Let's Get Metaphysical

United States v. Cassesse, No. 10-2210-cr (2d Cir. July 11, 2012, amended July 25, 2012) (Newman, Katzmann, Parker, CJJ)

This case untangles a mathematic quandary left by some unclear statutes: how can a life term of supervised release, imposed on a supervised release violation, be reduced by the number of months of the prison term imposed for that same violation?  Here the district court simply sentenced the defendant to twelve months in prison on the violation to be followed by another life term of supervised release.  Describing the issue as “almost metaphysical,” the circuit affirmed.

Cassesse was originally convicted under a drug statute that carries a maximum possible supervised release term of life, and was sentenced to that, to follow an eighty-seven month term of imprisonment.

After his release to supervision, Cassesse pled guilty in a new federal case - this one involving racketeering - and received a ninety-month sentence. For the supervised release violation, which the same district judge heard at the same time, the court sentenced him to a consecutive twelve-month prison term and imposed, over objection, a new term of lifetime supervised release.

The circuit rejected Cassesse’s argument that the new life term of supervised release was illegally long

The supervised release statutes provide that when supervised release is revoked and the defendant is sentenced to prison, the court may impose an additional term of supervised release, the length of which “shall not exceed” the maximum term of supervised release authorized by statute for the underlying offense “less any term of imprisonment” imposed on the revocation. 

Since, in this case, since the authorized maximum term of supervised release for the underlying drug offense was life, the “intriguing question” was “whether and how the prison term reduction concept” should apply. To the government, there was no problem at all, since twelve months in prison plus lifetime supervised release “equal[led] the original lifetime term” of supervision “but did not exceed it.”  

Cassesse, on his part, insisted that the twelve months should be subtracted from his lifetime term of supervised release, either by (1) requiring instead the imposition of a fix term of years of supervision in cases like his, (2) using the guidelines’ Sentencing Table (start with offense level 43 and then deduct) and then converting back to years, or (3) using his life expectancy at the time of sentencing and  subtracting one year from that. 

The circuit had a more practical approach. It simply decided that the prison subtraction provision did not apply at all. The "more appropriate course is simply to recognize that this is one of those rare situations where Congress did not expect the literal terms of its handiwork to be applied to a lifetime term of supervised release.” To the circuit, it was “highly unlikely” that Congress intended this, and thus that there was no error. The court also rejected the idea of using the defendant’s life expectancy - this would “introduce a variable bearing little, if any, relation to the penological purposes for defendants who outline their life expectancy and would introduce reverse age discrimination.”

That's What She Said

United States v. Carthen, No. 10-4817-cr (2d Cir. May 23, 2012) (Winter, McLaughlin, Cabranes, CJJ)

Defenant Tyrone Carthen appealed the government’s reliance on hearsay at his supervised release violation hearing. The circuit, finding no error, affirmed.

Carthen was charged with violating his supervised release by beating and threatening his ex-girlfriend, Marquita Cox. The matter was investigated by Carthen’s probation officer, Darcy Zavatsky, who interviewed Cox and other witnesses, and also reviewed various police and court records. At the VOSR hearing, however, the government called only Zavatsky, who was permitted to, over objection, describe what she had learned. Just before the hearing, it emerged that Cox, who had been cooperative at first, was refusing to testify because she did not want to be respnosible for sending Carthen back to jail. Just after the district court decided the case, Cox submitted a letter to the court asserting that she had "lied on Mr. Tyrone Carthen." Despite this, the district court refused to reopen the hearing.

The found no abuse of discretion in the admission of the hearsay. It found "significant indicia of reliability" in Cox’s statements accusing Carthen of assaulting her. Zavatsky interviewed her six times, and her interviews with other witnesses corroborated Cox’s claims. In addition, Cox bore a scar that was consistent with a would she had described. The reports that Zavatsky relied on were detailed and credible, and some were made under oath. Finally, Cox’s desire not to testify was "not an unusual reaction by a victim of domestic abuse."

