Misinformation to Immigrant at Deportation Hearing Causes Deprivation of Judicial Review, Invalidating Subsequent Reentry Conviction

United States v. Jermi Francisco Lopez, Docket No. 03-1476-cr (2d Cir. April 4, 2006) (Sack, Sotomayor, Raggi):

Where an element of a crime, in this case a prior deportation, depends on an administrative finding, due process requires that that finding have been subject to judicial review, to ensure its accuracy and make it a proper basis for criminal sanctions. See United States v. Mendoza-Lopez, 481 U.S. 828 (1987); 18 U.S.C. § 1326(d). In this case, the defendant had sought dismissal of his illegal reentry indictment on the ground that he had been denied judicial review of his deportation by misinformation given him at his hearing and by the Immigration Judge's failure to advise him of the availability of collateral relief by habeas corpus. In 1997, just at the time of amendment of new immigration laws eliminating much of the existing discretionary relief for deportation, the defendant had been ordered deported and informed that he was not eligible for any form of relief from deportation. He appealed to the BIA claiming that the new law did not retroactively eliminate his eligibility for relief, but his appeal was dismissed; he was deported 20 months later. Within two years thereafter, the Supreme Court decided in essence that the defendant's argument had been correct, and that he had been entitled to consideration for relief from deportation. The defendant later reentered the country and was prosecuted on the basis that his reentry was illegal since it followed a prior (valid) deportation.

The Circuit held, following its prior decisions in Copeland, Sosa, and Calderon, that the misinformation the defendant had received, that he was not entitled to discretionary relief, had deprived him of the opportunity for judicial review of his deportation. It remanded for a determination whether he had been prejudiced by the denial of review, that is, whether he might have prevailed on a request for discretionary relief from deportation.

The Court rejected the argument made in Judge Raggi's dissent, relying on the Court's decision in Gonzalez-Roque, that the defendant had review on habeas corpus available to him and that he could have sought that review in the twenty months before he was deported. In Gonzalez-Roque, the defendant had been deported a mere 10 months after his decision became final and the Court had upheld his conviction. Here, the Court rejected the reliance on Gonzalez-Roque because there had been no evidence in that case that the defendant had affirmatively been misinformed about the possibility of obtaining relief. In this case, it held, the misinformation had been sufficient to deprive the defendant of the opportunity for judicial review.

Two points are worth making. First, the Court rejected the broader proposition that the Immigration Judge's failure to inform the defendant of the availability of habeas relief deprived him of the only available judicial review. The Court essentially relies on the fiction that even pro se immigrants (who often do not speak English) are aware of their rights to collateral review on the writ of habeas corpus. This seems wrong, and indeed is contrary to the notion in the immigration laws that the Immigration Judge facing a pro se litigant has more than the usual judicial duty of deciding which of two adversaries is correct; the IJ is thought to have some duty to protect the immigrant. Given this, and given the Court's own citation for the fact that the premise of its ruling is "unrealistic," one may wonder about the soundness of its result.

The second point is that the dissent seems to read too much into Gonzalez-Roque. So far as one can tell from that decision, the defendant did not argue that the events at his deportation proceeding deprived him of judicial review. Rather, he made the broader claim that Congress's elimination of direct review in the courts constituted such a deprivation, even though collateral review remained available. The Court's simple rejection of this broad claim provides no authority for the dissent's contention that the mere passage of 10 months' time after a final deportation order removes any impediment to judicial review caused by misinformation given the defendant by the government. Gonzalez-Roque spoke to the question whether the continued availability of habeas provided, generally, the opportunity for judicial review required by Mendoza-Lopez, and said nothing about the extent to which misinformation might constitute an actual deprivation in the individual case or that initial deprivation might be ameliorated by the passage of various amounts of time.

UPDATE: I just noted that it took the Court more than two years to issue this decision following argument and that the defendant will have served his entire sentence four months from now. Thus, the Court's delay in issuing its decision deprived him of any real possibility of relief from dismissal of his conviction. This is unfortunate at the least; the narrow issue on which the case was decided hardly warranted this kind of delay.

Crosby Redux: Circuit Clarifies Some Important Post-Booker Issues

United States v. Mayra Fernandez, Docket No. 05-1596-cr (2d Cir. April 3, 2006) (Miner, Cabranes, Curtin (by desig'n)): This important decision settles some lingering uncertainties concerning post-Booker appellate review of sentences in this Circuit. Some of the Court's conclusions are good from a defense perspective, some not so good. But there's a benefit to clarity all the same.

First, the Court finally explicitly holds that it possesses statutory authority to review the reasonableness of any sentence, even those falling within a properly calculated Guidelines range. (Fernandez received a sentence of 151 months, the bottom of the correctly calculated range). The Court explains that when a defendant challenges a sentence on appeal as unreasonable (either as to the process of its selection or as to its length), s/he "effectively claims that the sentence, whether a Guidelines sentence or a non-Guidelines sentence, was 'imposed in violation of law,'" under 18 U.S.C. § 3742(a)(1). Op. 10. The Circuit's authority to hear the appeal thus derives from this statute. Id.

Second, the Circuit explicitly "decline[s] to establish any presumption, rebuttable or otherwise, that a Guidelines sentence is reasonable." Op. 12. This refusal arises from Crosby, in which the Court "expressed a commitment to avoid the formulation of per se rules to govern our review of sentences for reasonableness." Id. (citing Crosby, 397 F.3d at 115).

Unfortunately, what Judge Cabranes giveth, he also taketh away. Despite the Court's express refusal to adopt any presumptions on appellate review, and despite the laudatory sentiment that "the record as a whole [must be examined] to determine whether a sentence is reasonable in a specific case," Op. 13 (emphasis added), the opinion sneaks in some very bad, contrary language.

To begin, it repeats dicta from Rubenstein that "the Guidelines range should serve as 'a benchmark or a point of reference or departure." Op. 13 (quoting Rubenstein, 403 F.3d 93, 98-99 (2d Cir. 2005). Along similarly lines, the opinion remarks in a footnote that "[i]t was not error for [the district judge] to employ the Guidelines range as a starting point and then to determine whether the arguments presented pursuant to the § 3553(a) factors warranted 'lightening' of, or fashioning of an 'alteration to,' the advisory Guidelines sentence (or, in other words, imposing a non-Guidelines sentence)." Op. 23 n.11. But see Op. 22 ("The district court's reference to 'an alteration to a guideline sentence,' standing alone, might be interpreted as a misapprehension that a Guidelines sentence should presumptively be imposed.") (emphasis added). How these sentiments can be squared with the notion that a Guidelines sentence is not to be accorded a presumption of reasonableness, rebuttable or otherwise, is anyone's guess.

Even worse, the opinion also states that "We recognize that in the overwhelming majority of cases, a Guidelines sentence wil fall comfortably within the broad range of sentences that would be reasonable in the particular circumstance." Op. 12. No explanation is offered to justify this assertion; the Court simply assumes this to be true. But given this statement, what's the point of then saying that a Guidelines sentence is not accorded a presumption of reasonableness? Doesn't it amount to the same thing?

Third, the Circuit rejects Fernandez's argument that the district court failed to "consider" one of her arguments for a non-Guidelines sentence (the one based on disparity with a co-defendant's sentence, see infra) because the court did not specifically mention or address this argument at sentencing (though it was raised in Fernandez's written submission). Relying principally on Fleming, 397 F.3d 95, 100 (2d Cir. 2005) , the companion case to Crosby, the Court rejects this argument and holds that it will "presume, in the absence of record evidence suggesting otherwise, that a sentencing judge has faithfully discharged her duty to consider the statutory factors." Op. 17.

Of course, a court is still required under § 3553(c) to "state in open court the reasons for its imposition of the particular sentence," and a district court will faciliate the appellate function "by providing complete and detailed explanations regarding their sentencing decisions." Op. 17 n.8. However, quoting Fleming, "As long as the judge is aware of both the statutory requirements and the sentencing range or ranges that are arguably applicable, and nothing in the record indicates misunderstanding about such materials or misperception about their relevance, [the Circuit] will accept that the requisite consideration has occurred." Fleming, 397 F.3d at 100.

Fourth, the Circuit leaves open the question of whether a disparity between the sentence received by the defendant and a co-defendant can constitute an "unwarranted disparity" within the meaning of 18 U.S.C. § 3553(a)(6), and thus possibly justify a non-Guidelines sentence. Op. 19-20. This is actually quite a good outcome, since the Circuit in pre-Booker days explicitly barred departures based on disparities with a co-defendant's sentence, on the ground that the disparities referred to in (a)(6) concerned nationwide disparities, not disparities in any particular case. E.g., United States v. Tejada, 146 F.3d 84, 87 (2d Cir. 1998); Op. 19 n.9.

The Court concludes that it need not resolve this question here because Fernandez and her co-defendant (who also received a Guidelines sentence, but of only 135 months) were not similarly situated. Among other things, the co-defendant pleaded guilty and thus received a 3-level acceptance reduction (Fernandez was convicted at trial), and also qualified for the safety valve (Fernandez did not). Op. 20.

