Circuit Once Again Shoots Down Lenient Non-Guideline Sentence

United States v. Wills, Docket No. 06-0115-crt (2d Cir. Feb. 5, 2007) (Feinberg, Cabranes, Sack): It's an all-too-familiar occurrence these days, and has happened again. This opinion finds (surprise!) a below-guideline sentence to be unreasonable. Remarkably, though, the court did not take on the government's claim that the sentence, which was ten years below the advisory minimum, was substantively unreasonable. Rather, the court focused on the district court's consideration of two statutory factors, and found that the sentence was procedurally unreasonable.

First on the court's radar screen was the district court's conclusion that, since the defendant would be deported immediately after serving his sentence, he presented a low risk of recidivism, under 18 U.S.C. § 3553(a)(2)(C). The circuit has, in a series of post-Booker opinions, taken a dim view of categorical deviations from the guidelines. So it is hardly surprising that it rejected the distirct court's reasoning. The appellate court noted first that it was not necessarily true that the defendant's deportation would stop him from recidivating. He could commit crimes against Americans abroad, ship drugs here from home, or illegally reenter. The court also noted that since something like 37% of federal defendants are not U.S. citizens, the district court "flout[ed] the [statutory] goal of individualized justice."

Remarkably, however, the court did not compeltely shut this door. It held that a district court "can consider deportation [as a ground for a lower sentence] when [it] identifies, with some particularity, why a specific defendant is certain to be deported and why deportation, in light of that defendant's individual circumstances, will serve to protect the public." Huh? Isn't that essentially what the district court did here? Why would the circuit support a lower sentence in some future case based on precisely the kind of speculation that it rejected in this one? It seems that it's all about individualization. Apparently, as long as the sentencing court ties its decision to something specific about the particular defendant, and not to some general feature that would apply to a large number of defendants, the sentence will be reasonable. Well, at least procedurally reasonable.

The second issue here had to do with sentencing disparities among co-defendants. Those of Wills' co-defendants who were successfully prosecuted all pled guilty and cooperated with the government, and the most severe sentence among them was 96 months' imprisonment. Wills alone went to trial, was ultimately found to be an organizer or leader, and faced a guideline minimum of 292 months, despite the fact that he had no prior convictions. The district court held that the huge disparity between this sentence and those of the co-defendants was "not appropriate." This was its second reason for imposing a non-guideline sentence.

The circuit has previously held that the statute does not prohibit considering differences among co-defendants when imposing a sentence, and it reaffirmed that position here. The problem in this case was that the sentencing court did not make the right kind of record. The appellate court complained that the district judge "provided no assessment of how Wills was similarly situated to his co-defendants and why that would matter in light of the differences." It also pointed out that the court must also at least pay lip service to national disparities when addressing intra-case disparities.

The curiously worded remand seems intended to implement the court's concern with individualized sentencing, and does not rule out the re-imposition of the same sentence on the second round. It instructs the district court to sentence Wills without regard to his future deportation "unless the court finds, with some particularly, that WIlls is certain to be deported and that deportation ... will serve to protect the public." As for disparities, the instruction is to consider "why any putatitve similarites between Wills and his co-defendants ... warrant a narrow gap in sentences," and to be "mindful" of of the goal of avoiding national disparities.

So what's the lesson of Wills? It is this: What the district court says is more important than what it does. When preparing for a sentencing with these sorts of issues, defense counsel needs to give the district court the ammunition it needs to say the right thing. Point out that the defendant's plan for readjusting to life in his home country will minimize the risk of his reentering or engaging in crimes against Americans from there. WIth respect to co-defendants who received lenient treatment, make sure to make their conduct look as bad as, or worse than, the client's.

These days, a record that includes individualized findings about your particular defendant will be key in defending a lenient non-guideline sentence on appeal.

No Error in Indictment's Failure to Allege Materiality in Bank Fraud Prosecution

United States v. Dayan, Docket Nos. 05-3443-cr (L), 05-4199-cr (CON) (2d Cir. Feb. 5, 2007) (Kearse, Winter, Walker): This short opinion rejects Dayan's claim that his indictment, charging him with conspiracy to commit bank fraud and several substantive counts of bank fraud, was defective because it failed to state that his frauds were "material," an element of the offense. In Neder v. United States, 527 U.S. 1, 25 (1999), the Supreme Court ruled that although the bank fraud statute, 18 U.S.C. § 1344, does not contain the word "material," materiality was nonetheless an element of the offense "because the word fraud incorporated fraud's 'well-settled meaning at common law' -- a 'misrepresentation or concealment of material fact.'" Op. 5 (quoting Neder) (emphasis in original). Using the same reasoning, the Circuit rejects Dayan's claim: "If materiality can be inferred to be an element of criminal fraud because of the well-understood meaning of 'fraud' as a legal term, an allegation of materiality can be inferred from the use of the word 'fraud' in the indictment." Op. 5-6. And since it is "commonly understood among both lawyers and laypersons" that "materiality of the misleading conduct or speech [at issue] is [] at the heart of the word 'fraud,'" there is no error in the indictment's failure to allege materiality. Op. 6.