Nor was there an abuse of discretion in the district court’s refusal to reopen in the wake of Cox’s seeming recantation. Witness recantations are generally viewed with "utmost suspicion," and here, the district court’s conclusion that Cox’s letter was not credible was sound given the considerable corroboration of her initial, contrary account.

PC World

United States v. Roccisano, No. 10-5237-cr (2d Cir. March 14, 2012) (Katzmann, Parkjer, CJJ, Restani, JCIT) (per curiam)

Guideline section 4A1.1(d) adds two criminal history points if the defendant committed the federal offense while under a criminal justice sentence, e.g., probation, parole or supervised release. The defendant here was deported to Italy in 2006 after completing the prison portion of a federal drug sentence that included a five-year term of supervised release. He was found in the United States in 2010, before the term of supervised release had expired, and the district court assessed those points. On appeal, he argued that this was error, because he had never been actively supervised in light of his deportation.

The circuit rejected this argument, joining at least five other circuits in holding that a term of supervised release is not extinguished by the defendant's deportation. The court also noted that the amended version of U.S.S.G. § 5D1.1 (November 1, 2011), which provides that courts should ordinarily not impose a term of supervised release at all where the defendant is an alien who will likely be deported after imprisonment, had no impact here. That provision does not apply where a term of supervised release is mandated by statute, and this was true in Roccisano's case, since the underlying conviction was for a drug crime.

To The Manner Porn

United States v. Jennings, No. 10-1642-cr (2d Cir. July 22, 2011) (Kearse, Miner, Chin, CJJ)

For defendant Russell Jennings, looking at child pornography was a hard habit to break. He served a twenty-one-month possession sentence in a 2006 case then, in 2009, while on supervised release, did it again. For the 2009 case, he received a long prison sentence, plus a concurrent supervised release violation sentence on the 2006 case, and a lifetime term of supervised release.

His appellate claims related largely to the way the evidence against him in the 2009 case was developed. He argued that his probation officer was improperly involved in the procurement of the search warrant and criminal complaint, and that incriminating statements he made to the officer were obtained in violation of the Fifth Amendment. The circuit affirmed.

For the first argument, Jennings asserted that his probation officer lacked the statutory and constitutional authority to (1) meet with the prosecutor to plain the 2009 criminal investigation (2) swear out, apply for and execute a search warrant and (3) become involved in the criminal investigation by interrogating Jennings at the government’s direction and by swearing out the criminal complaint.

The circuit disagreed. The duties of a probation officer are set out in 18 U.S.C. § 3603, and include protecting the public from persons whose release proves threatening to the community. Thus, officers should report a releasee’s wrongdoing, and the officer here did not act beyond the scope of this authority when he put the information he developed into affidavit form that better allowed other agencies to perform their duties. Nor did the officer usurp the Executive Branch’s prosecutorial function, in violation the doctrine of separation of powers. The United States Attorney’s Office drafted the search warrant and criminal complaint based on information that the officer provided, which was not a separation-of-powers violation.

Relatedly, Jennings also argued that the probation officer’s one-week delay in reporting its violation findings to the court violated a statutory requirement that he do so “immediately.” The circuit found no plain error, since the statutory requirement of immediacy, set out in 18 U.S.C. § 3603(8)(B), covers only those persons conditionally released after having been found not guilty by reason of insanity or otherwise suffering from a mental disease or defect, but not persons on supervised release in general.

The circuit likewise rejected Jennings’ Fifth Amendment claim, which derived from a condition of supervised release requiring him to answer his probation officer’s questions truthfully. Since he gave incriminating answers to the officer during an interview about his violation conduct, Jennings argued that those answers were compelled and should be protected by the Fifth Amendment.

But, since Jennings did not invoke the privilege against self-incrimination during the interview, the statements could be used. The Fifth Amendment privilege is not “self-executing,” and thus statements made by a person to his probation officer are not covered, unless the officer threatened that invocation of the privilege would subject the person to a penalty. But merely requiring a releasee to answer his probation officer’s questions truthfully does not render the answer to those questions “compelled,” even if the officer deliberately sought incriminating evidence.

