IEEPA's Delegation of Authority to President Is Constitutional

United States v. Osameh Al Wahaidy, Docket No. 05-4770-cr (2d Cir. Aug. 24, 2006) (Leval, Jacobs, Rakoff): This case concerns the constitutionality of the International Emergency Economic Powers Act ("IEEPA"), which authorizes the President to regulate financial transactions with foreign countries (or nationals) in times of security crisis and prescribes penalties for violations of executive orders or regulations issued by the President. Defendant was convicted under IEEPA of violating two presidential orders (issued by Bush the First following Iraq's invasion of Kuwait in 1990) prohibiting transfers of money to persons in Iraq (he transferred approximately $100,000 to persons in Iraq in 1999 and 2000).

Defendant argued that the charges against him must be dismissed because IEEPA unconstitutionally delegates Congress's authority to define criminal offenses to the President. The district court disagreed, and the Circuit affirms.

The Circuit relied principally on Touby v. United States, 500 U.S. 160 (1991), in which the Supreme Court upheld a delegation of power to the Attorney General to expedite the designation of a substance as "controlled" by bypassing (for a limited time) several of the requirements for permanent scheduling. Op. 13. Touby explained that even assuming that "something more than an 'intelligible principle' is required when Congress authorizes another Branch to promulgate regulations that contemplate criminal sanctions," the challenged statute would pass muster under that heightened standard. Without deciding whether something more than an "intelligible principle" is needed to sustain a congressional delegation involving criminal sanctions, the Circuit found that "the IEEPA's delegation is subject to constraints similar to those found sufficient in Touby." Op. 14.

Moreover, there were factors here weighing in favor of constitutionality that were absent in Touby. "Specifically, the IEEPA relates to foreign affairs -- an area in which the President has great discretion," and "[a]dditionally, Congress has endorsed the President's actions and enacted legislation codifying the sactions." Op. 15. There is, therefore, "no question that 'the will of Congress has been obeyed.'" Id.

Prosecutor Cannot Avoid Brady Obligation by Claiming that He Did Not Believe Witness's Exculpatory Statement

Disimone v. Phillips, Docket No. 05-6893-pr (2d Cir. Aug. 22, 2006) (Miner, Calabresi, Restani): In this decision, the Circuit (1) reverses the district court's grant of habeas based on insufficiency of the evidence (on the ground that Disimone failed to raise an insufficiency claim to the state appellate courts and cannot demonstrate cause and prejudice for the procedural default), but (2) remands for further fact finding on Disimone's Brady claim (specifically, whether defense counsel knew or had reason to know of a witness's exculpatory statement), which the district court summarily rejected in light of its grant of habeas on insufficiency. Judge Calabresi's opinion discusses many distinct issues, but this Blog will focus on its fine discussion of the prosecutor's failure to abide by his obligations under Brady.

The essential facts are these. The victim was stabbed to death during a late-night fight outside a Yonkers nightclub involving numerous participants. Forensic evidence showed that he was stabbed 13 times -- including once through the heart and once through the lung -- and that each wound contributed to his death.

No eyewitness testified. The State's principal witness was an ex-associate of Disimone, who testified in exchange for leniency in an unrelated murder case. That witness said that he saw Disimone run from the scene of the crime with a knife in hand and that Disimone admitted stabbing the victim. The State also introduced forensic evidence showing that blood on Disimone's clothing matched that of the victim.

Despite numerous requests, the prosecutor refused -- until very late in the trial -- to turn over evidence that one Nick Djonovic had told a relative that (1) he twice stabbed the victim, including once in the chest; and (2) Disimone thereafter stood over the victim and stabbed him as well. When defense counsel finally received this evidence near the close of the State's case, he sought a continuance (which was denied) and then a mistrial (also denied). Disimone was convicted and state courts affirmed his conviction.

On federal habeas, he argued inter alia that his right to receive material exculpatory evidence was violated by the prosecutor's failure to disclose timely Djonovic's statement. Disimone claimed that, among other things, Djonovic's confession could have been used to persuade the jury that whatever Disimone's role was in the fight, he was "not responsible for causing [the victim's] death." Op. 25. This was supported by the fact that the medical examiner "could not tell the order of the stab wounds but said that if the stab to the heart were the first one," it would have been sufficient to kill the victim. Id.

On these facts, the Circuit largely agreed with Disimone that the prosecutor violated his obligations under Brady, and remanded solely for further fact-finding concerning whether defense counsel somehow knew or should have known about Djonovic's statement independently. Op. 27-28.

Importantly, the Circuit rejected the State's claim that Djonovic's statement was not exculpatory because it did not find him credible. The prosecutor explained to the trial judge, for instance, that he was not required to turn over the statement because "the information contained in that affidavit was thoroughly investigated by my office and negated on several counts . . . [as] basically a lie." Op. 21. As a result, he claimed, Djonovic's statement did not qualify as Brady material: "[T]here may be situations in which a prosecutor, in his discretion, may fairly keep to himself knowledge of available testimony [apparently exculpating the defendant], which he views as mistaken or false." Id.

Sound familiar? We here at the FDNY have heard the same lame excuse from win-at-all-costs AUSAs. Hopefully, defense counsel will no longer have to put up with such nonsense, as the Circuit flatly rejected it: "If there were any questions about the reliability of the exculpatory information, it was the prerogative of the defendant and his counsel -- and not of the prosecution -- to exercise judgment in determining whether the defendant should make use of it." Op. 23. Judge Calabresi then approvingly quotes a district court opinion stating the same: "If the evidence is favorable to the accused, then it must be disclosed, even if the prosecution believes the evidence is not thoroughly reliable." Id. (emphasis added). "To allow otherwise," the Circuit concludes, "would be to appoint the fox as henhouse guard." Id.

A terrific line, and one that all defense counsel should be ready to spring on an ethically challenged prosecutor.

Government's Scattershot Implementation of Fast-Track Programs Does Not Create Unreasonable Sentences in Non-Fast-Track Districts

United States v. Mejia, Docket No. 05-3903-cr (2d Cir. Aug. 22, 2006) (Jacobs, Parker, Oberdorfer): In holding that a sentencing court has no authority to reconsider or reject the Guidelines' 100:1 treatment of powder vs crack cocaine, the Circuit last week in Castillo specifically rejected the defendant's argument that § 3553(a)(6) -- instructing district courts to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct" -- permitted a sentencing court to impose a non-Guidelines sentence when it believed that a Guidelines sentence would produce an unwarranted disparity. The Court explained that "[w]hile the 100:1 ratio clearly produces a disparity, it is one that Congress has mandated [and] one that Congress has continually refused to alter . . . ." Op. 35-36.

More bad news today: In Mejia, litigated by Deirdre von Dornum of this Office, the Court relies on similar reasoning in "holding that a district court's refusal to adjust a sentence to compensate for the absence of a fast-track program does not make a sentence unreasonable." Op. 17. The Court specifically rejects the applicability of § 3553(a)(6) in the fast-track context with an explanation similar to that offered in Castillo: "Congress expressly approved of fast-track programs without mandating them; Congress thus necessarily decided that they do not create the unwarranted sentencing disparities that it prohibited in Section 3553(a)(6)." Op. 14.

