Section 5G1.2 of Guidelines No Longer Mandatory

United States v. Kurti, Docket No. 04-2239-cr (2d Cir. Oct. 19, 2005) (Winter, Katzmann, Murtha (by designation)): Praise the lord: The often ignored and little understood provision of the Guidelines establishing the "procedure for determining the specific sentence to be formally imposed on each count in a multiple-count case," i.e., U.S.S.G. § 5G1.2, has officially been declared merely advisory in light of Booker. Here, Kurti pled guilty to two counts charging him with conspiring to distribute an unspecified quantity of narcotics (one count concerned marijuana and the other concerned ecstacy). The statutory maximum on each was 20 years. His Guidelines range was 360 to life, and the district judge at the pre-Booker sentencing imposed a sentence of 360 months. She did not specify, however, "either the length of time to be served on each count or which portion of the sentence of a count was to run consecutively to the other." Op. at 8. This was error.

Under Section 5G1.2(c), the "formal sentence" should have been imposed as follows: 240 months on count 1 and 240 months on count 2, 120 months of which to run consecutively to the 240-month sentence imposed on count 1, with the remaining 120 months to run concurrently with the count 1 sentence. See, e.g., United States v. Fuller, 332 F.3d 60, 68 (2d Cir. 2003). In light of Booker, however, the Circuit recognized that Section 5G1.2 was no longer mandatory. A remand was nonetheless required, since the judge had to indicate the specific sentence she intended to impose on each count, given that the total sentence of 360 months exceeded the 240-month maximum on each count. Additionally, the court should consider on remand whether she would have imposed the same sentence in light of Booker and the Section 3553(a) factors.

Even if the judge determines on remand that the 360-month sentence remains appropriate, therefore, she need not follow Section 5G1.2's detailed procedures in imposing sentence. Thus, she could simply impose a sentence of 240 months on count 1 and a sentence of 120 months on count two, to run consecutively to the sentence imposed on count 2.

Counsel's Failure to Consult with or Call Expert Medical and Psychiatric Witnesses Requires Vacatur of Defendant's Child Molestation Conviction

Gersten v. Senkowski, Docket No. 04-0935-pr (2d Cir. Oct. 17, 2005) (Winter, Pooler, Brieant (by designation)): A great win for the defense. This is (at least) the third case in recent memory in which the Circuit granted habeas relief to a state prisoner claiming that he received ineffective assistance of counsel at his trial for child molestation because his attorney failed to consult with, or call as witnesses at trial, medical and psychiatric experts who could have undermined the testimony of the prosecution's so-called experts. In a classic "he said, she said" case in which the prosecution won conviction by proffering now-discredited expert testimony against the defendant, defense counsel's complete ignorance of the medical and psychatric literature on child abuse, and his cavalier failure to make even the slightest effort to educate himself on these crucial matters, required vacatur of defendant's conviction even under AEDPA's highly deferential standards.

The lengthy, fact-specific opinion breaks no new ground, principally following the Court's earlier decisions in Pavel v. Hollins, 261 F.3d 210 (2d Cir. 2001), and Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001), on the salient points. (Though the Court's blistering critique of trial counsel's performance, as well as the trial judge's affidavit submitted in connection with the habeas petition, is quite enjoyable.). The opinion is worth reading, if only to learn what not to do when representing a client on such charges.

Requiring Courthouse Visitors to Show Photo ID as Condition for Entry Implicates Sixth Amendment Public Trial Concerns

United States v. Wendell Smith, Docket No. 03-1588-cr (2d Cir. Oct. 17, 2005) (Winter, Sotomayor, Parker): During Smith's trial in a courtroom located in the federal building complex in Rochester, the U.S. Marshals Service, in coordination with the Department of Homeland Security (DHS), required all visitors to the complex to show a photo identification before they would be allowed to enter. Those without photo IDs (or refused to show IDs) would be denied entry. This was done because the "National Alert Level" (set by DHS) at that time was 3 (that's "yellow" to you and me), and the Marshals had a policy (adopted after 9/11/01) of requiring presentation of a photo ID as a condition for entry whenever the alert level was 3 or above (4 is orange and 5 is the dreaded red). The policy's stated justification is that "someone who is forced to identify themselves is less likely to pose a threat than someone who is allowed to walk into the building without any [ID] at all." Op. at 4-5.

When defense counsel learned of the policy, he moved for a mistrial on the ground that Smith's Sixth Amendment right to a public trial had been violated. He submitted an affidavit claiming that "upon information and belief, . . . members of Smith's family, members of counsel's investigative staff, and members of the general public had been prevented from attending his jury trial as a result of the photo identification policy." Op. at 3. The trial court denied the motion, concluding that the Sixth Amendment was not even implicated, given that "the district court itself had not denied anyone courtroom access." Op. at 6.

The Circuit affirmed Smith's conviction, but disagreed with the trial court's odd analysis of the Sixth Amendment question. Rather, any "measure that limit[s] the public's access to federal buildings with courtrooms where public trials may be occurring implicate[s] Sixth Amendment concerns," regardless of who implements the measure. Op. at 6-7. Applying the familiar four-part test of Waller v. Georgia, 467 U.S. 39, 45 (1984), however, the Court concluded that Smith's public trial right was not violated by the "partial closure" caused by the Marshals' photo ID policy. Op. at 8-12.

The Circuit nonetheless criticized the Marshals Service's unilateral decision to implement the photo ID policy without first consulting the district court. Op. at 14-15. "Going forward," the Court cautioned, "any such steps must be coordinated with, and approved by the courts." Op. at 14. "Control [of courthouse access measures] by the courts is essential," the Court explained, "because the judiciary is uniquely attuned to the delicate balance between defendants' Sixth Amendment rights to public trial, the public and press's First Amendment rights to courtroom access, and the overarching security considerations that are unique to the federal facilities containing courtrooms." Id. Thus, the Marshals Service must "consult with the courts before implementing general security measures that significantly affect court access." Op. at 15.

Remand for Resentencing Required even where Sentencing Judge, Acting Post-Blakely but Pre-Booker, Announced Alternative "Non-Guidelines" Sentence

United States v. John Fuller, Docket No. 04-4595-cr (2d Cir. Oct. 17, 2005) (Oakes, Cabranes, Goldberg (by designation)): In this case, litigated by Colleen Cassidy of this Office, the Circuit primarily holds that remand for resentencing is required pursuant to Fagans even where the sentencing judge announced, at a sentencing that occurred post-Blakely but pre-Booker, that she would impose the same sentence even if the Guidelines were subsequently held unconstitutional by the Supreme Court. There was dicta in Crosby to this precise effect, of course, see 397 F.3d at 118, and the Circuit simply adopts this dicta as its ruling in this opinion. Op. at 9. The Booker error was not harmless despite the judge's pronouncement of the "alternative sentence," the Court explained, because such an "alternative sentence is not necesssarily the same one that the judge would have imposed in compliance with the duty to consider all of the factors listed in section 3553(a)," nor is it "necessarily the same one that the judge would have imposed after presentation by the Government of aggravating circumstances or by the defendant of mitigating circumstances that existed at the time but were not available for consideration under the mandatory Guidelines regime." Op. at 8-9 (quoting Crosby, 397 F.3d at 118).