Fifth, the Court clarifies that "the requirement that a sentencing judge consider an 18 U.S.C. § 3553(a) factor is not synonymous with a requirement that the factor be given determinative or dispositive weight in the particular case, inasmuch as it is only one of several factors that must be weighted and balanced by the sentencing judge." Op. 20 (emphasis in original). "The weight to be afforded any given argument made pursuant to one of the § 3553(a) factors is a matter firmly committed to the discretion of the sentencing judge and is beyond our review, as long as the sentence ultimately imposed is reasonable in light of all the circumstances presented." Op. 21; accord Op. 23 ("[T]he requirement that the sentencing judge consider a § 3553(a) factor that may cut in a defendant's favor does not bestow on the defendant an entitlement to receive any particular 'credit' under that factor. . . . [So long as the ultimate sentence is reasonable,] we will not second guess the weight (or lack thereof) that the judge accorded to a given factor or to a specific argument made pursuant to that factor.").

Finally, the Court holds that even where the Government has not filed a § 5K1.1 motion based on a defendant's cooperation, a sentencing judge must still consider the circumstances underlying the defendant's (ultimately unsuccessful) efforts to cooperate in determining an appropriate sentence. Op. 21-22. The Court relied on § 3553(a)(1) (requiring court to consider "the history and characteristics of the defendant") for this conclusion: This "sweeping provision" is "worded broadly," "contains no express limitations as to what 'history and characteristics of the defendant' are relevant," and requires consideration of "the contention that a defendant made efforts to cooperate, even if those efforts did not yield a Government motion" under § 5K1.1. Op. 22; see id. (§ 3553(a)(1)'s "sweeping" language "presumably includes the history of a defendant's cooperation and characteristics evidenced by cooperation, such as remorse or rehabilitation."). Unfortunately, this did not help Fernandez, since the relevant facts support the district court's refusal to impose a non-Guidelines sentence based on Fernandez's half-hearted and incomplete efforts to cooperate.

Mail Fraud Conviction Vacated: Defendant's Deceptive Conduct Did Not Deprive Other Party of Any Anticipated Benefits

United States v. Charles Novak, Docket No. 05-0108-cr (2d Cir. April 3, 2006) (Sotomayor, Katzmann, Eaton (by desig'n)): This interesting opinion affirms some counts of conviction (e.g., for unlawful receipt of labor payments and for RICO conspiracy), vacates others (e.g., for mail fraud and for making false statements under ERISA), and requests supplemental briefing on the effect of its partial vacatur on the other counts of conviction (e.g., money laundering). This Blog will discuss two issues: (1) whether 29 U.S.C. § 186(b)(1), prohibiting a union official from receiving anything of value from anyone who employs a member of the union, requires proof that the employer knew that the money it gave to an employee would be re-directed (as kickbacks) to the defendant union official; and (2) whether a mail fraud conviction can be sustained where the evidence fails to show that the defendant's deceptive acts deprived the other party of any anticipated benefits.

The essential facts are somewhat hard to decipher, though the scheme is reminiscent of "The Sopranos". Novak is the VP of a Union whose members operate the temporary elevators on construction sites. Contractors of the construction sites paid the members' salaries. Novak was paid by the Union. By his position, Novak had the power to determine which union members obtained work at which site (if any).

For reasons unexplained in the opinion, the contractors agreed to pay Union members for hours they did not work (these are called "no show hours" -- similar to Tony's "no show job" with the carting company from Sunday's episode). Time sheets for all union workers would be submitted by a "lead" union member under Novak's control, and the contractor (knowing that the time sheets were inflated to include the no-show hours) would issue checks payable directly to the workers / members. The workers would then "kick back a portion of the wages received" for the no-show hours to Novak. Apparently, the contractors did not know about the kick-back aspect of the scheme. (Ed.: Really?).

Novak was eventually indicted on a variety of charges resulting from this scheme. He was convicted by a jury and sentenced to 108 months' imprisonment.

(1) Novak was convicted of unlawful recipt of labor payments under 29 U.S.C. § 186(b)(1), which makes it unlawful for a union official "to receive or accept anything of value from someone who employs members of that [union]." He claims on appeal that this conviction should be overturned because he received money only from the union members, and because the contractors were not aware that he was receiving money in this manner.

The Circuit rejected this argument, relying principally on United States v. Cody, 722 F.2d 1052, 1059 (2d Cir. 1983), which stated that "nothing [in § 186] requires mutuality of guilt for the conviction of either the employer or the representative of employees." Cody affirmed the union official's conviction where the evidence showed only that (1) the employer paid wages to union members to perform construction-related work; and (2) "the members instead spent their working hours acting as Cody's personal chauffeurs." Under Cody, the mere fact that the contractors were unaware of the employees' kickbacks to Novak did not shield him from liability. The Court also read Cody to hold that a conviction under § 186 "requires a showing that the transfer from the employer to the employee and the transfer from that employee to the union official are so closely related as to constitute a single scheme." Op. 7 (emphasis added).

The Court then found that "the kickbacks to Novak were inextricably linked to the employees' receipt of the paychecks from the contractors," thus satisfying Cody's linkage requirement. Op. 8. As it explained: "Had the employees not agreed, for whatever reason, not to participate in Novak's scheme, they would not have received paychecks from the contractors. Thus, the employees' receipt of paychecks from the contractors, and the employees' subsequent payments to Novak, were so closely related that the transfers in this case . . . were actually between an employer and a union representative." Op. 8.

(2) Novak was also charged with mail fraud, the foundation for which "lay in Novak's receipt, through the mail, of portions of the money that the contractors paid [Union] members for the no-show hours." Op. 8. The indictment charged Novak with using the mail "to defraud and to obtain the property of the contractors." Id.

Novak claims on appeal that the evidence was insufficient to sustain this conviction because no evidence showed that he intended to defraud the contractors. Rather, since "[t]he money came from the Union members, . . if any harm was intended, it was to the property rights of the [members / workers] and not the contractors." Op. 9. The Government's response is that "the element of fraudulent intent is satisfied by the contractors' unwitting participation in Novak's plan." Id. Its theory is that the "contractors would never have issued checks for the no-show hours had that known that a portion of the money would be received by Novak, since doing so would have exposed them to criminal liability . . . under § 186." Id.

The Court rejected the Government's argument and vacated the mail fraud conviction. It relied principally on United States v. Starr, 816 F.2d 94, 99-100 (2d Cir. 1987), which vacated the defendants' mail fraud convictions after concluding that although the defendants (who operated a bulk-mail service) defrauded their customers (by charging them regular-mail rates and then burying their mail under lower-priced bulk mail, and then pocketing the difference), "the customers received exactly what they paid for." Op. 10. Starr rejected a similar theory offered by the Government in Novak's case: "While the customers' assumption that the money they paid to defendants would be directed toward a lawful purpose did implicitly constitute a part of the bargain between the parties, that defeated expectation alone did not affect the nature or quality of the services that was the basis of the customers' bargain." 816 F.2d at 99-100.

The mere fact that "the victims would not have entered into the transaction had they known of the deception," in short, is insufficient to satisfy the "intent to defraud" element of the mail fraud offense. Op. 11. Thus, the fact (as hypothesized by the Government) that "the contractors would not have paid for the no-show hours had they been aware that Novak would receive a portion of the money . . . is inadequate to support a finding of fraudulent intent." Op. 14.

Rather, the Court held after canvassing a number of mail and wire fraud cases, Op. 11-13, "the harm contemplated in a scheme to defraud must affect the very nature of the bargain itself." Op. 14 (quoting Starr, 816 F.2d at 98). "Such harm is apparent where there exists a discrepancy between benefits reasonably anticipated because of the misleading representations and the actual benefits which the defendant delivered, or intended to deliver." Id. And because the contractors "received all they bargained for, and [because] Novak's conduct did not affect an essential element of those bargains," his mail fraud conviction could not be sustained. Op. 14.

Crawford Not Violated Because Statement Not Admitted for Its Truth; Statment Was Relevant for Its Truth, However, Since Defense Raised It. Clear?

U.S. v. Paulino, Docket No. 04-2553-cr (2d Cir. March 29, 2006) (Oakes, Raggi, Wesley):

Having decided a routine Crawford issue in U.S. v. Snype, the Court, again by Judge Raggi, turns in this case to a more complicated situation. The case raises the interesting question whether a court’s instruction to a jury that a hearsay statement is not to be considered for its truth eliminates all Sixth Amendment concerns, even where no alternate purpose for its admission seems obvious, and where the district court's limiting instruction may not have obviated all need for cross-examination.

The police executed an arrest warrant for the defendant’s father, Adolfo, at Adolfo’s apartment, where the defendant was living. Adolfo gave consent to search, and the officers found cocaine in the hall closet. Adolfo stated, apparently with respect to these drugs, that he owned them and that “no one else was involved in the drugs.” He added “that he had no other drugs in the apartment.” The police then found additional cocaine in the closet in the defendant’s bedroom and the defendant was charged with possessing it. The defense objected to the admission of the statements and the trial court ruled that they were admissible, not for their truth, but so that the jury could “understand the course of events that unfolded” and could “make a judgment as to whether or not the agent has accurately described the conversation.”

