Rehearing Denied in Challenge to BOP Good-Conduct Time Calculation

Sash v. Zenk, Docket No. 04-6206-pr (2d Cir. Feb. 22, 2006) (denial of petition for rehearing) (Sotomayor, Wesley, Brieant (by desig'n)): The Circuit denies Sash's petition for rehearing in this published opinion. In its earlier opinion, Sash v. Zenk, 428 F.3d 132 (2d Cir. 2005) (click here for this Blog's discussion), the Circuit upheld as "reasonable" the BOP's odd & stingy interpretation of the good-conduct time statute, 18 U.S.C. § 3624(b). This statute states in sum and substance that a "prisoner who is serving a term of imprisonment of more than 1 year . . . may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment." While Sash read the statute to mean that he should receive up to 54 days of credit for each year of the sentence imposed, the BOP read the same to mean that Sash should receive up to "54 days credit . . . for each year served." 28 C.F.R. § 523.20 (emphasis added). The Circuit sided with the BOP and, among other things, refused to apply the rule of lenity to the admittedly ambiguous law because "the regulation at issue here interprets neither the substantive ambit of a criminal prohibition nor the penalty it imposed."

In his rehearing petition, Sash (represented by David Lewis of this Office) argued that the Panel erred in concluding that "the calculation of sentencing credit is not 'criminal' for purposes of the rule of lenity." Op. 3. Among other things, Sash pointed out that "this holding contradicts Supreme Court precedent establishing that such calculations are criminal for purposes of an ex post facto analysis." Id.; see Lynce v. Mathis, 519 U.S. 433, 439 & n.12 (1997).

The Circuit rejects this argument after concluding that what may be considered "criminal" for purposes of ex post facto analysis is broader than what may be considered the same for determining whether the rule of lenity should be applied. "There are good reasons to treat the ex post facto doctrine as more expansive than the rule of lenity," the Court explained, because while "both are concerned with notice and fair warning . . . , the two rules have different purposes." Op. 5. While "[t]he rule of lenity concerns situations in which a legislature fails to give notice of the scope of punishment by leaving a 'grievious ambiguity or uncertainty in the language and structure of the statute' . . . , in which case the rule of lenity tips the scales in favor of the defendant by requiring the court to impose the lesser of two penalties, . . . the ex post facto doctrine concerns situations in which the legislatures give adequate notice, but then affirmatively changes its instructions in a way that disadvantages the defendant." Op. 5-6. In short, while "the rule of lenity deals with notice that is inadequate, [] the ex post facto doctrine deals with notice that turns out to be affirmatively and harmfully misleading." Op. 6.

The "ex post facto doctrine is concerned not just with notice, but with the inherent injustice associated with retroactivity itself." Id. And according to the Court, there is "a greater potential for unfairness when a legislature changes the law pertaining to a criminal offender's sentence than when the legislature merely leaves a question open for future regulation by an administrative agency." Op. 8. This difference, in turn, yields an appropriately broader reading of what is "criminal" for purposes of determining whether the ex post facto prohibition has been violated than for determining whether the rule of lenity applies. Op. 7. As the Court concludes, "Because the inherent injustice associated with retroactivity is not present in the context of the rule of lenity, the rule of lenity is more narrowly focused than the ex post facto doctrine and should be more narrowly applied." Op. 6.

Habeas Granted: State Trial Court Erred in Excluding Defendant's Mother and Brother from Courtroom during Undercover's Testimony

Rodriguez v. Miller, Docket No. 04-6665-pr (2d Cir. Feb. 17, 2006) (Cardamone, McLaughlin, Parker): In this opinion, the Circuit reverses the district court's denial of Rodriguez's § 2254 petition and grants the writ. The Court concluded that the state trial court violated Rodriguez's 6th Amendment right to a public trial when it excluded his mother and brother from the courtroom during the testimony of the state's sole witness -- an undercover cop who claimed to have purchased drugs from Rodriguez in this buy & bust case -- without any specific evidence showing that the relatives posed a danger to the undercover's safety or future effectiveness. Even more: The Court found a 6th Amendment violation even though the trial judge had proposed the alternative of allowing his relatives to remain in the courtroom if they agreed to sit behind a screen that would shield the undercover from their view. Rodriguez rejected this proposal at trial, claiming that the presence of the screen would prejudice him in the eyes of the jury (as it implied his dangerousness).

The essential facts are simple. To support the closure sought by the prosecution, the undercover claimed that he continued to work undercover in the Bushwick area of Brooklyn (where the alleged sale occurred), had several long-term investigations, had several "lost subjects" (i.e., persons from whom he purchased drugs but who have not yet been apprehended), and had been threatened by drug dealers in the past. He claimed that closure of the courtroom was necessary because disclosure of his identity would compromise his safety as well as his future effectiveness as an undercover drug buyer.

The undercover also claimed that he feared the presence of Rodriguez's relatives in the courtroom, since they may retaliate against him or disclose his identity if they saw him working in the neighborhood in the future (the record showed that Rodriguez's mother lived within a few blocks of where the alleged sale occurred, and that his brother lived in a nearby neighborhood). No evidence supported these fears, however. And the undercover admitted that he did not know Rodriguez's relatives and had no particular reason to believe that they would harm him or disclose his identity.