The Court also held, in a matter of first impression in the Circuit, that a district judge's failure to abide by § 3553(f)(2)'s requirement to provide a written statement of its reasons for departing from the Guidelines range (here, the judge upwardly departed) does not automatically warrant remand and resentencing. Rather, following the plain language of the statute as well as decisions in three other circuits, the Court concluded that "where a reviewing court determines that a departure is neither 'too high' nor 'too low' within the meaning of 18 U.S.C. § 3742(f)(2), a district court's failure to include in the written judgment an explanation for its departure does not provide an independent basis for remand." Op. at 19-20. (No harm no foul, in short.) The Court cautioned, however, that the "better practice is for the district court to record in its written order of judgment an explanation for all Guidelines departures." Op. at 20.

Trial Procedure Permitting Interim Summations, after Testimony of Each Witness, Constitutes Structural Error

United States v. Samuel Yakobowicz, Docket No. 04-0201-cr (2d Cir. October 14, 2005) (Winter, Sotomayor, Parker): Sometimes those visiting judges are more trouble than they're worth. Here, a visiting judge from the Northern District of Ohio, presiding over the defendant's E.D.N.Y. trial for filing false tax returns, sua sponte adopted a trial procedure we've never seen in a criminal case -- allowing the parties to make summations after the testimony of each witness. The Circuit ruled that even assuming that such a procedure is permissible in a particularly lengthy or complicated case, it was not warranted in this typical one. The Court also ruled, over Judge Sotomayor's dissent, that the court's error of allowing these "interim summations" constitutes a structural error requiring automatic reversal without harmless-error analysis.

The essential facts are thus. Yakobowicz was prosecuted for filing false excise tax returns and impeding the administration of tax laws. Before trial and over defense counsel's objections, the trial judge announced that he would allow the parties to "make a short statement to the jury" after the testimony of each witness. Op. at 4. Although the judge explained that these "comments [would be] limited to the statements of that witness and how that testimony fits in the overall scheme of the case," the reality turned out to be much different. Id. When given the opportunity, the prosecutor did not merely summarize the testimony of the witness and how it fit into the Government's case. Rather, as the Circuit described, "the Government used the interim procedure . . . to argue and reargue its theory of the case," and "[a]ny distinction between the content of the Government's interim summations and its final summation was all but invisible."

In total, the Goverment called 26 witnesses and delivered 10 "interim summations" over the course of 4 1/2 days of testimony. The defendant called no witnesses and was convicted.

On appeal, the Circuit, by Judge Winter, concluded that the trial judge abused his discretion in adopting this novel procedure (though, apparently, the same judge routinely uses it back home). Among other things, this procedure is (1) inconsistent with Rule 29.1 of the Federal Rules of Criminal Procedure (which contemplates that closing arguments are to be held after the close of evidence); (2) violates the traditional rule requiring jurors not to form their opinions before the close of evidence and deliberations; (3) gives an unfair advantage to the prosecution (since "the prosecution almost always calls more witnesses than the defense, which not uncommonly calls none," and thus allowing the prosecution to give summations after each witness "enable[s] [it] to argue repeatedly the merits of its theory of the case"); and (4) most importantly, undermines the presumption of innocence (since this procedure -- effectively requiring the defendant to say something before the close of the Government's case -- undercuts the defendant's right "to remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion," and to "see the prosecution's whole case before deciding on a defense.") . Op. at 10-11, 15-17.

Judge Winter allowed that "interim summations in some form have been permitted in lengthy and/or complex civil trials." Op. at 12 (emphasis added). However, there are many differences between civil trials and criminal trials. See Op. at 14-16. Moreover, even assuming that interim summations are permissible in some criminal trials, they should be used only "based on findings that the case at hand differs from the garden variety of cases." Op. at 13. And "[t]hese differences exist, if at all, in the length of a trial or the complexity of the issues, and most commonly in a combination of the two." Id. The instant case "involved no length, no complexity, and [thus] no need." Id. Finally, the Court cautioned that even in the rare case in which interim summations are appropriate, "[t]he model for such procedures . . . is to be found in opening statements which, as noted, are generally limited to statements of expectations as to the evidence rather than arguments." Op. at 20.

The Court further concluded that "[a]llowing interim summations in this case was a structural error requring reversal" without consideration of harmlessness, since the "entire conduct of the trial from beginning to end is obviously affected by a procedure that systematically allowed argumentative summations after each witness without any showing of particularized need based on length of the trial or complexity of the issues, without authorization in a rule of criminal procedure, and without any attempt to limit the argumentative aspects of the interim summations." Op. at 19.The problem, the Court explained, was "not that any particular interim summation was unduly preducial." Rather, it is that "the repetitive and cumulative summations altered and undermined the defense's use of the presumption of innocence as a defense and had indeterminable effects on defense strategy and tactics." Op. at 19. Thus, the Court vacated Yakobowicz's conviction despite his failure to show specifically how the interim summations given by the prosecution prejudiced him.

Judge Sotomayor dissented solely on this point, arguing that the error here constitutes a typical "trial error" subject to harmless error analysis. And because the defendant made no attempt to show how his defense was prejudiced by the procedure, Judge Sotomayor would have affirmed the conviction.

They Sure Didn't Make Video Games Like This When We Were Kids!

Apologies for this diversion, which has nothing to do with criminal law in the Second Circuit. But here's a great gift idea for that rare teen (or the teen in all of us) with aspirations to become a member of This Great Profession. (Click HERE).

Time to Clean Up the Candyman Mess!

United States v. Coreas, Docket No. 03-1790-cr (2d Cir. Oct. 12, 2005) (Jacobs, Calabresi, Rakoff) (per curiam): Yesterday, the Circuit denied defendant Coreas's petition for rehearing, thus adding to the confusion surrounding the legality of the Candyman search warrants. To recap the relevant events, in chronological order, for those not keeping score at home:

(1st) In United States v. Martin (click here for our discussion), the majority upheld (over a dissent by Judge Pooler) a search warrant based primarily on the defendant's membership in the "girls12-16" e-group.

(2nd) In United States v. Coreas, (click here for our discussion), the Court was confronted with essentially the same affidavit at issue in Martin (containing the same false statements by the same agent) but concerning the Candyman e-group rather than the girls12-16 e-group. The panel found the differences between the two groups to be immaterial and concluded, contrary to Martin, that the search warrant was not supported by probable cause. The panel nonetheless affirmed Coreas's conviction, given the earlier ruling in Martin and the well-established rule that a later panel is bound by the decision of an earlier panel.

(3rd) On October 4th, the majority in Martin denied the defendant's petition for rehearing. (click here for our discussion). Among other things, the majority (once again over a dissent by Judge Pooler) explained that the Coreas panel erred in believing that no material difference existed between the Candyman e-group and the girls12-16 e-group.

(4th) Finally, on October 12th, the panel in Coreas denied the defendant's petition for rehearing, once again concluding that it was bound by the original Martin decision (with which it once again disagrees on the substantive question) and disagreeing with that majority's opinion, found in its own denial of rehearing, that the two e-groups were distinguishable.

Oy - what a mess. One can hardly imagine a more suitable circumstance for en banc rehearing.