The Court held that these circumstances presented no Sixth Amendment claim, since the district court did not admit the statements for their truth, but this does not seem entirely clear. Since Adolfo’s statement that he “had no other drugs,” thus inculpating the defendant, was admissible under the court's instruction to help the jury “understand the ... events” and to permit them to consider whether the agent “accurately described the conversation," the instruction seems arguably to put its truth in question rather than taking it from the jury, to the extent it admits the statements for a relevant purpose at all.

Having disposed of the Sixth Amendment question, the Court found it necessary to determine only whether the district court abused its discretion in admitting the evidence because it was irrelevant. The Court found the damaging portion of the statement relevant solely as a response to the defense argument, that all the drugs were Adolfo’s. But this seems to contradict the Court’s primary holding, for it acknowledges that the real relevance of the statement arose from its content – that the drugs were not Adolfo’s. This would seem to put the statement's truth in issue, violating Crawford. The Court seems to find, nonetheless, that admission of Adolfo’s damaging statements for their truth was permissible because the defense used part of the statements. The correctness of this holding would depend on a fact the Court leaves unclear, whether the defense used the statements before the district court had ruled on their admissibility, or whether it used them in reliance on the court’s erroneous evidentiary ruling. If the latter is the case, as one footnote suggests, the trial court's prior ruling cannot fairly be justified based on the defense’s later actions in reliance on that ruling.

In another ruling, the Court held that two prior convictions and one arrest for drug trafficking could be admitted against the defendant to show his “knowledge” or “intent,” even though he argued that his defense was solely that he did not possess the drugs. The Court stated that the defense did not agree to take the issues of knowledge and intent out of the case; indeed, the opinion can be read as saying that a defendant can never take those issues out of a case where constructive possession is charged. And indeed, it raises the question whether the Court thinks that they can be taken out of a case in which any possession charged, since possession must always be knowing to be culpable.

The Court also rejected claims that Brady material was not timely turned over to the defense and that excusing a juror and taking a verdict from an 11-person jury was error.

No Strickland Violation Because Counsel's Errors Would Not Have Affected Outcome

Lynn v. Bliden, Docket No. 04-6280-pr (2d Cir. March 30, 2006) (Miner, Raggi, Karas (by desig'n)): The Circuit reverses the district court's grant of Lynn's § 2254 petition in this opinion, concluding essentially that there was no Strickland violation because trial counsel's errors did not create a reasonable probability of a different result. This Blog is skeptical. Although the opinion does not contain enough information to evaluate fully the soundness of this determination, the fact remains that (1) Lynn was convicted solely on the testimony of two alleged eyewitnesses, and (2) counsel's errors concern (largely) his failure to discredit the eyewitnesses' testimony by their prior inconsistent statements (in which one witness told the police after the shooting that he could not recognize the shooter, and the other witness failed to select Lynn's picture from a photo array the first time he was shown an array). But it is a largely fact-specific question, and those interested will have to read the opinion and decide for themselves.

The essential facts are thus. Two people were shot on a street in the Bronx. One died, one survived (though the survivor disappeared by the time of trial). When the police arrived, a crowd had gathered and was chasing one Arriaga, whom the crowd believed (for unknown reasons) to have been the shooter. A police officer arrested Arriaga after pulling him out from under a car (where he was hiding from the mob). Arriaga was eventually charged with the shooting.

The police interviewed among others Quinones and Patterson, both of whom lived near the scene. Quinones repeatedly denied knowing anything about the shooting, and specifically told the police that he "could not recognize" the shooter. Op. 5. Several months later, however, he told the district attorney prosecuting Arriaga's case that the real shooter was Lynn. Quinones picked Lynn's photo from a photo array. The DA dropped the charges against Arriaga and charged Lynn with the shooting.

Patterson also initially denied seeing the shooting. Later, however, he said he was simply "too scared" to come forward with information, and claimed to be an eyewitness. Nonetheless, he failed to select Lynn's photo when initially presented with a photo array. He selected Lynn's photo only when presented a second time with an array.

Both Quinones and Patterson then selected Lynn from a line-up.

Before trial, Lynn's attorney moved for a Wade hearing challenging the admissibility of the witness's identifications. At the time, no one knew that Patterson had been shown an array twice, and that he had failed to select Lynn the first time. The court denied the Wade motion and allowed the prosecutor to introduce the ID testimony from both witnesses.

During trial, however, the prosecutor learned about the first array shown to Patterson and so informed the court. But nothing came of this new information. Defense counsel, especially, stood silent and did not request a reopening of the Wade hearing. Nor did he, apparently, cross Patterson about his failure to identify Lynn when shown an array the first time. Counsel elicited only the more general information that Patterson "previously had indicated to police that he did not witness the shooting." Op. 20.

Regarding Quinones, he admitted at trial that "he did not want to get involved at first because he was afraid for himself and his family." Op. 20. However, the jury never heard about his statement to the police (made shortly after the shooting) that he "could not recognize" the shooter. Defense counsel did not elicit this statement on cross.

Finally, defense counsel tried to introduce into evidence a police report describing Arriaga's arrest. (The report was helpful for Lynn because it described how a crowd was chasing Arriaga, believing him to be the shooter). The court denied the request on the ground that the report was hearsay, since most of it recorded statements from witnesses. Defense counsel failed to tell the court, however, that the portion of the report describing how the arresting officer rescued Arriaga from the crowd by pulling him from under a car was not hearsay, since it was based on the officer's personal observation.

Lynn was convicted of murder and attempted murder. The state appellate courts affirmed his conviction, and he thereafter filed a § 2254 petition in the SDNY. He raised three Strickland claims in the petition -- that counsel rendered constitutionally ineffective assistance by (1) failing to move to reopen the Wade hearing after learning that Patterson failed to ID Lynn when first shown an array; (2) failing to cross Quinones about his prior statement to the police that he "could not recognize" the shooter; and (3) failing to argue successfully that the portion of the arrest report detailing the police's "rescue" of Arriaga from the crowd was not hearsay and should have been admitted. As noted, the district court granted the motion, but the Circuit reversed.

Regarding the failure to move to reopen the Wade hearing, the Court concluded that even if counsel had made such a motion, Patterson's identification testimony would not have been suppressed. Op. 19. "There is simply no evidence in the Record regarding improper police conduct pertaining to the out-of-court identification procedures -- only 'inconsistent statements' resulting from the two arrays shwon to Patterson." Op. 20. And while inconsistent statements regarding identification may be appropriately elicited on cross examination, the mere fact of inconsistency is not sufficient for suppression under Wade (requiring showing of impermissibly suggestive procedures rendering ID unreliable).

The problem, though, is that while counsel "did conduct cross-examination to establish that Patterson previously had indicated to police that he did not witness the shooting," Op. 20, nothing (at least in the Court's opinion) indicates that counsel actually crossed Patterson about his first, failed attempt to select the shooter from a photo array. This more specific, un-elicited fact would surely have been more persuasive to a jury (that Lynn was not the shooter), and not the same as the general fact that Patterson previously told the police that he did not witness the shooting.

The Court also found that counsel's failure to specifically cross Quinones about his prior statement to the police that he "could not recognize" the shooter did not prejuice Lynn. At trial, Quinones testified generally that he "did not want to get involved at first" because he was afraid. And he admitted on cross that he initially told the police that he didn't known anything about" the shooting. Op. 21. In light of this, the Court concluded, counsel's failure to specifically elicit one prior inconsistent statement did not give rise to a reasonable probability of a different result: "The jury was aware that Quinones had changed his story several times and that he had lied to the police when he said he didn't know anything about the shooting." Op. 22.

Finally, the Court rejected the Strickland claim based on counsel's failure to successfully argue for the introduction of the portion of the police report describing how arresting officers rescued Arriaga from an angry mob in the aftermath of the shooting. No prejudice flowed from this failure, the Court explained, because the jury was aware generally that Arriaga had originally been charged with the shooting, and the fact that "he was pulled out from underneath a car, or that a crowd had assaulted him, was of no material significance." Op. 25.

State Misdemeanor Plea Vacated: Record of Allocution Failed to Show Knowing and Voluntary Waiver of Trial Rights

Hanson v. Phillips, Docket No. 04-0940-pr (2d Cir. March 30, 2006) (Leval, Straub, Katzmann): An astonishingly good result for Mr. Hanson (and perhaps for thousands of fellow travelers in the New York State courts): The Circuit grants Hanson's § 2254 petition because the record of his state guilty plea (to a misdemeanor charge of criminal contempt in the 2d degree in an Orange County city court, for which he was ultimately sentenced to 15 days in the county pen and 3 years' probation) failed to "affirmatively disclose that [he] intelligently and voluntarily pleaded guilty," as required under Boykin v. Alabama, 395 U.S. 238 (1969). For those interested, the plea allocution is quoted in full at pages 3 to 6 of the opinion. It is undeniably bare bones -- not even close to the full Rule 11 colloquy required in federal court. And Boykin undeniably stands for the proposition that "the record on appeal must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily." Brady v. United States, 397 U.S. 742, 747 n.4 (1970).