On this record, the Circuit held, the state court acted unreasonably in excluding Rodriguez's family. Principally, the Court pointed to its cases holding that exclusion of the defendant's family is a particularly serious matter that "requires stricter scrutiny than exclusion of the public" and will be upheld only if "the exclusion of that particular relative is necessary to protect the overriding interest at stake." Op. 7 (citing Yung v. Walker, 341 F.3d 104, 111 (2d Cir. 2003)); see also Carson v. Fischer, 421 F.3d 83, 91 (2d Cir. 2005) (same); Guzman v. Scully, 80 F.3d 772, 776 (2d Cir. 1996); Vidal v. Williams, 31 F.3d 67, 69 (2d Cir. 1994). Relying on these cases, the Court held that while the undercover's testimony supported the exclusion of the general public, it was insufficient to justify the exclusion of Rodriguez's family.

As the Court explained, "any alleged threat posed by a family member to an undercover's safety or effectiveness must be established by more than mere speculation. Instead, the trial court must make a particularized inquiry into whether exclusion of the family member was necessary to advance an overriding interest." Op. 13 (emphasis in original). And in this case, "there was no particularized inquiry into whether Rodriguez's family posed any threat to the undercover's safety or effectiveness beyond the conclusory statements of the undercover." Op. 13. "In fact, the trial court made no findings with respect to the mother or brother. . . . And there was no indication that either [family member] was dangerous, knew of [the defendant's] criminal activity, or was familiar with any of his associates." Id. (emphasis in original).

The Court rejected the state's attempt to rely on the fact that Rodriguez's mother and brother lived near the location of the alleged sale, concluding that "[m]ere proximity is not enough to establish a threat to the undercover's safety or efficacy." Op. 14. And the Court quickly dismissed the trial court's alternative proposal of a screen, explaining that "our ruling that any type of closure excluding Rodriguez's family was improper here makes it unnecessary to address 'alternatives to closure' under Waller's third prong." Op. 17.

Normal Programming Will Soon Resume

This Blog now returns after a short vacation. We will catch up with the three or four criminal and habeas cases decided by the Court during our break -- none earth-shattering, on first glance -- in the next several days.

Six Level Enhancement, Based on Number of Fraudulent Documents, Not Clearly Erroneous

United States v. Dmitry Proshin, Docket No. 04-5308-cr (2d Cir. Feb. 16, 2006) (Kearse, Cardamone, Cabranes) (per curiam): Sometimes one reads a decision and wonders, "Why in the world did the Court decide to publish this?" This opinion is a good example. The Circuit upholds a 6-level enhancement under U.S.S.G. § 2L2.1(b)(2), concluding that the district court's factual determination that Proshin's crime (conspiring to produce, and producing, false identification documents) involved between 25 and 99 fraudulent documents was not clearly erroneous.

The opinion is fact-specific and breaks no legal ground whatsoever. The Court simply points out that although no evidence placed Proshin physically at the Brooklyn location where 27 fraudulent documents were found, ample evidence linked Proshin with the co-conspirator who operated out of that location. Op. 7-8.

Everything You Wanted to Know about Curtilage but Were Afraid to Ask

United States v. Titemore, Docket No. 05-1380-cr (2d Cir. Feb. 9, 2006) (Walker, Calabresi, Straub): In an opinion of little use to us city folks (and perhaps of only slightly greater relevance to our rural kin given its highly fact-specific nature), the Court rejects Titemore's effort to suppress evidence (a rifle) seized after a state trooper, standing near "a principal entrance to [Titemore's] home [after approaching it] using a route [through his property] that other visitors could be expected to take," saw it in plain view. After an encyclopedic survey of the law regarding "curtilage" (one that took us back to those dreamy law school days), see Op. 12-21, and a mind-numbing discussion of minutiae regarding the layout of Titemore's house and property, id. 5-9, the Court ruled that regardless of whether this area constitutes "curtilage" under the common law, Titemore had no reasonable expectation of privacy in this area under the familiar 2-part Katz test (that Government intrusions violate the Fourth Amendment only if, inter alia, the place invaded is one in which the defendant has a subjective expectation of privacy, and in which that expectation is "one that society is prepared to recognize as reasonable." 389 U.S. 347, 361 (Harlan, J., concurring)) . In sum, the Court held, "when a police officer enters private property for a legitimate law enforcement purpose and embarks only upon places visitors could be expected to go, observations made from such vantage points are not covered by the Fourth Amendment." Op. 23.

Circuit Affirms Limitation on Testimony by Grand Jurors and Rebuffs Government's Attempt to Remove Judge from 9/11-Related Case

United States v. Osama Awadallah, Docket No. 05-2566-cr (2d Cir. Jan. 26, 2006) (Feinberg, Parker, Cudahy (by desig'n)): A very fine opinion by Judge Parker that (1) upholds Judge Scheindlin's pretrial ruling limiting the testimony of grand jurors the Government proposed to call as witnesses at Awadallah's perjury trial, and (2) rejects the Government's request to remove Judge Scheindlin from the case because of her alleged bias in favor of the defense. Much has already been said about the removal issue (see here and here for example), so this Blog will concentrate on the evidentiary ruling.

The essential facts are simple. Awadallah was arrested shortly after September 11, 2001, on a material witness warrant based on allegations that he knew and had contact with some of the 9/11 hijackers. Eventually, he was called before a grand jury in the SDNY and asked by the prosecutor (1) whether he knew someone named Khalid Al-Mihdhar (one of the hijackers on the plane that crashed into the Pentagon), and (2) whether certain handwriting in an examination booklet was his own. Awadallah denied knowing Khalid, and denied as well that the handwritten passage was by him.

