europe, then brought to the United States from there. This belief would seem to clearly satisfy the statute.

The Ecstasy and the Ecstasy

United States v. Ogando, No. 05-0236-cr (2d Cir. October 20, 2008) (Kearse, Calabresi, Sack, CJJ)

Francisco Ogando, a licensed livery cab driver, was convicted of participating in an ecstasy importation and distribution conspiracy. On appeal, the circuit held that the evidence was insufficient.

Background

Angel Gomez, a drug courier, was arrested at Kennedy Airport with ecstasy that he had imported from Belgium, and agreed to cooperate. He told the agents that he was supposed to call “Frank” - defendant Ogando - on arrival. He did so, and Ogando said he was right near the airport. Ogando found Gomez and brought him to his car. They did not discuss drugs, money or where they would be going, and were arrested before they got into Ogando’s car.

Ogando was found to have a cellphone - Gomez had been given that number by his handlers - a business card that mentioned Brussels and noted what Gomez would be wearing, and other papers with the names and telephone numbers of other conspirators, some of whom Ogando was related to. In a post-arrest statement, Ogando told the agents that he was at the airport because a friend named Alex - another co-conspirator - had asked him to pick up someone at the airport. He falsely declared that he did not know Alex’ last name, and also said that he did not know any of the other conspirators and did not know why their names and numbers were found in his car.

Other evidence showed that Ogando had been in the Philadelphia area when one of the conspirators was arrested there, and that after that arrest, Ogando made several calls to others associated with the scheme.

The Circuit’s Ruling

The court began by noting that, to prove conspiracy or aiding and abetting, the government must show more than “evidence of a general cognizance of criminal activity, suspicious circumstances, or mere association with others engaged in criminal activity.” All of the counts of which Ogando was convicted required a showing of specific intent - that he “consciously assisted the commission of the specific crime in some active way.”

Where the alleged conspirator is a driver, there must be more evidence than a co-conspirator’s testimony that he was to meet the driver at the airport and the driver’s actual presence there. Simply “waiting for someone qt an airport, even under ... suspicious circumstances ... is not by itself an act from which knowing guilty involvement can be reasonably inferred.” Here, the court held, that was all, in essence, the government proved.

Nothing about Ogando’s presence was in any way out of the ordinary for a livery cab driver meeting a passenger at the airport. And his personal relationship with some of the conspirators simply explained why they hired him as a driver, rather than someone else. It did not show that he “knew the nature of the conspirators’ business.” Thus, this evidence was probative of the co-conspirators’ state of mind, but not Ogando’s. Moreover, the evidence that Ogando was in Philadelphia when another participant was arrested indicated that Ogando was there to pick him up, but still did not prove that he knew the nature of the conspiracy. It simply showed that “Ogando was a livery cab driver regularly used by members of this conspiracy.”

Finally, Ogando’s false exculpatory statements on arrest could not fill the void. Although circumstantial evidence of a consciousness of guilt, “falsehoods told by a defendant in the hope of extricating himself from suspicious circumstances are insufficient proof on which to convict where other evidence of guilt is weak and the evidence before the court is as hospitable to an interpretation consistent with the defendant’s innocence as it is to the government’s theory of guilt.”

Comment

This is a great victory for Ogando. Sadly, he had completed his 30-month sentence by the time he won his appeal. Indeed, this case seems to have taken an unusually long time to get to this point - the conduct occurred in 2002, the appeal has a 2005 docket number, but was not heard until 2008. The opinion contains no explanation for the delay.

Slight Change

United States v. Huezo, No. 07-0033-cr (2d Cir. October 14, 2008) (Newman, Walker, Sotomayor, CJJ)

Defendant Huezo was convicted, after a jury trial, of money laundering and money laundering conspiracy. The district court granted his post-verdict Rule 29 motion, and the government appealed. A divided appellate panel reversed. It also, however, unanimously wrought an important change in conspiracy law: an elimination of the so-called "slight evidence" rule.

Background

On November 5, 2004, two of Huezo’s co-conspirators drove from Connecticut to New York in a Jeep registered to Heuzo to discuss delivering $1 million to an undercover agent, who was posing as a money launderer. Three days later, Huezo drove one of them back to New York, opened the trunk from the driver’s seat, and the agent recovered a bag containing half of the money. It was packaged in bundles, as is typical for money laundering transactions. The two men returned to a house Connecticut, picked up the third co-conspirator, and went out to dinner.

