The Heck with the Ninth Circuit: Second Circuit Rules that Crime of Attempted Reentry Following Deportation Is Not a Specific Intent Offense

United States v. Daniel Rodriguez, Docket No. 04-4157-cr (2d Cir. July 20, 2005) (Straub, Wesley, and Sessions, D.J.) (Op. by Straub): Ladies and gentlemen, we have a circuit split. In this decision, the Circuit rules that the crime of attempted reentry into the United States following deportation, in violation of 8 U.S.C. § 1326(a), is not a specific intent offense, and thus that the Government need not charge or prove that the defendant knew that his conduct was unlawful, knew that he needed the permission of the Attorney General to reenter, or knew that he did not have such permission when he intentionally attempted to reenter. Rather, the Government need only prove that the defendant intentionally attempted to reenter (as opposed to, e.g., being transported into the good ol' U.S.A. while in a comatose state against his will). This reading of the attempted reentry offense -- in accordance with that already accepted by the First, Fifth, and Eleventh Circuits -- conflicts with that adopted by the Ninth Circuit in United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir. 2000).

This outcome should come as no surprise to anyone familiar with the Circuit's law concerning the reentry offense generally. In numerous cases arising in slightly different contexts, the Court has ruled that the "completed" reentry offense is a general intent crime in which the only mens rea required is the intent to return voluntarily, and no more. See, e.g., United States v. Champegnie, 925 F.2d 54 (2d Cir. 1991); United States v. Martus, 138 F.3d 95 (2d Cir. 1998). Ignorance of the law, or a good-faith belief in the legality of one's reentry, is no defense. And, indeed, Martus even stated -- albeit in dicta since the crime there was a completed reentry rather than an attempted one -- that "the government need only prove a voluntary act of reentry or attempted reentry by the defendant that is not expressly sanctioned by the Attorney General." 138 F.3d at 97 (emphasis added). The instant case adopts this dicta as its holding, and it thus becomes the law of the Circuit. Op. at 4-5.

Stop near Canadian Border Upheld; Reasonable Suspicion Found

United States v. Avtar Singh, Docket No. 04-3324-cr (2d Cir. July 19, 2005) (Walker, Cardamone, Jacobs) (Op. by Cardamone): This opinion breaks no new ground. It simply applies a well-established rule -- that vehicle stops by roving patrols near an international border must be justified under the familiar "reasonable suspicion" standard, see, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975) -- to a particular stop near the Canadian border. Those interested in the details can consult the opinion; suffice it to say that even to this defense-minded reader, the reasonable suspicion standard appears readily satisfied.

The opinion is otherwise of note only because it contains a folksy little map of the relevant geographic area (op. at 4), as well as a totally gratuitous mention of "the October 11, 1776 Battle of Valcour Island between the colonial Navy under General Benedict Arnold and a British squadron under General Sir Guy Carleton. See Harris Bird, Navies in the Mountains: The Battles on the Waters of Lake Champlain and Lake George, 1609-1814 196-213 (1962)." (Op. at 3). How very Judge Cardamone!

An Inoperable Gun Qualifies as a "Firearm" within Meaning of Felon-in-Possession Statute

United States v. Rivera, Docket No. 04-5480-cr (2d Cir. July 18, 2005) (Walker, Jacobs, Leval) (Op. by Walker): File this one under the category of "Gee, I sure hope the defendant didn't go to trial just to preserve this issue for appeal." In this short opinion, the Circuit concludes that an inoperable gun (specifically, one with both a broken firing pin and a flattened "firing-pin channel," whatever that is) qualifies as a "firearm" within the meaning of 18 U.S.C. § 922(g)(1), the felon-in-possession statute. Somewhat to our surprise, the Circuit had not previously answered this question. (Although, to our defense, several other Circuits -- as well as several district courts within the Second Circuit -- have answered it, and in the same way that the Court does in this opinion). The statutory language is unfortunately difficult to dispute: Section 921(a)(3) defines a "firearm" as "any weapon . . . which will or is designed to or may readily be converted to expel a projectile by the action of an explosive . . . ." (emphasis added).

A glimmer of hope remains. The opinion discusses the possibility of a gun that has been so radically altered from its original design that it no longer qualifies as a "firearm." As the Court hypothesizes: "For example, a gun with a barrel filled with lead, maybe for use as a theatrical prop, might perhaps no longer be deemed 'designed to' or 'readily be converted' to fire a bullet." Op. at 6. To support this proposition, it cites a case from the District of Oregon ruling that guns "deactivited or modified by, inter alia, drilling barrels and filling them with metal pins or rods were no longer 'firearms' . . . because it would be 'extremely difficult' to convert them into operable weapons." Op. at 6-7. Of course, since Rivera's gun was not so radically altered, he cannot avail himself of this argument: "The broken firing pin and the flattened firing-pin channel did not change the design of the weapon." Op. at 7.

Circuit approves of combining minority groups in a Batson challenge, but "race-neutral" justifications remain easily acceptable on habeas review

Green v. Travis, Docket No. 04-0426-pr (2d Cir. July 7, 2005) (Jacobs, Sotomayor, Hall) (Op. by Sotomayor): This case recognizes for the first time in this circuit that minority groups can be combined to form a “cognizable racial group” under Batson v. Kentucky. 476 U.S. 79, 86 (1986). Affirming the decision below, the Circuit found on habeas review that the state Appellate Division’s determination that Black and Hispanic venirepersons do not constitute a “cognizable racial group” was an unreasonable application of Batson.

During the defendant’s state trial for possession and sale of cocaine, defense counsel raised a Batson challenge after the prosecutor used three peremptory challenges to strike one Black man, one Black woman and one Hispanic woman during the first round of jury selection (leaving no minorities at the end of the round), and two peremptory challenges to strike one Black Man and one Hispanic woman during the second round of selection. The trial judge ruled that the defense had not made out a prima facie case under Batson because defense counsel had done no more than “refer[] to certain racial groups,” and the Appellate Division held that, “‘minorities’ in general do not constitute a cognizable racial group.” Op. at 4.

On habeas review, the Circuit agreed with Judge Weinstein of the Eastern District of New York that such a reading of Batson is unreasonable under 28 U.S.C. § 2254(d)(1). The Circuit relied on the Supreme Court’s holding in Powers v. Ohio that a defendant has third-party standing to raise a Batson challenge when venirepersons of a different race than the defendant are excluded from the jury. 499 U.S. 400, 416 (1991). The Circuit reasoned that because Powers established the right of individual venirepersons not to be excluded from a jury because of race (499 U.S. at 409), the equal protection clause is violated when “any and all venirepersons” are struck from a jury because of their race. Op. at 13. The Circuit determined that, “the only continuing relevance of Batson’s ‘cognizable racial group’ language is the requirement that a defendant… must demonstrate that a peremptorily excused venireperson was challenged by reason of being a member of some ‘cognizable racial group.’” Op. at 14 (emphasis in original).

However, the Circuit affirmed the district court’s denial of the defendant’s petition for a writ of habeas corpus, holding after a reconstruction hearing that Green failed to establish by a preponderance of the evidence that any of the challenges were based on race or ethnicity. While the prosecutor did not remember her reasons for the peremptory strikes independently, Judge Weinstein allowed her to recreate her reasoning in a reconstruction hearing after reading through her notes and the trial transcript. Based on her notes taken during voir dire and given her practice at voir dires, the prosecutor offered the following reasons for striking each of the five minority venirepersons: (1) for having a husband who had been arrested and prosecuted in the same county; (2) for having a family member who had been arrested on a drug offense and for having difficulty following the prosecutor’s questions; (3) for having a family member who had been mistreated by the police and for expressing hesitation regarding relying on witness testimony; (4) for having a history of negative interactions with the police and “generally appear[ing] confused;” and (5) for the prosecutor’s belief that at the time she must have concluded that the individual would have problems assessing witness credibility (although she lacked notes from voir dire to support this). Op. at 5-6. The district court credited the prosecutor’s testimony at the reconstruction hearing and ruled that Green failed to prove that the prosecutor’s challenges were race based. The Circuit agreed and noted that unfavorable demeanor and perceived bias against law enforcement have both been upheld as legitimate race-neutral justifications. Op. at 18, citing McCrory v. Henderson, 82 F.3d 1243, 1247-48 (2d Cir. 1996); United States v. Rudas, 905 F.2d 38, 40-41 (2d Cir. 1990).

