Appellate Remand that Requires Solely Ministerial Act by District Court Does Not Toll Finality Clock

Stanley Burrell v. United States, Docket No. 05-2945-cr (2d Cir. Oct. 18, 2006) (Cardamone, Walker, Sotomayor): This is a real snoozer; the Court narrowly holds that when it affirms a conviction and sentence but remands the case to the district court to perform a purely ministerial act (here, vacatur of one of two counts of conviction, as a lesser-included offense, where the vacatur could not affect the defendant's sentence), the defendant's conviction became final (for retroactivity purposes) when the Supreme Court denied cert. on the original appeal. E.g., Op. 12 ("[A] remand for ministerial purposes, such as the correction of language in a judgment or the entry of a judgment in accordance with a mandate, does not delay a judgment's finality."). This was critical to Burrell because while his conviction became final long before Booker under the theory adopted by the Circuit, it would not yet be final -- and thus he could benefit from Booker -- under his theory, since the district court somehow waited until April 2005 to abide by the Circuit's 2002 mandate to correct the judgment by vacating one count.

That's the gist of the decision, and it apparently creates a conflict with the Ninth Circuit. See United States v. Colvin, 204 F.3d 1221 (9th Cir. 2000). We who live in the Second Realm should all thank the Circuit for ensuring that Burrell, an evil purveyor of poison (or crack dealer), will spend the rest of his natural life in prison, though his Guidelines-mandated sentence concededly violates the Sixth Amendment. Hwew - that was a close one!

Which Version of Pereira Should We Follow?

Just to beat this issue completely to death: The version of Pereira that currently appears on Westlaw (United States v. Pereira, ___ F.3d ___, 2006 WL 2925642 (2d Cir. Oct. 13, 2006)), is the first version, in which the Court forgot its own decision in Mejia, rather than the later, corrected one. Anyone want to check LEXIS?

We assume that this will all get corrected soon enough. But the erstwhile confusion could have been avoided if the Court simply indicated that it has amended the original opinion, rather than do so without comment or remark (as if no one would notice ....).

Circuit Silently Changes Decision

United States v. Pereira, Docket No. 05-5969-cr (2d Cir. Oct. 13, 2006): Sometime this morning, the Circuit altered its original opinion in this case, which as this Blog pointed out (see entry below) somehow forgot about its own decision in Mejia. The opinion now simply rejects Pereira's fast-track disparity argument with a one-sentence cite to Mejia. New Op. 14.

Although this seems a rather substantive alteration, nowhere is there an indication that the original opinion has been amended or modified in any way. Nor did the Circuit change the date of the opinion (still October 13, 2006), even though this new opinion was issued today.

Does this seem like shoddy practice to anyone else? It certainly makes one wonder how often this kind of silent amendment goes on.

Judges Are Always the Last to Know: Circuit Forgets Its Own Decision Rejecting Fast-Track Disparity Argument in Illegal Reentry Cases

United States v. Marvin Pereira, Docket No. 05-5969-cr (2d Cir. Oct. 13, 2006) (Miner, Leval, Calabresi): We had to do a double-take at the publication date of this opinion after reading it. Here's why. Pereira argued on appeal (though he did not do so in the district court) that his 62-month sentence for unlawful reentry after deportation, imposed in the E.D.N.Y., was unreasonable because "the district court did not consider the disparity between his sentence and those received by defendants convicted of unlawful reentry in jurisdictions with fast-track programs." Op. 14. This precise argument, of course, was rejected two months ago by the Circuit in United States v. Mejia, 461 F.3d 158 (2d Cir. 2006) (click here for our unhappy discussion).

Apparently, however, judges of the Circuit do not always read their own opinions. Rather than rejecting Pereira's argument with a one-sentence cite to Mejia, this particular Panel first discussed in detail the plain-error standard, Op. 14-15, and then concluded that the defendant could not meet this standard because "[a]t this time, there is no binding precedent from either the Supreme Court or our Court with respect to the issue of sentencing disparities arising from fast-track programs." Op.15. Oy.

For a fleeting moment, we wondered whether Mejia had been overruled or withdrawn sub silentio. No such luck; a quick Westlaw check confirmed Mejia's continuing vitality. Someone at 40 Foley (or, more accurately, 500 Pearl) simply blew it.

In any event, the opinion also holds that a New York youthful offender adjudication could trigger a 16-level enhancement under the reentry Guideline (§ 2L1.2), where the conviction occurred in an adult court and the defendant served his sentence in an adult prison. Op. 11-12. This aspect of the decision simply extends the reasoning of cases such as United States v. Jones, 415 F.3d 256 (2d Cir. 2005) and United States v. Cuello, 357 F.3d 162 (2d Cir. 2004), to the reentry Guideline. (Click here for our critique of that misguided line of cases).

Postscript: Professor Berman has offered other criticisms of this decision (click here). He complains principally that the Court's casual affirmance of Pereira's above-the-range sentence as "reasonable" is inconsistent with the searching approach it has used to reverse otherwise similar but below-the-range sentences as unreasonable in cases such as Rattoballi. I don't disagree, but my cynicism about the Circuit's behavior in this realm (In sum: "Above the range? OK! Below the range? Bad!") prohibits further commentary in this family-friendly forum.