A Condition Precedent

United States v. Spencer, No. 10-1869-cr (2d Cir. May 20, 2011) (Parker, Pooler, Lohier, CJJ)

Joseph Spencer left much to be desired as a supervised-releasee.

He was originally sentenced to time served and three years’ supervised release for bank fraud, then, after a hearing, the district court found that he, in essence, committed the same crime while on supervision. Spencer was also subject to Standard Condition 6, which required him to “notify the probation officer at least ten days prior to any change in residence or employment,” and the district court also found that Spencer violated Condition 6. The court sentenced him to a total of fourteen months’ imprisonment for everything. While Spencer did not challenge the finding of new criminal conduct on appeal, the circuit agreed that his other violation conduct was not “clearly and specifically forbidden by Condition 6"; it vacated and remanded for resentencing.

The evidence at the hearing established that Spencer had been fired from his job in April of 2007, but for several months continued to tell his probation officer that he was still employed there. In addition, the hearing established that for a brief period in early 2008, after a fight with his girlfriend, Spencer lived at a different address, but did not tell his probation officer about the change.

The district court rejected Spencer’s arguments that the government failed to establish that he had ten days’ notice of either the loss of his job or the need to relocate temporarily, and thus that he did not violate Condition 6. The court held that the “purpose” of Condition 6 is to keep the probation officer informed about a changed circumstance “whether it has changed after ten days’ notice or not.”

The circuit, however, held that the “purpose” of the condition could not trump its plain terms. Conditions of supervision must be “sufficiently clear and specific to serve as a guide for the defendant’s conduct.” And a “person of ordinary intelligence” on supervision would not be expected to “ignore the explicit ‘at least ten days prior’ limitation of Condition 6.” Since Condition 6 does not include “periods of notice less than ten days,” and since there was “no evidence that Spencer had at least ten days prior notice” before being fired, the district court erred in finding that he violated Condition 6 by not telling his probation officer about the firing.

Simiarly, the facts before the district court could not support a finding that Spencer violated Condition 6 by failing to report a temporary change in residence precipitated by difficulties with his girlfriend. The lower court did not determine whether Spencer even had the ability to notify his probation officer ten days in advance of the change. Absent such a finding, it was error to conclude that Spencer violated Condition 6.

Spencer had also argued that the term “residence” in Condition 6 referred to the releasee’s permanent residence, and not a temporary stay outside his home. While both the district court and the circuit found this to be a “plausible” reading of the condition, the circuit did not conclusively rule on it.

Since the district court did not say that it had based the violation sentence on only on the new criminal conduct, the circuit concluded that the errors with respect to Condition 6 were not harmless, and that Spencer should be resentenced.

PC World

United States v. Green, No. 08-5548-cr (2d Cir. August 13, 2010) (per curiam)

An unconstitutionally vague condition of supervised release is the theme of this most recent per curiam opinion.

Defendant Green, while serving a long prison sentence for crack cocaine trafficking, was convicted of possessing a weapon and marijuana in prison. As part of his sentence, the judge imposed a condition of supervised release prohibiting him from associating with the Bloods or any other criminal street gang and from "the wearing of colors, insignia, or obtaining tattoos or burn makes relative to" such a gang.

The circuit, upholding the associational prohibition, struck the rest of the condition. The "color prohibition" did not provide Green with "sufficient notice of the prohibited conduct. The range of possible gang colors is vast and indeterminate." One police department manual's list of gang colors includes white, blue, black or combination of the two, with red, green, brown and purple. "Eliminating such a broad swatch of clothing colors would make [Green's] daily choice of dress fraught with potential illegality. People of ordinary intelligence would be unable to confidently comply with this condition."

While the court held out the possibility that a sufficiently clear prohibition would pass constitutional muster, for example if it had a "limiting list of the colors or insignia" typically associated with "any particular gangs to guide Greene in his clothing choices," this condition lacked the necessary clarity.