Ultimately, then, while the Circuit here clarified the scope of Batson by holding that a “cognizable racial group” can include multiple minority groups, this case reveals the feeble legs upon which any Batson challenge stands. The Circuit’s acceptance of the prosecutor’s explanations for striking one juror, derived not from her recollection or from her notes, but simply from reading the trial transcript, while not a new holding of law (See Jordan v. Lefevre, 293 F.3d 587, 594 (2d Cir. 2002)), is especially troubling. It underscores the ease with which “race-neutral justifications” proffered by prosecutors have been accepted by courts on habeas review.

(By Jocelyn Simonson, a rising 3-L at Harvard Law School).

Another Advantage of a Less Detailed Affidavit in Support of a Suppression Motion

United States v. Luis Agudelo, Docket No. 04-2223-cr (2d Cir. July 13, 2005) (Pooler, Parker, and Castel, D.J.) (Op. by Parker): Defense lawyers are generally well aware of the tactical advantages of filing a less detailed affidavit, rather than a more detailed one, from a client in support of his or her suppression motion. After all, the only real goal of the affidavit is to put in enough facts to warrant an evidentiary hearing, and any additional details beyond the bare essentials just gives unnecessary notice to the prosecution as well as additional ammunition for its cross of the client. This case demonstrates an additional -- and especially important -- advantage that the less detailed affidavit has over the more detailed one: Your client is less likely to receive an obstruction enhancement even if the district judge buys the Government's story at the hearing and denies the motion. Fortunately for Mr. Agudelo, his affidavit was sufficiently vague: The Circuit ruled that the district judge clearly erred in finding the affidavit "knowingly false" and thus warranting a 2-level obstruction enhancement under § 3C1.1, because it was just as likely that the defendant simply "misremembered" the relevant events rather than lied about them. The decision also contains some great language warning district courts against applying the obstruction enhancement simply because they have denied the suppression motion.

The relevant facts are simple. Agudelo filed a pretrial suppression motion, supported by his affidavit. Among other things, he stated that "at one point, I told the agents that I wanted to speak to a lawyer but they did not cease their questioning. Instead, they told me, in substance, that I would be able to see a lawyer at a later point in time." Op. at 7.

Mr. Agudelo did not testify at the suppression hearing. The two agents who interrogated him did, however, and testified that Agudelo did not ask for a lawyer at this time. However, one of the agents admitted that "I may have described to [Agudelo] the process which would take place after he's brought down to the marshals and pretrial and all that stuff," and that he "would be able to have a lawyer with him for his initial appearance." Op. at 8.

The district judge credited the agents' testimony and denied the motion. At sentencing following Agudelo's conviction, the judge imposed the 2-level obstruction enhancement, concluding that his affidavit was "knowingly false." Op. at 5. (Note: the court also imposed the enhancement on an alternative ground, which was upheld by the Circuit).

On appeal, the Circuit ruled that the district judge's finding that Agudelo's statements were knowingly false was clearly erroneous. Crucially, the Court distinguished the case before it from an earlier case relied upon by the district court -- United States v. Lincecum, 220 F.3d 77 (2d Cir. 2000). In Lincecum, the defendant filed a detailed affidavit in support of a suppression motion in which he specifically stated that he requested to see a lawyer on three distinct occasions -- once at his house, once in the car with the agents, and once in the interrogation room. Agents testified at the hearing, however, that Lincecum never requested to speak with an attorney, and the court credited their testimony. It also imposed an obstruction enhancement, finding that Lincecum's affidavit was knowingly false. The Circuit affirmed, agreeing that he had made an "obvious lie."

Distinguishing Lincecum, the Court in this case pointed out that "Lincecum's three detailed statements reeked of fabrication because he could not have simply misremembered so much detail." Op. at 8. "On the other hand," however,

"Agudelo's two sentences averring that he had asked for a lawyer were far more vague. Moreover, his statement that, 'they told me, in substance, that I would be able to see a lawyer at a later point in time,' was actually supported by the cross-examination of one of the agents . . . [who] admitted having told Agudelo that he would be able to have a lawyer with him for his initial appearance."

Op. at 8. Under these circumstances, the Court concluded, "rather than willfully fabricating the affidavit in order to obstruct justice, Agudelo may well have simply misunderstood the agent's comments or misremembered the chronology of the conversation." Op. at 9. It thus found that "the District Court committed clear error in finding . . . that Agudelo submitted a knowingly false affidavit." Id.

The Court then threw in some very nice comments to explain why "extending Lincecum even to Agudelo's vague affidavit" carries "significant risks." Op. at 9. First, such an extension would mean that a defendant would "automatically be subject to an enhancement for obstruction of justice if the suppression motion is denied," which flouts the Supreme Court's command in United States v. Dunnigan, 507 U.S. 87, 94 (1993), that the enhancement is appropriate only where the defendant acts "with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory." Even better, the Court adds that "[e]xtending Lincecum to these facts would also raise the troubling prospect that future defendants might either be deterred from pressing arguably meritorious Fourth Amendment claims or unfairly punished when they do." Op. at 9.

Did the Circuit Overlook a Controlling Decision by Judge Friendly in Ruling that Purely Intra-State Phone Calls Are Sufficient under § 1958?

United States v. Perez, Docket No. 03-1445(L) (2d Cir. July 11, 2005) (Calabresi, Katzmann, Parker) (per curiam): In this very short per curiam opinion, the Circuit rules that even wholly intra-state phone calls (here, phone calls from one location in Connecticut to another) are sufficient to trigger federal jurisdiction under the federal "murder-for-hire" statute, 18 U.S.C. § 1958(a). This is so despite the fact that the relevant language in § 1958(a) states that "whoever ... uses ... any facility in interstate ... commerce ..." The Court ruled -- after noting a circuit split on this question -- that this language was trumped by § 1958(b), the "definitional subsection" of the statute, which describes (and then defines) a "facility of interstate commerce." Op. 6. And since the phone used by the defendant was part of an inter-state network (i.e., he could make long distance calls on it), even if the calls he actually made were purely intra-state, the jurisdictional element had been met.

Shockingly to this reader, the opinion describes this as an issue of "first impression" in the Circuit. Op. at 1. Not so -- or not nearly so. In United States v. Archer, 486 F.2d 670 (2d Cir. 1973), not mentioned anywhere in the per curiam opinion, Judge Friendly ruled in a bribery prosecution under the Travel Act, § 1952 -- § 1958's predecessor statute, and which contains the identical phrase "facility in interstate commerce," see infra -- that the evidence was insufficient to support the defendants' convictions because the sole inter-state phone call was one manufactured by Government investigators. Although the facts are somewhat convoluted, essentially what happened is that, after a series of purely intra-state phone calls, the federal prosecutor instructed the undercover agent to travel to a hotel in New Jersey to call one of the defendants in New York, "for the sole purpose of having [the defendant] talk in an interstate phone call." Id. at 674.