The Court's self-described holding is narrow -- a sentence is not unreasonable simply because it is imposed in a non-fast-track district. But its statement rejecting the relevance of § 3553(a)(6) to the fast-track issue seems to signal a broader proposition -- that a sentencing court simply may not consider the existence of fast-track programs in other districts when sentencing a defendant in a fast-track district.

District Courts Cannot Reject Guidelines' 100:1 Disparity Between Powder and Crack Cocaine even under the "Advisory" Guidelines Regime

United States v. Castillo, Docket No. 05-3454-cr (2d Cir. Aug. 16, 2006) (Katzmann, Sack, Murtha): To those who had hoped that our fair Circuit would have more sense than the First, Fourth, and Seventh Circuits, ... think again. In Castillo, the Second Circuit follows those Circuits in vacating and holding unreasonable a sentence based solely on the district court's policy disagreement with the Guidelines' 100:1 treatment of powder -vs- crack cocaine. While the Circuit left open the possibility of sentencing "adjustment[s] [based upon] the particularities of the individual defendant or the specific offense," the same suggestion made in United States v. Anati, Docket No. 05-3800 (2d Cir. July 20, 2006), it firmly concluded that "district courts do not have the authority to reject unilaterally the 100:1 ratio on policy grounds." Op. 2-3. Click here and here for Professor Berman's stinging critique of Castillo.

Normal Programming Will Soon Resume

My lengthy vacation has ended recently, and thus this Blog will soon resume its normal activity. Thank you for your patience and continued interest.

Charge That Defendant's "Deep Personal Interest" Creates "Motive for False Testimony" Requires Reversal

United States v. Prince Gaines,Docket No. 04-5616 (Jacobs, Parker, Gleeson(D.J.)) : In a close gun-possession case, in which the defendant testified that he had not known of the presence of a gun found hidden (or less hidden) in a gypsy cab seat where he was a passenger, the Court found reversible error in a charge on the defendant's interest in the case. The district court charged the jury that the defendant "has a deep personal interest in the result of the prosecution," that this "interest creates a motive for false testimony," and that "the defendant's testimony should be scrutinized and weighed with care."

In a fine opinion, the Court of Appeals held that the charge that the defendant's interest created a "motive for false testimony" was error because it undermined the presumption of innocence, for it assumed that the defendant was guilty. In addition, after surveying the case law on charges noting the "deep personal interest" of the defendant, the Court found that there was no need to give, and much danger in giving, such a charge. Accordingly it instructed that "in future cases, district courts should not instruct juries to the effect that a testifying defendant has a deep personal interest in the case." The defendant's interest should be addressed only in the court's general charge on witness credibility, and the jury should be told to assess a defendant's testimony in the same way it judges testimony of other witnesses.

Congratulations to Darrell Fields on this fine result.

Increased Sentence Following Post-Booker Remand Upheld

United States v. Quentin Singletary, Docket No. 05-6145 (2d Cir. July 19, 2006) (Cabranes, Straub, Hall): At his initial sentencing before the decision in Booker, the defendant was given an upward departure to a sentence of 42 months on his conviction for possessing crack with the intent to distribute it. He appealed, and the case was remanded for resentencing under the Supreme Court's decision in Booker. Upon remand the district court raised the sentence to 57 months' imprisonment, relying on facts all of which had been in the record before and noting that previously it had "felt constrained" by the guidelines, although since it was departing it had not been constrained in any legal sense, but was required only to impose a reasonable sentence, the same standard that applied post-Booker.

On his second appeal, the defendant argued pursuant to North Carolina v. Pearce that the sentence was presumptively vindictive and violated due process. The Court, however, held that the Pearce "presumption does not apply in this case because there is no reasonable likelihood that Singletary's increased sentence was the product of the sentencing judge's actual vindictiveness." This holding, however, is entirely circular. It does away with the Supreme Court's presumption of vindictiveness on the basis of its own finding that the district court was not vindictive. This is illogical on the one hand and in clear conflict with Pearce on the other.

That presumption the Supreme Court created in Pearce requires a higher sentence on remand to be struck down unless the government can overcome it by showing some factor, not present at the initial sentencing, that justified a higher sentence on remand. The Court acknowledged that there were no new facts at Singletary's resentencing justifying a higher sentence and that the district court had the legal power to impose the higher sentence at the first sentencing proceeding, but did not. The Court's alternate conclusion that, even assuming the presumption applied, "[n]othing in the record before us suggests that the district court had any vindictive motive" also gets things backward. If the presumption applies, as it clearly does to a resentencing following remand, the defendant does not have to prove a vindictive motive; rather, the government must overcome the presumption. Here, since there was nothing to overcome the presumption, there should have been a reversal.

The point of Pearce was to create a prophylactic rule that would safeguard a defendant's right to appeal from being chilled by the fear that a judge could raise his sentence vindictively, and it requires that an increased sentence be based on objective facts justifying a higher sentencing arising since the first sentence, not a judge's mere change of mind in the interim. This decision is in direct conflict with this objective of Pearce, and it poses grave problems for defendants and for those who must adivise them whether or not to appeal. It richly deserves to be overturned, summarily, by the Supreme Court.

Hobbs Act Conviction Based on Extortion of Intangible Property Rights Unaffected by Scheidler v. NOW, 537 U.S. 393 (2003)

United States v. Peter Gotti et al., Docket Nos. 04-2746-cr (L) (2d Cir. July 12, 2006) (Katzmann, Feinberg, Lynch (D.J.)): In this 94-page opinion affirming the convictions of numerous members of the Gambino crime family, the Circuit principally holds that the Supreme Court's decision in Scheidler v. National Org. for Women, Inc., 537 U.S. 393 (2003), "leav[es] intact this Circuit's precedent that intangible property rights can qualify as extortable property under the Hobbs Act" and "simply clarif[ies] that before liability can attach [under the extortion prong of the Hobbs Act], the defendant must truly have obtained (or, in the case of attempted extortion, sought to obtain) the property right in question." Op. 45; see also id. 3 ("[F]ar from holding that a Hobbs Act extortion could not be premised on the extortion of property rights," Scheidler "simply clarified that for Hobbs Act liability to attach, there must be a showing that the defendant did not merely seek to deprive the victim of the property right in question, but also sought to obtain that right for himself."). The opinion further clarifies that under Scheidler, the "key inquiry" for determining whether Hobbs Act "extortion" has occurred (defined inter alia as "the obtaining of property from another" with his/her consent and induced by force or violence or threats) is "whether the defendant is (1) alleged to have carried out (or, in the case of attempted extortion, attempted to carry out) the deprivation of a property right from another, with (2) the intent to exercise, sell, transfer, or take some other analogous action with respect to that right." Op. 47-48.