Counsel Erred in Failing to Inform Client that Statements Made during Proffers Could Be Used Against Him, but Error Did Not Prejudice Client

Davis v. Greiner, Docket No. 04-4087-pr (2d Cir. Oct. 11, 2005) (Calabresi, Cabranes, Pooler): The Circuit affirms the district court's denial of Davis's § 2254 petition, based on a Sixth Amendment IAC claim that Davis's attorney failed to warn him that statements he made during proffer sessions with prosecutors could be used against him at trial if the plea deal collapsed. Although the Court agreed with Davis that his attorney's conduct fell below professional norms, it upheld (with some reservations) the district court's largely factual finding that Strickland's prejudice prong was not satisfied because Davis would have participated in the proffer sessions even if his lawyer had told him that his statements could eventually be used against him.

The essential facts are sad and simple. Sixteen-year-old Davis and his half-brother were recruited by their foster sister to attack the sister's ex-boyfriend, who died as a result. All three were arrested and charged with second degree murder, which carries a 25-year to life sentence.

The prosecution approached Davis's lawyer and offered Davis a chance to plead guilty to manslaughter and to be adjudicated as a youthful offender. In exchange, Davis would have to meet with the prosecution and agree to testify against his siblings.

Counsel told Davis the terms of the deal and encouraged him to take it. Counsel did not tell Davis, however, that any statements he made during meetings with prosecutors could be used against him at trial if the plea deal fell through.

Davis followed his attorney's advice. He met with prosecutors on several occasions and divulged his role in the offense. Davis then pled guilty to manslaughter.

By this time, Davis's half-brother had pled guilty. However, his foster sister went to trial. The prosecution put Davis on the stand to testify against her. Davis testified for 45 minutes but then refused to continue. He later explained that he could not continue because he saw his foster sister crying during his testimony.

Davis withdrew from the plea agreement, and the court allowed him to withdraw his guilty plea as well. At his trial for second degree murder and over objection, the prosecution introduced Davis's proffer statements against him. Davis was convicted and sentenced to 25 years to life.

After exhausting his state appeals, Davis filed a § 2254 petition in the E.D.N.Y, raising an IAC claim based on counsel's failure to inform him that statements made during proffers could be used against him at trial. The district court denied the petition, finding that Davis failed to meet either the performance or the prejudice prong of the Strickland test. The Circuit affirms.

The most notable portion of the opinion concerns its disagreement with the district court -- the Circuit's conclusion that counsel's performance fell below professional norms. As the Court saw it, given Davis's age (16), inexperience with the criminal justice system, and obvious attachment to his siblings, counsel should have made sure that his client understood not only the benefits of cooperation, but also its potential pitfalls -- including the consequences that may follow if Davis's effort to cooperate failed. The Court explained:

"Counsel failed to fulfill his professional duty to assist Davis in making an informed decision [about whether to plead or go to trial] because he neglected to apprise Davis of a crucial aspect of the agreement -- that anything Davis said during the proffer session[s] could be used against him if he did not satisfy all of the conditions of the plea offer . . . . We consider this to be a crucial aspect of the plea bargain, in part, because it essentially constituted a waiver of Davis's right against self-incrimination -- an important constitutional protection."

Op. at 14; see also id. at 15 ("By failing to warn Davis of this crucial aspect of the plea offer, Nash deprived Davis of the ability to make a fully informed decision for himself.").

Ultimately, however, the Court upheld the district court's denial of the writ because it could not conclude that the lower court's primarily factual determination that Davis would have participated in the proffer sessions anyway (i.e., even if he had been informed that his statements could later be used against him) was clearly erroneous. The district court conducted an evidentiary hearing at which several participants, including Davis, testified. And while Davis claimed that he would not have met with prosecutors had he been properly advised by counsel, the district court rejected this as "purely 'self-serving, post-conviction testimony.'" Op. at 17. It thus concluded that Davis failed to satisfy the prejudice component of Strickland.

The Circuit admittedly "harbor[ed] some doubts about this factual finding." Op. at 17. However, because "[o]ur doubts . . . are not sufficient to permit us to conclude that the district court's factual determination was clearly erroneous," given the "highly deferential" nature of appellate review over that court's factual findings," the decision below was upheld. Op. at 17-18.

Refusal to Depart for Diminished Capacity Upheld

United States v. Felix Valdez, Docket No. 04-3811-cr (2d Cir. Oct. 5, 2005) (Walker, Cardamone, Parker): There is little of interest in this largely fact-specific opinion, discussing the well-established contours of the diminished capacity departure under U.S.S.G. § 5K2.13. Valdez argues on appeal that the district court (Judge Duffy) "incorrectly applied the Guidelines by using the wrong legal standard when it denied a downward departure for dimished capacity." Op. at 10. After reviewing the record of the sentencing proceeding, the Circuit disagrees and concludes that Judge Duffy, despite some questionable grumblings to the contrary, understood the nature of his departure authority under § 5K2.13.

The Court remands for a Crosby proceeding, however, since the sentencing occurred before Booker. (At which proceeding, one assumes, Valdez will simply convert his unsuccessful pitch for a § 5K2.13 departure into an equally unsuccessful argument for a below-the-Guidelines sentence pursuant to Booker and the Section 3553(a) factors. But one can always hope; the good Judge may enjoy a fine breakfast that morning and deliver rare leniency from the bench that afternoon).

The only legal issue of note is the Court's conclusion that "a district court is not required to accept evidence concerning a defendant's mental and emotional states offered by a defendant's own expert, but rather may rely on its own assessment of defendant's mental state based on its own assessment of the defendant's mental state based upon its observations, even when they conflict with those of the expert." Op. at 15. Judge Duffy thus did not err as a matter of law when he concluded, despite a psychiatrist's report & testimony that Valdez had an IQ of 55 and a host of other mental ailments, that Valdez did not suffer from a "significantly reduced mental capacity" within the meaning of § 5K2.13. The judge's factual finding on this point was also not clearly erroneous, the Circuit concluded, supported as it was by Judge Duffy's observations of Valdez's behavior in court as well as by the nature of the offense of conviction (a relatively sophisticated ruse ripping off the phone company).

Rehearing Denied in Candyman Case

United States v. Martin, Docket No. 04-1600-cr (L) (Petition for Rehearing Denied, Oct. 3, 2005) (Walker & Wesley) (Pooler, dissenting): In a published decision, Chief Judge Walker sticks to his guns and denies the defendant's petition for rehearing in this controversial case involving a Fourth Amendment challenge to a search warrant issued in connection with the infamous "Candyman" investigation. (Click here for the original opinion by the Chief, and click here for our criticism of it). Judge Pooler again dissents, as she did originally. Given this continuing disagreement, and given in addition the directly contrary views of the panel in United States v. Coreas (click here for our over-the-top praise of Judge Rakoff's critique of the Martin majority opinion), we suggest once more that en banc rehearing is appropriate.