As Judge Friendly explained, the question before the Court was "whether the defendants here have used a facility in interstate or foreign commerce, for the purposes listed in § 1952(a)(3), in a sufficiently meaningful way to subject themselves to liability under the statute." 486 F.2d at 680. Looking to legislative history, case law, as well as the rule of lenity, Judge Friendly concluded that the manufactured inter-state call did not suffice to satisfy the interstate element of the Travel Act. As he wrote for the Court:

"Whatever Congress may have meant by § 1952(a)(3), it certainly did not intend to include a telephone call manufactured by the Government for the precise purpose of transforming a local bribery offense into a federal crime. . . . [I]t is immaterial that Klein returned the call rather than receiving it as the Government had plotted."

Id. at 681 (emphasis added). The Court continued, explaining that

"When Congress responded to the Attorney General’s request to lend the aid of federal law enforcement to local officials in the prosecution of certain crimes, primarily of local concern, where the participants were engaging in interstate activity, it did not mean to include cases where the federal officers themselves supplied the interstate element and acted to ensure that an interstate element would be present."

Id. at 682 (emphasis added).

Archer's holding obviously assumes that purely intra-state calls are insufficient to establish jurisdiction under § 1952: If a manufactured inter-state call is insufficient, surely purely intra-state calls are also insuffient. Archer has not been overruled and remains binding law in the Second Circuit.

Section 1958 -- the murder-for-hire statute at issue in Perez -- is "modeled after the Travel Act, 18 U.S.C. § 1952, and the legislative history indicates that Travel Act precedent should be considered relevant to interpretation of this provision." 3 Leonard B. Sand et al., Modern Federal Jury Instructions at 60-37 (2002). Indeed, the present § 1958 was originally enacted as part of the Comprehensive Crime Control Act of 1984 as new § 1952A. (Congress re-designated § 1952A as the present § 1958 in the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7053(a), 102 Stat. 4181 (1988)). And as the House Report accompanying the statute stated,

"Section 1952A follows the format of present section 1952. Section 1952A reaches travel in interstate or foreign commerce or use of the mails or of a facility in interstate or foreign commerce with intent that a murder be committed in violation of State or Federal law."

H. Rep. No. 1030, 98th Cong., 2d Sess. 306, reprinted in 1984 U.S.C.C.A.N. 3182, 3485; see United States v. Riccardelli, 729 F.2d 829, 833 (2d Cir. 1986) (using murder-for-hire statute to interpret Travel Act). As the Fifth Circuit explained, Travel Act jurisprudence is a proper referent for the interpretation of § 1958 because "the obvious purpose" of the murder-for-hire statute is "to supplement" the Travel Act. United States v. Edelman, 873 F.2d 791, 794 (5th Cir. 1989); see United States v. Houlihan, 92 F.3d 1271, 1292 (1st Cir. 1996) ("In interpreting 18 U.S.C. § 1958, it is entirely appropriate to look at case law construing the Travel Act.") (emphasis added). Archer’s definition of the interstate element of the Travel Act is therefore directly applicable to the interstate element of § 1958.

Indeed, at least one other Circuit -- the Fourth -- explicitly relied on Archer and its interpretation of § 1952 to reverse a § 1958 conviction on precisely the same ground. United States v. Coates, 949 F.2d 104 (4th Cir. 1991). In Coates -- also not mentioned in the per curiam opinion in Perez -- defendant Coates "wanted to have his step-brother killed" and "called York to arrange a murder-for-hire." Id. at 105. Both parties resided in Maryland.

York was a police informant and eventually introduced Coates to an undercover officer posing as a hit man who would do the actual killing. The three men met and discussed the killing on numerous occasions. They settled upon using a bomb to kill Coates’s brother in law. Id. All of the meetings occurred in Maryland.

The undercover, needing to be absent for some time to conduct an unrelated investigation, falsely told Coates that he had to go to Kentucky. The court’s opinion describes what next occurred:

"The Kentucky trip, however, was just a ruse and the agent never went there. Instead, he made a much shorter trip in order to place an interstate phone call.
Knowing that they needed a jurisdictional basis in which to prosecute Coates for a federal crime, [the informer and the undercover] agent went just over the Maryland line into Virginia, concededly for the sole purpose of making an interstate telephone call to Coates. Once in Virginia, the agent called Coates in Maryland and discussed with him the details of the bomb and the murder scheme."

Id. at 105. Coates was eventually arrested and charged with violating 18 U.S.C. § 1958.

The Fourth Circuit reversed Coates’s conviction. It relied primarily upon Archer and began by noting that "the Travel Act is directly analogous to § 1958." Id. at 106 (emphasis added). The court then held that because "the government agent drove to Virginia for the sole purpose of making a telephone call across state lines in order to induce Coates to ‘use’ that interstate facility to discuss the scheme," such "‘manufactured jurisdiction’ cannot form the basis for a federal prosecution." Id. at 105-06. As it concluded, the count charging Coates with violating the federal murder-for-hire statute "was not based upon cognizable federal jurisdiction and should have been dismissed." Id. at 106.

Coates, like Archer, obviously assumes that purely intra-state phone calls are insufficient to satisfy § 1958's jurisdictional predicate. Yet neither case is mentioned in the per curiam opinion in Perez.

Inquiring minds would like to know why. Are we missing something?

Venue for Offense of Advertisting to Receive Child Porn, Placed on Internet Chat Room, Is Proper Wherever Advertisement Is Accessed or Viewed

United States v. Rowe, Docket No. 04-1142-cr (2d Cir. July 5, 2005) (Walker, Feinberg, Wesley) (Op. by Feinberg): This case primarily holds, in an issue of first impression in the Circuit, that in a prosecution for the crime of advertising to receive, exchange, or distribute child pornography, in violation of 18 U.S.C. § 2251(d) (formerly § 2251(c)(1)(A)), venue is proper wherever the advertisment is actually seen or accessed. Here, the defendant put up a notice soliciting others to trade kiddie porn with him on an Internet chat room. Although he physically did so from his computer in Kentucky, the (in)famous detective Shlomo Koenig (of the equally famed Rockland County Sheriff's Department) accessed the site and defendant's ad while sitting at his computer in Rockland County. The Court ruled that venue was proper in the Southern District of New York.

The other notable point about this opinion is its concluding, and ultimately puzzling, discussion of the sentence to be imposed on remand. Since Rowe was convicted under the prior version of this statute (18 U.S.C. § 2251(c)(1)(A)), his sentence is governed by the Circuit's decision earlier this year in Pabon-Cruz, which famously held that a defendant convicted of this offense may be sentenced either to a fine, or to a mandatory minimum of 10 years' imprisonment, or both -- but nothing else. Because the district court in this case sentenced Rowe before the decision in Pabon-Cruz, it mistakenly believed that it had to impose a 10-year mandatory minimum. The court thus imposed a 10-year sentence, all the while lamenting the harshness and unfairness of such a result. On appeal, the Court vacated the sentence and remanded the case for resentencing in accordance with Pabon-Cruz.

The odd thing is that the Court also added that, on remand, "the district court must resentence Rowe under a regime of advisory Sentencing Guidelines," and that "the sentencing judge must consider" the § 3553(a) factors, "including the applicable Guidelines range and available departure authority . . . [and] may then impose either a Guidelines sentence or a non-Guidelines sentence." Op. at 24.