The Government indicted Awadallah for perjury, claiming that he lied in making the two denials. Before trial, it became clear that Awadallah's defense would be that "any incorrect statements he may have made [before the grand jury] . . . were not knowingly made [but were] . . . the result of memory lapse, misunderstanding, exhaustion, confusion, and intimidation." Op. 9-10. Awadallah claimed, for instance, that he was physically abused by prison guards and otherwise mistreated during this time. [What nonsense -- this is America! A scurrilous accusation!]

The Government then told Judge Scheindlin that it wanted to call at trial certain grand jurors who would testify as to their subjective impressions of Awadallah's demeanor and appearance when he made the denials before the grand jury. Such testimony, it asserted, would rebut the defendant's claim that he did now knowingly make false statements. The judge denied the request on Rule 606(b) and Rule 403 grounds, and ruled that the Government could only elicit testimony from the grand jurors regarding "Awadallah's physical condition and the objective conditions surrounding his testimony." Op. 3.

The Government filed an interlocutory appeal challenging the evidentiary ruling, and also requested the Circuit to remand the case to another judge "to preserve the appearance of justice." The Circuit rejected both arguments.

Regarding the evidentiary issue, the Circuit ruled that Judge Scheindlin did not abuse her discretion in limiting the grand jurors' testimony under Rule 403 (and thus did not reach the Rule 606(b) issue). Regarding the probativeness prong of the 403 balancing, the Circuit pointed out that "the Government could [] elicit essentially the same testimony from other categories of witnesses, such as the court reporter, the interpreter, or [the AUSAs] who were present during the Grand Jury." Op. 14. The Circuit also doubted the Government's claim concerning the importance of the grand jurors' testimony, pointing out that "the Government has tried hundreds, if not thousands, of perjury cases without eliciting opinion evidence from a grand juror to prove knowledge." Op. 13 (noting only a single Eleventh Circuit case that mentions such testimony at trial).

And on the prejudice prong of the Rule 403 balancing test, the Circuit agreed with Judge Scheindlin that allowing the grand jurors to testify as to their subjective impressions of Awadallah's demeanor and appearance would result in unfair prejudice. First, a trial juror "would likely unduly identify with, and give unwarranted weight to the testimony of, a grand juror witness." Op. 15. Second, the introduction of "grand juror testimony is likely to confuse the different standards of proof that apply to a trial jury and a grand jury." Id. In sum, the Circuit concluded, Judge Scheindlin "acted well within the broad discretion afforded her when she concluded that permitting testimony by grand jurors regarding whether or not, in their opinion, the defendant's false statements were the product of confusion and/or intimidation potentially causes significant prejudice to the defendant because it could be interpreted as a grand juror giving the petit jurors advice on how to determine the central issue of the case." Op. 16.

The Circuit also rejected the Government's effort to remove Judge Scheindlin from the case. The Government claimed that she "(1) repeatedly acted in a manner that could be viewed as that of an advocate for the defendant, rather than that of an impartial arbiter; and (2) repeated issued rulings that could be viewed as indicating that she has prejudged the most significant issues in the case in favor of the defendant and against the Government." Op. 19. After canvassing the long procedural history of the case, as well as Judge Scheindlin's numerous rulings and decisions, the Circuit rejected both claims and remanded the case back to her for trial.

Error in Precluding Non-Hearsay Testimony as Hearsay Found Harmless

United States v. Song, Docket No. 05-1802-cr (2d Cir. Jan. 27, 2006) (Cabranes, Sack, Amon (by desig'n): The Circuit upholds Song's conviction for transporting illegal aliens in this short opinion. The Court agreed with Song that the district court erred -- badly, badly erred -- when it precluded him from testifying about certain statements made to him by persons "who had allegedly hired [him] to serve as a tour guide after he had responded to a [Korean language] advertisement seeking 'drivers' for unspecified purposes." Song wanted to use these statements to "demonstrate the motivation behind [his] actions," -- i.e., to show that he did not knowingly transport illegal aliens. Since Song was not offering these statements for their truth -- indeed, his defense was that these false statements induced him to believe that he was driving some tourists around -- they should not have been barred as hearsay. (Query: Isn't this something that even a 1-L knows?)

The Circuit found the error harmless, however, because (1) Song's basic defense was otherwise adequately presented to the jury, and (2) "the Government presented overwhelming evidence that Song had acted with 'reckless disregard' of the undocumented or illegal status of his alien passengers." Op. 4.

Eligibility for Safety Valve Unaffected by Booker

United States v. Holguin, Docket No. 04-5277-cr (2d Cir. Jan. 26, 2006) (Winter, Straub, Raggi): In this opinion, the Circuit finally and unsurprisingly slams the door on Booker-based challenges to the district court's determination of a defendant's eligibility for the safety valve under 18 U.S.C. § 3553(f). Here, Holguin argued inter alia that in light of Booker, the fact that the district court determined that he was an organizer or leader within the meaning of U.S.S.G. § 3B1.1 did not disqualify him from safety-valve relief under 18 U.S.C. § 3553(f)(4) because this provision itself "should be deemed advisory after Booker because the Supreme Court struck down the mandatory nature of the Guidelines" in its entirety. Op. 3. The Circuit rejected this argument, concluding that neither Booker nor the Apprendi-Blakely line of cases was implicated because "judicial fact-finding as to whether a defendant was a supervisor or leader (and thus barred from or entitled to safety valve relief) does not permit a higher maximum sentence to be imposed; the only effect of the judicial fact-finding is either to reduce a defendant's sentencing range or to leave the sentencing range alone, not to increase it." Op. 11 (emphases in original).