We add only one additional point in this post, concerning the majority's continuing insistance that, somehow, the "welcome message" to the "girls12-16" E-group / chatroom confirmed that the "primary purpose" of the group was "to facilitate the generation, inventory, and exchange of child pornography." Op. at 6. Because the majority admits that its peculiar reading of the welcome message constitutes "an integral component of our probable cause determination," and because of our (and Judge Pooler's) continuing disagreement with the majority's assessment that the welcome message "unabashedly announced that the group's essential purpose was to trade child pornography," id., we will let the reader decide. Here is the entirety of the E-group's "welcome message" (Warning: Not for the faint-of-spelling, those sensitive to poor writing and grammar, or anyone offended by very slimy- / sleazy-talk):

"Hi all, This group is for all those ho appreciate the young female in here finest form. Watching her develop and grow is like poetry in motioon, to an age where she takes an interest in the joys and pleasures of sex. There is probably nothing more stimulating than watching a young teen girl discover the pleasures of the orgasm. The joys of feeling like she is actually coming into womanhood. It's an age where they have no preconditions about anything, just pure opennes. What a joy to be a part of that wonderful experience and to watch the development of this perfect form. This is the place to be if you love 11 to 16 yr olds. You can share experiences with others, share your views and opinions quite freely without censorship (Ed.: well, maybe not) . You can share all kinds of other information as well regarding - your current model: if you are a photographer. Where the best place to meet gitls is. The difficulties you experience in your quest. The best way to chat up. Good places to pick girls up. Girls you would like to share with others. The choice is all yours. Welcome home! Post videos and photographs . . . and how about your true life experiences with them so that other viewers can paint a mental picture andin some way share the experience with you. You could connect with others from the same country as you and get together sociall if you wish. The choice is all yours. How about a model resource for photographers? It's all up to you and is only limited by your own imagination. Membership is open to anyone, but you will need to post something. Mybe a little bit about yourself / what your interests are (specifically), your age, location . . . and a pic or vid would be good to. By doig this other members (or potential members) with the same interest may then contact you if you wish them to."

Op. at 3-4 fn.1. As noted, the majority reads this passage as "unabashedly announc[ing] that the group's essential purpose was to trade child pornography," Op. at 6, and upholds the search of Martin's home and computer based principally on this reading.

We will let the reader judge for herself, but we simply do not read the same words as conveying the same "primary purpose" as the majority does. We agree with Judge Pooler's reading, as well as the other points she makes in the following passage from the dissent:

"It is far from clear, based on either the welcome message or other aspects of the group, that the "primary purpose" of girls12-16 was to trade illegal visual depictions. Defining an organization's "primary purpose" is difficult given that any given member may understand that purpose differently, and is particularly difficult in this case because of the unstructured nature of E-groups. The welcome message of girls12-16 actually emphasizes many of the legal functions of the group. It suggests, among other things, that the group be used to "share experiences with others, share your views and opinions quite freely without censorship," "connect with others ... and get together sociall [sic]." While it also suggests posting pictures or video, there is no way to know whether this was intended to include child pornography, or simply child erotica, which while distasteful, is not illegal. In fact, child erotica constituted almost eighty five percent of the pictures emailed to Agent Binney while he was a member of the group, making it far more prevalent on the site than illegal child pornography. Berglas Aff. at 24.*7 The mixed uses described by the welcome message are confirmed by the fact that a number of legal and constitutionally protected activities could and did take place within the E-group. The group supported surveys, chatting, and textual postings. Berglas Aff. at 19. As discussed above, many of the pictures posted on the site were child erotica, not child pornography. Since child pornography was contained in less than eight percent of the emails sent to members of girls12-16, exchanging child pornography can hardly be considered the primary purpose of the group. The majority argues that the text based emails, which made up the majority of the emails, were merely a means to alert users that new pictures had been posted, majority op. at 8-9, but, even considering only the pictures that were emailed to users, the vast majority were legal child erotica, not illegal child pornography. Berglas Aff. at 24. It is therefore stretching the facts to conclude that the primary purpose of the group was to exchange illegal visual depictions. Despite this, the majority fails to even acknowledge the legal uses of girls12-16 and the very narrow nature of the crime at issue here."

Op. at 16-17 (emphases added). Kudos again to Judge Pooler for sticking to her guns and sticking up for the Fourth Amendment even when it means being on the side of a very distasteful group of people.

Crawford Error Found Not Harmless!

United States v. Rodriguez et al., Docket No. 03-1639 (2d Cir. Oct. 3, 2005) (Calabresi, Pooler, Parker): How does that line go -- "Oh what a tangled web we weave, when we first practice to deceive"? Here, the defendants' "practice to deceive" -- a rather inspired scheme to rip off a drug dealer (who turned out to be an actual, undercover DEA agent posing as a drug dealer) by pretending to be DEA agents themselves -- led not only to a tangled web, but also to a federal indictment for conspiracy to commit a Hobbs Act robbery. The defense at trial was that although the defendants conspired to take drugs from the (fake) drug dealer by trickery (i.e., the ruse of being DEA agents "confiscating" the dealer's drugs), they did not conspire to take the drugs by force (an essential element of the Hobbs Act robbery charge).

All 4 defendants were convicted at trial, and 3 complained on appeal that the trial court's admission of a post-arrest statement by the 4th defendant -- the sole piece of direct evidence indicating that the conspirators may have intended to use force, rather than mere trickery, to obtain their goal -- violated their Confrontation Clause rights in light of Crawford. The Government conceded the Crawford error, but argued that the error was harmless. The Circuit disagreed, finding that the error was not harmless as to all 3, and ordering new trials for 2 (the other defendant did even better -- the Court ruled that without considering the Crawford-barred hearsay, the evidence was insufficient to sustain the conviction, and thus dismissed the charge against this defendant).

The opinion is well written but breaks no new legal ground. Those interested in harmless error analysis as applied to a Crawford error in particular may find it useful. The opinion also cleanly illustrates the difference between harmless error analysis and sufficiency-of-the-evidence analysis, as it concludes with respect to 2 defendants that although the Crawford error was not harmless (thus warranting a new trial), the evidence apart from the improperly admitted hearsay statement was sufficient to sustain their convictions. In any event, it is always refreshing to see the Court actually impose a remedy for a Crawford violation.

Condition of Supervised Release Prohibiting Unauthorized Contact between Defendant and His Son Vacated for Lack of Factual Bases

United States v. Duane Arthur Myers, Docket No. 04-3498-cr (2d Cir. September 27, 2005) (Sotomayor, Raggi, Hall): This is yet another decision in a long line of cases evaluating the propriety of an intrusive condition of supervised release imposed by a district court on a kiddie porn offender. Readers should consult the opinion themselves to determine whether our evaluation is correct: What a terribly convoluted non-solution to a relatively simple problem!

Here, the district court imposed a 78-month sentence and a number of special conditions of supervised release prohibiting the defendant -- convicted of receiving sexually explicit photos from an underaged girl in Colorado -- from unsupervised contact with underaged children. Myers did not challenge these conditions. The court also imposed a special condition prohibiting Myers from having any contact with his 5-year-old son without the prior approval of the Probation Officer. The court clearly did so because of (1) the nature of the offense of conviction and (2) the defendant's prior misdemeanor conviction for fondling the 8-year-old niece of a former girlfriend. However, there was no evidence whatsoever that the defendant was interested in underaged males, or that he posed a threat of any kind to his own five-year-old son. Myers challenged solely this condition, arguing that nothing justified a restriction on his right to see his own child.

The law governing special conditions of supervised release is clear. Such conditions will be upheld only if they are (1) reasonably related to the nature of the offense or the offender, and to the goals of sentencing, and (2) impose no greater deprivation of liberty than is reasonably necessary to achieve those ends. 18 U.S.C. § 3583(d). As we see it, neither prong is satisfied here. Nothing supports the belief that Myers posed a threat to his own son, and preventing him from seeing the child obviously infringes upon his liberty interest in having a relationship with his son.