The Court concluded that the state courts unreasonably applied Boykin in affirming Hanson's conviction and thus granted the writ even under AEDPA's deferential standard. The Circuit found "the record deficient in establishing both the defendant's understanding of the immensely important procedural step he was taking and that he was acting voluntarily. . . . Nothing in the record affirmatively discloses Hanson's awareness that he had the right to have his guilt determined at a trial and that by pleading guilty he was giving up that right. Nor does the record affirmatively disclose that Hanson voluntarily chose to plead guilty." Op. 17-18. Those interested in the nitty-gritties of the Court's application of the Boykin standard to Hanson's plea should consult pages 18 to 21 of the decision.

Interestingly, after reaching this conclusion, the Circuit spent several pages trying to assure the law-abiding public that its decision will not open a floodgate for similar claims. First, it repeatedly stated that "no particular form or script is required" and that "state courts have considerable leeway to establish a record in whatever reasonable manner they see fit," so long as Boykin's basic requirement (of a record affirmatively disclosing that the defendant made his plea intelligently and voluntarily) is met. Op.21-22. Second, the Court averred that Hanson's barebones plea was an anomaly even in the state system, stating "we are persuaded that it is the common and general practice of New York judges to engage pleading defendants in colloquies . . . that, though various in style, are sufficient to meet the minimal requirements imposed by the federal constitution." Op.23.

This Blog is not so sure, having seen a few skeletal state allocutions in our time. But what do we know -- like the Court, "our view of the wide expanse of New York pleading practice is necessarily limited." Op. 23. Unlike the Court, though, this defendant-friendly Blog hopes the Court's assessment of the likely effect of its decision is wrong -- open those floodgates!

The Circuit also denied the State's motion to dismiss Hanson's appeal under the fugitive disentitlement doctrine, and the opinion has an interesting discussion of the issue. Apparently, Hanson was tried on unrelated charges in state court, and fled before sentencing, while the appeal in the instant habeas proceeding was pending in the Circuit. He was apprehended within two months, however, and was then convicted of bail jumping in state court and sentenced to 1 1/2 to 4 years.

The Circuit refused to dismiss his appeal under these circumstances, concluding that because Hanson "is now in custody and has been prosecuted and sentenced for bail jumping, all of the justifications for disentitlement militate against dismissing this appeal." Op.11 (listing four justifications for fugitive disentitlement doctrine).

Credit Card Conviction Upheld

United States v. Goldstein, Docket No. 04-1689-cr (2d Cir. March 29, 2006) (Walker, Hall, Gibson (by desig'n)): Goldstein raises a host of challenges to his conviction for credit card fraud and his 70-month sentence. Only a few are worth mention (and barely so).

First, Goldstein argues that the trial court erred in instructing the jury about his good faith as a defense. While the court properly told the jury that good faith is a complete defense to the fraud charges, Goldstein claims that this correct statement was undermined when the court "added language that improperly required the jury to find that Goldstein's good faith was objectively reasonable." Op. 6; see Cheek v. United States, 498 U.S. 192, 203 (1991) (good-faith belief, as a defense, need not be objectively reasonable). The problematic language is the highlighted portion of the following instruction: "If the defendant actually believed that he was authorized to use the access devices and took reasonable steps to check out that belief, then the defendant acted in good faith." Op. 7 (emphasis in original). Because Goldstein failed to object below, unfortunately, appellate review was for plain error.

And the Circuit found no plain error. While acknowledging that Goldstein's claim "has some appeal" and that the highlighted phrase "certainly evokes objectivity," the Circuit concluded that he was not prejudiced by the likely error because "[t]aken as a whole, the charge appropriately interpreted the law of good faith." Op. 9. Among other things, "the very next sentence of the instruction contains a specific directive that Goldstein had no burden to prove his good faith." Op. 8. (How this statement undoes the damage of the erroneous one is unexplained). Additionally, "the jury was further instructed that it could not convict Goldstein . . . unless the government proved beyond a reasonable doubt that [his] conduct was calculated to deceive and that he intended to cause loss through his conduct." Op. 9-10.

Second, Goldstein claims that the court erred in not instructing the jury that it had to agree unanimously as to which access devices (i.e., credit cards) he used "to obtain anything of value aggregating at least $1,000." Op. 9. The statute of conviction, 18 U.S.C. § 1029(a)(2), criminalizes the fraudulent use of "one or more" access devices "during any one-year period" to obtain "anything of value aggregating $1,000 or more."

This raises a question of first impression in the Circuit. However, the First Circuit rejected a similar challenge in 2003, and the Second follows that decision here. There is no error, the Court held, because "the identity of the particular credit cards is not an element of the offense but instead is a fact used to prove an element. The statute's focus is on the amount of money people have lost through fraud rather than the number of people who have been defrauded." Op. 9. The identity of the credit cards is "merely a fact used to prove an element" and not an element in itself. Op. 10. Unanimity as to the identity of the cards is therefore not required.

There is also a Crawford challenge to the introduction of certain documentary evidence concerning complaints by customers of Goldstein's enterprise to their credit card companies, but the opinion does not provide enough information to evaluate the validity of the Court's conclusion that there was no Sixth Amendment problem because "the evidence at issue was not 'testimonial'" and in any event was not offered for its truth. Op. 15-16. (Sound familiar?)

Attempted Assault-2d under New York Law Qualifies as "Violent Felony" under ACCA

United States v. Walker, Docket No. 05-3851-cr (2d Cir. March 30, 2006) (Straub, Sack, Trager (by desig'n)) (per curiam): Not much to this opinion, which holds that a conviction in New York State for attempted assault in the second degree, in violation of N.Y. Penal Law §§ 110/120.05(2), qualifies as a conviction for a "violent felony" within the meaning of 18 U.S.C. § 924(e)(1) & (e)(2)(B), and thus can serve as one of the three required predicates triggering the 15-year minimum under the ACCA. The statutory language seems to fit, Op. 3-4, [but see "Comments" below] and Congress can enact dumb laws if it so wishes.

The Circuit also quickly rejects Walker's argument that his conviction should not be counted as an ACCA predicate because New York's own definition of "violent felony" (for purposes of its sentencing laws) does not include attempted assault-2d: "Congress chose to define 'violent felony' by reference to the elements of the offense of conviction rather than to the status of that offense within the relvant state law." Op. 4 (emphases in original).

Can a Host Consent to the Search of an Overnight Guest's Closed Luggage? Does Apprendi Require a Jury to Find Facts of an Affirmative Defense?

United States v. Snype, Docket No. 04-3299-cr(L) (2d Cir. March 17, 2006) (Cabranes, Raggi, Sand):


This thoroughly litigated case produced a lengthy opinion touching on important Fourth Amendment, trial, and sentencing issues. These issues ranged from intertwined issues of a “warrantless” search and its fruits, the voluntariness of a consent to search, and the lawful scope of that consent, various trial errors including an error under Crawford v. Washington, and several challenges to the mandatory life sentence. The Circuit ultimately rejected all, although the defendant’s arguments appear in a number of cases to be more substantial than the Court’s opinion might suggest.

The defendant Snype was charged with conspiracy to commit bank robbery. According to the government’s cooperating witness, who said he had acted as a lookout, Snype and another man robbed the bank at gunpoint. When police arrived, Snype and his partner fled, shooting at police, and when their SUV was run off the road, Snype escaped while the partner was killed. The police eventually arrested the cooperator, got a warrant for Snype’s arrest, and arrested him at the apartment of a woman, a friend of someone Snype knew, where Snype had stayed overnight. Although the Circuit’s opinion does not give a full description of the police's entry of the apartment, it involved a forcible entry by a heavily armed SWAT team who handcuffed Snype and the woman and “raised the possibility” of putting the woman’s child in foster care while she was held in custody. The police saw on the floor Snype’s knapsack and bag as well as an open teller’s box from the bank, with bundles of cash visible inside. Ultimately the woman consented to a search of her apartment including the knapsack and bag, which contained additional evidence.

The defendant raised several issues: 1) that the consent was not voluntary, given the forcible nature of the entry and the police threat to take away the woman’s child; 2) that in any event, the woman did not have the authority to consent to the search of Snype’s bag; 3) that the forcible entry of the apartment based only on an arrest warrant was unconstitutional, and 4) that the consent was the fruit of that unlawful entry.

The Court found the consent voluntary based on the woman’s own testimony that she had known Snype only since the day before, that her consent was voluntary, that “she perceived” the entry and threats as being “way before” her consent, that calm had been restored before she gave consent, that she did not feel threatened by the officer’s presence or their threat to take away her child, and that she knew she was not required to give consent. It also found that the consent could extend to a search of Snype’s belongings although this seems substantially more doubtful; the Court’s reliance on cases in which a third party has “access to the area searched” and the like, hardly makes clear that, before the police arrived, the woman had any access or permission to open Snype’s bags or to consent to their search.