Concealment Element of Money Laundering Statute Satisfied by Showing that Defendant Hid Identity of Transported Cash

United States v. Samuel Ness, Docket No. 05-4401-cr (2d Cir. Oct. 10, 2006) (Winter, Calabresi, Pooler): This decision confirms a split among the Circuits concerning the meaning of the concealment element of the "transaction" and "transportation" money laundering statutes, 18 U.S.C. § 1956(a)(1)(B)(i) & (1)(2)(B)(i). Specifically, while some Circuits have ruled that the defendant has "conceal[ed] or disguise[d] the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity" only where s/he has attempted to create a false appearance that the funds are legitimate, e.g., United States v. Cuellar, 441 F.3d 329 (5th Cir. 2006), the Second Circuit has ruled that the concealment element is satisifed merely by a showing that defendant has engaged in conduct designed to conceal the identity of the funds, see United States v. Gotti, 459 F.3d 296 (2d Cir. 2006).

Applying Gotti to this case, the Circuit rejects Ness's sufficiency challenge where the evidence at trial showed that he, the operator of an armored car carrier business, delivered cash from drug sellers to drug suppliers and attempted to hide (for obvious reasons) the fact that he was doing so. Op. 4. Ness likely would have prevailed in the Fifth Circuit, which vacated a money-laundering conviction based on evidence showing that the defendant hid drug money in the floorboard of his car while driving toward Mexico. Cuellar, supra.

A Good Thing from Our Friends in Oregon (and It's Not a Pinot)

Steve Sady of the Oregon FPD has made available the latest version of his article, "Developments in Federal Search and Seizure Law" (click here for a link to the PDF version). The article outlines in detail all the key issues in search and seizure law, with an emphasis on "trac[ing] recent developments in selected areas and juxtapos[ing] the lead cases [(often pro-Government)] with federal court cases in which the defendant prevailed." Although most of the examples of favorable lower court cases are from the Ninth Circuit, Steve's article should prove invaluable in "encourag[ing] creative use of the available precedents that may make a decisive difference for our clients in state or federal court." So print it out, read it on the subway, and dream of the Ninth Circuit!

"Endeavoring" to Obstruct On-Going Investigation Same as Obstructing Investigation for Guidelines Purposes

United States v. Giovanelli, Docket No. 04-5763-cr (2d Cir. Sep. 27, 2006) (Calabresi, Pooler, Parker) (per curiam): This opinion principally holds that when a defendant is constructed of "endeavoring" to obstruct an on-going criminal investigation (here, by passing secret grand jury information to a target of the investigation) under 18 U.S.C. § 1503's "omnibus" clause, Section 2J1.2(c) of the Guidelines -- the general obstruction Guideline that requires, via cross-reference, the use of Section 2X3.1 (accessory after the fact) whenever the "offense involved obstructing the investigation or prosecution of a criminal offense" -- governs. Giovanelli argued that because he was convicted only of endeavoring to obstruct rather than actually obstructing, § 2J1.2(c) (and a fortiori § 2X3.1) was not implicated. Cf. United States v. Aguilar, 515 U.S. 593, 601-02 (1995) (explaining that "endeavoring" prong of § 1503 "makes conduct punishable where the defendant acts with an intent to obstruct justice, and in a manner that is likely to obstruct justice, but is foiled in some way."). This was important because while § 2J1.2 sets a base offense level of 14, § 2X3.1 sets a significantly higher base offense level (here, 30) because the criminal investigation Giovanelli endeavored to obstruct concerned, among other things, murder. The Court disagreed, joining the other four Circuits that have ruled on this issue. Op. 12.

District Court's Refusal to Depart Not Appealable

United States v. Stinson, Docket No. 05-5336-cr (2d Cir. Sep. 26, 2006) (Winter, Cabranes, Pooler) (per curiam): This very short opinion clarifies that, post-Booker, litigants still cannot appeal from a district court's discretionary refusal to depart (subject only to the "misapprehension of authority to depart" exception). Though this is well-settled law, e.g., United States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005), some of you out there (and you know who you are) apparently have not gotten the message. So stop raising those "failure to depart" arguments!

Act of Contempt Committed in Courthouse Cafeteria Does Not Qualify as Act Occurring "in the Court's Presence or So Near Thereto"

United States v. Rangolan, Docket No. 04-5126-cr (2d Cir. Sep. 21, 2006) (Calabresi, Parker, Wesley): Another great win by Ed Zas of this Office. The Circuit vacates on sufficiency grounds Rangolan's criminal contempt conviction for violating 18 U.S.C. § 401(1), prohibiting "[m]isbehavior of any person in [the court's] presence or so near thereto as to obstruct the administration of justice." Essentially, Rangolan was convicted under § 401(1) for approaching a juror, during a civil trial in which Rangolan was a plaintiff, in the cafeteria of the courthouse, at 9:15 a.m. (and thus before the trial session started that day), and showing the juror a document supporting Rangolan's claims. The cafeteria was on the 1st floor, while the trial was occurring on the 10th floor.