Two days later, Huezo left the house carrying a small back bag that he put in the Jeep. He then left the Jeep and watched as one of his associates put a black suitcase in the back. They drove to New York, but en route, they were pulled over for speeding. The Jeep was registered in Huezo’s name at the address in Connecticut, although the registration was not yet on file, which suggested that it was newly registered. The car was impounded and, during an inventory search, officers discovered $500,000 in the black suitcase and $6000 in Huezo’s own bag.

Further investigation revealed that the three men had traveled from California to Connecticut a few days before the deliveries.

The Majority’s View

Huezo was convicted of “transaction” money laundering, under which the government was required to prove that he knew that “the purpose or intended aim of the transaction was to conceal or disguise a specified attribute of the funds.” This same intent must be proven for aiding-and-abetting and conspiracy. Here, the majority held that there was sufficient evidence for a rational jury to conclude that Huezo had the requisite criminal knowledge and intent.

First, the court noted that there was ample evidence that the money involved in the two deliveries constituted the proceeds of criminal activity - drug trafficking, specifically - and that those deliveries were transactions designed to conceal the nature of the money.

It also concluded that there was sufficient evidence to connect Huezo to the conspiracy and establish both that he knew the conspiracy’s goals and shared his co-conspirator’s specific intent. The evidence here “went well beyond mere presence or association.”

First, while there was no direct evidence that Huezo “saw or knew what was in any of the bags,” there was sufficient circumstantial evidence. His “special treatment” of the small bag was evidence that the $6000 “constituted payment” for his efforts, and the $6000 was packaged in the same way as the rest of the laundered funds. Moreover, Huezo resided in the same house as the co-conspirators, which was also where the money was kept. From this, a jury could “reasonably infer that Huezo had the requisite knowledge and specific intent” to commit money laundering.

In addition, jurors relying “on their common sense and experience in drawing inferences” could reasonably conclude that “the principals in the conspiracy would not have trusted an outsider (with no knowledge of their criminal purpose) to transport $1 million in laundered funds,” to be present when the funds were delivered, and to share their house for several days.

Finally, the court viewed the evidence of the three conspirators' joint travel as further supporting a finding of guilt. It led to a “reasonable inference that the three men traveled from California to Connecticut and met for the express purpose of facilitating the money laundering conspiracy,” and thus that Huezo participated in it by design and not simply by happenstance.”

The Dissent

Judge Sotomayor dissented. In her view there was insufficient evidence that Huezo had either the requisite knowledge or the specific intent to launder. Rather, the evidence only “weakly” supported a view that Huezo “may have known” that the suitcases contained money and that the money was the proceeds of criminal activity, but there was not enough evidence that he knew the purpose of the transactions; that is, that the money was to be laundered.

The “Slight Evidence” Rule

There was one thing, however, that united all three judges, and indeed, the entire court, since the opinion was circulated to all of its judges: a rejection of formulation - invoked by the government here - that, once a conspiracy has been established,” the evidence necessary to link a defendant to it “need not be overwhelming,” or need only be “slight.” This opinion conclusively holds that these “formulations do not accurately describe the government’s burden of proof in conspiracy cases, and the use of [them] should be discontinued.”

Indeed, in his concurrence, Judge Newman, does a terrific job of debunking this language, tracing it back to its origins in a 1930 Fifth Circuit case, where it appeared “without any citation,” then noting that the Fifth Circuit itself found the use of the “slight evidence” formulation in a jury charge to be structural error - that is, one for which no harmless error analysis is required - in 1977.

Luggage Wreck

United States v. Leerdam, No. 07-1435-cr (2d Cir. July 18, 2008) (Jacobs, Straub, CJJ, Jones, DJ).

Here, the circuit reversed the convictions of two defendants, Andrea and Julio Lorenzo, who had been convicted in a drug importation and distribution conspiracy, finding that the evidence was legally insufficient.

Background

In July 2005, Francisca Leerdam was recruited to smuggle drugs out of the Dominican Republic. She made three successful trips to the Netherlands, then, in September of 2005, made her first trip to the United States. Her handlers gave her a suitcase, some money, a plane ticket and instructions. She made it through customs at JFK, and eventually met a confederate who took her suitcase and gave her a different one. Later, in Queens, the confederate met up with and spoke to Julio. Leerdam met Andrea, who asked her how it went. Andrea and Julio then took her to a hotel and paid for her room. The next day, Julio brought her $14,000 in a duffel bag and told her it was for her handler in the D.R. He drove her to the airport and she flew back, turned in the money and received $3,000.