Unfortunately, the Court did not see things so clearly. Rather, it concludes that remand for further fact-finding is required -- on both prongs of the § 3583(d) analysis, no less. First, the Court concludes somehow that the record is unclear as to "the goals of the challenged condition." As the Court sees it, while "[t]here is reason to believe the court designed the condition to protect Myers's child," there is "also reason to believe the condition was intended to protect other children with whom Myers might come into contact during visits." Op. at 14. While the latter "is clearly related to a legitimate sentencing goal," id., the former is not on the existing record. As the Court admits, "The government offered no evidence to show that Myers's child, a male, was in any danger from his father. The evidence in the record does not show . . . how the condition will deter misconduct toward that child if that is indeed its goal." Op. at 15. However, since it isn't clear from the record which purpose the condition sought to fulfill, remand for additional clarification was required.

Second, the Court concludes that it could not determine on the basis of the existing record whether Myers in fact has a liberty interest in seeing his own son, since the child is in foster care and thus a ward of the state at the present time (due both to Myers's conviction and the mother's neglect). While Myers asserts that he has a Due Process right to see his son, the Court wasn't so sure of this in light of the facts and the relevant state law. After broadly surveying the law on the extent of parental visitation rights over children born out of wedlock and in foster care, the Court concluded that the uncertainty in the record concerning Myers's current rights vis-a-vis his son -- pending resolution by the New York family court -- also requires a remand for further fact-finding. Op. at 18-19.

While we disagree with both of the Court's conclusions, we wholeheartedly agree with the sentiment buried in the final footnote of the opinion:

"On remand, the parties may wish to address how a special condition relating to Myers's contact with his own child may affect or otherwise interrelate with any state proceedings or orders relating to Myers's custodial or visitation rights. Because 'domestic relations law is almost exclusively the province of the states,' Brissett v. Ashcroft, 363 F.3d 130, 133 (2d Cir. 2004), a federal court properly proceeds cautiously in concluding that the responsible supervision of a criminal defendant requires conditions with respect to a parent's access to a child that are different from or in addition to those ordered by a state court."

Op. at 20. District judges should take this advice to heart. Meddling in affairs and relationships governed by state law, in an area in which federal courts possess neither experience nor expertise, almost always leads to clumsy and heavy-handed solutions.

Blakely / Booker Challenge to Safety Valve Rejected on Narrow Ground

United States v. Hector B. Ramirez, Docket No. 03-1280 (2d Cir. September 27, 2005) (Sack, Katzman, Parker): This case rejects a Sixth Amendment, Blakely/Booker-based challenge to the statutory safety valve provision, 18 U.S.C. § 3553(f) (permitting a court to impose a sentence without regard to otherwise applicable statutory minimum if defendant meets a number of conditions), on a narrow ground involving the Almendarez-Torres exception to the Apprendi rule. It thus leaves open the possibility of a future Sixth Amendment challenge to § 3553(f) based on grounds apart from "the fact of a prior conviction," for instance the denial of safety-valve eligibility based on a determination that the defendant qualified as an organizer or leader under the Guidelines. See id. § 3553(f)(4). The decision also does not discuss the implication of Booker on the application of Sections 2D1.1(b)(7) and 5C1.2 of the Guidelines, which authorize a district court to decrease the offense level by 2 if the same safety valve criteria listed in § 3553(f) are satisfied.

The essential facts are simple. Ramirez pled guilty to conspiring to distribute 5 kilograms or more of cocaine, thus triggering a 10-year minimum sentence under 21 U.S.C. § 841(b)(1)(A). He presumably allocuted to the (b)(1)(A) quantity, since the 10-year minimum would not otherwise not be in play in light of the Court's recent decision in Gonzalez). The PSR determined that Ramirez had 2 criminal history points under Chapter 4 of the Guidelines, and he did not disagree. Under § 3553(f), a defendant is eligible for the safety valve only if s/he, among other things, "does not have more than 1 criminal history point, as determined under the sentencing guidelines." Id. § 3553(f)(1). Ramirez therefore was not eligible for safety valve relief and was sentenced to 10 years.

On appeal, Ramirez argued that in light of Booker, the district court should have treated either the determination (via Chapter 4 of the Guidelines) that he had 2 criminal history point, or § 3553(f) itself, or both, as advisory. The Circuit rejected these arguments.

First, the Court (citing Crosby) concluded that even after Booker, a sentencing court is required to compute the proper Guidelines sentence, including the number of criminal history points accrued by the defendant. In making these "internal" Guidelines determinations, a court must abide by the dictates of the Guidelines, even if, at the end of the process, the Guidelines range is only advisory. Thus, the sentencing court could not simply ignore as "advisory" the Guidelines' determination that Ramirez had 2 criminal history points. Op. at 5-6.

Second, the Court narrowly concluded that nothing in Booker requires treating § 3553(f) itself as advisory when, as here, the element rendering the defendant ineligible for safety-valve relief concerns his prior convictions. Since the denial of safety-valve relief in this case rested solely on "the fact of [Ramirez's] prior convictions," and since Almendarez-Torres is still good law, no Sixth Amendment concern is implicated. As the Court explained,

"No portion of the defendant's punishment depends on facts, other than facts of prior convictions, that have not been authorized by a plea of guilty or a jury verdict. There is therefore no constitutional bar to a legislative instruction to a judge to sentence the defendant to such a mandatory minimum where, as here, the defendant is ineligible for safety valve relief based on the court's finding that he had more than one criminal history point."

Op. at 8. Emphasizing its narrow basis, the opinion concludes by specifically cautioning that "[w]e leave for another day whether the denial of safety valve relief based on judge-found facts as to any of the other section 3553(f) grounds might ever violate the Sixth Amendment." Op. at 9.

A sliver of hope thus remains, since the Court could have ruled as a general matter that the safety valve implicates no Sixth Amendment concerns simply because no judge-found fact increases the defendant's sentence under this provision. See, e.g., United States v. Payton, 405 F.3d 1168 (10th Cir. 2005) ("Nothing in Booker's holding or reasoning suggests that judicial fact-finding to determine whether a lower sentence than the mandatory minimum is warranted implicates a defendant's Sixth Amendment rights.") (emphasis in original). Given the narrowness of Ramirez, however, a Sixth Amendment challenge to a court's determination of safety-valve ineligibility based on a finding that, for instance, the defendant qualified as a leader or organizer under the Guidelines remains open. (For a sophisticated argument attacking the safety valve on Blakely grounds, see the article by Jon Sands and Jane McClellan in the Federal Sentencing Reporter).

The decision also does not address the application of the Guidelines safety valve provision, found in § 5C1.2. Under § 2D1.1(b)(7), a defendant who satisfies the § 5C1.2 criteria -- identical to the § 3553(f) statutory criteria -- is entitled to a 2-level reduction to his or her offense level, regardless of whether a statutory minimum sentence is at issue. For instance, if Ramirez had not pled to to the (b)(1)(A) offense and was not subject to any statutory minimums, he could still argue, even after this decision, that the sentencing court (1) should have treated the Guidelines' determination that he had 2 criminal history points as merely advisory in light of Booker, and thus (2) could have awarded him the 2-level reduction under §§ 2D1.1(b)(7) & 5C1.2 even though he technically had more than 1 criminal history point.