But how is such a sentence possible, given Pabon-Cruz's reading of § 2251(c)(1)(A) -- that a sentencing court can only sentence the defendant to a fine, a minimum 10-year sentence, or both? The Court quotes Pabon-Cruz for the proposition that "we 'remand the cause to the District Court for resentencing consistent with our opinion here and with such Sentencing Guidelines as may be applicable in the circumstances presented.'" Op. at 23 (quoting Pabon-Cruz, 391 F.3d at 105). But the critical difference is that Pabon-Cruz was convicted of both § 2251(c)(1)(A) and a simple possession of kiddie porn count, which carries no mandatory minimum. Thus, an "in-between" sentence could be imposed on the simple possession count. Rowe, in contrast, was convicted only of a single § 2251(c)(1)(A) count.

Perhaps readers can provide further enlightenment on this point. But it appears that, on remand, the district court's only choices are to sentence Rowe to (1) a fine, (2) 10 years in prison, or (3) both. The possibility of a more rational sentence appears precluded by Congress's poor drafting of the statute, despite what the Court believes.

Even If It Existed, Right to Counsel at Second-Tier State Appeal, after Grant of Leave to Appeal, Would Be Non-Retroactive New Rule under Teague

Hernandez v. Greiner, Docket No. 04-1517-pr (2d Cir. July 1, 2005) (Newman, Leval, Cabranes) (Op. by Newman): This case presents the very narrow question of whether a defendant has a Sixth Amendment right to counsel at a discretionary second-tier appeal (specifically, an appeal to the New York Court of Appeals) after leave-to-appeal has been granted. Actually, the question is even narrower than that, since it arises on habeas review: If such a right existed, would its recognition constitute a new rule within the meaning of Teague, and, if so, can it be retroactively applied on collateral review? We will spare you the details, but the Court holds that even if such a right exists -- which the Court highly (and rightly) doubts in light of the relevant Supreme Court cases -- its would constitute a new rule that does not fall under either of the Teague exception. Therefore, since the right, even if existent, cannot be applied retroactively to the petitioner, the habeas is denied.

Defendant Need Not Be Told at Plea That His Sentence Will Run Consecutively to an Undischarged Sentence

Wilson v. McGinnis, Docket No. 04-4125 (2d Cir. July 5, 2005) (Feinberg, Cardamone, Sack) (Op. by Feinberg): The Circuit rejects on habeas review a petitioner's claim that his guilty plea was not knowing and voluntary because he was not told by the judge, at the plea proceeding, that the sentence he would receive in that case would run consecutively to another sentence he was already serving. The question turns on whether the consecutiveness of this sentence is a "direct" or merely "collateral" consequence of the defendant's guilty plea, since the Supreme Court has held that a plea of guilty is voluntary and intelligent only if the defendant enters the plea "with full awareness of its 'direct consequences.'" Op. at 7, quoting Brady v. United States, 397 U.S. 742, 748 (1970). The Circuit has defined "direct" consequences as those that have a "definite, immediate and largely automatic effect on the range of the defendant's punishment." United States v. United States Currency, 895 F.2d 908, 915 (2d Cir. 1990).

The Circuit concludes that the consecutiveness of the instant sentence was not a direct consequence of Wilson's guilty plea. This is somewhat surprising, given that under New York law, the judge essentially had to impose a consecutive sentence given the prevailing circumstances. Under N.Y. Penal Las § 70.25(2-b), a sentence imposed after a violent felony conviction "must run consecutively to a sentence imposed on an earlier felony where the violent felony was committed while the defendant was out on bail . . . on the earlier conviction [] but before sentence was imposed for that earlier felony." Op. at 4 (emphasis added). Wilson fell squarely within this provision. And while there is a "limited discretionary exception" to the requirement of consecutiveness, Wilson apparently did not qualify for it. See § 70.25(2-b) (court may run sentence concurrently if there are "either mitigating circumstances that bear directly upon the manner in which the crime was committed or . . . the defefendant's participation was relatively minor"). When Wilson pled guilty, therefore, it was "largely automatic" that he would receive a consecutive sentence. It follows that the consecutiveness of the sentence qualifies as a "direct" consequence of the plea.

The Court rejected this line of reasoning, relying on the fact that New York law gives the sentencing judge some wiggle room in not imposing a consecutive sentence. Op. at 11. However, since there seems to be no dispute that Wilson did not qualify for such largess from the sentencing judge, this rejection appears formalistic.

Does the Circuit's Grant of a COA Foreclose a Subsequent Anders Motion?

Love v. McCray, Docket No. 03-2307-pr (2d Cir. July 1, 2005) (Walker, Jacobs, Wesley) (per curiam): It's hard to know what to make of this very short opinion, since it's very light on the relevant facts. The gist of it is that the Court denies appointed counsel's motion (filed pursuant to Anders v. California) to be relieved as counsel on appeal on the ground that there are no non-frivolous appellate issues, because the Court disagrees that there are only frivolous issues to appeal. As the Court concludes, counsel's argument (in support of his Anders motion) shows only "that the appeal is likely without merit, not that it is frivolous." Op. at 6. Because the opinion is short on facts, however, it's hard to evaluate who's right (even assuming that a line can be drawn between a merely meritless appeal (which appointed counsel must prosecute) and a frivolous one (which appointed counsel must not prosecute)).

The only interesting thing about the opinion is its suggestion that because the Circuit itself earlier granted a Certificate of Appealability to the formerly pro se petitioner (after the district court denied it), it has already concluded that the appeal is non-frivolous, and thus that an Anders motion is not appropriate. The Court does not come right out and say this, but suggests this point by citing Lucidore v. New York Division of Parole, 209 F.3d 107, 112 (2d Cir. 2000) , for the proposition that a COA that has already been issued is treated as "presumptive[ly] legitimate." Op. at 6-7.

This presumption makes intuitive sense, since a COA can be issued only if the habeas petitioner has made a "substantial showing of the denial of a constitutional right." Barefoot v. Estelle, 463 U.S. 880 (1983). By granting a COA and allowing the appeal to proceed, therefore, the Circuit has already concluded that the appeal is not frivolous. An Anders motion filed after a COA has issued represents, in a way, an attempt to re-litigate the question of whether the appeal is frivolous. And in Love, perhaps, the Circuit is telling appointed counsel not to bother wasting its time relitigating the issue of frivolousness.

Of course, no firm rule is established in this case. Surely, the Circuit will consider each case -- and each Anders motion -- in light of the particular facts, and grant or deny the motion accordingly. Nonetheless, Love is at least a warning to appointed counsel to be particularly diligent in supporting his or her Anders request in an appeal where the Court has already issued the COA.

Finally, whether the same rule / warning applies when the COA was issued by the district court rather than the Circuit is anybody's guess ....

Even Better Language Limiting the Reach of the Almendarez-Torres Exception

United States v. Weisser, Docket No. 01-1588 (2d Cir. 2005) (Decided June 20, 2005; Amended July 5, 2005): Two weeks ago, this Blog pointed out that in this opinion, the Court stated in significant dicta that certain facts concerning a defendant's criminal history do not fall within the Almendarez-Torres exception to the Apprendi-Blakely rule, thus limiting the scope of this often-critized decision. Yesterday, the Court issued an amended opinion in the same case and expanded upon this language. The amended opinion now explicitly states that certain facts relating to criminal history are indeed too far removed from "the conclusive significance of a prior judicial record to fall within that exception." Amended Op. at 27 fn. 10, quoting Shepard, 125 S. Ct. at 1262. Kudos to the Court for clarifying its position on an important issue!