The Circuit vacates the conviction, finding that Rangolan's contumacious act did not occur "in the court's presence or so near thereto" within the meaning of § 401(1). It relied principally on the fact that the act occurred at a location geographically distant from the courtroom and at a time when court was not in session, but also considered the "non-judicial" nature of the place where the act occurred. Here's the money paragraph:

"Rangolan's misbehavior occurred not in court, but in a cateteria ten floors below the courtroom. Unlike jury rooms, or immediately adjacent hallways, the cafeteria is not a place 'set apart' for official court business, or for the use of jurors or other trial participants. The juror was not on official business but was simply having breakfast. Moreover, Rangolan's misbehavior took place at 9:15 a.m., before the court was in session. [citation omitted]. Deeming the court 'present' in a public cafeteria ten floors below the courtroom and not shown to have been separated out for court business, at a time when court is not in session, distorts the important geographical and temporal limitations Congress intended when it passed . . . § 401(1) to, in part, limit the contempt power."

Op.11. Unfortunately, the opinion does not clarify whether all, or only some, of these factors -- geographic proximity, temporal relatedness, and functional equivalence -- must be present to sustain a § 401(1) conviction. But since none of these conditions attained in Rangolan's case -- the act occurred in a "non-judicial" location not near the courtroom and at a time when court was not in session -- vacatur of her conviction was required.

Government's Refusal to Move for Third Acceptance Point under § 3E1.1(b) Subject to Same Constraints as Its Refusal to File § 5K1.1 Motion

United States v. Sloley, Docket No. 05-1748-cr (2d Cir. Sep. 15, 2006) (Walker, Cardamone, Sotomayor): This is an odd opinion that fails to answer what appears to be the central question on appeal: Whether the Government may refuse to move for the 3rd acceptance point, under U.S.S.G. § 3E1.1(b), for reasons other than the timeliness of the defendant's guilty plea and its effect on the Government's need to prepare for trial. (Disclosure: Colleen Cassidy of this Office litigated the case on appeal). The opinion chooses to answer, instead, some peripheral questions not really subject to serious dispute: (1) a Government motion is generally required to get the 3rd point under § 3E1.1(b); and (2) the Government's refusal to file such a motion may not be based on unconstitutional motives and, in the case of a plea agreement, may not be rooted in bad faith. Because the Government's refusal to move for the 3rd point here was based on its good-faith belief that the defendant falsely claim that he did not perjure himself at the suppression hearing, the Court affirms the sentence.

The problem with the opinion is that it fails to address the plain language of § 3E1.1(b), providing that a defendant qualifies for the 3rd point if (1) the offense level is 16 or greater; (2) the defendant has been granted the 2-levels for acceptance under § 3E1.1(a); and (3) the Government states in a motion that "the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a guilty plea, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently . . . ." U.S.S.G. § 3E1.1(b) (emphasis added); see id. comment. (n.6) (noting that Government motion is required under subsection (b) "[b]ecause the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial . . . ."). Here, the Government initially agreed to moving for the 3rd point in the plea agreement, but then reneged on this promise when Sloley disputed the application of a 2-level obstruction enhancement (which he had earlier agreed to in the plea agreement) based on his suppression hearing testimony. As the Court finds, "the record shows that Sloley's reneging on his admission to perjury . . . is what led the government to conclude that he had not accepted responsibility to the prosecutor's satisfaction." Op.12.

The real question, then, is whether this particular reason -- which has nothing to do with the timeliness of Sloley's guilty plea and the avoidance of trial preparation for the Government -- justifies the Government's refusal to move for the 3rd point, in light of the Guideline's plain language linking the motion to these particular concerns. Unfortunately, the Circuit fails to confront this difficult question, instead falling back upon generalities and platitudes -- e.g., the obvious requirement that a Government motion is generally necessary to get the 3rd point -- in affirming the sentence.

Nonetheless, the opinion does establish that the Government's refusal to move for the 3rd point is subject to the same limits and constraints governing its refusal to file a 5K1.1 motion for substantial assistance. Op.9-12. That is, the Government may not refuse to move for the 3rd point because of unconstitutional reasons (e.g., the defendant's race or religion) or based on bad faith.

State Must Appoint Counsel before Dismissing (as Discretion) First-Tier Appeal under Fugitive Disentitlement Doctrine

Taveras v. Smith, Docket No. 05-5579-pr (2d Cir. Sep. 11, 2006) (Cardamone, Calabresi, Pooler): This decision answers a very narrow question: May the New York State Appellate Division -- the state's first-tier, "as of right" appellate court -- exercise its discretion to dismiss, on fugitive disentitlement grounds, the appeal of an apparently indigent defendant without first appointing counsel? The Circuit, by Judge Calabresi, says no, relying on the "rationale" of Douglas v. California, 372 U.S. 353 (1963), that appellate counsel must be appointed for an indigent defendant who seeks a first-tier, as-of-right appellate review that "(1) involves some consideration of the 'merits', and (2) involves claims that have not yet 'been presented by [appellate counsel] and passed upon by an appellate court.'" Op.9. While counsel likely need not be appointed if New York (like Texas) had an automatic dismissal rule based on a defendant's flight during the appeal, New York's decision to adopt a discretionary fugitive disentitlement rule required the appointment of counsel before that discretion can be exercised against the indigent defendant.