Writ of Coram Nobis Cannot Be Used in Federal Court to Vacate State Court Judgment

Finkelstein v. Spitzer, Docket No. 05-4725-pr (2d Cir. July 11, 2006) (Kearse, Sack, Stanceu (by desig'n)) (per curiam): This short opinion confirms the rule, adopted by other Circuits that have addressed the question, that the writ of error coram nobis (filed via the All Writs Act, 28 U.S.C. § 1651) may not be used in federal court to attack a state court judgment. This is so because the writ was available at common law only to "a court in cases within its own jurisdiction, not to correct errors in other jurisdictions." Op. 5. Thus, the district court properly rejected Finkelstein's coram nobis writ seeking to set aside his state court fraud conviction.

BOP Erred in Categorically Limiting Halfway House Confinement to Maximum of (the Greater of) 6 Months or 10 % of Sentence

Levine v. Apker, Docket No. 05-2590-pr (2d Cir. July 10, 2006) (Calabresi, Raggi, Murtha (by desig'n)): This is a great victory for the defense. The Court, by Judge Calabresi and with Judge Raggi dissenting, holds that the BOP exceeded its statutory authority when it promulgated a February 2005 rule categorically limiting the amount of time that a defendant can serve at a halfway house (or "community confinement center") to a maximum of the greater of either 6 months or 10% of the defendant's total sentence. Under 18 U.S.C. §§ 3621(b) & 3624(c), the Circuit holds, the BOP must consider the statutorily listed factors (e.g., the resources of the facility, the nature of the offense, and the history and characteristics of the offender) before determining whether a particular form of confinement is appropriate and for what period of time. The Court joins the Third and Eighth Circuits in invaliding the BOP regulation.

This atypical outcome must be attributed to fine lawyering on behalf of Levine (including an amicus brief filed jointly by FAMM, NACDL, and NYCDL). Given the Circuit's general kow-tow posture toward the BOP, see, e.g., Sash v. Zenk, 439 F.3d 61 (2d Cir. 2006), and the Supreme Court's decision in Lopez v. Davis, 531 U.S. 230 (2001) (upholding BOP rule categorically elminating inmates with certain convictions from discretionary early release eligibility for completing a drug treatment program), the result in this case is somewhat unexpected. But it is good news, and one hopes that the BOP will indeed exercise its discretion to place offenders in halfway houses with "no favoritism given to prisoners of high social or economic status." 18 U.S.C. § 3621(b).

Get Out If You See Dime Bags Lyin' Around

United States v. Jerrell Heath, Docket No. 04-4599-cr (2d Cir. July 10, 2006) (Calabresi, Cabranes, Hall (by desig'n)): The majority opinion by Judge Calabresi has the unusual vice of being both legally suspect and factually wrong. In a case where the Circuit role-plays as the Supreme Court – Judge Cabranes joins only in Part II of Judge Calabresi’s Opinion (and dissents from Part III) while District Judge Hall joins only in Part III of the Opinion (and dissents from Part II)) – the clearest conclusion is the practical outcome: The district court’s decision granting Heath’s suppression motion (on the ground that the police lacked probable cause to arrest – and then search -- him) is vacated, and the case is remanded for further fact-finding on whether the police would have inevitably discovered the $3,073 in cash found on him (because other “facts” coming to light after the police improperly arrested him would have established probable cause to arrest). On the way to this conclusion, Judge Calabresi makes some highly questionable findings of fact that contradict the findings made below, as well as two dubious conclusions of law (one pro-prosecution and the other pro-defense). The short version: (1) police have probable cause to arrest someone if he is in a home and some drugs are found in plain view in a public / common area of the house, even if no evidence shows that he actually saw the drugs, and (2) having probable cause to arrest is a necessary but not sufficient basis for concluding that evidence – first discovered incident to an unlawful arrest -- can be admitted under the inevitable discovery doctrine.

The essential facts, as found by Judge Calabresi, are these. Police go to a 2-story house to execute a no-knock search warrant, based on snitch evidence that drugs were sold there. However, the police have no information about who is doing the alleged selling.

Upon entering the house, the police see one Summersett at the top of a stairwell, just stepping out of a bathroom. Standing at the bottom of the stairwell, the officers order Summersett to lie down. They then go up the stairs and keep Summersett in that posture.

One officer then goes into a nearby bedroom and sees defendant Heath sitting on a bed and talking on his cell phone. The officer frisks him, finding nothing. After detaining Heath, the officer conducts a search of the bedroom and finds a half ounce of pot hidden behind a dresser. The officer then arrests Heath. Upon a full search incident to arrest, $3000 in cash is found on Heath’s person.

A short time later, other officers announce that they found several small bags of crack cocaine in plain view in the residence. Specifically, they found several bags of crack on the upper landing of the stairwell (underneath or immediately surrounding the prone Summersett) and three dime bags of crack on the bottom of the stairwell, near where the police stood before they went up the stairs.

Heath moved to suppress the $3000 found on him, arguing that his mere presence near the hidden marijuana did not constitute probable cause justifying his arrest. The Government argued to the contrary. The district court agreed with Heath and suppressed the cash.

The Circuit, by Judge Calabresi, reversed. In so doing, however, the Court does not reach the principal legal issue raised on appeal – i.e., whether the discovery of the pot behind the nearby dresser justified Heath’s arrest. Rather, Judge Calabresi assumes without deciding that the pot did not constitute probable cause, and then concludes that even if the pot did not justify the arrest, the three dime bags of crack discovered shortly after Heath’s arrest on the lower landing would have. The remaining issue for the Court, therefore, is whether this subsequent discovery allowed the admission of the cash under the inevitable discovery doctrine.

But to even reach the conclusion that the discovery of the dime bags would have justified Heath’s arrest, Judge Calabresi critically finds that the three dime bags on the lower landing were present at that location even before the police arrived – despite a finding by the court below that all of the little baggies of coke were strewn by Summersett during or after the police’s entry into the house. Judge Calabresi badly twists (or simply ignores) the lower court’s finding on this point, concluding instead that while the bags on the upper landing were discarded by Summersett, the bags on the lower landing were, well, just lying around this common area before the cops arrived.

Judge Calabresi then relies on this invented fact to conclude as a matter of law that the discovery of the three dime bags of crack on the bottom of the stairwell justified Heath’s arrest: “After all, those who are permitted to observe obvious criminal activity in a home are, absent indications to the contrary, likely to be complicit in the offense.” Op. 9. Yikes! Thus, even though no evidence shows that Heath actually saw the dime bags or lived in the house (and even though none of the officers saw the bags, either, before they went upstairs to detain Summersett), the mere presence of the bags in a common area of the house constituted probable cause that would have supported the arrest of Heath.