One month later, she made another trip to New York with two suitcases given to her in the D.R.. This time, she was caught at JFK with 3.25 kilograms of cocaine. She agreed to cooperate by making recorded phone calls and a controlled delivery, assisted by an ICE agent, who posed as a cab driver. She called the phone number she had been given - with instructions to speak to Julio - and Andrea answered. Andrea said that Julio was sleeping, but that she had spoken to Leerdam’s handler, who said that Leerdam should come to their house. Leerdam and the “cab driver” brought the suitcases inside, while Andrea remarked, “so much work, huh?” then said that she had been told to take Leerdam to a hotel.

At this point, both women and Julio were arrested. Andrea made a post-arrest statement denying that she knew Leerdam, and asserting that she was doing a favor for her nephew by bringing Leerdam to a hotel. She also denied knowing what was in the suitcases. Later, she told agents that she had met Leerdam before, but did not know her name. Julio, in his statement, said he did a favor for his nephew by - referring to the September trip - by driving Leerdam around. He denied giving her any money.

The Appeal

The court reversed both defendants’ convictions on the ground that there was insufficient evidence that they entered into the conspiracy with the specific intent to commit the offenses that were its objects or that they had the requisite knowledge.

For Julio, the court held that, while there was “ample” evidence of the existence of the conspiracy and of his presence and participation in events that furthered it, there was insufficient evidence that he did so knowingly and with the intent to further a cocaine smuggling and distribution conspiracy. For the September trip, there was no evidence of the contents of the suitcase, or that Julio know what was in it. Given this, and his “complete lack of participation” in the October events, even the $14,000 he gave to Leerdam in September was not enough. While “indicative of participation in illegal behavior,” it was consistent with a wide variety of offenses, and was by itself insufficient to prove his specific intent to participate in the drug conspiracy. The court also rejected the argument that the fact that Leerdam had been told to call Julio during the October trip rendered the evidence sufficient. The request was not fulfilled, and Julio was dormant during this entire episode. Finally, the court rejected the claim that Julio’s false exculpatory statement rendered the evidence sufficient. The totality of the facts, in the aggregate, was not enough to sustain his conviction.

For Andrea, the evidence was “even more sparse.” Indeed, the court issued an order reversing her conviction one day after oral argument. The evidence against her “considered in the aggregate,” supported “at most” an inference that she “knew that she was assisting suspicious behavior.” But it was also consistent with “providing hospitality to her nephew’s girlfriend and regretting” it.




For Your Consideration

United States v. Hardwick, No. 04-1369-cr (2d Cir. April 11, 2008) (Winter, Walker, Sotomayor, CJJ)

Glen Hardwick was convicted after a jury trial of conspiracy to commit and aiding/abetting murder-for-hire in violation of 18 U.S.C. § 1958. Virtually all of the evidence of the “consideration” element of the offense came from the plea allocution of Hardwick’s brother, which was admitted into evidence over objection, although not a Confrontation Clause objection. The appellate court held that this Sixth Amendment violation was plain error, but that there was legally sufficient evidence on this element. It accordingly did not reverse the conviction; it vacated and remanded for a new trial.

Facts: Most of the action here involved Glenn Hardwick’s brother, Stacey, who had an ongoing drug and gun trafficking relationship with an undercover police officer. At one point, Stacey contacted the UC and asked him to kill someone who had pulled a gun on Glen. The UC of, course, agreed, and there followed a lot of back-and-forth about the terms of the deal. The UC, who had said that he used a gun only once when he did a hit, then would discard it, asked Stacey to supply the gun for this murder. He also asked for a second gun as “payment.” Stacey balked at this; he only wanted to give the UC one gun, although Stacey offered to sell him a second.

Eventually, the UC met with Stacey and Glen, but the brothers had brought only one gun - the one the UC was supposed to use for the job. Shortly after handing the gun over to the UC, the brothers were arrested.

Stacey pled guilty, and in his allocution admitted that there was consideration for the contemplated murder: “The payment for the intended murder was a .32 caliber pistol.” The government admitted this allocution into evidence at trial - which took place before Crawford was decided - subject to a limiting instruction that told the jury that it was free use it as evidence of Stacey’s activities, but could not infer from it that Glen was a member of the conspiracy. In its summation, the government relied on the allocution as proof of the consideration element, and during deliberations the jury had it read back.