Guilty Plea in State Court Does Not Necessarily "Waive" Fourth Amendment Claim in Later Federal Prosecution Arising from Same Incident

United States v. Gregg, Docket No. 03-1229-cr (2d Cir. Sep. 12, 2006) (Feinberg, Sotomayor, Hall) (per curiam): This decision nicely explains the meaning and consequences of a guilty plea for subsequent proceedings arising from the same incident. The Court correctly rejects the district court's broad-brush ruling that Gregg's guilty plea in state court to a misdemeanor involving the misuse of his mother's reduced-fare Metrocard effectively waived his right to challenge the lawfulness of the stop that lead to his arrest (and the recovery of a firearm) in a subsequent federal prosecution for being a felon-in-possession. While a guilty plea "conclusively establishes" the defendant's guilt, it does not necessarily extinguish all related issues; on the contrary, whether the plea forecloses a future cause of action or legal claim depends primarily on principles of collateral estoppel.

The essential facts are these. Police officers at a subway station saw Gregg going through a subway turnstile using a Metrocard. A "red light" signal was lit, indicating the use of a reduced-fare Metrocard ("issued only to the elderly or the disabled"). Gregg appeared neither elderly nor disabled. The police approached Gregg on the platform, asked for his Metrocard, saw his mother's name and photo on the card, and arrested him. A gun was recovered from Gregg as a result.

Gregg was charged in state court with criminal possession of a gun, but the grand jury refused to indict (what's not to love about the Bronx!). Eventually, Gregg disposed of the state case by pleading guilty to a charge of "criminal impersonation" and serving 15 days in the can.

Unfortunately, the federal grand jury was not as charitable as its Bronx counterpart and subsequently indicted Gregg under § 922(g)(1) as a felon in possession of a firearm. Gregg moved to suppress the gun, claiming that the police had no reasonable suspicion to stop him in the first place. The district court denied the motion, (badly mis)reading the caselaw as holding that a guilty plea extinguishes all subsequent Fourth Amendment challenges, regardless of the particular context.

The Circuit held that the district court erred in so ruling but upheld the denial of the suppression motion, anyway, because, allegedly, "undisputed facts in the record indicate the police officers stopped Gregg and questioned him regarding his apparently unjustified use of a disability Metrocard. Such facts are sufficient to establish reasonable suspicion under Terry." Op.10. (I am always skeptical when the Court affirms on a ground not reached below, but since I do not quite understand what the Court is actually saying, or all of the facts, no further explanation will be offered on this alternative holding.)

In any event, the Circuit clarifies that a guilty plea does not constitute, as a general matter, a broad waiver of all legal claims arising from the same incident. Rather, a valid guilty plea simply constitutes conclusive evidence of factual guilt. Thus, a defendant who pleads guilty may not raise a Fourth Amendment claim on appeal not because he has waived this claim, but because it is irrelevant to the validity of the conviction challenged on appeal -- "how the supporting evidence was recovered is irrelevant" to the fact of the defendant's guilt. As the Supreme Court explained in Menna v. New York, 423 U.S. 61, 62 n.2 (1975), a guilty plea "renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established."

Thus, in Haring v. Prosise, 462 U.S. 306, 321 (1983), the Supreme Court held that a defendant's earlier guilty plea to manufacturing drugs in state court did not bar him from later filing a § 1983 claim against the law enforcement officers who searched his apartment (and found the drugs). This was so because the guilty plea (1) did not involve any actual litigation over the legality of the search of Prosise's apartment; (2) the criminal proceeding did not decide any issue upon which Prosise must prevail in his § 1983 action; and (3) it was not established that any of the issues in the § 1983 action could have been "necessarily" determined in the criminal proceeding. Op. 7. The Circuit read Prosise to mean that "the preclusive effect of a guilty plea entered in state court upon subsequent federal proceedings is determined on the basis of collateral estoppel and the full faith and credit statute." Op. 8.

Applying Prosise, the Circuit found that the "legality of the firearm seizure simply was not at issue when Gregg pleaded guilty to criminal impersonation" by using his mom's Metrocard. Op. 9. Thus, the earlier plea did not bar him from challenging the recovery of the gun on Fourth Amendment grounds in the federal prosecution

Presence within 200 Feet of Scene of Possible Burglary in a "High Crime Area" Sufficient to Justify Terry Stop

United States v. McCargo, Docket No. 05-4026-cr (L) (2d Cir. Sep. 13, 2006) (Walker, Jacobs, Wallace): This is a terrible Fourth Amendment decision, even accounting for the general awfulness of the Circuit's jurisprudence in this area. (Disclosure: Darrell Fields of this Office, on behalf of this and other FPD offices in the Second Circuit, submitted an amicus curiae brief arguing that the stop was unlawful). Essentially, the Court held that the fact that McCargo was at a street corner approximately 200 feet from the scene of a possible crime (i.e., a house in which the occupant had called 911 to report a break-in), in a "high crime" neighborhood, is sufficient to permit the police to throw him against the police car and frisk him under Terry. There is a bit more than that, but nothing that should have made a difference.