Judge Calabresi tries to temper this holding in a footnote, cautioning that the Court does not hold that “any quantity of narcotics in plain view in any location in a home. . . automatically[] create[s] probable cause.” Op. 10 n.4 (emphases in original). Rather, the Court holds only that “Heath – one of only two adults inside a small home containing, in a highly public and common space, a relatively large quantity of drugs – could reasonably be seized by the arresting officers.” Id. Given the facts of this case, however, this is hardly a meaningful limitation. (E.g., when does three dime bags qualify as a “relatively large quantity”? Judge Hall zings this part of Judge Calabresi's opinion in footnote 9.)

As noted, Judge Cabranes joins this portion of the Dean’s opinion, thus making it the majority position. This Blog, of course, sides with Judge Hall’s fine dissent on this point. See Op. 25-33. Judge Hall skewers the majority’s fact-finding as well as its guilt-by-proximity reasoning.

Fortunately, Judge Calabresi’s opinion gets better from here legally speaking -- though at the cost of creating a rather farcical remand. He rules that even though the dime bags sufficed to create probable cause for arresting Heath, that in itself is not sufficient under the inevitable discovery doctrine. Rather, the Government must show more than that the police could have arrested Heath – it has to show (as Judge Cabranes disparagingly puts it) “probable cause-plus”: I.e., the police would have arrested him, not merely that they could have. As Judge Calabresi explains, “even if the present record provides enough evidence to suggest that a reasonable police officer could have made a valid arrest supported by probable cause, it does not establish with a sufficiently high degree of certainty that a reasonable officer would have made the arrest under the circumstances.” Op. 11 (emphases in original).

To justify the admission of improperly seized evidence, a court must have a “high degree of confidence” that “each of the contingencies needed to obtain the evidence legally would be resolved in the government’s favor.” Op. 13. And because Judge Hall joins this part of the opinion (Judge Cabranes strongly disagrees with Judge Calabresi’s interpretation of the inevitable discovery doctrine), it is the majority one. As the Court concludes, “illegally-obtained evidence will be admissible under the inevitable discovery exception to the exclusionary rule only where a court can find, with a high level of confidence, that each of the contingencies necessary to the legal discovery of the contested evidence would be resolved in the government’s favor.” Op. 14.

One such “contingency” is whether the police would have actually exercised their discretion to arrest Heath after finding the dime bags. Thus, even though the police could have arrested Heath after finding the dime bags on the lower landing, the Government has to prove to the district court’s satisfaction that the police in fact would have done so. See Op. 17 (Government must show that "the contingent arrest was [both] proper [and] . . . inevitable"). Since it is a theoretical possibility that the police, in the exercise of their discretion, would not have arrested Heath despite having lawful authorization to do so, a remand for further fact-finding is required. See Op. 17 (remand required because "we cannot say [on the record before us] whether the likelihood of such an arrest was great enough to justify the application of the doctrine of inevitable discovery").

Although we disagree with Judge Cabranes’s view of the law, we share his skepticism about the need for a remand in light of the Court’s legal rulings. After all, the police actually arrested Heath even when (as assumed by the Court) the evidence was insufficient to support probable cause. Given this reality, it surely seems “inevitable” that the police would “exercise their discretion” to arrest Heath after finding additional evidence justifying a lawful arrest (as the Court concludes).

No Need to Interrupt Your Barbecue

United States v. Jones, Docket No. 03-1626 (2d Cir. June 30, 2006) (Kearse, Miner, Hall): This fact-intensive opinion upholds Jones's convictions (for RICO, RICO conspiracy, VICAR conspiracy, and drug conspiracy) against his sufficiency, multiplicity, retroactive misjoinder, and IAC challenges. No new law is made, and even a quick reading of this sad saga is enough to dampen one's weekend. The opinion is recommended only for those with a particular interest in the inner workings of drug trafficking networks formerly operating inside Bridgeport's P.T. Barnum Projects. A rare species, we suspect, but maybe there's one of those born every minute, too.

When Police Stop Vehicle Based on Reasonable Mistake of Fact, They May Briefly Approach Driver to Explain the Error Before Allowing Vehicle to Depart

United States v. Jenkins, Docket No. 05-2679-cr (L) (2d Cir. June 23, 2006) (Meskill, Cabranes, Wesley): This case was litigated by attorneys from this Office, so this Blog will stick mostly to description.

The Court holds that when police stop a vehicle based on a reasonable but mistaken belief that a law has been violated, they may "briefly" approach the driver to explain their error and are not required by the Fourth Amendment to allow the vehicle to depart immediately upon realizing their error. Here, the police stopped the SUV in which the defendants were traveling based on a reasonable belief that the vehicle did not have a license plate, in violation of state law. However, when the officers got out of their car and approached the SUV, they realized that the car did in fact have a temporary license on the back, which was "hard to see and poorly illuminated." Op. 6. The district court credited the officers' claim that they did not see this license before stopping the SUV. Therefore, "an objective police officer would have had a reasonable basis to believe there was a traffic violation and to stop the SUV." Op. 6.

Instead of immediately letting the SUV go after recognizing their error, however, the officers proceeded toward the passenger area of the SUV. Whereupon, unfortunately, they immediately (allegedly) detected the sweet smell of burning marijuana. One thing led to another, and two guns were found in car. Jenkins and Luther were each charged with being a felon in possession of a firearm.

The Circuit upheld the stop (and subsequent search) that led to the discovery of the guns. First, relying on the well established rule that "the validity of a stop is not undermined simply because the officers who made the stop were mistaken about relevant facts," the Court found that the initial stop of the SUV was justified under Terry in light of the district court's finding that the officers' mistake was a reasonable one. Op. 8-9. Second, the Court rejected the defendants' claim that once the officers realized their mistake, they should have "waved the SUV on and gotten back in their car." Op. 9 (quoting Jenkins's brief). The Court held that "when police officers stop a vehicle on a reasonable, albeit erroneous, basis and then realize their mistake, they do not violate the Fourth Amendment merely by approaching the vehicle and apprising the vehicle's occupants of the situation." Op. 9-10.

This is so, Judge Cabranes explains, because reasonableness is the "touchstone" of the Fourth Amendment, and because "it is reasonable for officers who have stopped a vehicle on the basis of a reasonable factual mistake to approach the vehicle and apprise the vehicle's occupants of the situation." Op. 10. And because the officers here "immediately detected an independent basis for continuing to detain the SUV and its occupants" as they approached the SUV, their subsequent actions were justified by this basis and not by the original, erroneous belief that the SUV did not have a license (which dissipated once the officers realized their error).

Finally, in a footnote, the Court addresses Jenkins's concern that its holding will lead to abuse by the police and easy circumvention of the Fourth Amendment. Judge Cabranes claims that this will not be so, importantly pointing out that this case "is limited by two factors." Op. 11 fn.10. First, the district court here credited the officers' testimony that they mistakenly believed that the SUV did not have a license when they stopped it, and found that their mistake was reasonable. Where the officers' mistake is unreasonable, this case is not implicated.

Second, the officers here gained an independent basis to detain the SUV "immediately" upon approaching it (i.e., they smelled pot), and thus did "not detain the SUV for longer than necessary to briefly explain to the occupants the reason for the stop." Id.