The Confrontation Violation: On appeal, the government conceded that the admission of the allocution was error. The circuit agreed and, after a confusing and inconclusive discussion (much of which is relegated to end notes, just to make it as painful as possible) of whether ordinary plain error review or “modified” plain error review should apply, held that it was plain error under either standard.

The error was “plain” because at the time of “appellate consideration” there was an obvious Crawford violation. In addition, the admission of the allocution affected Glen’s substantial rights “because it almost surely influenced the jury’s verdict.” The evidence on the consideration element was very close, and turned entirely on Stacey’s state of mind. But the district court’s limiting instruction expressly permitted the jury to use it for that purpose, and the circuit concluded that the jury must have, in light of the government’s use of it in summation, and the readback.

The Sufficiency of the Evidence: The court went on to hold that the evidence was legally sufficient on the consideration element, however. Giving a hit man a gun as payment for his work satisfies § 1958, and Stacey’s allocution clearly indicated that this was his plan. In another confusing and inconclusive discussion of an important issue, again much of which is - maddeningly - relegated to end notes, the court went on to hold that appellate sufficiency review includes the consideration of “improperly admitted evidence.” As for those Second Circuit cases that have excluded improperly admitted evidence from sufficiency review, they did so “sub silencio,” and hence are not “binding precedent.”

Comment: This should have been the end of the story, but it is not. What follows will blow your mind. Judge Winter, writing alone - “my colleagues do not join me in the discussion” - takes it upon himself to “inform the parties of [his] views on the sufficiency issue absent the plea allocution.” His elaborate and completely unconvincing justification for this extraordinary step is - you guessed it - consigned to an end note that it itself spans two pages of text. In the opinion itself, he covers nearly four pages explaining to the government how it should retry the case, mapping out “at least one scenario [that] might reasonably be found by a jury to be sufficient to meet Section 1958's consideration requirement.”

No wonder the rest of the panel passed on this. This was a completely inappropriate thing to do. The case already has at least two prosecutors assigned to it. It does not need a third. It also seems extremely short-sighted, given the problems it is likely to cause down the road. Glen might well be retried and reconvicted, and will surely make a sufficiency argument on his second appeal. What on earth will that panel do with this part of the opinion when that happens?

Medicareless

United States v. Wexler, No. 06-1571-cr (2d Cir. April 3, 2008) (Miner, Raggi, CJJ, Rakoff, DJ)

David Wexler was a Manhattan dermatologist who ran a prescription mill. He would prescribe painkillers to patients whom he did not examine or treat, often with the understanding that either the prescriptions or the medications would be sold to others. The prescription mill was also the fuel for an ongoing Medicare fraud in which he would, for these same patients, bill the government for multiple procedures that he did not perform. Wexler was convicted after a jury trial of narcotics and fraud counts and was sentenced principally to 20 years’ imprisonment. On appeal, the majority of a divided panel reversed his conviction on the most serious drug count, concluding that the evidence was insufficient, and remanded the case for resentencing.

Wexler had a patient named Barry Abler, for whom he wrote numerous prescriptions for painkillers: Dilaudid, Percocet, Vicodin and Soma. Abler also introduced others to Wexler for the same purpose, and Wexler wrote them prescriptions for many of the same drugs although, according to the trial testimony, not Dilaudid. On May 19, 2001, Wexler gave Abler a prescription for Dilaudid, and Abler died nine days later of an overdose.

Count One of the indictment charged Wexler with conspiracy to distribute Dilaudid, Percocet, Vicodin and Xanax, and conspiracy to distribute Dilaudid resulting in death. Count Nine charged him with a substantive count of distributing Dilaudid resulting in death. The jury convicted him of both; with respect to Count One, it found that the conspiracy resulted in Abler’s death; with respect to Count Nine, it concluded that the distribution did not result in Abler’s death. As a result of the conviction on Count One, however, Wexler was subject to, and received, a twenty-year mandatory minimum sentence.