Snype argued in the alternative that the consent was the fruit of an unlawful entry of the apartment, since the police had only an arrest warrant, which was not adequate to enter an apartment that was not his home under Steagald v. United States. The Court assumed, without holding, that the entry was illegal; there is substantial authority that only the actual householder may raise the failure to get a search warrant, but, where the arrestee actually has an expectation of privacy in the area, there may be some doubt about the right rule. For much the same reasons as it found the consent voluntary, however, the Court found that the consent was not tainted by the search.

The trial error most worth mentioning is a Crawford error in admitting the plea allocution of a co-conspirator against Snype. The Court acknowledged, as it had to, the error, but found it harmless.

Because Snype was convicted in this case of a “serious violent felony” and had two prior “serious violent felonies,” he received, instead of a five-year maximum sentence under 18 U.S.C. § 371, a mandatory life sentence under 18 U.S.C. § 3559, the “three strikes” law. Snype’s arguments centered on an affirmative defense to the mandatory sentence, allowing him to escape its application if he could prove by clear and convincing evidence that no firearm was used in a robbery that was the instant or a predicate “serious violent felony.” Snype’s most substantial argument was that under Apprendi v. New Jersey, the finding that a firearm was used had to be made by a jury, not a judge. The Circuit rejected this claim essentially on the authority of cases such as Patterson v. New York, holding that the burden of proof of some affirmative defenses could be placed on the defendant. But Patterson was not a Sixth Amendment case, and the affirmative defense there was determined by the jury. Since the finding that a gun was used in the two predicate robberies as well as the instant offense was essential to the imposition of a mandatory lifetime sentence, rather than a five-year maximum, it seems clear under Apprendi that a jury had to make that finding. And, after Shepard v. United States, that principle applies to prior crimes as well, to the extent that the use of a weapon is not shown on the face of the record of the conviction.

Revocation Proceedings Exempt from Jury Trial and Beyond-Reasonable-Doubt Protections of the Sixth Amendment

United States v. Rasheim Carlton, Docket No. 05-0974-cr (2d Cir. March 24, 2006) (Cardamone, Cabranes, Pooler): This opinion principally rejects an Apprendi and Blakely based Sixth Amendment challenge to the district court's decision to revoke Carlton's supervised release and resentence him to 25 months' imprisonment based solely on the court's own fact-finding, on a preponderance standard, that he committed a new crime. The outcome is hardly unexpected -- the Circuit has repeatedly refused to apply the Sixth Amendment implications of Apprendi, Blakely, and Booker to revocation proceedings in recent decisions. E.g., United States v. McNeil, 415 F.3d 273 (2d Cir. 2005).

The opinion is of interest only because it goes beyond citing precedent and attempts to offer a rationale for why the jury trial and beyond-a-reasonable-doubt protections do not apply at revocation proceedings. Indeed, the Circuit acknowledged that "some tension exists between § 3583(e)(3) (permitting judge to revoke on its own findings on preponderance standard) and Booker and its related cases," which bar the imposition of any punishment beyond that authorized by a jury's verdict (or the defendant's admissions). Op. 12; see id. 13 ("[T]he facts reflected in the jury verdict for Carlton's underlying offense could not possibly include those that formed the basis for his sentence for violating supervised release; a jury cannot find facts 'which the law makes essential to the punishment,' Blakely, 542 U.S. at 304, if those facts have not yet occurred.").

The tension is only apparent, however, because "a sentence of supervised release by its terms involves a surrender of certain constitutional rights and this includes surrender of the due process rights articulated in Apprendi and its progeny." Op. 14. The "constitutional rights afforded a defendant subject to revocation of supervised release for violation of its conditions are not co-extensive with those enjoyed by a suspect to whom the presumption of innocence attaches," the Court explained. Unlike the latter, a releasee possesses only "conditional liberty"; the "conditions placed on a defendant's liberty in supervised release encompass by implication the additional condition expressed in § 3583(e): that the defendant surrender his rights to trial by jury and to having accusations against him proved beyond a reasonable doubt." Op. 16.

Counsel Must File Notice of Appeal if Client Requests, even if Appeal Waiver Exists

Campusano v. United States, Docket No. 04-5134-pr (2d Cir. March 23, 2006) (Pooler, Sotomayor, Korman (by desig'n)): A fine opinion that reaches the right result and contains enough praise of the importance of a criminal defendant's right to appeal to warm the heart of even the most jaded appellate counsel. The issue is simply whether an attorney is required to file a notice of appeal when requested by the client, even though the client entered into a plea agreement containing an appeal waiver provision that seemingly bars an appeal. Relying on the Supreme Court's decision in Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Circuit held that, yes, a lawyer is indeed required to file a notice of appeal under such circumstances, and that it is per se ineffective assistance not to do so. The proper procedure is to file the notice of appeal and then -- if counsel determines that there are no non-frivolous issues for appeal (because of the waiver or for whatever other reason) -- to file an Anders brief requesting withdrawal from the case. See United States v. Gomez-Perez, 215 F.3d 315 (2d Cir. 2000).

A bonus is the opinon's discussion of the possibility that valid appellate issues may exist despite the waiver. The Court pointed out that "although waivers of appeal are enforceable in all but a few situations, important constitutional rights require some exceptions to the presumptive enforceability of a waiver." Op. 7. The Court then listed some examples, noting that "waivers are not enforceable 'when the waiver was not made knowingly, voluntarily, and competently . . . , when the sentence was based on constitutionally impermissible factors . . . , when the government breached the plea agreemeent . . . , or when the sentencing court failed to enunciate any rationale for the defendant's sentence.'" Op. 7 (quoting Gomez-Perez, 215 F.3d at 319).

Guidelines Enhancement Valid Despite Incorporating by Reference a Now-Repealed Statute

United States v. Roberts, Docket No. 04-6610-cr (2d Cir. March 23, 2006) (Sotomayor, Raggi, Cedarbaum (by desig'n)) (per curiam): This is an odd one: The Circuit affirms a sentence that included an enhancement under U.S.S.G. § 2K2.1(a)(5), calling for an enhanced base offense level of 18 when the offense "involved a firearm described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30)," because Roberts's firearm (a Tech 9 pistol) qualified as a "semiautomatic assault weapon" under § 921(a)(30) -- even though § 921(a)(30) had been repealed by the time of Roberts's sentencing. The Court upheld the sentence by reading the Guideline literally, and after noting that it was "aware of no authority that prevents Congress, or the Sentencing Commission acting under congressional authority, from incorporating by reference any definition they choose in the Sentencing Guidelines, whether or not that definition is contained in a currently operative provision of the United States Code." Op. 4-5. The Court also relied on the fact that § 2K2.1 has been amended twice since the repeal of § 921(a)(30) -- and "neither modification removed the Guideline's reference to the repealed § 921(a)(30)." Op. 4.

The puzzling aspect of the decision is its repeated reference to the fact that § 921(a)(30) was in effect when Roberts committed the offense, even if it was repealed by the time of sentencing. This Blog fails to see the relevance of this fact given the Court's reasoning. Are there lurking ex post facto concerns we do not see? Please, will someone enlighten this Blog?

Revocation Based on Hearsay Upheld Where Defendant Caused Declarant's Absence by Intimidation

United States v. Paul Williams, Docket No. 05-0458-cr (2d Cir. March 22, 2006) (Kearse, Miner, Hall): This interesting opinion affirms a judgment revoking Williams's supervised release and imprisoning him for three years (the statutory maximum). The district court found that Williams violated supervised release by committing a new crime -- i.e., by shooting and then robbing one Ryan. The principal issue on appeal concerned whether the court erred in basing this finding upon hearsay evidence, since no eyewitness testified at the revocation hearing. The hearsay evidence consisted of testimony by an NYPD detective and by the probation officer, as well as a sworn complaint by Ryan, regarding conversations with Ryan in which Ryan identified Williams, on at least three separate occasions, as his assailant. Ryan also made several out-of-court statements denying that Williams was his attacker, however, and refused to testify against him.

The Circuit upheld the district court's finding, concluding that because Williams was responsible for Ryan's unavailability -- the evidence showed that Ryan was threatened by Williams's associates and feared reprisal if he appeared in court -- and because Williams had pleaded guilty to a misdemeanor in state court arising from the same incident (and admitted during his plea allocution that he "recklessly engaged in conduct which created a substantial serious physical physical injury to another person"), the district court did not err in denying Williams the opportunity to confront Ryan at the revocation hearing.

The Confrontation Clause of the Sixth Amendment does not apply at revocation proceedings. United States v. Aspinall, 389 F.3d 332, 342-43 (2d Cir. 2004). However, the Supreme Court has held that "minimum requirements of due process" in a parole revocation hearing include the right of the defendant "to confront and cross-examine witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)." Morrissey v. Brewer, 408 U.S. 471, 489 (1972). Rule 32.1(b)(2)(c) of the Federal Rules of Criminal Procedure enshrines this minimum requirement: the court must give the defendant "an opportunity . . . to question any adverse witness, unless the judge determines that the interests of justice does not require the witness to appear."