The only bright note in the opinion is the Government's concession that once a defendant satisfies the safety valve, the district court should treat the Guidelines as advisory in light of Booker. Though this contradicts the plain language of Section 3553(f) (district court "shall impose" a sentence "pursuant to" the Guidelines if defendant qualifies for safety valve), and though Booker itself did not "excise" this provision, the Government conceded that this provision "should be interpreted to mean that a district court [need only] 'consider' the Guidelines in an advisory fashion" once the mandatory minimum is no longer, er, mandatory. Op. 3-4.

The Court did not ultimately reach this issue since Holguin failed to qualify for the safety valve. However, the opinion strongly suggests that the Court agrees with the Government on this issue and that once a defendant satisfies the conditions for safety-valve relief, the district court should consider the Guidelines as only advisory in imposing sentence. Op. 6.

UPDATE: Professor Berman has once again beaten us to the punch in our own backyard (early morning mixed metaphor) -- click here for his discussion of the case (which mentions the opinion's use of an odd neologism -- "a condition of the guilt of the crime" -- for the far simpler term "element").

Bribery Conviction Requires Proof that Recipient Accepted Thing of Value with Intent to Be Influenced by Bribe

United States v. Ford, Docket No. 03-1774 (2d Cir. Jan. 19, 2006) (Winter, Katzmann, Raggi): "[R]estraint must be exercised in defining the breadth of the conduct prohibited by a federal criminal statute." Op. 14. Hallelujah -- we just wish this maxim were applied more frequently in non-white collar cases.

In this case, the Circuit vacates Ford's conviction for accepting a bribe under 18 U.S.C. § 666(a)(1)(B) -- punishing those who "corruptly . . . accept . . . anything of value . . . intending to be influenced . . . ." in the performance of their duties -- because the trial court's instructions to the jury failed to properly convey the intent requirement of the statute, at least as it applies to recipients of a bribe. Specifically, the instructions "appear to have told the jury that [§ 666's] intent requirement was fully satisfied by the recipient's knowledge of the donor's intent and omitted any reference to the recipient's intent in accepting the thing of value." Op. 13. For instance, the trial court told the jury that "if the recipient accepts anything of value with awareness that one of the purposes for which it is given is to influence her . . . , the recipient has acted with intent to be influenced." Op. 15; see also Op. 12. This was error.

While a recipient's knowledge "of the donor's intent to arrange a quid-pro-quo or to seek special consideration" may constitute evidence of the requisite mens rea, the Court held, "such knowledge is insufficient, by itself, to prove the Section 666 violation." Op. 14-15. Under the plain language of the statute, "the recipient must have accepted the thing of value while 'intending to be influenced.' . . . [T]here must be a quid-pro-quo." Op. 16. It is "the recipient's intent to make good on the bargain, not simply her awareness of the donor's intent, that is essential to establishing guilt." Op. 17. Because the trial court's instructions "failed to spell out the specific state of mind requirement of a bribery charge under Section 666 -- the defendant's intent to be influenced in awarding [her union's] business in return for a thing of value" -- the Court vacated Ford's conviction and remanded for a new trial. Op. 17.

Trial Judge's Clear Acceptance of Prosecutor's Peremptory Strike Suffices as Adequate Batson Ruling

Messiah v. Duncan, Docket No. 04-5311-pr (2d Cir. Jan. 19, 2006) (Cabranes and Sack) (Jacobs, concurrence): The Circuit rejects a § 2254 petitioner's Batson challenge to his state murder conviction. Petitioner Messiah claimed principally that the trial judge failed to rule on his Batson challenge with respect to the prosecutor's strike of an African-American juror named Woodbury. The record showed that at the first round of jury selection, the prosecution used peremptories against 5 panelists, including Woodbury. Defense counsel objected, claiming that the striking of Woodbury was racially motivated. The court then asked the prosecutor to explain why he struck Woodbury, and he responded that he removed Woodbury because he was a social worker and had a wife who worked for a law firm. After a brief exchange between defense counsel and the court on a somewhat unrelated topic, the court announced, "That's five, five by the People," and moved on with jury selection.

The Circuit concluded that on this record, the trial court sufficiently ruled on Messiah's Batson claim. The third step of the "BatsonThree Step," Op. 10, "requires a trial judge to make an ultimate determination on the issue of discriminatory intent based on all the facts and circumstances." Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir. 2000). This generally "requires that the trial judge explicitly adjudicate the credibility of the non-moving party's race neutral explanation for peremptorily striking potential jurors." Id. However, a judge need not engage in "a talismanic recitation of specific words in order to satisfy Batson," Galarza v. Keanne, 252 F.3d 630, 640 n.10 (2d Cir. 2001), and "must simply make clear whether he credits the non-moving party's race-neutral explanation for striking the relevant panelist." Op. 16.

The Court thus concluded that an "unambiguous rejection of a Batson challenge will demonstrate with sufficient clarity that a trial court deems the movant to have failed to carry his burden to show that the prosecutor's proffered race-neutral explanation is pretextual." Op. 17. Although the "prefer[ence]" is for the "trial court to provide express reasons for each credibility determination" at the 3rd Batson stage, "the trial court is not compelled to make intricate factual findings in connection with its ruling in order to comply with Batson." Id. Thus, "[a]s long as a trial judge affords the parties a reasonable opportunity to make their respective records, he may express his Batson ruling on the credibility of a proffered race-neutral explanation in the form of a clear rejection or acceptance of a Batson claim." Id. And reading the trial judge's statement that "That's five, five by the people," to mean that he accepted all five of the prosecution's strikes (including that against Woodbury), the Court rejected petitioner's argument.