On appeal, the majority held that the evidence supporting the conviction of conspiracy to distribute Dilaudid causing death under Count One was legally insufficient, because there was no evidence that Wexler conspired with Abler to distribute that particular drug. Under the so-called “buyer-seller” rule, an “agreement that one member of a conspiracy supply another with a drug . . . does not comprise an agreement to distribute that drug.” The trial evidence established that Abler was the only one of the relevant patients to receive prescriptions for Dilaudid; moreover, there was no proof that “Abler agreed to, or did, distribute Dilaudid” to anyone else. Indeed, the quantities of Dilaudid that Wexler prescribed to him were consistent with personal use. Thus, Abler and Wexler were “mere buyer-and-seller” - by prescription, of course - with respect to Dilaudid. While Wexler’s illegal sale of the drug to Abler was a substantive crime, that sale agreement itself was not a conspiracy to distribute because it had “no separate criminal object.”

The court rejected the government’s theory that Abler and Wexler’s “multi-year, multi-member conspiracy” to distribute many different drugs was itself sufficient evidence. Calling this a “broad brush approach,” the majority noted that the specific charge in the indictment was to distribute “Dilaudid,” not a “variety of drugs,” causing death. “The only evidence that could bring Abler and Wexler out of the realm of buyer and seller with respect to Dilaudid was evidence suggesting an intent to redistribute Dilaudid itself.” Here, there was no such evidence.

The majority ended with bit of good old-fashioned Apprendi reasoning, noting the sentencing disparities in the drug statutes, which depend on the type of drugs involved. Where “the type of drug is a critical determinant of the length of a defendant’s sentence, the Government should be required to prove what it alleges.”

Judge Raggi, in dissent, criticized every aspect of the majority’s decision, which she deemed an “unwarranted extension of the buyer-seller rule.” To her, the evidence showed that Abler and Wexler were more than “mere” buyer and seller. She also disagreed with the majority’s insistence that the pleadings in this case required specific evidence of an agreement to distribute Dilaudid, and with its conclusion that there was insufficient evidence of a conspiratorial intent to redistribute that particular drug.

Another Fine Meth

United States v. Tran, No. 05-5644-cr (2d Cir. March 10, 2008) (Sack, Sotomayor, Hall, CJJ)

Defendant Tran was stopped by customs officers while crossing the border from Canada, ostensibly to go to a casino in New York. Customs agents found several bags of pills hidden in the interior roof lining of his rented car, but Tran repeatedly denied knowing that the drugs were there.

There were more than 40,000 pills, weighing more than 10 kilograms. A chemical analysis of 29 of the pills revealed that they contained ecstasy (in concentrations ranging from 15 to 28%) and d-methamphetamine (in concentrations ranging from 5.6 to 6.9%). At trial, a DEA chemist testified that these tests accurately reflected the amount and percentage of the drugs in all of the pills.

Tran testified, and explained that he did not know that there were drugs in the car. He was convicted, and sentenced to 235 months’ imprisonment.

The Jury Charge on Knowledge

In its charge on knowledge, the district court largely followed Sand, except that it instructed that, where a defendant is the “sole occupant of an apartment,” it would be “reasonable to conclude that” he “knew about the items in [that] apartment.” It went on to explain that a defendant’s “behavior” such as “[n]ervousness in the presence of drugs[,] or flight” from the scene “may also indicate knowledge.”

On appeal, Tran challenged these instructions, claiming - inaccurately - that the court charged that the jury could reasonably infer knowledge from sole occupancy of a vehicle. The appellate court pointed out Tran’s error, then refused to review the actual instruction given, since Tran did not challenge it. In a footnote the court chided both his counsel for making “material misrepresentation[s] of the record” (on this point and another), and the government, for failing to point out the errors.

Tran did, however, challenge the language about nervousness in the presence of drugs, but the circuit affirmed. “Even where drugs are hidden and therefore not immediately visible to the occupant or others, the possibility of discovery may cause an individual with knowledge of the drugs to respond with nervousness to a law enforcement officer’s presence.” The court noted that there might be a “stronger claim of error” where a court instructs that “nervousness alone” is a sufficient basis for finding knowledge, but the charge as a whole here did not convey this message. It gave examples of indicators of knowledge, including nervousness, and said that they were “neither exhaustive nor . . . conclusive.”