A Good Lesson on the Limits of the "Protective Sweep" Exception to the Warrant Requirement

United States v. Edward Gandia, Docket No. 04-6477-cr (2d cir. Sep. 19, 2005) (Straub, Sack, and Kravitz, D.J.): Yet another fine opinion by Judge Sack, this time reversing the district court's order denying Mr. Gandia's motion to suppress evidence seized as the result of a "protective sweep" of the defendant's apartment. Although no new legal ground is broken, the opinion serves as a reminder to all that the "protective sweep" exception to the warrant requirement, recognized in Maryland v. Buie, 494 U.S. 325 (1990), does not automatically allow the police to ramble through a suspect's home to look for 3rd parties whenever the police are present in the home; rather, such sweeps are permitted only where police have "a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene." Id. at 336. The opinion also contains some good dicta on an open issue in this Circuit, one on which the other Circuits have split: Whether a protective sweep is permitted only when the defendant has been arrested in his home, or whether such a search is allowed even when the police are present in the defendant's home solely by his consent.

The essential facts are thus. Three officers arrived at an apartment building in response to a complaint that there was a dispute between a tenant and the superintendent, and that one of these men "might be wielding a gun." Op. at 4. Gandia was the tenant and fit the description of the person described as possibly having a gun. Gandia and the super were both in front of the building when the police arrived.

Gandia denied having a gun but was frisked anyway. No gun was found. Gandia also told the police that he lived by himself in an apartment in the building.

The officers then asked Gandia if they could speak with him in his apartment, rather than outside in the rain. Gandia agreed and let the officers into his kitchen, which was right inside the door. While Gandia spoke with two of the officers in the kitchen, the third officers -- apparently without Gandia's knowledge or notice -- ambled into the adjacent living room and found, allegedly in plain view, a bullet. He then went into the adjoining bedroom and saw a poster depicting different kinds of bullets.

Based primarily on the bullet and the poster, the police obtained a search warrant for Gandia's apartment. A gun and additional ammo were found, and he was prosecuted under § 922(g), the felon-in-possession statute.

Gandia moved to suppress the evidence found through the search warrant, contending that the warrant was invalid because it was based upon evidence obtained through an unlawful search. Specifically, he argued both that (1) Buie did not authorize a protective sweep in this case because the police were in Gandia's home by his consent, and not to arrest him; and (2) even if Buie applied to this case, the sweep was unauthorized because the officers had no reason to believe that the apartment harbored a 3rd party posing a danger to them. The district court denied the motion to suppress, and Gandia was convicted after a stipulated bench trial.

The Circuit reversed on ground (2), thus declining to reach ground (1). [NB: This is the same maneuver used by the Court in United States v. Moran Vargas, 376 F.3d 112 (2d Cir. 2004), a great win by Michael Weil of this Office]. Even assuming that a protective sweep is permissible outside the arrest warrant context, the Court emphasized that Buie does not automatically allow the police to look through other parts of the defendant's home. Rather, the protective sweep, justified solely by the potential presence of "unseen third parties in the house" who may pose a danger to the police, is permissible only when "supported by articulable facts that would cause a reasonable officer to believe the area [sweeped] might harbor other people who might pose a danger to the officers." Op. at 17. As the Supreme Court cautioned in Buie, 494 U.S. at 336: "The type of search we authorize today . . . is decidedly not 'automatic,' but may be conducted only when justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene." Thus, "[o]fficers must point to facts which give rise to an individualized suspicion and cannot rely solely on generalizations that suspects are usually accompanied by dangerous third parties." Op. at 18.

Here, no facts justified such a suspicion. As the Court explained, although the facts may "support a reasonable inference that Gandia was hiding a gun in the apartment, we do not see how they support the inference that there was a person hiding in the apartment who might use it." Op. at 18. And "any concern that Gandia himself might be dangerous was fully and permissibly addressed by frisking Gandia, and by a search within his 'grab area.' . . . The search of an adjoining room to which Gandia had no ready access was unnecessary for this purpose." Id.

Finally, the Court adds some good dicta regarding the issue raised but not resolved -- i.e., whether a protective sweep is authorized even when the police are not present in the defendant's home pursuant to an arrest warrant but through his consent -- suggesting its disapproval of this "expan[sion]" of Buie. Op. at 14. First, the Court points out that Buie itself specifically defined a "protective sweep" as "a quick and limited search of premises, incident to an arrest,"494 U.S. at 327 (emphasis added), and that Buie occurred in the "context of a physical entry to execute an arrest warrant." Op. at 14. Second, the Court noted a potential problem with allowing the police to conduct such sweeps even when they are present in the home on the defendant's consent: "[W]hen police have gained access to a suspect's home through his or her consent, there is a concern that generously construing Buie will enable and encourage officers to obtain that consent as a pretext for conducting a warrantless search of the home." Op. at 15. Indeed, the Court used the facts of this case to illustrate the likelihood of pretext, given that the police had no reason to enter Gandia's home in the first place. This refreshing recognition of real-world police practices offers hope that, in the next case that comes down the pike, the Court will limit Buie to the context of arrest warrants.

Court Must Give Reasons for Imposing Sentence Outside Advisory Chapter 7 Range

United States v. Myrisa V. Lewis, Docket No. 04-4105-cr (2d Cir. Sep. 15, 2005) (Feinberg, Sack, Katzmann): This is a well-reasoned and interesting opinion by Judge Sack -- and another good win by Ed Zas of this Office (see here for Ed's other win this month). The decision holds that a district court must state its reasons for imposing a sentence that is outside the advisory Chapter 7 range for revocation of supervised release or probation, a holding that obviously has broader implications given that the governing statute applies to all sentences, whether imposed upon revocation or upon conviction. The decision also contains an interesting discussion of the still-unsettled issue of whether standard plain error analysis, or a more "relaxed" form of plain error review, is applicable to errors occurring at sentencing.

The essential facts are simple. While on supervised release, Ms. Lewis tested positive for drug use on numerous occasions, missed several appointments with her probation officer, and flunked out of drug treatment. She admitted to drug use as a violation of supervised release. The applicable Chapter 7 range was 3 to 9 months. Probation recommended a sentence within the range. The Government did not request a particular sentence.

The court then imposed a sentence of 24 months. It gave no reason to justify the sentence at sentencing. Nor did it provide a written statement of reasons for the sentence on the judgment of conviction. The defendant did not object to the court's failure to state reasons.

On appeal, Ms. Lewis argued that the court violated both 18 U.S.C. § 3553(c), requiring a court to "state in open court the reasons for its imposition of the particular sentence," and § 3553(c)(2), requiring a court, when imposing a sentence outside the applicable sentencing range, to state "the specific reasons for the imposition of a sentence different from that described, which reasons must also be stated with specificity in the written order of judgment and commitment." The Court agreed with both arguments, and vacated the sentence and remanded for further proceedings.

As the Court points out, Section 3553(c) was left intact by Booker's excision of § 3553(b)(1). And while a court need not explain its reasons for imposing a particular sentence with great deal of specificity, "[s]tating no reasons at all 'plainly' falls short of the requirement to state reasons that is set forth in § 3553(c), no matter what the level of 'specificity' may be." Op. at 12.

The Court also rejected the Government's argument that it should affirm nonetheless simply because the 24-month sentence is reasonable. Relying on the concept of "procedural unreasonableness" set forth in cases such as Crosby and Selioutsky (that a sentence, even if reasonable as to length, may be unreasonable "because of the unlawful method by which it was selected," Crosby, 397 F.3d at 115), the Court concluded that "a sentence imposed without complying with the requirements of the still-applicable provision of 18 U.S.C. § 3553(c)(2) constitutes error, even assuming that its length is reasonable." Op. at 14.