The essential facts are these. At about 1 a.m., a caller at 501 Berkshire Avenue (in Buffalo) called 911 to report that someone was attempting to break into his residence. One police car responded quickly and parked in front of the residence.

Shortly thereafter, police officers in a second police car decided to respond to the same 911 call. As they drove on Berkshire toward the scene, they saw McCargo crossing the street at an intersection about 200 feet from 501 Berkshire. The officers claimed that McCargo was looking "intently" at the first police car (parked in front of 501 Berkshire), and that the general area was considered a "high crime neighborhood" (undefined, of course).

The officers in the second police car got out, grabbed McCargo, frisked him, and found a gun. They claimed at the suppression hearing that they did so because (1) they wanted to transport him to 501 Berkshire in the back seat of the police car so that the victim can either identity or not identify him; and (2) police department policy required a frisking of anyone transported in a police car.

The Circuit, by Judge Walker, concludes that all aspects of the police's action, from the stop of McCargo to the frisk, was lawful. Indeed, the opinion principally discusses what this Blog thinks is nearly a non-issue -- whether, if the police had reasonable suspicion to stop McCargo in the first place, they were justified in (1) their decision to transport him to the crime scene, Op. 9-13; and (2) their decision to frisk him pursuant to the department's policy, id. 13-19. From our perspective, the real question -- the one the Circuit got badly wrong -- is the preliminary one: Did the police have reasonable suspicion to stop McCargo in the first place?

Simply put, the Circuit relies on three "facts" to sustain the police's decision to seize McCargo: (1) His presence at a location about 200 feet from the crime scene; (2) his "staring at" the police car parked in front of the same; and (3) the "fact" that the area is, in the officers' opinion, a "high crime" one.

We think it self-evident that the first two are insufficent to justify a Terry stop: Presence alone, coupled with the near-reflexive act of looking at a police car (which likely had its lights on and sirens flashing), falls far short of the requirment of "specific and articulable facts" warranting a reasonable suspicion that the defendant has committed a crime. Even worse, the Circuit commits a "category mistake," as the logicians say, in throwing in the "high crime neighorhood" rationale to support the stop.

The mistake is this: This rationale is relevant only when the question is whether a crime has been committed in the first place, and is irrelevant when the question is (as here) whether this particular person has committed the crime (which, as a result of the 911 call, the police can assume occurred). In Illinois v. Wardlow, 528 U.S. 119 (2000), cited by the Circuit, the Supreme Court held that the police were justified in stopping Wardlow when he and others, present in an area known for heavy narcotics trafficking, fled immediately upon seeing police cars drive by. There, the police had no reason to believe that any particular crime had been committed. But Wardlow's flight gave them reason to believe that he may have done something wrong, especially given that he was present in an area with a high incidence of criminal activity.

Here, however, the undisputed assumption (in light of the 911 call) is that a crime (specifically a burglary at 511 Berkshire) has been committed. The question, therefore, is whether this particular person -- McCargo -- committed that crime. In this context, the general incidence of crime in the neighborhood is simply irrelevant to the Fourth Amendment question -- whether there is reasonable suspicion to believe that McCargo participated in the attempted burglary of 501 Berkshire Avenue.

***

Regarding the remainder of the opinion, we will point to only one particularly troubling statement. As noted, the Circuit also ruled that given the lawfulness of the initial stop, the officers acted reasonably in deciding to transport McCargo to 501 Berkshire in the police car. Responding to an argument that there was a less intrusive alternative than this -- i.e., the police could have simply walked the 200 feet to the scene with McCargo -- the Circuit rejected the alternative with this explanation: "[W]alking McCargo to the crime scene might have meant leaving the car unattended in a high-crime area." Op. 11-12.

This must be one helluva bad neighborhood -- even the police can't leave a locked patrol vehicle unattended for more than a few minutes! Even when the immediate area is swarming with police and police cars!

It is sad when judges are so far removed from reality. The rest of us may be familiar with the realities of life in densely populated, multi-racial, or (egads) minority-majority urban areas (also known as "high crime neighborhoods"), but apparently the Article III lords are not.

Anonymous Tip plus Defendant's Flight upon Seeing Police Sufficient to Sustain Terry Stop

United States v. Muhammad, Docket No. 05-4923-cr (Miner, Wesley, Swaine): This minor opinion upholds a Terry stop justified by (1) an anonymous 911 call describing someone fitting the defendant's appearance and location as carrying a gun, and (2) the defendant's (supposed) "headlong flight" when the police car approached him. Although the tip alone would have been insufficient under Florida v. JL, 529 U.S. 266 (2000), the police's observation of the defendant's "flight" distinguished this case from JL. Op. 11 ("The officers' personal observation of Muhammad's evasive conduct was the additional factor, missing in JL, that corroborated the anonymous tip and provided the objective manifestation that criminal activity was afoot.").

The Circuit also rejected Muhammad's claim that he did not flee from the police, but simply tried to avoid crashing into the police car as it cut him off. And, no surprise, despite conflicting testimony, e.g., Op. 3, and some dubious fact-finding by the magistrate judge, id. 12-13, the Circuit found no clear error.