As this Blog previously noted:

"Weisser also appealed various aspects of the sentence imposed, including the district court's three-Category horizontal departure from Category III to Category VI. In the course of evaluating the propriety of this departure, the Court offhandedly (and unnecessarily, given the Booker remedial ruling) states: "The district court's horizontal departure violated the Sixth Amendment because it was based on facts not found by the jury." Op. at 28 (emphasis added). This startling pronouncement -- after all, aren't facts underlying criminal history departures covered by the Almendarez-Torres exception to the Apprendi-Blakely rule? -- turns out to be somewhat less momentous than first appears. This is because the the factual bases for the horizontal departure in this case involved not the "fact" of a prior conviction or even the "nature" of a prior conviction, but three other kinds of facts concerning the defendant's criminal history. As a foonote explains, "the district court relied on (1) Weisser's repeated parole violations after his release from prison on a child molestation conviction; (2) his repeated failure to register as a sex offender, as required by law; and (3) his 'prior attempts to arrange sexual liaisons with other minors and his prior relationship with a teenage boy'" in departing to Category VI. Op. at 28, fn.10.

The 2nd and 3rd bases for the departure seem clearly outside the Almendarez-Torres exception. But the 1st basis seems quite close to the kind of facts that courts have routinely held to fall comfortably within that exception. To start, why should a defendant's "repeated parole violations" -- which of course are easily proved by court records -- be treated any differently than a defendant's "repeated convictions"? If the former cannot be relied upon to increase a statutory maximum unless admitted by the defendant or found by a jury (as this opinion states), neither should the latter. Even read more narrowly, moreover, the 1st basis is quite similar to the basis triggering the two criminal history points required under Section 4A1.1(d) of the Guidelines when the instant offense is committed while the defendant is on probation or parole for a prior offense. Finally, the 1st basis is also somewhat akin to a "fact" required for the application of the Armed Career Criminal Act -- the existence of three prior drug or violent felonies "committed on occasions different from one another". See 18 U.S.C. § 924(e). Of course, the Second Circuit previously held that such a fact falls squarely within the Almendarez-Torres exception. But if a court violates the Sixth Amendment when it increases a defendant's statutory maximum based on his repeated parole violations, why doesn't it also violate the Sixth Amendment when it does the same based on the fact that his 3 prior qualifying felonies were committed on different occasions?

In any event, if Shepard didn't hammer the point home clearly enough, Weisser should: Counsel should raise Sixth Amendment challenges to the use of any criminal history related fact to increase the statutory maximum. At worst, even if the Almendarez-Torres exception is not yet on its last legs, its scope is certainly an open question."

When this Blog noticed yesterday that an amended opinion had been issued in Weisser, our fear was that the Court recognized this great dicta and decided to get rid of it. Fortunately, the Court did not do so, and in fact did the very opposite -- it expanded upon and clarified its discussion concerning the limits of the Almendarez-Torres exception.

The critical addition is found in the same footnote previously discussed, footnote 10 on page 27 of the slip opinion. This footnote, with the new addition in red, now states:

"Specifically, the district court relied on (1) Weisser's repeated parole violations after his release from prison on a child molestation conviction; (2) his repeated failure to register as a sex offender, as required by law; and (3) his 'prior attempts to arrange sexual liaisons with other minors and his prior relationship with a teenage boy.' Although certain facts of prior conviction are not subject to the Sixth Amendment's protections under the exception established in Almendarez-Torres v. United States, 523 U.S. 224 (1998), the scope of that exception is unclear, see Shepard v. United States, 543 U.S. ___, 125 S. Ct. 1254, 1262 (2005); United States v. Fagans, 406 F.3d 138, 141-42 (2d Cir. 2005). Whether or not Weisser's previous parole violations fall within the Almendarez-Torres exception is open to debate, but we think that the other facts upon which the district court relied are 'too far removed from the conclusive significance of a prior judicial record' to fall within the exception. Shepard, 125 S. Ct. at 1262; cf. United States v. Gutierrez-Ramirez, 405 F.3d 352, 359 (5th Cir. 2005) (relyin on Shepard and concluding that district court relied on facts that fell outside of the Almendarez-Torres exception, thus violating the Sixth Amendment); United States v. Washington, 404 F.3d 834, 841-42 (4th Cir. 2005) (same)."

The take-away from the amended portion is that there are indeed facts, ostensibly concerning a defendant's criminal history, that are "too far removed from the conclusive significance of a prior judicial record" to be covered by the Almendarez-Torres exception. Amended Op. at 27 n.10. Those facts include the facts listed in the 2nd and 3rd categories relied upon by the district court to horizontally depart: the defendant's "repeated failure to register as a sex offender" and his "'prior attempts to arrange sexual liaisons with other minors and his prior relationship with a teenage boy.'" Id. One would assume that other "criminal history" facts of a similar variety likewise would not be covered by the Almendarez-Torres exception, though which facts would so qualify is unclear. Indeed, the amended opinion does not even answer whether the first category of facts relied upon by the district court -- Weisser's prior repeated parole violations -- falls within or outside of the Almendarez-Torres exception, noting only that this question "is open to debate." Id.

At the very least, the amended opinion in Weisser should serve as a clarion call to all defense counsel: Raise Sixth Amendment challenges to the use of any criminal history related fact to increase the statutory maximum!

Another Habeas Petition Dismissed on Procedural Grounds

Smith v. Duncan, Docket No. 04-0604-pr (2d Cir. June 21, 2005) (Meskill, Calabresi, Wesley) (Op. by Wesley): This is yet another habeas petition, raising potentially meritorious substantive claims, that is dismissed by the Court because of defense counsel's failure to preserve or present the relevant issues to the state courts. No new rule is established by the decision; it is nonetheless worth a perusal, if only to remind oneself of the hazards faced by habeas petitioners if counsel in state proceedings fail to exercise great care in prosecuting the state appeal.

The essential facts are simple. Smith was tried for murder in state court after he shot the victim to death. Smith's sole claim is self-defense, arguing that the victim was a gang member of whom he was quite afraid. Smith sought to introduce 2 pieces of evidence to corroborate this defense -- the tape of Smith's 911 call right after he shot the victim (in which he indicates to the 911 operator his great fear that victim's fellow gang members were coming after him) and the testimony of his aunt, who would corroborate Smith's fear of victim and his gang during the time preceding the shooting. The state trial court refused to admit either piece of evidence, and Smith was convicted. After unsuccessful challenges in state court, Smith filed a § 2254 petition in the E.D.N.Y. Judge Weinstein denied the petition on procedural grounds, and the Circuit affirmed.

The question was easy regarding the aunt's testimony. Apparently, counsel for Smith neglected to raise this issue to the N.Y. Court of Appeals in his leave application. This claim is therefore unexhausted for habeas review. Moreover, because it is now too late for Smith to raise this claim in state court, the Circuit ruled that it was procedurally defaulted.

The question regarding the 911 tape was only slightly more difficult to resolve. Apparently, while defense counsel raised this issue to the relevant state courts, he argued only that the trial court's exclusion of this evidence violated state evidentiary rules. Counsel never made the constitutional argument that Smith now makes on his habeas petition -- i.e., he was deprived of his constitutional right to present a defense by the exclusion of this testimony. Thus, the Circuit ruled, Smith failed to "fairly present" the constitutional claim to the state courts. The claim is therefore unexhausted and, moreover, procedurally defaulted for the same reason as the claim regarding the aunt's testimony.

Draconian Forfeiture Penalty Upheld in Money Laundering Case

United States v. Bermudez, Docket No. 02-1699 (L) (2d Cir. June 29, 2005) (Walker, Pooler, Wesley) (per curiam): Let this be a warning to all the kids out there: You launder money, you lose something even more precious than your freedom -- your Miami condo and even your Swiss bank account. In this short opinion, the Court affirms a district court's order (1) requiring the defendant -- convicted of laundering drug proceeds in Colombia -- to forfeit $14.2 million to the Government (the amount of money he was accused of laundering on behalf of his drug dealin' clients), and (2) substituting his Miami residence and funds in a Swiss bank account in lieu of this amount because the defendant did not actually have this money (after all, he was only laundering it for his clients, not keeping it). The Court acknowledged that such forfeiture was "extremely punitive and burdensome," given that defendant likely only received a small fraction of the $14.2 million amount as his fee, but ruled that the relevant statutes clearly contemplated this result.