To deny a defendant the opportunity to confront, the district court must show "good cause." Op. 19. And in making that determination, the court "must balance, on the one hand, the defendant's interest in confronting the declarant, against, on the other hand, the government's reasons for not producing the witness and the reliability of the proffered hearsay." Op. 19 (citing United States v. Chin, 224 F.3d 121, 124 (2d Cir. 2000)).

The Circuit had no trouble upholding the district court's reliance on hearsay under this balancing test. First, it concluded that Williams essentially forfeited his interest in confrontation because Ryan's absence was "the result of intimidation by the defendant." Op. 19 (citing United States v. Mastrangelo, 693 F.2d 269, 272-73); see also Fed. R. Evid. 804(b)(6) (out-of-court statement by unavailable declarant is "not excluded by the hearsay rule" when "offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness"). Ample evidence showed that Ryan refused to come to court because of threats levied by Williams's associates and his general fear of Williams. Second, on the same reasoning, the Government had good cause not to force Ryan to appear at the hearing. Finally, Ryan's hearsay statements were reliable considering the circumstances under which they were made and given Williams's subsequent plea allocution in state court. Op. 21-23. Similarly, evidence showed that Ryan's contrary hearsay statements (exculpating Williams) were made when he feared reprisal by Williams.

Williams also argued on appeal that his sentence must be vacated because the district court erred in evoking concerns about "the seriousness of the offense" to justify the three-year sentence. This clever argument is based on the fact that 18 U.S.C. § 3583, which governs supervised release, lists certain subsections of § 3553(a) that a court is expressly required to consider in determining punishment upon revocation (indeed, § 3583(e) lists most of § 3553(a)), but omits Section 3553(a)(2)(A) (requiring a court to consider, among other things, "the seriousness of the offense").

The Circuit rejected this argument on two grounds. First, it interpreted § 3583(e) "simply as requiring consideration of the enumerated subsections of § 3553(a), without forbidding consideration of other pertinent factors." Op. 24-25. Second, it ruled that "§ 3583(e) cannot reasonably be interpreted to exclude consideration of the seriousness of the releasee's violation, given the other factors that must be considered." Op. 25. For instance, § 3583(e) explicitly requires the court to consider "the nature and circumstances of the offense" (§ 3553(a)(1)) and the need for the sentence imposed to "afford adequate deterrence" (§ 3553(a)(2)(B)) and to "protect the public from further crimes of the defendant" (§ 3553(a)(2)(C)). The Court thus concluded: "We cannot see how, in order to impose a sentence that will provide 'adequate deterrence' and protection of the public from 'further crimes of the defendant' in light of 'the nature and circumstances of the offense,' the [revocation] court could possibly ignore the seriousness of the offense." Op. 25-26.

Prosecutor Blunders, and the District Judge too, but All's Well, 'Cause Evidence Was Overwhelming

United States v. Skelly and Gross, Docket No. 05-4261-cr (L) (2d Cir. March 21, 2006) (Newman, Katzmann, Rakoff (by desig'n)): A rather rambling opinion by one SDNY judge affirming a judgment of conviction rendered by another SDNY judge following a jury trial convicting the two defendants of various counts of securities fraud. The Government's primary theory at trial was that Skelly and Gross, the principals of Walsh Manning Securities (a registered broker / dealer), engaged in a pump-and-dump scheme wherein they (and the registered reps they employed) "used manipulative techniques to artificially inflate the price of certain thinly-traded securities in which they held a substantial interest, and then used fraudulent and high-pressure tactics to unload the (largely worthless) securities on unsuspecting customers." Op. 2. This theory was, we are told, "amply supported by the evidence." Id.

Employing the "kitchen sink" mode of litigation so in favor at One St. Andrew's, however, the prosecutor threw in another theory of liability in his summation. Shifting gears entirely, the prosecutor told the jury that it could also convict the defendants based on the fact that when the company's registered reps recommended the stock to its customers, the reps failed to tell the customers that they were being paid "huge commissions for recommending . . . and selling that stock." Op. 3. "[T]that's fraud under the securities law," the prosecutor asserted. Id.

Not so. On the contrary, liability under a "material omission" theory exists only where the registered rep had a fiduciary relationship with the customer. Op. 4-5. "[N]o SEC rule requires the registered representatives who deal with the customers to disclose their compensation," the Circuit stated, and under the general anti-fraud provisions of the securities laws (under which the defendants were indicted), "a seller or middleman may be liable for fraud if he lies to the purchaser or tells him misleading half-truths, but not if he simply fails to disclose information that he is under no obligation to reveal." Op. 4.

In charging the jury, the district judge first correctly stated the law on this new theory. He told the jury that it could "only convict a defendant on a 'failure to disclose' theory if the broker had assumed a 'fiduciary duty' to disclose such information." Op. 5. This was a proper statement of the law. And while "there is no general fiduciary duty inherent in an ordinary broker / customer relationship," Independent Order of Foresters v. Donald, Lufkin & Jenrette, Inc., 157 F.3d 933, 940 (2d Cir. 1998), a fiduciary relationship can arise under particular factual circumstances. For instance, the Circuit has held that a broker has a fiduciary duty to a customer "where a broker has discretionary authority over the customer's account." Op. 6; see also Op. 5-6 (fiduciary relationship exists "between a broker and a customer with respect to those matters that have been entrusted to the broker").

The court then erred, however, in defining when such a duty can arise. The court "for reasons unclear from the record, limited the instruction on this point to a single sentence: 'One acts in a fiduciary capacity when the business which [sic] he transacts or the money or property which [sic] he handles is not his or for his own benefit, but is for the benefit of another person as to whom he stands in relation impl[ying] and necessitating great confidence and trust on the one part, and a high degree of good faith on the other part." Op. 7. This instruction was faulty, the Circuit found, because it "omitted the elements of 'reliance and de facto control and dominance,' which are required to establish a fiduciary relationship." Id.

But all's well and everyone can sleep soundly: The errors were of no moment because the defendant failed to lodge a proper objection to the charge and because, in any event, the evidence of guilt on the principal theory of liability advanced by the Government was (so we are told) overwhelming. Op. 8-9.

The Circuit also rejects the defendants' claim that the Government's alternative theory of liability constituted a constructive amendment of the indictment. This was because the indictment generally charged the defendants with "causing retail brokers employed by Walsh Manning . . . to employ a variety of fraudulent and illegal sales practices in order to induce customers to buy the securities," and this "general language was more than sufficient to encompass [both theories of liability] as well as to put the defendants on fair notice that all their practices used to promote the house stocks were included in the charge." Op. 9-10.

Quattrone Conviction Vacated, and Case Remanded for Retrial before a Different Judge

United States v. Frank Quattrone, Docket No. 04-5007 (2d Cir. March 20, 2006) (Wesley, Hall, Scullin (by designation)): We have not yet had time to read the decision and will do a full summary later. Even a quick look, though, confirms a big (though not total) victory for the defense: The Circuit (1) vacates Quattrone's conviction because of errors in the district court's charge to the jury (the charge failed to tell the jury that it had to determine that Quattrone knew that the documents he was asking to be destroyed were the same ones sought by the Government, thus "remov[ing] the defendant's specific knowledge of the investigatory proceedings and the subpoenas / document requests from the obstruction equation" and "leaving a bare-bones strict liability case") ; (2) rejects Quattrone's claim that the evidence was insufficient to sustain the verdict; and (3) remands the case to a different judge (i.e., someone other than Judge Owen) for retrial "in the interests of justice." More later . . . .

Update: Having now read the decision, this Blog will rely on the commentary provided by the White Collar Crim Prof Blog (click here), which ably summarizes the relevant facts and legal conclusions. I add only my personal observation that (1) if the Circuit's factual recitation of the trial evidence is accurate, its conclusion that the evidence was sufficient to sustain the verdict is correct, given the low threshold for sustaining jury verdicts against sufficiency challenges (there is quite a bit of smoke, and whether there's a fire is for the jury to determine); (2) even if a crime was committed, it was a tiny one -- one hardly worth the expense and effort of another trial; and (3) how could the learned district judge -- and the experienced Government lawyers -- have so badly misunderstood a simple issue regarding mens rea?

Prison Inmate Does Not Forfeit Attorney-Client Privilege

United States v. DeFonte, Docket No. 06-1046-cr (March 14, 2006) (before Jacobs, Wesley, C.J.J., Koeltl, D.J.)

This interesting per curiam decision holds that a prison inmate retains her attorney-client prvilege with respect to a diary that she maintained while incarcerated.