A Ho Hum Opinion

United States v. Snow et al., Docket No. 05-0968-cr (L) (2d Cir. Sep. 1, 2006) (Jacobs, Pooler, Gibson): Nothing of interest to non-parties in this fact-based opinion affirming the conviction and sentence of three defendants for various crack and gun-related offenses. The sole point worth mention concerns whether the evidence was sufficient to convict one defendant of (constructively) possessing crack with intent to distribute, where the crack was hidden in the basement of a building in which the defendant co-rented a 2-bedroom apartment. Judge Gibson for the majority ruled that the evidence was sufficient, distinguishing this case from United States v. Rodriguez, 392 F.3d 539, 548 (2d Cir. 2004) (evidence of possession insufficient even though defendant had been in the back seat of a car near where drugs hidden in a box were subsequently found). Op.29-30. Judge Pooler dissents on this point alone, concluding that Rodriguez was indistinguishable. Op.37 ("Presence at the location of hidden drugs, even where there is evidence that location is partially under the defendant’s control, is insufficient to support constructive possession.").

How a Severed Horse's Head Is Like Fake Anthrax

United States v. Noel Davila, Docket No. 05-2545-cr (2d Cir. Aug. 30, 2006) (Leval, Parker, Sessions): Any opinion that references the severed-horse's-head-in-bed scene from "The Godfather" is a worthy read. Here, the Circuit principally rejects Davila's argument that the two statutes under which he was convicted, 18 U.S.C. § 2232a and § 876(c), criminalize only threats of future action and thus that his act of mailing an envelope containing phony anthrax (baby powder) and including a note containing the words "ANTRAX" (sic) and "AKA Bin Laden," did not fall within their reach. Relying on United States v. Taylor, 2003 WL 22073040 (S.D.N.Y. Sep. 5, 2003), Davila argued that the plain language of these statutes -- targeting anyone who "threatens . . . to use a weapon of mass destruction" or mails a communication containing any "threat to injure," respectively -- required this result. He claimed that "the use of the worlds 'threat' and 'threaten,' combined with the infinitives 'to use' and 'to injure,' limits the scope of both statutes to threats of future conduct on the part of the threatener." Op.6.

After canvassing several dictionaries, the Circuit rejected Davila's future-limited reading of "threat" or "threaten." A threat is an "indication or impression of impending danger or harm," the Court explained, and such an impression "is created not only by a communication promising to commit a dangerous act in the future, but also by the delivery of a substance that appears to be injurious." Op.7. Because Davila's "mailing was designed to create the impression that it contained a deadly substance, a reasonable jury could have found that it expressed an intention on his part to inflict bodily harm." Op. 8. And the fact that Congress subsequently enacted a statute (18 U.S.C. § 1038(a)(1)) that specifically targeted hoaxes of the type perpetrated by Davila did not require a different reading of the earlier statutes -- even though § 1038's legislative history indicates that its proponents sought its enactment because "a gap exists . . . in the current law[, which] does not address a hoax related to biological, chemical or nuclear dangers where there is no specific threat." Op. 10.

Finally, the Court concludes that even if the statutes were construed as limited to threats of future conduct, the evidence was sufficient to convict Davila. Here is the money paragraph:

"To illustrate by example, in the famous movie The Godfather (Paramount Pictures 1972), when the movie producer found in his bed the severed head of his horse, there could be no doubt that the delivery of the horse's head was not merely an announcement of a past act of violence but a threat of a future act of violence. The sending of a white powder with a reference to anthrax can reasonably be construed as a threat to send real anthrax the next time."

Op.12.

A Rare (but Limited) Double Jeopardy Victory

United States v. Olmeda, Docket No. 05-4331-cr (2d Cir. Aug. 29, 2006) (Cabranes, Sotomayor, Raggi): This is a fact-intensive opinion dismissing on Double Jeopardy grounds an SDNY indictment (for a § 922(g) violation) that followed upon Olmeda's guilty plea to an earlier North Carolina indictment that also charged a § 922(g) offense. The earlier indictment (to which Olmeda pled guilty without a plea agreement) charged Olmeda with possessing ammunition "in the Eastern District of North Carolina and elsewhere" on or about June 13, 2002. At the time of that indictment, prosecutors in North Carolina were (1) aware that Olmeda simultaneously possessed ammunition in his New York area home (a search warrant was successfully executed in New York after cops found Olmeda with ammo in North Carolina); (2) not aware (and had no basis to believe) that the ammunition found in North Carolina had traveled in any other district; and (3) not aware (and had no reason to believe) that Olmeda possessed ammo anywhere other than New York and North Carolina. Op. 19. On those and other facts, the Circuit concluded that "a reasonable person familiar with the totality of facts and circumstances would construe the initial indictment [in North Carolina], at the time jeopardy attached in the first case, to cover the offense that is charged in the subsequent prosecution." Op. 16. Thus, the later SDNY prosecution is for the "same offense" and barred by Double Jeopardy Clause.