Those interested in the details of the statutory analysis will have to consult the opinion themselves; my clients luckily face only the prospect of lengthy imprisonment and not the "extremely punitive and burdensome" punishment of forfeiture.

Justice Ginsburg to the Rescue? Appellate Waivers and the Supreme Court's Recent Decision in Halbert v. Michigan

Credit must be given to Professor Berman for spotting some great language from the Supreme Court's recent decision in Halbert v. Michigan (link here for his discussion) that seriously undermines the Second Circuit's decision in Morgan, which enforced an appellate waiver entered into by the defendant before Blakely was decided. Justice Ginsburg's opinion for the majority, expecially as highlighted and construed by Justice Thomas in his dissent, contains great language gutting Morgan's rationale and supporting an argument that a defendant cannot waive a right that was not previously recognized -- e.g., his Sixth Amendment right not to be sentenced under the mandatory Guidelines regime.

Halbert's primary holding is that a defendant has the constitutional right to appointed counsel on his/her first appeal, even where the state has made that appeal a discretionary one rather than one that the defendant is entitled to as a matter of right. In reaching the conclusion that Halbert's right to counsel was violated when Michigan refused to appoint counsel to help him file a leave to appeal application, Justice Ginsburg also rejected the State's claim that even if such a right existed, Halbert waived that right when he pled nolo contendere to the charge against him. In so doing, Justice Ginsburg explained that "at the time he entered his plea, Halbert . . . had no recognized right to appointed appellate counsel," and cited as support Iowa v. Tovar, 541 U.S. 77 (2004) for the proposition that "waiver of the right to counsel, as of constitutional rights in the criminal process generally, must be a 'knowing, intelligent act done with sufficient awareness of the relevant circumstances.'" 2005 WL 1469183 at *11. (NB: The passage cited from Tovar includes a quote from Brady v. United States, 397 U.S. 742 (1970), which is cited prominently by . . . . Morgan). A fair argument, based on this explanation, is that appellate waivers entered into before Blakely are not enforceable because the defendant could not have knowingly & intelligently waived his Sixth Amendment right not to be sentenced under mandatory Guidelines before Blakely, since there was "no [such] recognized right" at that time.

Recognizing the import of this statement, Justice Thomas went apopleptic. He described the statement as "bound to wreak havoc" on other areas of waiver law, and then cited as an example -- yes, you guessed it -- the enforcement of appellate waivers in light of Booker. As he wrote:

"For instance, suppose that a defendant waived the right to appeal his sentence after the regional Court of Appeals had held that the principle of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), did not apply to the United States Sentencing Guidelines, but before this Court held the contrary in United States v. Booker, 543 U.S. ----, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The defendant could claim that, in his circuit, the Sixth Amendment right against the application of the Guidelines was "no[t] recognized," and hence that the right was nonwaivable."

2005 WL 1469183 at *22 fn.2. Thank you, Justice Thomas, for making the argument for all of us. (Of course, the argument is even better for those defendants who entered into their appellate waivers before Blakely was decided).

Where Government Filed § 3553(e) / § 5K1.1 Motion at Sentencing, Crosby Remand Required even though Defendant Was Sentenced to the Statutory Minimum

United States v. Tesoriero, Docket No. 04-2017 (2d Cir. June 28, 2005): The Government is apparently still quite sore about Crosby (and likely even more so about Fagans) and its holding that all plain-error cases pending on direct review must be remanded to the district court for a determination of whether the defendant's "substantial rights" (in plain error parlance) were affected by the Booker error (i.e., the use of mandatory Guidelines). In this case, the defendant was sentenced to the 10-year statutory minimum for a § 841(b)(1)(A) offense at the pre-Blakely sentencing, despite the fact that he cooperated with the Government and earned a § 3553(e) / 5K1.1 motion as a result. Defendant sought a Crosby remand on appeal and the Government opposed, citing United States v. Sharpley, 399 F.3d 123 (2d Cir. 2005), and arguing that because the defendant received the statutory minimum sentence, any Booker error in treating the Guidelines as binding was harmless. The Circuit disagreed and ordered a Crosby remand, distinguishing Sharpley on the ground that the Government filed a § 3553(e) motion on Tesoriero's behalf and thus that the sentencing judge was no longer bound by the 10-year minimum.

This case serves as an excellent rebuttal to the Government's claim that a Crosby or Fagans remand is unnecessary in a particular case because the Booker error was harmless. (One would have thought that such arguments were foreclosed by Crosby and especially Fagans, which explicitly did not undertake a harmless error analysis but simply remanded for resentencing). This is so because the sentencing judge here, in light of the substantial assistance motion filed by the Government, was not bound by either the statutory minimum or the Guidelines when s/he nonetheless imposed the 10-year sentence. Thus, if the Booker error is not harmless even in this context, it is hard to imagine a situation (outside of the one presented in Sharpley) in which the Court would find a Booker error harmless.

Panel Concludes That District Court Error In Determining Fraud Loss Amount Requires Remand for Resentencing

United States v. Canova, Docket Nos. 03-1291, 03-1300 (2d Cir. June 21, 2005) (Sack & Raggi) (Judge VanGraafeiland passed away after oral argument) (Op. by Raggi): In this lengthy opinion -- issued 1 1/2 years after the case was argued -- the Circuit remanded for resentencing, after the district court had imposed a one-year term of probation premised upon (1) a finding that no pecuniary loss resulted from the defendant's involvement in a Medicare fraud, and (2) a downward departure grounded in the defendant's extraordinary history of public service and good works. The Panel concluded that the district court had erred in calculating the relevant loss amount (by some $5 million) but rejected the Government's challenge to the downward departure. The Court concluded that the error in calculating the loss amount was signficant enough to preclude a finding that the sentence was reasonable notwithstanding the error. But in the course of remanding, the Panel appeared to leave open the possibility that the district court could re-impose the same sentence based on the district court's determination that (1) the $5 million loss amount overstates the serious of the offense, (2) a greater departure from the now-higher offense level was warranted, and/or (3) a non-Guidelines sentence was appropriate based on a consideration of all of the section 3553(a) factors. For reasons that won't be discussed here, the Panel also rejected the defendant's cross-appeal of the district court's denial of its Rule 33 motion. In so doing, however, the Panel reiterated that a Rule 33 motion must be filed within 7 days of the verdict or within such time as the district court sets during the 7-day period. The Court left for another day the question of whether the Government's challenge to a late Rule 33 filing -- such as occurred in this case -- could be forfeited (based on the Government's consent to the late Rule 33 filing) or whether the error is jursidictional, in which case it cannot be forfeited. (See Kontrick v. Ryan, 540 U.S. 443, 454-56 (2004) (noting distinction between rules governing subject-matter jurisidction and "an inflexible claim-processing rule" which can be forfeited)). The take-away for practitioners is to either file your Rule 33 motion within 7 days of the verdict, or make certain that the district court, within the 7-day period, sets a Rule 33 motion deadline that gives you enough time to file your papers; you cannot get a second extension granted outside the 7-day period!