This is an important limitation from the defense perspective: Police may not detain a vehicle any "longer than necessary to briefly explain" their error. This is in fact two limitations, a temporal one and a content-based one. Police may only "briefly" detain the vehicle, and when they approach, they may only "explain" their error (and not, e.g., question the occupants). Therefore, when police detain a vehicle for even a second longer than needed solely to explain their mistake in stopping it (and perhaps to apologize), the stop is unjustified and police may not rely on the holding here to justify their subsequent actions.

This case estabishes a narrow rule. Similar circumstances are unlikely to recur.

Prior Convictions Triggering Career Offender Treatment Need Not Be Charged in Indictment, So Long as Sentence Does Not Exceed Legislative Maximum

United States v. Ramirez, Docket No. 05-4575-cr (2d Cir. June 23, 2006) (Meskill, Cabranes, Wesley) (per curiam): The title basically says it all. In this very short opinion, the Circuit confirms that Booker does not alter the long-standing rule that "the filing of a prior felony information under [21 U.S.C.] § 851(a)(1) 'is required only where the statutory maximum or maximum penalty under Part D of Title 21 is sought to be enhanced, not where a defendant, by virtue of his criminal history, receives an increased sentence under the Sentencing Guidelines within the statutory range.'" Op. 3 (quoting United States v. Whitaker, 938 F.2d 1551, 1552 (2d Cir. 1991) (emphases in original)). Here, Ramirez faced a Guidelines range of 151 to 188 months because he qualified as a Career Offender under U.S.S.G. § 4B1.1, based on prior convictions not alleged in the indictment (charging him with distributing an unspecified quantity of heroin in violation of 21 U.S.C. § 841(b)(1)(C)). The prior-felony information requirement of § 851(a) was not triggered because his 151-month sentence did not exceed the 20-year maximum allowable under § 841(b)(1)(C).

Questions Concerning State of the Law in 2001 on Depraved Indifference Murder Certified to N.Y. Court of Appeals

Policano v. Herbert, Docket No. 04-5518-pr (2d Cir. June 21, 2006) (Pooler, Sack, Garaufis (by desig'n) (per curiam)): In the original panel opinion (issued November 2005), Policano v. Herbert, 430 F.3d 82 (2d Cir. 2005) (click here for our discussion), Judge Sack granted the habeas writ to Policano after concluding that the evidence at trial was insufficient to sustain his conviction for depraved-indifference murder under N.Y. Penal Law § 125.25(2), since the evidence showed that if Policano was the shooter, he intentionally murdered the victim but did not "recklessly create[] a risk of [his] death," as required by current New York law on depraved-indifference murder. See People v. Payne, 3 N.Y.3d 266 (2004); People v. Gonzalez, 1 N.Y.3d 464 (2004). Neither party petitioned for rehearing or rehearing en banc of the panel's decision.

Nonetheless, the panel has withheld the mandate in the case because (as we now learn) several active members of the Circuit sua sponte sought en banc rehearing of the panel's decision. To resolve this disagreement, a majority of the active judges has voted to deny rehearing en banc (over a vigorous dissent by Judge Raggi (click here), joined by Judges Walker, Jacobs, Cabranes, and Wesley (who also dissents separately, and more gently)) and the original panel (via per curiam) has agreed to certify several questions to the New York Court of Appeals seeking guidance as to the state of New York law on depraved-indifference murder in March 2001, when Policano's conviction became final on direct appeal. Certification is appropriate because Policano can prevail on his habeas petition only if the evidence was insufficient to sustain his depraved-indifference conviction in March 2001, and because it is unclear whether Payne and Gonzalez create new law or simply apply long-settled New York law to new facts.

Regardless of the ultimate outcome, the opinions issued yesterday are interesting for revealing a serious rift in the Circuit. Judge Raggi and the dissenters, on the one hand, use strong language criticizing Judge Sack's original panel opinion and believe that certification is unnecessary because, in their view, Payne and Gonzalez clearly create new law and because the New York courts did not act unreasonably in affirming Policano's conviction on direct appeal in 2001. The panel's per curiam response (in the course of certifying the questions) similarly reveals irritation with the dissenters, emphasizing for instance that because neither party has sought rehearing, "this case is, and has been since it was first assigned to this three-judge panel, before this panel alone." Op. 4.

The panel also takes the dissent to task for its "The sky is falling!" claim that the Judge Sack's original opinion "may well unleash a rash of habeas challenges by other convicted New York State murderers." Op. 7. This Blog shares the panel's skepticism: "More than a year and a half after the district court's opinion and judgment in this case, and more than six months after this panel's opinion was published, the dissent cites no authority for that proposition beyond five petitions for habeas corpus, not one of which was granted. [And] [a]s the time period before Payne and Gonzalez fast recedes, the asserted flood of cases is, judging by what we and the dissenters have been able to discover, scarcely a drop in the bucket." Op. 7.

Is this all much ado about nothing? Only time will tell for certain, but this Blog suspects that it is, since cases like Policano's are likely rare and AEDPA's one-year statute of limitations (along with other procedural hurdles) will further close the courthouse door to most of that already small pool.

An Expansive Reading of the Obstruction Enhancement

United States v. Riley, Docket No. 0-1585-cr (2d Cir. June 21, 2006) (Kearse, Miner, Cabranes): This decision upholds the imposition of a 2-level obstruction enhancement under U.S.S.G. § 3C1.1, even though the defendant's obstructive conduct appeared to have occurred before the Government began its investigation (and a fortiori its prosecution) of the defendant for the "instant offense of conviction," i.e., being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Section 3C1.1 requires, among other things, that the defendant's obstructive conduct occur "during the course of the investigation, prosecution, or sentencing of the instant offense of conviction." Here, the evidence (as recounted in the opinion) showed that while Riley clearly engaged in conduct that qualifies as obstructive (i.e., telling his girlfriend to hide and/or dispose of his guns), this occurred when no charge concerning his possession of firearms was pending or even being investigated.

The obstructive act occurred while Riley was in jail for making false statements to Government officials, and during an investigation into his drug trafficking and retaliating against witnesses. These charges were later dropped, however, and Riley pleaded guilty only to a § 922(g) count. No evidence showed that there was an on-going investigation or prosecution of this crime when Riley told his girlfriend to conceal / dispose of his guns.

The opinion tries to bridge this evidentiary gap in three ways, none of which is convincing. First, the Court points out the obstructive conduct occurred while an investigation into Riley's possible drug trafficking was in progress. The Court then states that "[i]t required no leap for the [district] court to infer that that investigation encompassed possible weapons possession, for we have taken judicial notice that, to substantial narcotics dealers, guns are 'tools of the trade.'" Op. 15.