And in the course of resolving the Double Jeopardy issue, the opinion clarifies that Olmeda could have been charged in two separate indictments for his simultaneous possession of ammunition in North Carolina and New York. Although the basic rule is that "a convicted felon who simultaneously possesses various firearms and rounds of ammunition can generally only be charged with a single violation of § 922(g), [e.g., U.S. v. Pelusio, 725 F.2d 161, 168 (2d Cir. 1983),] multiple charges may well be warranted if the evidence shows that the felon acquired possession of the firearms or ammunition on different occasions, or that he stored them at different sites." Op.12-13. Thus, Olmeda could have been prosecuted "in each district for a separate possession violation under § 922(g), notwithstanding any temporal overlap in these possessions." Op.13.

At Last, a Reasonable Decision about Reasonableness Review

United States v. Eric Jones, Docket No. 05-2289-cr (2d Cir. August 2, 2006) (Newman, Walker, Katzmann): Others have already sung the praises of this terrific opinion by Judge Newman (click here for Professor Berman's comments and click here for the Second Circuit Sentencing Blog's) , but it is new to me since it was decided while I was on vacation. A late blog entry is appropriate because it is a decision that all who practice in this Circuit must read. And it is a decision that cleanses the palate of the unpleasant Guidelines-dominated taste left by the Court's recent Castillo and Mejia decisions.

In sum, Jones upholds a 15-month "non-Guidelines sentence," where the advisory range was 30 to 37 months, even though few unusual mitigating facts existed (and several aggravating facts were present) and where the district judge's principal justification for the below-the-range sentence was simply his "gut feeling . . . that Eric Jones is capable of doing much better." Op. 5. Along the way, Jones

(1) Rejects the Government's argument that the district court erred in relying on "the Defendant's education, emotional condition, favorable employment record, family support, and good record on state probation" in imposing the below-the-range sentence, because the "Sentencing Commission has concluded that these factors are ordinarily not relevant in determining whether a departure is warranted." Op.6. This argument is misguided, Judge Newman explains, because "Jones's post-Booker sentence is not a Guidelines departure; it is a non-Guidelines sentence." Id. And with the Guidelines scheme "rendered advisory" by Booker, "the Guidelines limitations on the use of factors to permit departures are no more binding on sentencing judges than the calculated ranges themselves." Id. While a court must continue to "consider" the Guidelines as well as its policy statements, "'consideration' does not mean mandatory adherence." Id.

This clear ruling dispels the fog created by footnote 4 of Rattoballi, in which Judge Walker (who dissents in Jones) attempts to resurrect the mandatory Guidelines by suggesting that a court cannot rely on Guidelines-disfavored facts (such as the defendant's age or employment history) in imposing a non-Guidelines sentence.

(2) Rejects the Government's argument that the district judge erred in invoking "the subjective component of his thinking" in imposing sentence. As noted, the judge said he had "the sense" that Jones is capable of doing better and that he had a "gut feeling" about Jones.

This criticism is misguided, the Court explains, because it "fails to appreciate the enhanced scope of a sentencing judge's discretion in the post-Booker world of advisory sentencing." Op. 7. Under the new sentencing regime, "the judge is not prohibited from including in [his or her consideration of the § 3553(a) factors] the judge's own sense of what is a fair and just sentence under all the circumstances." Id. Judge Cabranes would be proud -- there need be no "fear of judging": "That is the historic role of sentencing judges; and it may continue to be exercised, subject [only] to the reviewing court's ultimate authority to reject any sentence that exceeds the bounds of reasonableness." Id.

Moreover, the judge did not err in failing to explain why, precisely, "15 months, rather than, say, 14 or 16 months" was the appropriate sentence. Judge Newman explains that there is no requirement "for such specific articulation," since the "[s]election of an appropriate amount of punishment inevitably involves some degree of subjectivity that often cannot be precisely explained." Op. 8.

(3) Rejects the Government's claim that the 15-month sentence is substantively unreasonably. Judge Newman properly reaffirms the deferential posture of substantive reasonableness review, somewhat muddied by the over-intrusive and results-oriented tone of Rattoballi. Here, Judge Newman reminds us that the reviewing court "should exhibit restraint" in this regard and that a sentence will be found substantively unreasonable only "infrequently." Op. 9. And in keeping with that deferential posture, the Court does not say much about Jones's sentence in particular, stating only that "[W]e cannot say that, for a defendant with Jones's characteristics and background, 15 months of imprisonment is unreasonable for possession of a detectable amount of marijuana, even though exacerbated by possession of [3] guns." Op.10.

The Court also zings other panels and courts for upholding above-the-range non-Guidelines sentences while invalidating their below-the-range counterparts. Judge Newman's reminder is plainly true but unfortunately necessary: "[T]he discretion that Booker accords sentencing judges to impose non-Guidelines sentences cannot be an escalator that only goes up." Op.10. Take that, Eighth Circuit (e.g.)!

(4) And, finally, holds that failure to comply with § 3553(c)(2)'s requirement (that the specific reasons for a sentence outside the Guidelines range must be put in writing in the judgment of conviction) does not require vacatur of the sentence where the sentence is ultimately found reasonable on appellate review (as here). Rather, the appropriate remedy is a limited remand for correction of the judgment to include the written explanation. Op.13. Judge Walker principally dissents on this fascinating point.