Facts: Defendant DeFonte, a (former, presumably) correction officer at the MCC, was on trial for crimes that he was charged with having committed in the course of his employment. One of the witnesses against him was to be an inmate, Francia Collazos. Shortly before trial, the government learned, and ultimately obtained possession of, a diary that she maintained in her cell containing her writings about incidents inovling DeFonte and conversations with her own attorney and the prosecutors. When DeFonte's attorney learned of the diary, he requested that it be turned over to the defense as 3500 and Giglio material. Collazos moved to intervene. She sought a protective order claiming that those writings were covered by the attorney-client privilege. The district court (Batts, J.) ordered that the diary be turned over, holding that it was not privileged because Collazos had no expectation of privacy in the contents of her cell. Collazos moved for stay, and the case was heard by the Court of Appeals on its motion calendar on the first day of trial. The opinion was filed that same day. (It is reassuring that the Court can issue published opinions with alacrity when the need presents itself.)

Holding: The Court of Appeals vacated the district court's order and remanded the matter for a hearing.

First, the Court held that inmates retain the attorney-client privilege, despite their almost total lack of Fourth Amendment rights. However, the Court concluded that the entries in Collazos' diary fell into different categories, with differing potential applications of the privilege, and that a hearing would be necessary to fully resolve the issues.

The first set of entries, Collazos' memorializations of her private conversations with her own attorney, were clearly covered by the privilege. Collazos asserted that she never consented to the diary's being taken from her possession, and there was no evidence that she either shared or intended to share those entries with anyone else. However, the Court noted that the privilege could be deemed waived if evidence emerged at the hearing that Collazos "treated the notes in question in such a careless manner as to negate her intent to keep them confidential."

The second group of entries consisted of recordings of events in Collazos' daily life, including incidents with DeFonte, and discussions with prosecutors, which she claimed were made for the purpose of later discussions with her attorney, though the writings themselves were not provided to the attorney. For these entries, the Court held that the privilege might still apply: "an outline of what a client wishes to discuss with counsel -- and which is subsequently discussed with one's counsel -- would seem to fit squarely within our understanding of the scope of the privilege." Thus, for these entries, the question to be resolved at the hearing is whether Collazos actually communicated the contents of these entries to her attorney.

Comment: This case arises from a highly unusual set of facts that is not particularly likely to recur, since it is doubtful that large numbers of prision inmates maintain a diary at all, let alone one that would reveal that the inmate is cooperating with the government. More intriguing, however, are the implications of this decision for an inmate's telephone conversations with the attorney, which are recorded (inmates implicitly consent to this by virtue of a notice posted by the phones warning them that all calls will be recorded) and in-person meetings with the attorney which the government, under some limited circumstances, has the authority to record without consent.

Slow Times at the Circuit (at least for Its Criminal and Habeas Docket)

Jackson v. Attorney General, Docket No. 05-2766-pr (2d Cir. Feb. 8, 2006) (Walker, Winter, Jacobs): This short habeas-related decision was rendered on February 8, 2006, but not posted on the Circuit's website until March 10th. No harm -- the Court simply holds that a Certificate of Appealability ("COA") is required to appeal a district court's denial of a Rule 59(e) motion (seeking to alter or amend a judgment) when the underlying judgment is one that denies or dismisses a § 2254 petition. The Court relied largely on its earlier decision in Kellogg v. Strack, 269 F.3d 100, 103 (2d Cir. 2001), which held that a COA is required to appeal from the denial of a Rule 60(b) motion (seeking relief from a judgment) when the underlying judgment is a denial or dismissal of a habeas petition.

Mayor's Conviction Upheld -- But Did He Really Act under "Color of Law"?

United States v. Philip Giordano, Docket No. 03-1394 (2d Cir. March 3, 2006) (Jacobs, Sotomayor, Hall): Giordano is the former mayor of Waterbury, Connecticut. He was convicted by a jury of (1) two counts of 18 U.S.C. § 242 (violating someone's civil rights "under color of [] law") (the "civil rights counts"); (2) fourteen counts of 18 U.S.C. § 2425 (using a "facility of interstate commerce" to transmit the name or other identifying information of a person under age 16, with the intent to entice or solicit the person to engage in sexual activity) (the "phone counts"); and (3) one § 371 conspiracy count involving the § 2425 violations. On appeal, he raised numerous arguments, three of which are discussed by the Court in this published decision (the remaining arguments are discussed -- and rejected -- in an unpublished summary order): (1st) that the § 2425 convictions must be vacated because all of the underlying phone calls were intra-state ones (i.e., both Giordano and the other party were within Connecticut when the calls were made); (2nd) that the evidence was insufficient to support his conviction on the § 242 counts, since he did not act under "color of law" when he procured sexual services, by paying a prostitute named Jones, from Jones's 9 year old daughter and 11 year old niece; and (3) that the district judge, who had authorized the wiretap applications that uncovered Giordano's sordid misdeeds, should have recused himself from acting as the judge at trial. The Circuit rejects all three arguments -- all of which are, apparently, issues of first impression in this Circuit -- and affirms the conviction; Judge Jacobs dissents -- correctly, we believe -- on the 2nd issue.

The essential facts are thus. Federal agents were investigating Giordano, then Waterbury's mayor, in an unrelated corruption investigation (that's Connecticut for you). They obtained a wiretap authorization on his phone from Judge Nevas (who later acted as the trial judge). In the course of listening to Giordano's phone conversations, agents learned that Giordano regularly procured sex from Jones -- and that he had done so even before becoming mayor. Agents also learned, eventually, that Giordano paid Jones to bring along her 9 year old daughter and 11 year old niece. The children performed oral sex on Giordano on numerous occasions, including a few times in the mayor's office and once in the mayoral limo. All of the phone calls setting up the meetings between Giordano and Jones and the children were made within the state of Connecticut.

Giordano never coerced Jones or the children into having sex with him; he paid Jones for the services. Nor did he explicitly use his status as mayor to facilitate these acts. However, he told Jones and the children that they should never tell anyone about their activities, because "I could go to jail" and "[Jones] could go to jail." At trial, the children testified that they did not refuse Giordano's advances, or report him to the authorities, because they thought that he, as the mayor, controlled the police and would put them in jail if they did.

As noted, the jury convicted Giordano on two civil rights counts; fourteen phone counts; and one conspiracy count. The judge imposed a sentence of 444 months on each of the civil rights counts, and 60 months (the statutory maximum) on the remaining fifteen counts, all to run concurrently.

First, the Circuit rejected Giordano's claim that the evidence on the phone counts was insufficient because he made no inter-state calls. The Court ruled that simply using a telephone is sufficient to satisfy § 2425's jurisdictional requirement, since the statutory language proscribes using any "facility of interstate commerce" for the stated illicit purpose. Op. 13-15. The Court also rejected Giordano's alternative claim that such a reading of § 2425 would render it unconstitutional under Lopez v. United States, 514 U.S. 549 (1995). As the Court explained, this statute "is clearly founded on the second type of Commerce Clause power categorized in Lopez, that is, the power to regulate and protect the instrumentalities of interstate commerce, 'even though the threat may only come from intrastate activities.'" Op. 17 (quoting Lopez, 514 U.S. at 558).

Second, the Court rejected Giordano's claim that, even if he did what the Government said he did, the evidence was insufficient to show that he acted "under color of [state] law". As the Supreme Court has long held, the "color of law" language requires the Government to prove a "misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." United States v. Classic, 399 U.S. 299, 326 (1941) (emphasis added); see also Screws v. United States, 325 U.S. 91, 111 (1945) ("'under color of law' means under 'pretense' of law"); Op. 20 (person acts "under color of law" when he or she "employs the authority of the state in the commission of the crime"). And, Giordano pointed out, he did not use his mayoral status to commit the charged crimes. Indeed, his relationship with Jones preceded his election as mayor. He simply paid her to have sex with him, and then paid her to allow him to have sex with her daughter and niece.

The Court rejected this claim, relying on the theory that Giordano's "threats" to Jones and the children that they would be in big trouble and "go to jail" if they disclosed their activities with Giordano, satisfied the "color of law" requirement. Op. 24. As the Court explained, the jury could have found, based on the evidence adduced, that Giordano "threatened his victims by invoking a 'special authority' to undertake retaliatory action, and . . . used his authority to cause the victims to submit to repeated abuse . . . by causing [them] to fear that he would use his powers to harm them if they reported the abuse." Op. 24. Referring to one child's testimony that Giordano repeatedly mentioned his connection with the police and her understanding that this meant that "he had control of what the police does," the Court concluded that "this evidence was sufficient to satisfy the Government's burden of showing that Giordano invoked 'the real or apparent power' of his office to make the continuing sexual abuse possible." Op. 25.

Finally, the Court quickly rejected Giordano's claim that Judge Nevas should have recused himself as the trial judge because he approved of the earlier wiretap applications: "The authorization of a wiretap under Title III does not 'evidence the degree of favoritism or antagonism required' to necessitate recusal under § 455(a)." Op. 28 (quoting Liteky v. United States, 510 U.S. 540 (1994)).