This is a very slim reed on which to hang the enhancement. The Government introduced no evidence whatsoever that it was investigating Riley for "the instant offense of conviction" -- i.e., being a felon in possession of a gun -- when he asked his girlfriend to conceal the guns. To simply "infer" that the Government was in fact doing so, simply because guns often go with drugs, is nothing more than speculation.

Second, the Court points out that when Riley told his girlfriend to hide / dispose of his guns, he had been charged in an information with retaliating against a witness, and that this retaliation involved the use of a gun. Op. 16. The problem with this theory, though, is that the "instant offense of conviction" is being a felon in possession of a gun, not retaliating against a witness.

Finally, the Court seems to agree with the district court's reasoning that the obstruction enhancement was appropriate because Riley himself was aware of his prior felony convictions, and thus of the illegality of his possession of firearms, at the time he instructed his girlfriend to hide or destroy the guns. Op. 12-13. But this is a red herring. What Riley may have believed is irrelevant to the question of whether his misconduct occurred during the Government's investigation of the § 922(g) offense.

Surely the district court could have upwardly departed, or imposed an above-the-range non-Guidelines sentence, based on Riley's misdeeds. But in the absence of any evidence showing that the Government was investigating Riley for the felon-in-possession offense (evidence easily procured, if existent) when he engaged in the obstructive conduct, the court should not have imposed the § 3C1.1 enhancement.

Little New in the Amended Rattoballi Opinion

United States v. Rattoballi, Docket No. 05-1562-cr (amended opinion June 21, 2006) (Walker, Winter, Jacobs): Yesterday, the panel in Rattoballi (click here for our critique of the original opinion) sua sponte issued an amended opinion. However, because the Circuit (1) never informs its readers what portion(s) of the original opinion has been altered in an amended opinion; (2) the original opinion has been replaced on the Circuit's website with the amended one; and (3) this Blog already consigned its paper copy of the original opinion to the recycling bin of bad decisions, a concern arose that only memory itself could tease out what is new in the amended opinion. Fortunately, Westlaw has yet to replace the original opinion with its amendment, so those with the time and patience can compare and contrast the two.

This Blog's morning perusal reveals little new in the amended opinion; most of the errors in the original remain in the update. We spot only two alterations. Readers are encouraged to comment on additional changes this Blog failed to notice.

The first is found in the very problematic footnote 4. The original opinion pointed out that the district court may have relied upon factors (such as the defendant's age, employment record, and vocational skills) that the Sentencing Commission has deemed "'not ordinarily relevant' in imposing sentences," and that if it had done so, this was improper because "it did not point to any extraordinary circumstances particular to Rattoballi." The original opinion then stated, in complete disregard of Booker, that "While this alone does not render Rattoballi's sentence unreasonable, it means that the improper factors cannot be weighed in support of reasonableness in our review of a non-Guidelines deviation."

The amended opinion retreats from this clearly incorrect statement of the law. The same sentence now reads: "While this alone does not render Rattoballi's sentence unreasonable, it means that the sentence rests upon consideration that contradicts one of the § 3553(a) factors that we must consider in reviewing that sentence for unreasonableness - namely, the Commission's policy statements." Op. 23 fn.4. This is a good deal better, though the footnote's overall emphasis on re-enacting the mandatory Guidelines regime remains problematic.

The second change surrounds the statement, found in both the original and its amendment, that "A sentence must reflect consideration of the balance of the § 3553(a) factors; unjustified reliance upon any one factor is a symptom of an unreasonable sentence." In the original opinion, this bald claim -- which this Blog noted contradicted Fernandez's holding that the weight to be accorded any particular § 3553(a) factor rests entirely in the discretion of the sentencing court -- was followed solely by a "See" citation to the 6th Circuit's decision in Hampton and a "see also" citation to the 10th Circuit's decision in Cage. The amended opinion, however, adds a "cf." citation to, surprise surprise, Fernandez. Op. 26. The added citation states: "cf. Fernandez, 443 F.3d at 34-35 (stating that 'we will not second guess the weight (or lack thereof) that the judge accorded a given factor . . . [under § 3553(a)], as long as the sentence ultimately imposed is reasonable in light of all the circumstances presented.)") (emphasis in amended opinion).

This is a twisted reading of Fernandez. The unabridged version of the passage quoted by the amended opinion is as follows: "If the ultimate sentence is reasonable and the sentencing judge did not commit procedural error in imposing that sentence, 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." 443 F.3d at 34-35. This Blog had read this statement to mean that appellants cannot argue that the district court gave unreasonable weight to any particular factor, and that apart from claims of procedural unreasonableness (i.e., that the court erred in the process of selecting the sentence), the only available argument is one of substantive unreasonabless -- i.e., that the sentence is simply too long or too short. On this reading, the amended opinion should have introduced the quoted passage from Fernandez with the "But see" introductory signal rather than the "Cf." signal. See BlueBook Rule 1.2 ("Cf." means that the "cited authority supports a proposition different from the main proposition but sufficiently analogous to lend support.").

In any event, this Blog actually prefers Rattoballi's twisted reading of Fernandez and its resurrection of the "excessive weight" argument in this Circuit. Defendants can now argue, consistent with Chief Judge Walker's amended opinion, that a sentence is unreasonable because the district court erred in relying excessively on § 3553(a)(4), the Guidelines range, in imposing sentence.

Burden of Truthful Disclosure, Required for Safety-Valve Relief, Remains on Defendant after Booker

United States v. Jimenez, Docket No. 05-2221-cr (2d Cir. June 5, 2006) (Walker, Newman, Sotomayor) (per curiam):

(By James Stull, rising 2-L at Stanford Law School and intern at FDNY)

The safety valve remains difficult to open for defendants convicted of drug offenses under 21 U.S.C. §§ 841, 844, 846, 960, and 963. In an opinion by Chief Judge Walker, the Circuit affirms a district court’s ruling that Booker does not shift the burden of truthful disclosure, required for safety-valve relief, to the prosecution to prove beyond a reasonable doubt. While Jimenez fulfilled four of the five factors required by § 3553(f) for safety-valve relief, at issue is the fifth factor, namely whether Jimenez revealed to the Government all relevant facts of the “offense or offenses that were part of the same course of conduct or of a common scheme or plan,” and, if not, whether it was his or the Government’s burden to prove it so.

Nelson Jimenez admitted distributing 400 grams of heroin during his guilty plea allocution, a fact that triggered a five-year minimum sentence under § 841(b)(1)(B). To escape that mandatory minimum, Jimenez met with prosecutors and told them that “his involvement was limited solely to the conduct that gave rise to his arrest.” The Government was unconvinced, however, due in large part to inconsistencies in Jimenez’s labyrinthian tale of a reckless dealer named “Primo,” his more circumspect minion, “fake Primo,” and an innocuous friend from New York City, whose charity toward Jimenez indicated either a fondness for lengthy periods of uninterrupted time spent in Jimenez’s company or a capricious desire for road-trips through the American South.