What A Difference A Day Makes

United States v. Janvier, No. 08-5978-cr (2d Cir. March 26, 2010)(Jacobs, Lynch, CJJ, Restani JCIT)

On July 21, 2008, the last day of Janvier’s three-year supervised release term, the probation department submitted a petition to the district court alleging that Janvier had violated the conditions of his supervised release. That same day, the court checked the box on the probation form ordering the “[i]ssuance of a [w]arrant.” The warrant did not actually issue, however, until July 23, 2008. When Janvier appeared in court on the petition he argued that the court lacked jurisdiction to revoke his release because his supervised release term had already expired. The district court disagreed and, after he admitted violating his supervised release, sentenced him to five months’ imprisonment to be followed by thirty-one additional months of supervised release.

On appeal, the circuit reversed based on the “plain language of the governing statute” which only extends the court's jurisdiction beyond the expiration of supervision if a warrant issues before the supervision period ends.

Courts have long asserted jurisdiction over violation proceedings beyond the expiration of the term, even before there was statutory authorization for it. Generally, courts identified either the filing of the revocation petition or a similar notification to the releasee as the event that would trigger an extension of jurisdiction. As long as the triggering event occurred during the term of release, a court would retain jurisdiction over the matter for the time necessary to adjudicate it.

In 1994, Congress made this authority explicit by enacting 18 U.S.C. § 3583(i) for supervised release and § 3565(c) for probation. The supervised release statute provides that a court’s power to adjudicate a violation petition extends beyond the expiration of the supervision term if, “before its expiration a warrant or summons has been issued” on the basis of a violation charge. This section plainly “identifies the issuance of a warrant or summons during the term of supervised release as the condition for extension of the court’s power to adjudicate a violation charge” and by its very terms applied in Janvier’s case.

The circuit rejected the government’s arguments to the contrary. First, the government argued that the statute is “not exclusive”; it identifies “one particular set of circumstances” but does not preclude retention of jurisdiction under other, analogous circumstances.” While it is true that Congress could have made the exclusivity of the condition for extension of jurisdiction “even clearer” by using a phrase like “if and only if,” the language it chose is “more than clear enough.” Where “a power is granted upon a condition, it can hardly be argued that the power also exists when the condition is unmet.”

The government also argued that § 3583(i) “did not modify” the pre-enactment state of the law. The circuit again disagreed. The predominant view before the enactment of the statute was that the triggering event for extension of jurisdiction was the filing of the violation petition, not the issuance of the warrant. That Congress chose a different event “reads more as a rejection than as an endorsement of that aspect of the prior case law.”

Finally, the government argued that the appellate court should deem ordering the issuance of a warrant to be the same as the issuance of the warrant, and thus find the statute satisfied here. From a “policy standpoint” it might have made more sense to make the judicial officer’s finding of probable cause the triggering point and not the “purely ministerial action of the clerk of the court in actually issuing the warrant.” But the appellate court was “unwilling to rewrite the statute to say something that it does not.” The statute provides that the extension of jurisdiction occurs when a warrant or summons “has been issued.” Here, in contrast, the court merely “directed” the issuance of the warrant. That order did not “issue” the warrant - it directed someone else to issue one - and was not carried out until two days later, after Janvier’s supervision had expired.

Nor does this reading of the statute lead to “absurd or impracticable results.” Compliance with the literal terms of § 3583(i), even for a violation that occurs on the very last day of the release term is a “simple matter.” If the probation officer here had “simply taken the trouble to walk the signed form from the judge to the clerk’s office” there would have been nothing to prevent the warrant from being issued on the same day the petition was presented. Alternatively, “there is no reason why the judge could not be presented with a form warrant or summons ready for signature” along with the petition. “Given the ease with which the statute can be satisfied, there is no reason to contemplate strained readings that would blur the bright line provided by Congress.”

Comment

All ended well for Janvier. Except that he served his entire prison sentence - and a big chunk of the new supervised release term - before he won his appeal. According to the district court docket sheet, the judge denied his application for bail pending appeal noting that “[t]he proposed appeal does not raise a substantial question of law or fact likely to result in a recusal [sic] or a sentence reduction.” And there is no indication in the appellate docket sheet that he moved for bail in the circuit.