The essential facts are these: Canova, a VP for Raytel Cardiac Services, was charged with conspiring to defraud Medicare, with obstruction of Medicare's investigation, and with a variety of false statement in connection with the same conspiracy/obstruction. Raytel performs "transtelephonic pacemaker testing" for Medicare patients at government expense. Such testing allows a technician at a remote location to test the pacemaker's operation by having the patient use a portable device to transmit telephonic signals that can be converted into an ECG report for review by a cardiologist. Medicare apparently requires that the pacemaker be monitored in 3 functioning modes for 30 seconds each, with the results recorded on a strip of magnetic tape. Without getting bogged down in the details, the opinion makes clear that a cardiologist would typically only look at representative segments of the first 2 test phases. As a result, as Raytel's volume of business increased, its technicians began departing from Medicare specifications by recording only a partial strip, or none at all, for the last 30 second phase, which was deemed less critical.

The evidence at trial reflected that Canova had pressured subordinates to meet higher performance quotas, which, in turn, had led technicians to cut corners with respect to the last 30 second phase of the testing. Canova learned about the non-compliance, but continued pushing for the higher quotas. When Medicare complained about the non-compliance, Canova falsely insisted that Raytel was complying. During an audit, Canova allegedly (1) sent an e-mail to Raytel's managers instructing them to tell auditors that Raytel was complying with all Medicare procedures for producing the strips, and (2) made additional false statements to Medicare representatives asserting that Raytel was complying. Canova was convicted on four of the five counts on which he was tried.

There were a number of key sentencing issues but for our purposes the most important were the issues of (1) loss amount and (2) a departure for extraordinary public service and charitable works. The government argued for and the PSR included a 13-level enhancement under the fraud guidelines, which was premised on a finding that Medicare had paid Raytel $10 million during the two-year period covered by the audit and at least 1/2 of the tests performed were non-compliant. Canova, however, had adduced evidence that the Raytel tests were every bit as clinically sound as those demanded by Medicare, even if they were technically non-compliant. Specifically, the defense offered the opinions of several cardiologists, the fact that the VA did not even record ECG strips for the 3rd phase of the test, and the fact that such testing is not part of the protocol set forth in the guidelines doctors use for managing patients with pacemakers. The district court accepted the defense theory and concluded that Medicare had suffered no real loss. The district court applied the obstruction of justice guideline rather than the fraud guideline (leaving Mr. Canova facing 15 to 21 months), and then departed 6 levels in consideration of his service to his country and his community. Specifically, Canova had served in the Marine for 6 years, had been a volunteer firefighter and risked his life to save others, and had provided emergency medical care to strangers in the course of his civilian life.

On appeal, the Government challenged, among other things, the downward departure and the district court's finding that there was no loss to Medicare resulting from the fraud. Noting that part of Canova's misconduct obstructed Medicare's audit and that, as a matter of Medicare regulations, Medicare could have recouped the monies paid to Raytel based on non-compliance with the contract specifications, the Panel concluded that there was an intended loss here. The Panel reasoned that "although a district court enjoys considerable discretion in calculating the loss attributable to a particular fraud, the record in this case did not permit it to conclude that the government sustained no loss from Canova's fraudulent schemes to substitute an abbreviated pacemaker test for the longer one required by Medicare specifications and to conceal that fraudulent substitution in order to prevent the government from exercising its right to recoupment." The Court noted that the $5 million loss amount should have been factored into the Guidelines "considered" by the district court as part of its section 3553 analysis. As a result, "[b]ecause there is a signficant difference between the Guideline range calculated to include this loss and the Guideline range relied upon by the district court the error might well have affected the ultimate sentence, even though the district court applied a downward departure." Slip op. at 47. The Panel reiterated that even under a discretionary Guidelines regime, the applicable range will serve as a "'benchmark or a point of reference or departure'" as the court exercises its expanded discretion" after Booker and Crosby. Slip op. at 48 (Citing United States v. Rubenstein, 403 F.3d 93, 98 (2d Cir. 2005)). The Panel notably declined to hold that every incorrectly calculated Guidelines sentence will necessarily require a remand, but reasoned that the error in this case was too large to ignore and could affect the sentence upon remand.

In good news for defendants, the Court rejected the Government's claim that the district court had improperly departed, holding that the downward departure for extraordinary public service and good works was fully supported by the record. (The Court also held that the Government had waived any argument challenging the departure by failing to object at the district court level, but considered the issue on the merits in light of the need for resentencing.) At the risk of reading too much into the opinion, the decision also left open the possibility that the district court could resentence Canova to probation even with the substantially higher starting point under the Guidelines. In one footnote, the Court pointed out that the district court (1) "may, of course, reconsider [its decision to impose a 6-level departure] on remand in light of the higher Guidelines range dictated by the proper application of the loss enhancement," and (2) may decided, after considering all of the section 3553 factors, "not to sentence Canova within the Guidelines scheme, but to impose a non-Guidelines sentence." Slip Op. at 55, n. 29. In an earlier footnote, the Panel "expressed no view" as to whether a departure for "loss overstates" would be appropriate on the facts of the case, under then-applicable USSG 2F1.1, cmt. n.11. Slip Op. at 39, n.21. Taken together, these statements would seem to give the district court substantial latitude to reimpose a sentence of probation should it determine (yet again) that such a sentence is reasonable for this particular defendant.

No Double Jeopardy Violation to Impose Consecutive Sentences Based on Two Successive Shootings at Different Targets under New York's CPW-2nd Law

McCullough v. Bennett, Docket No. 04-0081-pr (2d Cir. June 24, 2005) (Meskill, Newman, Cabranes) (Op. by Newman): The question presented in this case is whether, as Judge Newman succinctly puts it, "convictions and consecutive sentences on two counts of criminal possession of a weapon [in the second degree under N.Y. Penal Law § 265.03] violate petitioner's double jeopardy rights when the two counts reflected shootings at two victims getting out of the same vehicle in rapid succession." Op. at 1-2. CPW-2nd punishes anyone who "possesses a loaded firearm . . . with intent to use the same unlawfully against another." The evidence at trial showed that McCullough approached a parked car with a loaded gun and fired at Person A when A fled the vehicle from the driver side of the car. McCullough then went to the passenger side, threatened Person B (another occupant of the car), pulled B out of the car, and fired in B's direction as B ran off.

The Court finds no Double Jeopardy violation, reasoning that:

(1) Under the Double Jeopardy Clause, when two separate acts allegedly violate the same statute, the governing question is simply one of legislative intent: Did the legislature in enacting the law intend to punish a continuous offense or distinct acts? Op. at 4, citing Blockburger, 284 U.S. 299, 302-303 (1932). If the former, then "there can be but one penalty," but if the latter, "then each act is punishable separately." Id.

(2) The New York Court of Appeals has construed CPW-2nd as permitting multiple sentences for successive shootings, so long as the fact-finder determines that the defendant had distinct "intents" in performing the successive acts. As it explained in People v. Okafore, 72 N.Y.2d 81, 88-89 (1988), "Inasmuch as two criminal intents are discernible, constituting discrete culpable events and not a single continuing one, each could be separtely prosecuted." Thus, if the evidence shows that "the original unlawful intent [(present when the defendant first fired the gun)] is abandoned and subsequently a new intent is formed to use the weapon against others during the period of possession, more than one crime is committed." Id.

(3) The critical question thus becomes this: "Did the defendant have one continuous intent to harm one or more people, or an intent to harm one person that ended followed by a new intent to harm another person?" Op. at 10. And in this case, the "issue of intent was put to the jury, and the jury found that McCullough had the requisite intent to commit two weapons possession offenses." Id. Therefore, the consecutive sentences that McCullough received for these two offenses do not violate the Double Jeopardy clause.

Preponderance Standard Proper for Determining Whether Defendant Breached Plea Agreement

United States v. William Byrd, Docket No. 04-3607-cr (2d Cir. June 24, 2005) (Walker, Cardamon, Owen, D.J.) (per curiam): The Circuit holds in this very short opinion that the preponderance standard governs the determination of whether a defendant has breached a plea agreement, even after Booker. The entirety of the Court's reasoning is this: "Booker. . . did not speak to nor, in our view, affect the appropriate standard of proof applicable to a finding that the defendant breached his plea agreement. Such a finding was before Booker, and remains after Booker, within the province of the sentencing judge subject to a preponderance of the evidence standard." Op. at 3.