The district court conducted a Fatico hearing to resolve this dispute. After the hearing, the court concluded that Jimenez had not “carr[ied] [his] burden of establishing that he has satisfied the requirement” for safety-valve eligibility. The court remarked, however, that it may have ruled differently had the Government borne the burden of proof rather than Jimenez. The court thus sentenced Jimenez to the five-year mandatory minimum sentence.

Jimenez raised two claims on appeal: First, that Booker changes the nature of the safety-valve from what was once “merely a sentencing adjustment” within the Guidelines to what is now a gateway for imposing a non-Guidelines sentence. Because the safety-valve now implicates a non-Guidelines sentence, he argued that the burden of proving ineligibility under the truthful-disclosure component of the safety valve should shift to the Government. Second, that notwithstanding his own admission to “all facts necessary to trigger the imposition of the mandatory minimum sentence . . . the Sixth Amendment requires the government to prove beyond a reasonable doubt those facts which would render him ineligible for safety-valve relief.”
In response to Jimenez’s first claim, the Circuit reaffirmed its reasoning in United States v. Gambino, 106 F.3d 1105 (2d Cir. 1997), a pre-Blakely case holding that the defendant carries the burden of proof on the truthful disclosure prong of the safety valve. Here, as in Gambino, the Court sees the proof required for safety-valve eligibility as a part of, and not independent from, the burden shifting process of sentencing, generally: “a defendant who seeks to take advantage of a sentencing adjustment [whether a downward adjustment or a downward departure] carries the burden of proof” regarding that adjustment. Op.12. It would thus be unreasonable to “impose on the government five additional elements that it must prove before triggering the imposition of a mandatory-minimum sentence.”

The court disposes Jimenez’s second claim by referring to Holguin, a recent decision holding that judicial determination of a defendant’s eligibility for safety-valve relief does not violate the Fifth and Sixth Amendments. United States v. Holguin, 436 F.3d 111 (2d Cir. 2006), cert. denied, 547 U.S. ---, 2006 WL 1221968 (June 5, 2006) (click here for our discussion of Holguin). As it did in Holguin, the Court here distinguishes opportunities for sentence reduction from impositions of sentence enhancement. “Because the safety-valve provisions serve as a mechanism for reducing sentences, rather than increasing them, we held that Apprendi, Blakely, and Booker do not apply to the operation of the safety valve.” (Emphases in original).

The same is true here. Jimenez’s admission during his plea proceeding to distributing 400 grams of heroin triggered the five-year minimum sentence. No more is required. The five conditions for safety-valve eligibility are criteria “for a sentence reduction,” not elements of the offense that increase the maximum sentence. The Apprendi line of cases is thus inapplicable to the operation of the safety valve.

Fair Market Value Should Generally Be Used to Determine Value of Offset Property in Setting Amount of Restitution

United States v. Francis Boccagna, Docket No. 04-5099-cr (2d Cir. June 13, 2006) (Jacobs, Sack, Raggi):

(By Lara Samet, rising 2-L at NYU Law School and intern at FDNY)

Boccagna ran an intricate scheme. Distilled to its essentials, he made false statements to procure loan guarantees from the Department of Housing and Urban Development (HUD), purchased properties after obtaining those guarantees, and then quickly resold the properties for a profit. Unfortunately, the scheme proved too intricate even for him and eventually unraveled. Boccagna confessed to the authorities and later pleaded guilty.

By the time Boccagna’s crime was discovered, many of the 162 properties at issue were in foreclosure proceedings. HUD ultimately acquired title to approximately one-third of these by paying the outstanding loan balances and other out-of-pocket expenses. HUD suffered $20.6 million in losses as a result of Boccagna’s misconduct.

Instead of reselling the properties on the open market to recoup its losses, however, HUD sold the foreclosed property to the New York City Department of Housing Preservation and Development (HPD) at nominal prices. The sale price for all the properties was approximately $2 million, far below their fair market value. In return, the HPD guaranteed, among other things, that the properties would be developed as low-to-middle income properties.

In ordering restitution, the district court used the nominal amount recouped by HUD through the sales to HPD ($2 million) offset the total loss amount ($20.6 million). It thus ordered Boccagna to pay $18.6 million in restitution.

Boccagna appealed, arguing that the district court erred in using the nominal sale price to HPD, rather than the properties’ fair market value, to offset the loss amount for restitution purposes. The Circuit agrees, holding that the district court abused its discretion by using the nominal resale price to calculate the amount of restitution owed.

Judge Raggi writing for the Court begins by scrutinizing the text of the Mandatory Victims Restitution Act (“MVRA”), codified at 18 U.S.C. §§ 3663A, 3664. She concludes that while much of the statute is unambiguous, the MVRA does not expressly state how property is to be valued, either for determining the loss amount or the value of an offset. See also United States v. Simmonds, 235 F.3d 826, 831 (3d Cir. 2000) (“While the statute does not expressly define “value” as “replacement value,” neither does it define “value” as “market value.”). Moreover, the Court points out, the law recognizes a number of ways of proper valuation. See, e.g., BFP v. Resolution Trust Corp., 511 U.S. 531, 543 n.7 (1994) (foreclosure price); Simmonds, 235 F.3d at 832 (replacement value). Since there is no overarching default, the Court undertakes a more normative assessment of how restitution should be valued.

The Court concludes that “value” is a flexible concept under the MVRA. More often than not, however, fair market value will be the best measure. When the property is unique or whenever the market is incapable of capturing the true value of the good, though, a court can look to replacement cost or another mode of valuation. See United States v. Shugart, 176 F.3d 1373, 1375 (11th Cir. 1999) (century-old church); Simmonds, 235 F.3d at 832 (residential furniture with “personal value”). Judge Raggi would make most economists proud: Focus on the market value, she instructs, except when the market fails.

Although the Court recognizes that valuation should remain flexible, it expressly holds that the district court’s discretion is limited. The overarching principle is that a court cannot order restitution in excess of the amount of the victim’s loss. As Judge Raggi puts it, a court “cannot award the victim a windfall, i.e., more in restitution than he actually lost.” This limiting principle derives from the underlying purpose of restitution. Restitution is compensatory; it seeks solely to make the victim whole. The goal of a restitution order is simply to put the victim back in the same position s/he would have occupied but for the defendant’s crime.

By using the nominal sale price to offset the loss caused by Boccagna’s misconduct in setting the restitution amount, the district court improperly awarded HUD more than it actually lost. The restitution order here “effectively awards [HUD] both restitution in the full amount of loss offset only by the nominal sale price and the benefit of the recouped property to the extent that [HUD] is able to gift [HPD] in an amount equal to the difference between the property’s fair market value and the nominal sale price.” Op. 24. Such a valuation, Judge Raggi notes, “does not put the victim in the same position he would have been in but for the defendant’s criminal conduct; it puts him in a better position.” Id.

In other words, “the nominal price was not the only value HUD received for the properties.” Op. 24. It also “obtained HPD’s guarantee that the properties would be developed as low-to-middle income residences.” Id. And this “guarantee had a value to HUD equal, at least, to the market price that it decided to forego.” Id. The district court’s restitution order is erroneous because it allows “HUD to receive both the benefit of this development guarantee and a restitution award offset only by a nominal sale price.” Id.