Judge Jacobs concurred in the result, but did not join the majority opinion because he believes that a trial judge must "explicitly adjudicate the credibility of the non-moving party's race neutral explanations for peremptorily striking potential jurors" at the 3rd Batson stage, Concurrence 2 (emphasis in original), and that this particular judge's barebones acceptance of the prosecution's peremptories did not satisfy this standard. Judge Jacobs concurred in the dismissal of Messiah's § 2254 petition, however, because he found that defense counsel "failed to object to the prosecutor's non-discriminatory rationale, and thereby failed even to precipitate a step-three Batson adjudication under New York law." Id.

In People v. Allen, 86 N.Y.2d 101, 111 (1995), the New York Court of Appeals held that "the ultimate burden of proof [borne by the party claiming a violation of Batson] is not satisfied if he raises no claim of pretext" after the adverse party "proffers a race-neutral reason for the relevant strike at step two of the Batson inquiry." Op. 12. A similar rule exists in this Circuit for federal trials. See United States v. Rudas, 905 F.2d 38, 41 (2d Cir. 1990) ("Once the Government has offered reasons for its peremptory challenges, defense counsel must expressly indicate an intention to pursue the Batson claim.").

Judge Jacobs explained that on this record, Messiah failed to abide by Allen's "preservation" requirement because defense counsel did not directly respond to the prosecutor's race-neutral explanation for striking Woodbury. His petition should therefore be dismissed on this ground.

Alien Smuggling Conviction Upheld

United States v. Kim, Docket No. 05-1605-cr (2d Cir. Jan. 18, 2006) (Calabresi, Parker, Wesley) (per curiam): The Circuit affirms Kim's conviction for smuggling aliens into the United States (from Canada) "for the purpose of commercial advantage or private financial gain," rejecting his sufficiency challenge to the jury's verdict. Kim's principal argument was that the evidence was insufficient to show that he committed the offense for the purpose of financial gain because "the Government failed to adduce any evidence that [he] received, was promised or indeed asked for any money or anything of value for his part in the [smuggling] operation." Op. 5.

The Court rejects this argument on the ground that the evidence showed that each of the other 3 participants in the smuggling operation "either had received or expected to receive some sort of financial gain." Op. 5. In light of this evidence, the Court concludes, "a rational jury could certainly infer that a similarly situated defendant working as a smuggler for the same group did so for the purpose of commercial advantage or financial gain." Id.

Two minor curiosities: (1) Why would anyone want to be smuggled from Canada to the U.S. -- isn't the exodus now the other way? (2) The "financial gain" expected by one of the other conspirators was a promise by the ringleader "to show him where he could buy lobsters at a reasonable price in Nova Scotia." Op. 5.

Hmm. Maybe cheap lobsters are harder to find in NOVA SCOTIA than one might think. Now, if the promise were to show where a rare half-blue lobster could be bought on the cheap, we might understand . . . .

Circuit Closed Monday, but the Met Is Open

Well worth a look; some say it compares to Leonardo's "La Gioconda". At the Met until March 2006.

Never Mind -- Good Anti-Harris Dicta Eliminated in Amended Opinion

United States v. Sheikh, Docket No. 05-1747-cr (2d Cir. Amended Jan. 13, 2006) (Sotomayor, Meskill, Kaplan (by desig'n)): When the Court issued the original version of this decision last week, we pointed out that it included dicta seemingly undercutting the Supreme Court's decision in Harris v. United States, 536 U.S. 545 (2002). (Click here for our earlier discussion). As the Court originally stated, "So long as the facts found by the district court do not trigger a mandatory minimum sentence authorized by the verdict or increase the sentence beyond the statutory maximum authorized by the verdict, the district court does not violate a defendant's Fifth and Sixth Amendment rights by imposing a sentence based on facts not alleged in the indictment." Op. at 4.

Alas, that anti-Harris dicta is no more. The Court today amends its decision to clarify that when it refered to "a mandatory minimum sentence," it really meant "a mandatory minimum sentence that simultaneously raises a corresponding maximum." Op. at 2 (emphasis added). This language brings Sheikh in line with the Circuit's earlier decision in United States v. Gonzalez (click here for our discussion), holding that a fact that trigger a mandatory minimum that also raises a corresponding maximum must be proved to a jury or admitted by the defendant. This distinguishes it from Harris, in which the relevant fact (found only by the judge) triggered a mandatory minimum but did not alter the statutory maximum.

Martha Stewart Conviction Upheld

United States v. Martha Stewart and Peter Bacanovic, Docket Nos. 04-3953(L) (2d Cir. Jan. 6, 2005): Yet another reminder of the White Album's timelessness:

Don’t forget me martha my dear
Hold your head up you silly girl look what you’ve done
When you find yourself in the thick of it
Help yourself to a bit of what is all around you
Silly girl.

Martha Stewart's troubles began when she helped herself to a bit too much information regarding Sam Waksal's sale of his ImClone stock. And when she found herself in the thick of an SEC investigation into the questionable timing of her sale of that stock, she (allegedly) concocted a ridiculous story instead of just telling the truth. We all know the end result.

The Circuit today affirms her conviction in a 74-page opinion rejecting each argument raised by Stewart and co-defendant Peter Bacanovic. Having labored through the well-reasoned opinion, we now know why EIGHT attorneys were required for Martha's appeal (poor Peter could only manage five for his): No stone was left unturned by these zealous advocates, alas to no good end.