Circuit to Probation: Three's a Crowd

United States v. Reeves, No. 08-2966-cr (2d Cir. January 7, 2010) (Leval, Pooler, Parker, CJJ)

Lamont Reeves pled guilty to possessing child pornography. As a condition of his supervised release the district court required that he “notify the Probation Department when he establishes a significant romantic relationship and ... inform the other party of his prior criminal history concerning his sex offenses.” It also required that Reeves provide his probation officer with his “significant other’s” contact information.

The court of appeals vacated the condition. First, it agreed that the condition was too vague to be enforceable. “What makes a relationship ‘romantic,’ let alone “significant” in its romantic depth, can be the subject of endless debate that varies across generations, regions and genders.” The condition had “no objective baseline” that would give anyone guidance as to what might constitute a “significant romantic relationship” and Reeves’ continued freedom during supervised release should not hinge on “the accuracy of his prediction of whether [someone else] would conclude that a relationship was significant or romantic.”

In addition, the condition was not reasonably related to the statutory objectives of supervised release: to further Reeves’ rehabilitation and protect the public. There was nothing in Reeves’ history that would suggest he posed a risk to those with whom he might have a “significant romantic relationship.” Nor would the notification promote his rehabilitation. Rather, since it would likely result in the premature end to any relationship he might develop, it was likely to place him at risk of social isolation. This would impair, rather than enhance, his rehabilitation.

Finally, the court found that the condition constituted an unnecessary deprivation of Reeves’ liberty. The court noted that the right to maintain intimate personal relationships is well established, and can only be interfered with by a supervision condition that is “narrowly tailored to serve a compelling government interest.” The only interest identified by the government here was to protect a romantic partner’s children. The court agreed that this could be a compelling interest, but the condition here makes no mention of children. It covers any significant romantic relationship, even those that would not bring Reeves into contact with children.

Extension Headache

United States v. Vargas, No. 08-1542-cr (2d Cir. May 5, 2009)(Calabresi, Livingston, CJJ, Restani, JCIT)

In connection with a drug conviction, Raphael Varas was sentenced to a five-year term of supervised release. In January of 2008, he pled guilty to a supervised release violation. At his sentencing, the district judge said “the sentence is going to be six months’ home confinement,” and entered a written judgment providing that Vargas “shall be on supervised release for ... [s]ix (6) months home confinement and electronic monitoring.” The court made no mention of any supervised release beyond the period of home confinement.

Two months later, however, the court entered an “Amended Judgment” that contained the same six-month period of home confinement but also continued the original five-year term of supervised release. Vargas appealed from the Amended Judgment, arguing that, since the court revoked his supervised release in January, absent a new violation, the court could not continue the original term two months later. The circuit disagreed, but reversed due to a procedural error.

The circuit viewed the Amended Judgment as an effort by the district court to “correct” an “omission” from the January 2008 Judgment. The court rejected Vargas’ argument that the court’s failure to mention any term of supervised release beyond the home confinement in the January 2008 Judgment meant that his sentence would end after the home confinement period. The revocation did not “necessarily eliminate” the possibility that Vargas’ supervised release might be reinstated, since the court did not “terminate” the supervised release. The court also rejected Vargas’ argument that the district court intended to impose six months of home confinement in lieu of the nearly four years of supervised release that Vargas would otherwise still have had to serve, calling that an “exceedingly odd” punishment for a violation.

On the other hand, the circuit also rejected the government’s argument that, under the January 2008 Judgment, the original term of supervised release “remained intact,” with the added condition of home confinement. The district court could have sentenced Vargas to continued supervised release after the home confinement, but did not “explicitly do so.”