Sufficiency of the Evidence

The court also held that the evidence of knowledge was legally sufficient. While agreeing that “sole occupancy of a vehicle cannot alone suffice to prove knowledge of contraband found hidden in the vehicle,” here there was more. The government introduced evidence of “nervousness," in the agents’ testimony about Tran’s conduct when stopped, and of “suspicious circumstances,” such as Tran’s traveling without directions to a place he had never been, and his doing so without toiletries or a change of clothes. Finally, by testifying, Tran forfeited his right to have the sufficiency of the evidence determined on the government’s case alone.

Tran also challenged the sufficiency of the evidence that the pills contained 500 grams or more of methamphetamine, claiming that the chemist’s sample was too small. The court disagreed, noting that “sampling is a permissible method of proof,” and that the chemist had opined that all of the pills contained the same substances in approximately the same proportions.




GET YOUR STASH HOUSE IN ORDER

United States v. Wilson, Docket No. 05-5985-cr (2d Cir. September 24, 2007) (Jacobs, Katzmann, Hall, CJJ) (per curiam)

This short decision disposes of a sufficiency claim that has not yet arisen in this Circuit relating to “stash house” prosecutions under 21 U.S.C. § 856(a)(2).

Wilson shared two apartments with a drug dealer - the tools of his trade were in open view all over the place. She argued that the evidence was legally insufficient because the government did not prove that she herself intended that the premises would be used for an unlawful purpose.

The Circuit made short work of this. The phrase “for the purpose” in § 856(a)(2) refers to the purpose of the person who is permitted to engage in drug activity in the premise, and not she who permits him. By contrast, § 856 (a)(1) makes it a crime for the person controlling the premises to have such a purpose. Thus, under Wilson’s reading of the law the two sections would proscribe the same conduct.

Here, the government only needed to prove that Wilson knew that her residence was being used for drug trafficking, and it did so.


Government Has No Evidence; Court Deems It Sufficient

United States v. Parkes, No. 05-1486-cr (2d Cir. August 15, 2007) (Jacobs, McLaughlin, Calabresi, CJJ).

In a sterling example of the alchemy of result-oriented jurisprudence, here the court finds sufficient evidence of an effect on interstate commerce, even though there was none.

Otis Parkes and two others planned and carried out 2003 robbery attempt in the apartment of a drug dealer. Their target was marijuana and marijuana proceeds that the dealer kept hidden in his closet. During the robbery, one of the co-conspirators shot and killed the drug dealer. Parkes went to trial on a Hobbs Act robbery conspiracy charge under 18 U.S.C. § 1951, along with other, related charges, including murder in furtherance of a crime of violence, under 18 U.S.C. § 924(j). He received a life sentence.

The government had taken the position (a typical SDNY overreach) that it did not have to prove any effect on interstate commerce and that, as long as it proved that the target of the robbery was drugs or proceeds this element was satisfied. At the charge conference, Judge Kaplan disagreed, but permitted the government to reopen and call an “expert,” who testified that marijuana is “almost exclusively” trucked into the United States from Mexico, and that “very little” is grown in New York. He conceded that he did not know the origin of the marijuana found in this case and that marijuana can be, and is, grown in New York State.

On appeal, the Circuit reached two significant, albeit contradictory conclusions. It first held that, in a Hobbs Act prosecution, the government must, indeed, prove an effect on interstate commerce, rejecting the government’s (renewed) argument that a robbery involving drugs or proceeds affects commerce as a matter of law. This is significant because, to get there, it had to conduct what is calls a “mini-en banc” to undo United States v. Fabian, 312 F.3d 550 (2d Cir. 2002). There, the court had held that, for the loan sharking portions of the Hobbs Act, drug proceeds affect commerce as a matter of law. Fabian had imported the Congressional findings under the Controlled Substances Act, 21 U.S.C. 801, et. seq., that all drug trafficking affected commerce to the Hobbs Act. Here, the Circuit did an about-face, relying, of all things, on Booker, which of course has nothing to do with commerce, to conclude that Fabian is “no longer good law.”

So far, so good for Mr. Parkes. Unfortunately, the court then concluded that the non-evidence introduced by the government was sufficient, because “a reasonable juror, hearing [it] could have found that the attempted robbery of ... marijuana or proceeds would have affected interstate commerce in any way or degree.”

The court rejected all of Parkes’ other claims, as well, but remanded the case for resentencing under Booker.

Comment: This is a ridiculous case. On the one hand, it requires the government to prove an effect on interstate commerce in Hobbs Act cases involving drugs or proceeds. But on the other hand, it completely excuses the government’s failure to do so.