The flood of commentary on the opinion has already began (see White Collar Prof's discussion here and Professor Berman's comment here) and more are sure to follow. For that reasons, and because it is now near quittin' time on friday, we will say no more.

Immigration Issues in the Criminal Context

Our colleague Steve Sady over at the Ninth Circuit Blog has once again written a great resource for criminal defense lawyers -- this time concerning immigration-related issues that arise in criminal cases. (Click here for Steve's discussion). Steve focuses in particular on how to use the Supreme Court's decision in Leocal to fight the Government's aggressive and continuing effort to expand the definition of "aggravated felony." Steve also provides information on and links to immigration-law resources for the criminal defense lawyer.

For those who finds immigration law to be a realm of poorly drafted statutes, incoherent regulations, and unprincipled decisions, Steve's discussion is well worth a look.

A Curious Decision Containing Excellent Anti-Harris Dicta

United States v. Sheikh, Docket No. 05-1747-cr (2d Cir. Jan. 5, 2006) (Meskill, Sotomayor, Kaplan (by desig'n)): We were puzzled by why the Court decided to publish this very short opinion, in which the Court rejects the defendant's claim that "the district court violated his [Fifth and Sixth Amendment] rights by enhancing his sentence on the basis of a fact -- the loss amount -- not alleged in the indictment," even where the sentence did not exceed the statutory maximum for the offense of conviction. Our puzzlement stems both from the fact that this argument was essentially rejected in Booker, and the fact that the Court simultaneously issued an unpublished summary order rejecting other arguments raised by Sheikh -- thus evidencing a conscious choice to publish this decision on a well-settled issue.

Readers, if there are any, are invited to offer speculations as to the Court's motive. This Blog's best guess is that the Court felt it necessary to address the indictment issue as it relates to Booker, though that seems an argument long lost.

Another guess is that Judge Sotomayor so dislikes the Supreme Court's decision in Harris -- holding that a mandatory minimum sentence can be triggered by judge-found facts -- that she decided to inject some anti-Harris dicta into this simple case. There are two key passages, one in the opinion's introductory paragraph and the other in its concluding paragraph:

"[We] hold that, after United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005), district courts may continue to calculate Guidelines sentences and sentence defendants based on facts not alleged in the indictment, as long as those facts do not trigger a mandatory minimum sentence or increase the penalty beyond the prescribed statutory maximum sentence, without violating the Fifth and Sixth Amendment."

"So long as the facts found by the district court do not trigger a mandatory minimum sentence authorized by the verdict or increase the sentence beyond the statutory maximum authorized by the verdict, the district court does not violate a defendant's Fifth and Sixth Amendment rights by imposing a sentence based on facts not alleged in the indictment."

Op. at 2 & 4 (emphases added). Advocates faced with a Harris issue should pounce on this language!

A Good Decision on When a State Court's Finding of a Procedural Bar Is "Inadequate" to Preclude Federal Habeas Review

Monroe v. Kuhlman, Docket No. 03-3703 (2d Cir. Jan. 3, 2006) (Winter, Feinberg, Straub): This is somewhat of a rare bird: The Circuit concludes that the New York Court of Appeals improperly applied the state's own contemporaneous objection rule and thus that its finding of a procedural default on direct appeal was "inadequate" to bar federal habeas review of the same question. Monroe claimed that his right to be present at all critical stages of the trial, as well as his right to "judicial supervision" of the trial, were violated when the state trial judge allowed the jury to view previously admitted evidence outside the presence of the judge and the parties during adjournments of the trial. Unfortunately, trial counsel did not object to the procedure. These claims were rejected on direct appeal. The N.Y. Court of Appeals found that (1) Monroe's right to be present was not violated because the jury's viewing of the evidence was merely an "ancillary proceeding"; and (2) his right to judicial supervision could not be considered on the merits because no contemporaneous objection was lodged.

On habeas review, the district court (Judge Weinstein) found that (1) the state court's determination of the right-to-be-present claim was not an "unreasonable application" of federal law, and thus that the writ could not be granted on that basis. It also found that (2) the state court's determination that Monroe failed to lodge a contemporaneous objection and thus forfeited his right to appellate review of the judicial supervision claim constituted an "independent and adequate" state-law ground to support its decision on this claim, and thus that federal habeas review was barred as well.

The Circuit agreed with Judge Weinstein on point 1, but reversed on point 2, concluding that the New York Court of Appeals misapplied the state's own contemporaneous objection rule to bar review of the judicial supervision claim. Impressively canvassing New York case law over the last 70 years, the Court concluded that New York did not require a contemporaneous objection to preserve a claim that the defendant's right to judicial supervision of the trial had been violated. As early as 1934, for instance, the state's highest court held that "it was irrelevant under the circumstances that an objection was not made." And in 1985, the same court held that "even a defendant's consent could not overcome the right to judicial supervision during jury deliberations." (emphasis in original). Similar decisions were rendered in 1991 and 2000.

Because "[t]hese cases make clear that New York state courts do not typically require judicial supervision claims to be preserved," the Circuit concluded, the New York Court of Appeals' application of the contemporaneous-objection rule to bar review of Monroe's judicial supervision claim did not constitute an "adequate" state-law ground precluding federal habeas review. It thus remanded the matter to the district court for a consideration of this question on the merits.