In the end, since the January 2008, Judgment did not “clearly continue or terminate” the original supervised release term, this case turned on the circuit’s view of a district court’s authority to correct the judgment by later extending the term of supervised release. The court found that authority in 18 U.S.C. § 3583(e)(2), which provides in relevant part that a court “may, after considering the factors set forth in [various subsections of 18 U.S.C. § 3553(a)] extend a term of supervised release ..., and may modify ... or enlarge the conditions ... at any time prior to the expiration or termination of the term.” Since this section “explicitly states” that a court can “extend a term of supervised release ‘at any time’ prior to its expiration ... the district court could extend Vargas’ supervised release term up to the allowable limit” after considering the relevant § 3553(a) favors.

While such extensions normally occur where “new circumstances” - like a violation of a condition - require extension to further the “general punishment goals” of § 3553(a), a district court “may correct an inadvertent omission that runs against the policies of section 3553(a) by extending supervised release even in the absence of a new violation.” Thus, here, while the district court had the authority to correct its “apparent” error, it could only extend the term if it considered the relevant § 3553(a) factors. Since the court did not do so here, the circuit vacated the Amended Judgment and remanded the case to the district court to first consider the statutory factors before determining whether an extension is appropriate.

Conditional Love

United States v. MacMillen, No. 07-3377-cr (2d Cir. September 23, 2008) (Hall, Livinston, CJJ, McMahon, DJ)

MacMillen pled guilty to possessing child pornography, and the court sentenced him to seventy-eight months’ imprisonment and supervised release for life. On appeal, he complained about two of the conditions of his supervised release: a prohibition on his being anywhere “where children are likely to congregate,” and his probation officer’s ability to address “third-party risk issues” with MacMillen’s employers.

The circuit found no abuse of discretion. The court found the first condition was not overbroad, because it was expressly limited only to places where children are likely to congregate; there is simply nothing in the condition that indicates that MacMillen is forbidden from entering areas where children are unlikely to be. Nor is the condition improperly vague; it gives adequate notice of what conduct is prohibited.

MacMillen next complained that the third-party risk condition delegated judicial authority to the probation officer, but the court disagreed. As written, the condition expressly identifies the particular concern - access to computers in the workplace. Thus, this is the only situation where the employer should be informed of MacMillen’s child pornography conviction.

Unconditioned

United States v. Gill, No. 07-0284-cr (2d Cir. April 17, 2008) (Cabranes, Sotomayor, Wesley, CJJ) (per curiam)

Gill, who pled guilty to making false statements in a health care matter, unsuccessfully challenged two of his special conditions of supervised release. The first, which barred him from "engaging in the business of counseling," was reasonably related to the need to protect the public, since Gill had in the past falsely represented himself as qualified to provide mental health services, when in fact he was not. The other condition - a requirement that he continue making restitution payments arising from an earlier condition - was likewise proper because it was reasonably related to his history and characteristics

Notice No-No's

United States v. Hargrove, No. 06-4276-cr (2d Cir. August 16, 2007) (Feinberg, Calabresi, Wesley, CJJ).

Terrence Altman had pled guilty to a drug misdemeanor (yes, there are drug misdemeanors), but violated his supervised release by using cocaine. While awaiting sentencing on that violation, he tested positive again. He admitted to that violation as well and, in all, faced a three to nine month revocation range. However, Judge McMahon sentenced him to one year in prison, without giving notice of her intention to upwardly depart.

On appeal, he argued that he should have been entitled to notice of the court’s intention to impose a sentence higher than recommended by the Chapter 7 policy statements. The Circuit affirmed.

The court began by noting that, ten years ago, it had held that there was no right to such notice, because revocation sentences are governed by Chapter 7 policy statements, and these non-binding policy statements are not guidelines.

The court concluded that the same holds true post-Booker, even though a defendant remains entitled to notice of a court’s intention to impose an above-guideline sentence now that the guidelines themselves are advisory. The court saw little need to harmonize the two types of cases, noting that, even post-Booker, it has continued to distinguish between “policy statements” and “sentencing guidelines” and, in this situation the “distinction continues to be warranted.”

Comment: What an odd little case. It is now the rule in this Circuit that one kind of advisory sentencing regime, the initial sentence, has an important procedural protection that another kind of advisory regime, the revocation sentence, lacks.