Conscious Avoidance Doctrine Applicable to Defendant's "Belief" where Underlying "Crime" Is a Government Sting

United States v. Roman Nektalov, Docket No. 05-2780-cr (2d Cir. Aug. 25, 2006) (Meskill, Cabranes, Wesley): This is a fascinating opinion -- maybe too interesting for a Friday afternoon. The issue is whether the conscious avoidance doctrine -- under which a defendant can be held liable for his "knowledge" of fact X upon a finding that s/he was "aware of a high probability of" fact X's existence and "consciously avoided confirming that fact," United States v. Aina-Marshall, 336 F.3d 167, 170 (2d Cir. 2003) -- applies in a sting operation leading to a charge of money laundering, where it is the defendant's belief, rather than his knowledge, that is critical. The Circuit upheld Nektalov's conviction, holding principally that the district judge properly charged the jury that it can convict the defendant if he consciously avoided "believing" that the cash he was dealing with were proceeds of drug trafficking.

Government agents set up a sting to snare Nektalov, a jeweler, by posing as Colombian drug dealers seeking to exchange hundreds of thousands of dollars in cash (in small denominations) for gold and jewelry. Because the whole thing was a ruse, Nektalov could not be accused of "knowing" that the cash he was accepting (in exchange for the gold and jewelry) were proceeds of drug activity -- knowledge being, after all, justified true belief.

Fortunately for the Government, the money-laundering statute accounts for this. Under 18 U.S.C. § 1956(a)(3)(B), a defendant can be liable if he "believed [the property involved in the transactions] to be the proceeds of [a] specified unlawful activity." The issue thus became whether Nektalov believed, in light of the circumstances, that he was dealing in drug proceeds. Nektalov pointed to his lack of fluency in English, as well as his unfamiliarity with the undercover's not-so-subtle references to "moving diamonds back down to Colombia" and explanation for why he was transacting in small denominations ("That's how they pay me in the streets."), in arguing to the jury that he did not believe that he was dealing in (what was allegedly represented by the undercover to be) drug money.

Over objection, the district judge gave a conscious avoidance charge to the jury, even though such charges are usually given only where the requisite mens rea is knowledge rather than belief. The jury convicted Nektalov on one count, and the Circuit affirms.

Principally, the Circuit held that the conscious avoidance doctrine "applies in the context of a sting operation with as much force to one's efforts to avoid certain belief as to one's efforts to avoid knowledge." Op.9. This is so because "belief is more properly understood as part of knowledge." Id. 9-10. After all, to know X is shorthand for "to have a justified and true belief that X: Knowledge encompasses belief. If conscious avoidance can stand in for actual knowledge, therefore, it can do the same for actual belief.

And applying the conscious avoidance doctrine to the sting context (involving belief) advances the same goal as applying it in the ordinary context (involving knowledge). The underlying idea, after all, is that a defendant who deliberately avoids learning about something, while aware of a high probability of that thing's existence, is as culpable as someone who is affirmatively aware of the thing's existence -- regardless of what the truth is. "The culpability of the wilfully blind defendant lies in his averting his eyes to what he thinks he sees," the Circuit explains, "not in the objective accuracy of his vision." Op.11. "[C]onscious avoidance encompasses a defendant's deliberately refusing to confirm the existence of one or more facts that he believes to be true, regardless of whether those facts actually are true." Op.12.

Circuit Gilds the Lily: Sentence within Guidelines Range Not Unreasonable Simply Because Judge Refused to Account for 100:1 Disparity in Crack Case

United States v. Park, Docket No. 05-6158-cr (2d Cir. Aug. 25, 2006) (Cabranes, Straub, Hall): We're not sure why the Circuit felt the need to publish this opinion in light of Castillo, but what's a few more trees felled for the cause of justice? In Castillo, the Circuit held that "a non-Guidelines sentence imposed simply because a district court disagreed with the 100:1 ration [is] unreasonable." Op. 7. Here, the Court confronts "the related question of whether the imposition of a Guidelines sentence for a crack offense is per se unreasonable as a result of the 100:1 ratio," where the Guidelines range was determined by the fact that crack (as opposed to power) was involved and where the judge imposed a sentence within that range. Id.

And the answer should be obvious in light of Castillo (indeed, one would think that the answer follows necessarily from Castillo, rendering this opinion pointless): "Just as it would be error for a sentencing judge to impose a non-Guidelines sentence of the basis of a disagreement with Congress's policy judgment regarding the 100:1 ratio [citing Castillo], it is not per se error for a sentencing judge to adhere to that policy judgment by imposing the sentence recommended by the Guidelines. We therefore hold, for the reasons set forth in Castillo, that imposition of a Guidelines sentence in a case involving a crack offense does not yield a sentence that is unreasonable merely because the Guidelines adhere to the 100:1 ratio that Congress . . . has seen fit to adopt." Op. 7-8.

As in Castillo, finally, the Circuit recognized that a defendant can seek a non-Guidelines sentence "in light of the specific circumstances of his case." Op.8. However, the mere fact that Park acted as an intermediary between the seller and the snitch buyer, along with the fact that it was the snitch who initiated the deals, was insufficient to render the sentence unreasonable. This was especially so because "the record makes clear that Park was fully aware of what substance was being sold and how much of it was at issue." Id.