Prior Felony Information Requirement of 21 U.S.C. § 851 Not Jurisdictional

Sapia v. United States, Docket No. 03-2087 (2d Cir. Dec. 28, 2005) (Winter, Straub, Lay (by desig'n)): Section 851 of Title 21 provides that the enhanced penalties set forth in § 841(b) for defendants who commit a drug offense after sustaining prior drug convictions are triggered only if the Government files, before trial or the entry of a guilty plea, an information "stating in writing the previous convictions to be relied upon." In this decision, the Court holds that the prior felony information requirement is not jurisdictional, and thus that an argument, raised in a collateral attack, that the sentencing court erred in imposing an enhanced sentence in the absence of a § 851 information is subject to procedural default analysis. And because Sapia could not satisfy the cause-and-prejudice inquiry, the Court dismisses his § 2255 petition.

The essential facts are simple. Sapia was indicted for conspiring to distribute 5 or more kilograms of cocaine under § 846 & 841(b)(1)(A). He had a prior drug conviction and thus faced a mandatory minimum of 20 years (rather than 10 years) under § 841(b)(1)(A). He entered into a plea agreement with the Government, acknowledging that the applicable Guidelines range was 240 to 293 months' imprisonment. The range would've been 235 to 293 but for the 20-year minimum.

Sapia was thus fully aware that he faced a 20-year minimum. However, the Government somehow failed to file a § 851 information until the day after Sapia pleaded guilty.

The judge eventually sentenced Sapia to 270 months' imprisonment, well above the 20-year minimum. There was no appeal.

A year later, Sapia filed a § 2255 petition claiming that his sentence was erroneously imposed because the Government failed to comply with § 851's requirement. Because this claim was not raised on direct appeal, it was procedurally defaulted. Therefore, the claim could only be addressed on the merits in the § 2255 petition if (1) Sapia could show cause & prejudice for his failure to raise the claim on the direct appeal, or (2) the claim went to the district court's "jurisdiction," since jurisdictional errors cannot be procedural defaulted or otherwise waived or forfeited.

The Circuit ruled that § 851's requirement was not jurisdictional, and that Sapia could not show cause & prejudice. First and foremost, the Court adopted the "prevailing view" that "§ 851 does not implicate a court's subject-matter jurisdiction; it simply constitutes a condition precedent to a court's authority to impose a statutorily authorized sentence." Op. at 7-8. "The essential point," the Court explained, is that "'jurisdiction' . . . refers to a court's statutory or constitutional power to adjudicate the case, and § 851 simply has nothing to do with a court's subject-matter jurisdiction over a criminal case or a court's general power to impose a sentence." Op. at 8. "Whether or not the prosecution files a timely section 851(a) information, a federal district court plainly possesses subject-matter jurisdiction over drug cases. Once subject-matter jurisdiction has attached, courts may exceed their authority or otherwise err without loss of jurisdiction." Id. Sapia's failure to raise the § 851 error on direct appeal is thus subject to procedural default analysis.

Second, Sapia could not satisfy the cause and prejudice inquiry by claiming that counsel was ineffective for failing to file a direct appeal raising the § 851 claim. The Court went straight to the prejudice prong of the Strickland inquiry and concluded that, even if counsel's failure to file an appeal on this issue fell below objective norms, Sapia could not show prejudice given the sentence imposed. As noted, the district court imposed a 270-month sentence even though the erroneous minimum was only 240 months. And nothing in the record shows that the court would have imposed a different sentence had it known that the enhanced minimum was not triggered, and thus that Sapia faced a Guidelines range of 235 to 293 rather than 240 to 293.

Thus, there was no "reasonable probability" that the error in failing to file a § 851 information prior to Sapia's plea affected the outcome. And since Sapia had no other way to circumvent the procedural default problem, the Court dismissed the petition.

Circuit Vacates Conviction Based on Defendant's Uncorroborated Admissions Made in Personal Journal

United States v. Stefan Irving, Docket No. 04-0971-cr (2d Cir. Dec. 23, 2005) (Cardamone, Jacobs, Cabranes): The majority opinion by Judge Cardamone affirms the defendant's conviction on most counts, but reverses on two counts that were based solely on the defendant's admissions, made in his personal journal, whose essential facts were uncorroborated by independent evidence. Judge Cabranes dissents on this point.

The decision further holds that (1) despite the Supreme Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), no expert testimony or other extrinsic evidence is needed to prove that the children depicted in pornographic video footage are real and not virtual (on the tenuous assumption that a jury can tell the difference, at least when video footage (as opposed to still images) is at issue), and that (2) a 2003 warrant authorizing the search of Irving's home was not based on stale information even though most of the facts cited in the supporting affidavit were several years old, because there is a "kiddie porn exception" (the cynic's take) to the staleness rule: "When a defendant is suspected of possessing child pornography, the staleness determination is unique because it is well known that images of child pornography are likely to be hoarded by persons interested in those materials in the privacy of their homes." Op. at 30. The opinion also discusses issues regading the propriety of a border search (summary: "Right of privacy? Please. It's a border!") and whether the fine statute, 18 U.S.C. § 3613(a), overrides ERISA's anti-alienation provision, 29 U.S.C. § 1056(d)(1) (summary: "Yes! Fine away!").

This Blog will discuss only the corroboration issue. (Which also happens to be the sole issue mentioned or identified in the first 17 pages of the opinion. While brief writers must of course provide a context and roadmap to subsequent discussions, no strictures on effective writing apparently apply to sacred texts decreed by the Blessed.)