The opinion also contains an interesting discussion of the plain error standard, given that the defense counsel failed to raise an objection based on 3553(c) or (c)(2) at sentencing. It notes, first, that the form of plain-error review applicable to purely sentencing errors is still unsettled in the Circuit. While some cases have applied a straightforward version of the 4-part Cotton plain error test to such errors, others have applied "a less stringent standard" when reviewing unpreserved sentencing errors, e.g., United States v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002) (noting that "in the sentencing context there are circumstances that permit us to relax the otherwise rigorous standards of plain error review to correct sentencing errors"). While this opinion does not resolve the issue, finding that plain error was shown even under the more rigorous version, it strongly suggests that Sofsky's "relaxed form" of plain error analysis is appropriate for errors occurring solely at sentencing. See Op. at 18.

And in conducting the standard form of plain error review, the Court interestingly concludes that an error of the sort at issue here -- i.e., the court's failure to explain the reasons for its sentence -- is akin to a "structural" error defying standard "harmlessness" or "prejudice" analysis. Op. at 17-18. Indeed, the Court analogizes the "right" awarded by 3553(c) to the defendant's right to the public's presence at sentencing -- which is of course a structural error for which prejudice need not be shown, see Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984). Op. at 15, 17-18. Thus, although the Court acknowledges that "it seems unlikely that a court's failure to state its reasons for imposing a particular sentence would . . . 'affect' the sentence imposed," it concludes that the defendant's "substantial rights" were affected by the 3553(c) error and vacated the sentence.

The Nullification Power Curtailed Again: Jury Can Be Told that It Must Convict if Government Proved Guilt beyond a Reasonable Doubt

United States v. Sean Carr, Docket No. 04-0546-cr (2d Cir. Sep. 14, 2005) (Feinberg, Sack, and Katzmann) (Op. by Sack): Despite its glorious role in our early history, the jury's power of nullification has long been viewed with great disfavor by the Circuit. In this decisions, the Court clarifies that a district court does not error when it affirmatively tells the jury that it has "the duty to convict" if it finds that the Government has proved the defendant's guilt beyond a reasonable doubt. This outcome should not come as a great surprise, given that a trial court is not required to inform a jury of its power to nullify, e.g., United States v. Edwards, 101 F.3d 17, 19 (2d Cir. 1996), and given the Court's general view of nullification as a lawless and regrettable exercise of naked power, e.g., United States v. Thomas, 116 F.3d 606, 608 (2d Cir. 1997). And to anyone who has practiced in the local district courts, the "duty to convict" language is familiar fare.

The decision also contains an interesting discussion of the jury unanimity requirement for finding predicate acts under the RICO statute. Although the law is clear that (1) the defendant must commit at least two predicate acts to satisfy the "pattern of racketeering activity" requirement under the RICO statute, and (2) the jury must agree unanimously on each predicate act (and must agree on two such acts) to convict the defendant, the law is apparently quite unclear as to what sort of unanimity is required for acquittal (as opposed to a hung jury). Specifically, the question arose during the jury's deliberation as to whether, in order to acquit the defendant, the jury must unanimously agree, on each predicate act, that the Government had not proven its existence beyond a reasonable doubt, or whether it is sufficient for acquittal that the jury unanimously agreed, as a general matter, that the Government had not proven the existence of two predicates, even if the jurors disagree as to which predicates had been proven and which had not.

The district court told the jurors that they had to examine each of the predicate acts individually and separately, and decide unanimously whether the Government had proven or not proven its existence beyond a reasonable doubt. And to return a "not guilty" verdict, they had to unanimously agree that two of the three alleged acts had not been proven. If the jury unanimously agreed only as a general matter that the Government had not proved the existence of 2 of the 3 acts, but were not unanimous as to which were proven and which were not, then the jury should merely declare itself at an impasse.

The Circuit expressed grave doubt about this instruction: "We have our doubts . . . as to whether, had the jury agreed unanimously that the government had failed to prove two of the predicate acts beyond a reasonable doubt, without agreeing specifically as to which two had been 'not proved,' it should necessarily have reported itself as being at an impasse, rather than returning a verdict of acquittal." Op. at 20. As it explained,

"The fact that the jury 'must agree unanimously and separately' as to every element of an offense, . . . in this case two predicate acts, in order to convict may or may not imply that the jury 'must agree unanimously and separately' that the government had not proven its case beyond a reasonable doubt as to two specific predicate acts in order to acquit."

Op. at 21 (emphases in original).

The Court ultimately did not resolve this question, however, because under the particular circumstances of the case, any "error plainly had no effect on the verdict." Op. at 21. This was so because the questionable charge was delivered in response to a jury's question, toward the end of deliberations, as to what it should do given that it has unanimously agreed on two predicates but had not yet done so on the third. Thirty minutes after the charge was given, the jury returned a guilty verdict that included a specific finding that each of the 3 RICO predicates had been proved. Under these circumstances, the Court concluded, any error in the Court's instructions on the type of unanimity required for acquittal could not possibly have prejudiced Carr.

Circuit Vacates Judgment of Acquittal in Structuring Case

United States v. William MacPherson, Docket No. 04-4825-cr (2d Cir. September 13, 2005) (Op. by Raggi): In this decision, the Circuit vacates a judgment of acquittal entered by Judge Johnson in the E.D.N.Y. following a jury verdict convicting MacPherson -- an NYPD officer -- of structuring currency transactions to avoid reporting requirements, in violation of 31 U.S.C. § 5324(a)(3). The Circuit found that there was enough circumstantial evidence to sustain the jury's finding that MacPherson had the requisite mens rea when he made 32 separate cash deposits, none exceeding the $10,000 trigger for a CTR filing and totalling about $250,000 over a four-month period, ruling that "a pattern of structured transactions, . . . may, by itself, permit a rational jury to infer that a defendant had knowledge of and the intent to evade currency reporting requirements." Op. at 25.

Given the facts as recited by the opinion and the exceedingly low standard for sustaining a jury verdict, it is difficult to quarrel with the Court's conclusion. The case is nonetheless peculiar in that (1) the money in question did not come from illegal activity, and (2) the defendant had no apparent motive for wishing to avoid CTR filings. These circumstances of course do not immunize the defendant from prosecution -- the governing statute does not require that the relevant funds derive from criminal activity, and motive is of course not an element of the crime. Nonetheless, MacPherson seems an atypical target for a structuring prosecution.

Circuit Continues Down the Wrong Road: New York YO Adjudication Qualifies as "Adult Conviction" under Career Offender Guideline

United States v. Brian Jones, Docket No. 04-2506-cr (2d Cir. July 19, 2005): This is a decision from July that we missed before taking our summer hiatus. Guest blogger Darrell Fields of the Appeals Unit of the Federal Defenders in NYC provides the following analysis of this important decision.

In United States v. Jones, 415 F.3d 256 (2d Cir July 19, 2005) , the Circuit held that a New York State youthful offender adjudication ("YO") qualifies as an "adult conviction" under the Career Offender Guideline (U.S.S.G. § 4B1.1), even though (1) Guidelines commentary specifically provides that a conviction sustained before age 18 will be deemed an "adult conviction" only "if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted," id. § 4B1.2, comment. (n.1), and (2) New York State clearly does not so classify a YO adjudication. The unfortunate outcome in Jones was largely preordained, resting as it does on a series of prior decisions in the Circuit permitting the use of New York YO adjudications as prior convictions for an assortment of Guideline calculations. See United States v. Cuello, 357 F.3d 162 (2d Cir. 2004) (YO adjudication can be used for calculating base offense level under the firearms Guideline, § 2K2.1); United States v. Reinoso, 350 F.3d 51 (2d Cir. 2003) (same for calculating base offense level under the illegal reentry Guideline, § 2L1.2); and United States v. Driskell, 277 F.3d 150 (2d Cir. 2002) (same for calculating the criminal history category under § 4A1.1); see also United States v. Mathews, 205 F.3d 544 (2d Cir. 2000) (a YO adjudication is not an expunged conviction).