Judge Raggi offers the following illustration to show why HUD is put in a better position (than it would have been in but for Boccagna’s misconduct) by virtue of the district court’s restitution order:

“If a theft victim suffered the loss of a jewel with a fair market value of $100,000, and if he thereafter recouped from the defendant a substitute jewel with a market value of $50,000, and if the victim sold the substitute jewel to his son for $1, the use of that nominal sale price as offset value would allow the victim to receive the benefit of both a $49,999 gift to his son, and $99,999 in restitution from the defendant, for a total recovery of $149,998 on his $100,000 loss.”

Op. 21. Such a restitution calculation contradicts the compensatory core of restitution, as it “would put the victim in a significantly better position than he was in before the theft.” Op. 21-22.

Despite the sound analysis, there is one glaring ground for concern – the Court’s cursory dismissal of the argument that this case might constitute a special exception. The Government pointed out that HUD sold the properties at nominal prices in order to create affordable housing opportunities. Of course, part of HUD’s mission is to spur the development of such housing. Therefore, the district court should be able to consider the nominal resale price to HPD. The Court disagrees:

"However laudable HUD’s motives in entering into its agreement with HPD, that fact does not help us resolve this appeal. The issue before us is not, after all, whether the district court could insist that HUD sell the foreclosure properties to the highest bidder. It could not. The issue is whether HUD’s voluntary decision to sell the foreclosure properties at a nominal rather than fair market price entitles it to recoup the difference between these two amounts as part of a restitution award . . .”

It may be appropriate to limit the possible measures that can be used to determine the amount of restitution that a defendant owes. It may be appropriate to limit any incentive to try to scam the system. But it seems incorrect to conclude that this was a “voluntary decision” and that there is no room for carving out an exception to the general rule. Under Boccagna, HUD now has every incentive to resell property on the open market to the highest bidder, rather than at nominal prices to organizations (like HPD) dedicated to developing low and middle income housing.

First Amendment Does Not Bar Sentencing Court from Considering Defendant's Writings to Rebut His Claims about His Character and Chance of Recidivism

United States v. Kane, Docket No. 05-2714-cr (2d Cir. June 19, 2006) (Meskill, Straub, Katzmann) (per curiam): This opinion primarily holds that while a sentencing court may not rely on a defendant's abstract beliefs (or writings) for the purpose of demonstrating that those beliefs / writings (and by extension the defendant) are "morally reprehensible" (and thus deserving of greater punishment), Op. 5, a court may properly consider such beliefs and writings when they rebut the defendant's mitigating evidence. Following Fernandez, the opinion also holds that the Circuit has jurisdiction to review a claim that the defendant's below-the-range sentence (of 24 months, down from the 30 to 37 months advisory range) was unreasonable. Finally, the opinion quickly upholds that sentence against an unreasonableness challenge, quoting Fernandez for the proposition that "reasonableness review does not entail the substitution of our judgment for that of the sentencing judge" and is akin to review for abuse of discretion. Op. 7. (One only wishes that the panel in Rattoballi (see below) similarly respected Fernandez's holding that deference, rather than searching scrutiny, is the correct posture on appellate review for substantive unreasonableness).

Regarding the principal issue on appeal, the essential facts are these. Kane pleaded guilty to defrauding the FHA and HUD through sham real estate transactions. Seeking a probationary sentence (the advisory range was 30 to 37 months), he claimed in his sentencing submission that he was, inter alia, an honest and charitable man who is genuinely sorry for his misconduct. These claims were supported by over 35 letters from family members and friends. Kane sought a probationary sentence on the basis of these claims, and also on the ground that he needed to remain at liberty in order to care for his ailing wife and that there was no real likelihood of reoffending.

To rebut these claims, the Government introduced excerpts from books that Kane had earlier published. We quote the opinion's rich description of these writings:

"In those excerpts, Kane penned how-to advice on topics ranging from wife 'training' to illegal real estate transactions. Specifically, he described how to convert 'single-family dwellings into rooming houses without it being legal,' a scheme that generated enough cash to fund his annual purchase of a new Cadillac Eldorado. He also gave advice on how to manipulate financial records so as to appear to qualify for subsidized housing, described running a fraudulent mail order scheme . . . , provided tips on how to avoid a sexual harassment suit while displaying photographs of topless women in the office, and in a work entitled 'Mastering the Art of Male Supremacy: Training Techniques for the Home Front,' set forth his philosophy of 'training a wife,' which eschewed real violence but endorsed use of 'a rolled up newspaper on the rump once in awhile.'"

Op. 3. Kane claimed that these writings were "jokes" made solely for entertainment purposes, but the sentencing court rejected this characterization. The court then looked to the writings and found that they contradicted Kane's claims regarding his honesty, desire to help his ailing wife, and unlikelihood to reoffend. As the opinion puts it, "the [district court] concluded that Kane's published advice on running real estate and mail order schemes undercut his professed honesty, and his guide to 'mastering the Art of Male Supremacy' tempered the sincerity of his spousal devotion." Op. 3-4.

The Circuit upheld the sentencing court's consideration of Kane's writings against a First Amendment challenge. While a court cannot consider a defendant's expressive activities for the purpose of determining that greater punishment is appropriate because the defendant is "morally reprehensible," Op. 5, quoting Dawson v. Delaware, 503 U.S. 159, 165 (1992), it may consider such activities "so long as it is relevant to the issues involved in the sentencing proceeding." Op. 4. "Among other possible uses," the Circuit explained, "a particular piece of evidence may be relevant to show motive, analyze a statutory aggravating factor, illustrate future dangerousness or potential recidivism, or rebut mitigating evidence that the defendant proffers." Op. 4-5.

Here, the sentencing court properly considered Kane's writings, since they undercut his claim that he is honest, charitable, and devoted to his wife. Moreover, since "much of Kane's writings concerned illegal real estate schemes, which related directly to his offense of conviction, the writings also 'may indicate the increased likelihood of recidivism or lack of recognition of the gravity of the wrong.'" Op. 5.

And as noted earlier, the Circuit upheld the 24-month sentence (below the 30 to 37 months advisory Guidelines range) against Kane's challenge that it was still unreasonably long. The Court deferred to the district court's considered judgment of the appropriate sentence, explaining that it will not "substitute [its] judgment for that of the sentencing judge." Op. 7. The Court thus upheld the sentence after noting only that "[t]he Judge considered the relevant sentencing factors in careful and reasoned fashion, premised his conclusion on a sound view of the facts, and understood the applicable legal principles." Op. 8. The Court described Kane as "merely renew[ing] the arguments he advanced below -- his age, poor health, and history of good works" -- in his challenge to the 24-month sentence, and rejected this effort as "ask[ing] us to substitute our judgment for that of the District Court, which, of course, we cannot do." Id.