Irving was charged with traveling to Mexico in 1998 for the purpose of engaging in sex with underage children. He was also charged in separate counts with traveling to Honduras for the same purpose in 1999.

The evidence underlying the Mexican counts was strong. It included testimony by a cooperating co-conspirator and by an eyewitness, for instance. The Court upheld Irving's conviction on the Mexican counts.

In contrast, the Honduran counts were based almost entirely on Irving's own musings in his personal journal, apparently kept contemporaneously during a one-week trip to Honduras in 1999. In the journal -- found during the 2003 search of his apartment -- Irving described his activities in unfortunate detail, including his seduction and molestation of a 12-year-old street boy.

Apart from the journal, the Government offered only evidence showing that Irving was present in Honduras during the relevant period. For instance, it showed that someone withdrew money from Irving's bank account using an ATM located in Honduras during this time. Irving's employment records and passport further confirmed his presence in Honduras.

This, the majority held, was insufficient to sustain Irving's conviction on the Honduran counts. The Court acknowledged the federal rule that a conviction can be based on the defendant's statements alone, so long as they are reliable. Op. at 12-13. But it concluded that Irving's writings in the journal were neither reliable per se (in contrast to, e.g., statements made to a co-conspirator or made prior to the commission of the crime) nor corroborated by independent evidence, and thus could not support the jury's verdict.

First, the Court concluded that the journal "does not fall into any of the previously existing categories of self-corroborating statements. Nor does its nature and context suggest that we should consider it self-corroborating." Op. at 14. Without more, the Court explained, "the [journal's] narrative of child molestation may as easily be a record of fantasies as of events that actually transpired." Id.

Second, because the statements were not self corroborating, the "prosecution had to produce substantial independent evidence which would tend to establish the trustworthiness of the statement." Op. at 14. The Court then crucially added that the required "substantial independent evidence" must establish the statement's reliability "specifically with respect to those portions relating to the elements of Irving's crime -- traveling with the intent to engage in sexual acts with minors." Op. at 14 (emphasis added). And while the Government offered evidence supporting the reliability of the journal's claim that Irving traveled to Honduras during the relevant period, it offered no evidence supporting the reliability of the journal's discussion of his seduction of the underage boy. Op. at 15-16. As the majority explained:

"If the crime charged was travel to Honduras, the government's proffered corroborative evidence might well have been sufficient because it would have corroborated the essential elements of that hypothetical crime. However, the crime charged was traveling to Honduras with intent to engage in sexual activities with minors. The government failed to present any evidence corroborating the essential elements of this crime that were admitted in the journal."

Op. at 16. The majority then suggested how the evidentiary gap could have been filled:

"If the government offered corroboration of most of the journal, or corroborated critical parts of Irving's writings about children -- for example, by offering the testimony of hotel managers whom Iriving wrote objected when they found he had brought children to his hotel room -- we might conclude that a reasonable jury could find the defendant's journal entries trustworthy."

Op. at 17 (emphasis in original).

Judge Cabranes's dissent is, despite this Blog's orientation, worth a look. He emphasizes that the two elements of the crime charged are that the defendant (1) traveled to Honduras (2) for the purpose of engaging in sexual acts with underage children. Dissent at 1. Crucially, "the government was not required to prove that defendant engaged in particular sexual acts with children in Honduras, or indeed, in any specific acts in Honduras." Id. (emphasis in original).

Looked at this way, it is a bit difficult to dispute Judge Cabranes's point that "[a]s a matter of common sense, the journal, filled as it is with copious details about defendant's attempt to engage in sexual activity with prepubescent male street children, is a reliable guide to the purpose of his trip to Honduras." Dissent at 2 (emphasis added). Given moreover that independent evidence corroborated the other element of the offense (Irving's travel to Honduras), perhaps the dissent has a point. But what do we know.

Evidentiary Errors Found Harmless, and Acquitted Conduct Properly Used in Role Enhancement

United States v. Alaa Al-Sadawi, Docket No. 03-1784-cr (2d Cir. Dec. 23, 2005) (Walker, Cardamone, Parker): Yet another pyrrhic victory for the defense: The Court rules that the district court committed two evidentiary errors (one involving Crawford and the introduction of a co-defendant's plea allocution at the defendant's trial, and the other involving the use of flight as evidence of consciousness of guilt), but finds both harmless in light of the "overwhelming" evidence of the defendant's guilt. What else is new?

Nothing earth shattering in the opinion. But the decision contains a good, thorough discussion of when the Government can and cannot use evidence regarding the defendant's attempt to leave the jurisdiction as evidence of guilt. See Op. at 7-9. In sum, the probative value of the defendant's behavior "as circumstantial evidence of guilt depends upon . . . four inferences . . . : (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt tguilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to the actual guilt of the crime charged." Op. at 8 (quoting United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977). And a trial court should allow the Government to use such evidence (and also to ask the jury to infer the defendant's guilt from such evidence) only where "each link in the chain of inferences leading to that conclusion is sturdily supported." Op. at 8.

The Court also upheld a 2-level role enhancement based on the defendant's supervision / recruitment of a co-defendant (his father) who was acquitted at the same trial. While the enhancement can be triggered only if the defendant supervised / recruited a "participant" -- i.e., another criminally culpable party -- that participant need not be convicted. And the Court held that despite the father's acquittal, there was sufficient evidence to find that he was a knowing participant in the criminal venture. Op. at 13. The Court's sanction of this practice should hardly come as a surprise, given its decision earlier this month sanctioning the use of acquitted conduct to elevate the defendant's offense level.