As noted, the problem with Jones is that the Career Offender Guideline provides explicitly that the relevant question is not how federal courts regard a New York YO, but whether New York itself "classifie[s]" a YO adjudication as an adult conviction. See U.S.S.G. § 4B1.2, comment. (n.1) (conviction incurred before age 18 constitutes an adult conviction only "if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted") (emphasis added). Thus, the plain language of the Guidelines requires that a YO be "classified as an adult conviction under the laws of [New York]" in order for it to be used as a predicate conviction for determining Career Offender status.

Jones, however, relied solely on federal court cases, principally the four Second Circuit cited above, in reaching its conclusion. Tellingly, Jones cites not a single New York state case; it rests instead on a sort of federal common law view of whether a New York YO should be considered an adult conviction by federal courts.

Rather than defer to how New York classifies YO adjudications, the Circuit used its own definition of adult conviction. It stated that, pursuant to its decision in Cuello, it would follow a "pragmatic approach" under which "[']classification as an adult conviction under the laws of New York['] does not mean we look to whether New York calls it a conviction, but rather, that we look to the substance of the proceedings." 415 F.3d at 263. It thus considers "the substantive consequence of the criminal proceeding underlying the youthful offender adjudication" to determine whether, in its view, the defendant was prosecuted and sentenced as an adult. Id. at 264. The Circuit found that Jones’s YO convictions "should be deemed ‘adult convictions’" because he pled guilty "in an adult forum" to both offenses and "received and served a sentence of over one year in an adult prison for each offense." Id. at 264.

Looking to New York law, as required by the Guidelines commentary, would have yielded a different result. Under New York law, once a teenager is adjudicated a YO, the teen is no longer convicted of a crime. The state’s highest court has held that a youthful offender adjudication "has the practical and legal effect of a reversal[.]" People v. Floyd J., 61 N.Y.2d 895, 897, 474 N.Y.S.2d 476, 477 (N.Y. 1984). And New York’s legislature has specified that a "youthful offender adjudication is not a judgment of conviction for a crime or any other offense[.]" N.Y. Crim. Proc. Law § 720.35(1). In addition, New York courts have ruled that

- a youthful offender adjudication does not qualify as a predicate conviction under New York’s recidivist sentencing scheme. People v. Kuey, 83 N.Y.2d 278, 285, 609 N.Y.S.2d 568, 571 (1994) ("Under New York law, the court is prohibited from using a prior youthful offender conviction as a predicate");

- "[s]ince a youthful offender adjudication is not a conviction for a crime, it may not be shown to affect the witness’s credibility." People v. Cook, 37 N.Y.2d 591, 595, 376 N.Y.S.2d 110, 113 (1975); and

- a person receiving a youthful offender adjudication is not required to pay New York’s "mandatory surcharge," otherwise assessed upon every conviction of a crime, Floyd J., 474 N.Y.S.2d at 477.

Moreover, a YO does not disqualify a person "so adjudged" from holding "public office or public employment" or from "receiv[ing] any license granted by public authority[.]" N.Y. Crim. Proc. Law § 720.35(1).

Drug Quantity Must Be Alleged in Indictment for Defendant to Be Sentenced to More than 20 Years, even if Defendant Allocutes to Specific Quantity

United States v. Cordoba-Murgas et al., Docket No. 04-3131-cr (L) (2d Cir. Sep. 7, 2005) (Op. by Cabranes): A great decision by the Circuit, and a hard-fought win by Ed Zas of this Office. In this opinion by Judge Cabranes, the Circuit rules that in light of drug quantity's status as an element of the § 841(a) offense, a defendant cannot be sentenced to more than 20 years' imprisonment when the indictment (charging an offense under 21 U.S.C. § 841 et seq.) does not allege a particular quantity, even where the defendant specifically allocuted to distributing a quantity of drugs sufficient to trigger one of the aggravated offenses under § 841(b). Although such an allocution effectively waives the 6th Amendment requirement of submitting the quantity decision to the jury, e.g., United States v. Yu, 285 F.3d 192, 198 (2d Cir. 2002), it does not waive the 5th Amendment grand jury / indictment right. Cordoba's sentence of 262 months, exceeding the 240-month maximum for drug offenses not involving a specific quantity, was thus unlawful.

The decision rests primarily on the rule that "the absence of an indictment constitutes a jurisdictional defect and cannot be waived by a guilty plea," Op. at 7, a principle long established in the Circuit. See United States v. Macklin, 523 F.2d 193, 196 (2d Cir. 1975). Here, although there was an indictment, "there [was] no valid indictment for the crime for which Corboba was convicted" and sentenced, since it did not allege a specific quantity of drugs. Op. at 9 (emphasis in original). As the Court explains,

"[A] violation of 21 U.S.C. § 841(a) with no specified quantity of drugs constitutes a different crime than 21 U.S.C. § 841(a) with a specified quantity of drugs, and the applicable statutory penalties vary accordingly. By sentencing Cordoba to a term of imprisonment longer than twenty years, the District Court effectively convicted him of a crime for which he had not been indicted. [And] pursuant to Macklin, the guilty plea settling the issue of quantity cannot serve as a waiver."

Op. at 9. The Court thus concludes that "when a defendant is indicted for a violation of 21 U.S.C. § 841 without a specified quantity of drugs, the defendant's allocution to a particular quantity cannot serve to waive the failure to indict him for the separate crime of violation of § 841 with a particular quantity of drugs. Accordingly, the defendant cannot be sentenced to a term of imprisonment greater than the statutory maximum set forth in § 841(b)(1)(C) for violation of § 841(a) without a specified quantity." Op. at 7.

Prison Disciplinary Proceeding, Following a Criminal Conviction for Same Misbehavior, Does Not Violate Double Jeopardy

Andre Porter v. Thomas A. Coughlin, III, et al., Docket No. 03-0273 (2d Cir. August 31, 2005) (Op. by Sotomayor): No new ground is broken in this opinion, which simply re-affirms the Second Circuit's earlier decision in United States v. Hernandez-Fundora, 58 F.3d 802 (2d Cir. 1995), holding that a criminal prosecution and a prison disciplinary proceeding based on the same conduct do not implicate double jeopardy concerns. The prisoner here, Porter, argued that Hernandez-Fundora was no longer good law in light of the Supreme Court's decision in Hudson v. United States, 522 U.S. 93 (1997), which adopted a somewhat different analysis for determining whether a subsequent sanction is to be deemed "criminal" or "civil" for purposes of the Double Jeopardy Clause. The Circuit rejected Porter's argument, finding that even under the Hudson mode of analysis, the sanction imposed for his violation of prison disciplinary rules (3 years in the SHU), based on the same conduct (possessing a knife in prison) underlying a criminal conviction (for which he received a 3 to 6 year sentence, consecutive to whatever sentence he was then serving), was not a "criminal punishment" for double jeopardy purposes.