In itself, this decision is not of great significance. One wonders, however, what effect Byrd will have on a far more significant question that remains open in the Circuit: What is the appropriate standard of proof for fact-findings at sentencing that greatly increase the defendant's sentencing range, especially if those facts concern either acquitted conduct or uncharged conduct?

No Right of Confrontation at Sentencing

United States v. David Martinez, Docket No. 04-2075-cr (Sotomayor, Raggi, Hall) (Op. by Sotomayor): In a case of first impression in the Circuit, the Court rules that the Sixth Amendment right of confrontation does not apply to sentencing hearings, even in light of Crawford v. Washington, 541 U.S. 36 (2004), and United States v. Booker, 125 S. Ct. 738 (2005). The Court thus rejected the defendant's claim that his confrontation rights were violated when the district court relied on hearsay testimony introduced at a Fatico hearing to substantially increase his Guidelines sentencing range.

Unfortunately, Martinez is a short opinion that fails to address or account for the revolution wrought by the Apprendi line of cases. The decision makes no effort to, as Justice Stevens aptly put it in his Booker majority opinion, "preserve Sixth Amendment substance" in light of the realities of modern sentencing practice. 125 S. Ct. at 752.

One aspect of the Court's reasoning is particularly suspect. After concluding that neither "Crawford nor Booker so undermined the rationale of [earlier] Second Circuit precedent [approving of] the consideration of hearsay testimony at sentencing" as to require revisitng or overruling those prior cases, the Court offers another reason for rejecting the defendant's effort to import the procedural protection embodied by the right of confrontation into the sentencing context. As the Court explains:

"We find it significant, moreover, that judges imposing sentence in accordance with Booker may exercise greater discretion than they could have exercised under the pre-Booker regime. . . . . [And] if consideration of hearsay testimony during a sentence proceeding was not prohibited under a mandatory Guidelines regime, there is no logical basis for concluding that it is prohibited under the system of advisory Guidelines established by Booker."

Op. at 8. This is a bad argument that rests on a highly questionable premise -- that "consideration of hearsay testimony during [sentencing] was not prohibited under a mandatory Guidelines regime." In light of Justice Stevens's "remedial majority" opinion in Booker, which of course ruled that the mandatory Guidelines regime violated defendants' Sixth Amendment jury trial right, there is good reason to believe that the same regime, by allowing courts to rely on hearsay to increase the applicable Guidelines range (i.e., the "statutory maximum" within the meaning of Blakely), also violated defendants' confrontation right. That is, since a fact that increases a sentencing range under mandatory Guidelines must be found by a jury under the reasonable doubt standard, and thus treated like an element of the offense, it seems logical to apply other procedural protections ordinarily attendant to the fact-finder's determination of whether the existence of the element has been proven -- e.g., the right of confrontation. Whether there should be a confrontation right under the advisory Guidelines regime created by Breyer's remedial opinion in Booker, in short, cannot be determined by "simple logic."

Circuit Affirms Denial of Habeas Petition Based on Trial Court's Bar on Attorney-Client Communication during Client's Testimony

Serrano v. Fischer, Docket No. 03-2670 (2d Cir. June 20, 2005) (Winter, Sotomayor, and B.D. Parker) (Op. by Sotomayor): In this dismissal of a habeas petition, the Circuit narrowly held that, under the particular facts of the case, the state court decisions rejecting the petitioner’s deprivation-of-counsel claim were not contrary to or an unreasonable application of the governing Supreme Court precedent. Despite its narrowness, the opinion discusses an issue with broad implications for habeas petitions under the AEDPA deferential standard. The Court explained that where the governing Supreme Court precedent provides no bright-line rule but instead only a "roughly defined" one requiring a context-specific inquiry, it is less likely that the state court’s applications of that precedent will be considered unreasonable, and thus less likely that the writ will be granted under §2254(d)(1).

The essential facts are as follows. Serrano was tried and convicted in state court of second degree murder. During a trial marked by "many heated exchanges" between the court and defense counsel, the court twice barred defense counsel from conferring with Serrano during recesses in his testimony. The first bar occurred towards the end of a five-minute recess during Serrano’s direct testimony. Defense counsel protested and was fined for contempt. The second occurred during a ninety-minute lunch recess in the midst of Serrano’s cross-examination. Before issuing this bar, the judge considered allowing counsel to confer with Serrano, but not as to any matter related to his testimony. However, counsel refused to assure the court that he would not discuss the ongoing testimony, and the judge ordered counsel to be taken into custody for the rest of the lunch break.

Serrano exhausted his deprivation-of-counsel claim based on these two incidents in state court, and then filed a habeas petition. The district court denied the petition, and the Circuit affirmed. In doing so, the Court noted that the governing Supreme Court precedent for Sixth Amendment claims based on deprivations of counsel during recesses is found in two cases: Geders v. United States, 425 U.S. 80 (1976) and Perry v. Leeke, 488 U.S. 272 (1989).

In Geders, the Supreme Court ruled that the trial court’s order barring the defendant from consulting with his counsel about anything during a seventeen-hour overnight recess between his direct and cross-examination violated his Sixth Amendment right to counsel. Perry, on the other hand, ruled that a court’s barring of attorney-client communications during a fifteen-minute recess that interrupted the defendant’s testimony did not violate the Sixth Amendment. Acknowledging that the line between Perry and Geders was thin, the Court nonetheless explained that it was one of a "constitutional dimension" whose distinction lay in the fact that the defendant has no constitutional right to confer with counsel about his testimony while that testimony is in progress. The bar in Geders was improper because the normal consultation between attorney and client that occurs during an overnight recess would encompass matters going beyond the defendant’s testimony, while the bar in Perry was proper because it is appropriate to assume that during a short recess nothing but the testimony would be discussed. Unfortunately, even though the Court claimed to draw a "line of constitutional dimension," Perry failed to provide lower courts "faced with a continuum of recess possibilities" with sufficient guidance to clearly discern when bars on attorney-client communications constitute Sixth Amendment violations.

Accordingly, as noted in the Circuit’s opinion, applications of the Geders and Perry precedent have yielded divergent results in the lower courts. The Circuit declared that its own interpretation in Morgan v. Bennett, 204 F.3d 360 (2d Cir. 2000) – that courts should not restrict the defendant’s ability to consult with his attorney absent an important need to protect a countervailing interest – while not binding for habeas review, may provide guidance as to what constitutes a reasonable application of Geders and Perry. It quickly quashed this ray of hope, however, by concluding that since "the governing rule remains so roughly defined, [it was] less likely to conclude that a given interpretation or application [by a state court] is ‘contrary to’ or an objectively ‘unreasonable application of’ Supreme Court precedent."

The Circuit thus unsurprisingly concluded that the state courts’ application of Geders and Perry did not result in a decision that was "contrary to" or an "unreasonable application of" those cases and denied the writ. Since the first bar was only momentary, it was appropriate for the trial court to assume that nothing but Serrano’s testimony would be discussed. Regarding the ninety-minute bar, the court noted that the ban was only issued after counsel specifically refused to assure the court that he would not discuss Serrano’s ongoing testimony during the recess. Placing the blame squarely on counsel, the Circuit stated that defense counsel’s refusal entitled the judge to assume that Serrano’s testimony would be discussed during the recess, and thus that the bar on communication was proper.

[By Sylvia Heredia, 2-L at Harvard Law School]