Judge Jacobs viogorously dissents on the second point, arguing that nothing showed that the criminal acts were "made possible only because [Giordano] [was] clothed with the authority of state law," as required under Classic. Op. 30. As he points out, it is "not enough for the government to show that abuse of government power was a contributing cause or background influence in the deprivation of the victim's rights; it must be the but-for cause." Id. (emphasis added). And the evidence in this case -- very far afield from from the typical § 242 prosecution involving, e.g., excessive use of force by prison guards or by police officers during an arrest (e.g., the Rodney King case) -- did not show that Giordano's position as mayor was the "but-for and indispensable means of the child abuse." Op. 31. Rather, the evidence showed that the same misconduct could have occurred had Giordano been an architect or plumber: He simply paid someone for sex. In Judge Jacob's view, "the sole cause of the abuse was that a sexual predator had access to sufficient cash (and a willing facilitator) to purchase the sexual services of children. Analytically, there is no distinction between the supposed threat in this case and any instance in which the customer of a prostitute demands confidentiality . . . ." Op. 32. Giordano did not use his power to "cause the victims to submit, . . . to create the opportunity to be alone with the victims and coerce them, . . . or to assert special authority for the misconduct or to undertake retaliatory action." Op. 33.

Judge Jacobs uses a hypothetical to show that not every illegal, unenforceable contract entered into by "the mayor of a small city [who] commands a police force" is thereby "made possible because of his office -- i.e., under color of law." Op. 32-33. The hypo involves a mayor who makes an illegal bet on horse races with his bookie:

"If the mayor hits the trifecta, his bookie may be most unhappy about paying, and may appreciate the mayor's power to get him arrested; a warning to keep quiet about the illegal transaction would be iimplicit whether or not recited; and the fact of the office would be evident. Still, it cannot seriously be argued that a bookie's payment under those circumstances would be extorted under color of law. The situation is indistinguishable from Giordano's, as the government all but conceded at oral argument."

Op. 33.

This Blog shares Judge Jacobs's skepticism about the sufficiency of the civil right counts. However, we take issue with his claim that this "is no small thing" as applied to Giordano's case. Judge Jacobs asserts that "Giordano's sentence is thirty-seven years (444 months); without conviction on the civil rights counts, Giordano['s] federal sentence would be five years." Op. 29.

This is clearly misleading. Although the sentence, as it currently stands, involves a 444-month sentence on the two civil rights counts and concurrent 60-month sentences on the fifteen phone counts, surely the sentencing judge would not simply keep the status quo on the phone counts were the civil rights counts vacated. Even without the § 242 counts, the same 37-year sentence can be achieved simply by "stacking" many of the § 2425 counts (i.e., by running the 60-month sentences consecutively rather than concurrently).

Sentence 2x Greater than Guidelines Range Upheld as Reasonable

United States v. Fairclough, Docket No. 05-2799-cr (2d Cir. Feb. 17, 2006) (Jacobs, Leval, Straub) (per curiam): The Circuit holds in this short opinion that (1) there is no Ex Post Facto problem when the Booker remedy (i.e., the advisory Guidelines regime) is used to sentence a defendant who committed his offense before Booker was decided in January 2005; and (2) a 48-month non-Guidelines sentence, more than twice the midpoint of the applicable range (21 to 27 months), was reasonable in light of the recidivism (Fairclough "had a relatively uninterrupted string of criminal activity and arrests" from 1998 to 2002) and "seriousness of the offense" concerns (Fairclough did not merely possess a gun, but sold it to an undercover believing that the buyer "was about to do bad with it") cited by the district court to justify the sentence. No new legal ground is broken on either point: (1) the Circuit had already rejected an Ex Post Facto challenge to application of the Booker remedy in United States v. Vaughn, 430 F.3d 518 (2d Cir. 2005) (click here for our discussion of Vaughn); and (2) to our knowledge, the Circuit has never struck down a sentence as unreasonable under Booker in a published decision.

If anything, the decision simply confirms the Circuit’s highly deferential posture toward district court sentences under reasonableness review. E.g., Op. 6-7. (The decision also contains good language repeating the Circuit's view, announced in Crosby, that it will not fashion "any per se rules as to the reasonableness of every sentence within an applicable guideline or the unreasonableness of every sentence outside an applicable guideline." Op. 7). While this may be bad news for defendants (like Fairclough) challenging above-the-range or within-the-range sentences on appeal as unreasonable, it will likely prove good news for those defending Government appeals of below-the-range sentences. And since both anecdotal and statistical evidence confirm that there are many more defendants in the latter category than the former -- at least in this Circuit -- the overall result, even if not ideal, may be a net positive for defendants.

P.S.: Click here for Professor Berman’s discussion of this case.

W.D.N.Y.'s "Fully Retained" Inquiry Practice Not Inconsistent with CJA's Explicit Allowance for Mid-Case Appointment of Assigned Counsel

U.S. District Court for the Western District of New York v. Darnyl Parker, Docket No. 04-5175-cr (2d Cir. Feb. 21, 2006) (Walker, Wesley, Hall): In a lengthy opinion touching on rarely encountered issues, the Court concludes that (1) the district court did not err in denying the defendant's mid-case request that his retained counsel be appointed under the Criminal Justice Act, 18 U.S.C. § 3006A(c), based on a finding that the defendant was not financially unable to pay for counsel; and that (2) the W.D.N.Y.'s practice of inquiring of retained counsel at an early stage of the proceedings whether s/he is "fully retained" (rather than retained only for limited purposes) does not violate § 3006A(c)'s explicit allowance for mid-case appointment of assigned counsel. See18 U.S.C. § 3006A(c) ("If at any stage of the proceedings, . . . the court finds that the person is financially unable to pay counsel whom he had retained, it may appoint counsel . . . and authorize payment [from CJA funds], as the interests of justice may dictate.").

Regarding the first issue, the Court ruled -- "in an issue of first impression in this Circuit" -- that in reviewing a district court's determination of financial eligibility for mid-case appointment under § 3006A(c), "a three-fold determination" is required. Op. 16. The Court must examine (1) whether the "district court conducted an 'appropriate inquiry' into the defendant's financial eligibility; (2) if it did, whether the court was "correct in its ultimate conclusion of financial eligibility"; and (3) if the court determined that the defendant was financially eligible for mid-case appointment, whether it erred in its weighing of the "interests of justice." Op. 16-17. And while "doubts as to eligibility should be resolved in a defendant's favor," the defendant bears the burden of showing that he is unable to afford representation. Op. 17.

The Circuit upheld the district court's denial of Parker's request, made on the eve of trial, that his retained counsel be appointed as CJA counsel under § 3006A(c) due to changes in his financial circumstances. It went through the aforementioned test, and concluded that the district court satisfactorily inquired into Parker's financial eligibility and that its determination that he was not eligible for assigned counsel was not clearly erroneous. The analysis is necessarily fact specific, and we will say no more.

The second issue concerned the W.D.N.Y.'s "fully retained" inquiry practice, in which a magistrate judge or a district judge demands an explicit acknowledgment from retained counsel at an early stage of representation that s/he has been retained by the defendant for the duration of the proceedings, and not merely for a particular stage of the case (e.g., for bail or for litigating a suppression motion) . Parker argued that the W.D.N.Y.'s practice essentially foreclosed the possibility of mid-case appointments, as provided for by § 3006A(c), and "shift[ed] all of the risk of the defendant's inability to pay to the defense attorney." Op. 29.

In response, the W.D.N.Y. (represented by pro bono counsel) acknowledged that the purpose of its practice was to discourage partial representation -- and mid-case appointments -- but that the practice was not inconsistent with § 3006A(c) because mid-case appointments are still made when the statutory standards are satisfied.

The Circuit bought the W.D.N.Y.'s argument, agreeing that the "fully retained" inquiry was not inconsistent with § 3006A(c)'s explicit allowance for mid-case appointments. The Circuit noted, among other things, that the W.D.N.Y. has in fact made mid-case appointments in several cases and that Parker "adduced no evidence of a W.D.N.Y. pattern or practice of automatically denying mid-case appointment[s]." Op. 38. The Court also went on at length about how this practice is consistent with an attorney's ethical obligations, assisted in the prevention of abuses of CJA resources, and discouraged the use of partial representation. Op. 35-42.

The Court upheld the practice, however, only by taking much bite out of it. As the Court explained, "the fact that defense counsel has stated that he or she is 'fully retained' at an initial appearance cannot automatically preclude the possibility of mid-case appointment." Op. 30. And while some W.D.N.Y. cases had suggested that once retained counsel acknowledged his or her "fully retained" status, mid-case appointments would be allowed only when "sufficiently unusual and extenuating" circumstances are found, Op. 34 n.20, the Circuit rejected this narrowing language as incompatible with § 3006A(c). Id. Rather, "in deciding whether to authorize CJA appointments under § 3006A(c), a magistate judge or district court need [only] find . . . [that defendant is financially unable to pay for counsel and that] the 'interests of justice'" so demand. Id. It is hard to see what is left of the W.D.N.Y.'s "fully retained" inquiry given the Circuit's conclusion that this practice "is compatible with the authorization of CJA appointment under § 3006A(c), as long as mid-case appointment is permitted if the defendant is financially eligible and the 'interests of justice' dictate." Op. 42 (emphasis added).