District Court's Task Is Not to Impose a "Reasonable" Sentence

United States v. Williams, Docket Nos. 05-4928-cr (L) & 05-4956-cr (2d Cir. Jan. 30, 2007) (Winter, Cabranes, Korman): The only item worth noting in this opinion, in which both defendants appeal the district court's refusal to resentence them following a Crosby remand, is the Circuit's reminder to district judges that their task at sentencing is not to impose a "reasonable" sentence, but rather a sentence that (1) takes into account all the § 3553(a) factors, and (2) is no greater than necessary to promote the ends of sentencing. Op. 12. As the Court states in a quotable line, "district courts are to impose sentences pursuant to the requirements of § 3553(a) -- including the requirements of § 3553(a)'s parsimony clause -- while appellate courts are to review the sentences actually imposed by district courts for reasonableness." Id. Reminding district courts of this distinction may not make a difference in most cases, but it can't hurt.

Here, the district court refused to resentence the defendants after concluding that it would impose the same sentences under the advisory Guidelines regime established in Booker. However, the court then mistakenly described its sentencing duty as "impos[ing] a reasonable sentence after considering all the factors listed in § 3553(a)." Op. 6. The Circuit says tsk-tsk to this imprecise oration -- quoting with approval a 6th Circuit case explaining that "a district court's job is not to impose a 'reasonable' sentence . . . but . . . a 'sentence sufficient but not greater than necessary, to comply with the purposes' of section 3553(a)(2). Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task." Op. 12 (emphasis in original) (quoting United States v. Foreman, 436 F.3d 638, 644 n.1 (6th Cir. 2006)).

The Court nonetheless affirms the defendants' sentences, concluding that it was clear from the record that the district court had in fact considered all the § 3553(a) factors, including the parsimony command, and had stated unequivocally that it would impose the same sentence under the advisory Guidelines regime. Op. 12-13. Because "there is no indication in the record that the District Court's reference to its duty to impose a sentence that was 'reasonable' affected in any way its assessment of whether resentencing [] was warranted," the Court concludes, "a second remand pursuant to Crosby . . . would not achieve any different result." Op. 13.

Fight the Power ... Fight the Power that B(OP)

Our colleague Steve Sady of the Federal Public Defender Office in Oregon has prepared another extremely useful resource, this time discussing BOP issues affecting our clients before and after sentencing. The memo discusses, among other things, the status of litigation concerning the BOP's view of halfway house placement, the calculation of good-time credit, and eligibility for § 3621(e)'s one-year sentence reduction for completing a residential substance-abuse treatment program.

Click here for a PDF copy of this very useful document. And print out an extra copy for your favorite litigious client!

Prosecutorial Gamesmanship Deemed Sleazy but Harmless

United States v. Chin, Docket No. 06-1048-cr (2d Cir. Jan. 30, 2007) (McLaughlin, Sack, Rakoff): This is yet another instance in which the Court scolds a prosecutor for sleazy misconduct at trial, but then renders its bite toothless by deeming harmless the misdeed. I suppose this is better than simply overlooking the misconduct, as the Court often does, but then I'm not the one who has to do the time.

Chin was charged with pretending to be an INS officer and defrauding aliens by telling them that he could obtain U.S. visas for them for a fee. To prove his guilt, the Government offered victim witnesses who said that they met with the defendant in China on particular dates. In his defense, Chin attempted to introduce into evidence credit-card receipts, complete with his signature, showing that he was actually in New York on the those same dates. The judge at the first trial refused to admit the receipts into evidence, however, and Chin was convicted. On appeal, the Circuit vacated his conviction, finding that the trial court erred in not admitting the receipts. United States v. Chin, 371 F.3d 31 (2d Cir. 2004).

Before the retrial, defense counsel notified the Government that it intended to call a handwriting expert at trial to testify that the signatures on the receipts were indeed Chin's. This notice conformed with the requirement of defense-expert disclosure set forth in Fed. R. Crim. P. 16(b)(1)(C). The Government, however, gave no notice that it too intended to call a handwriting expert. As expected, Chin introduced the New York credit-card receipts at trial, and then called the handwriting expert to testify that the signatures on the receipts belonged to Chin.

One day before the close of the defense case, the Government announced that it would call its own handwriting expert in its rebuttal case. The Government had retained the expert well before the start of the trial, and had even obtained from him a written opinion challenging the authenticity of Chin's signatures on the credit card receipts. Op. 3. But the Government had not provide any notice of this to the defense, justifying its sandbagging through the language of Rule 16(a)(1)(G), which requires pretrial disclosure of expert testimony only if the Government intends to elicit such testimony in "its case in chief." Over objection, the trial court allowed the Government expert to testify, though it granted a one-day adjournment to allow the defense to prepare for the cross of the expert. Chin was convicted, and he appealed again.

The Circuit was clearly unhappy with the prosecutor's gamesmanship, describing it as "sharp practice [] unworthy of a representative of the United States." Op. 4. And although acknowledging that the Government did not technically violate Rule 16(a)(1)(G), the Court explained that "it does not follow that the Government has carte blanche in every case to spring a surprise expert witness on an unsuspecting defendant who has long since disclosed his own expert's prospective testimony." Op. 4. And "[i]n an appropriate case, such an ambush might well violate due process." Id.

Unfortunately for Chin, his is not that case. The Court found that the Government's "regrettable" action did "not rise to a due process violation" because the trial court "gave defense counsel what he needed: time to prepare to cross-examine [the Government's expert]." Op. 5. Apparently, this was all defense counsel asked for, and even now, Chin is "unable to specify with any particularity how he was prejudiced by not receiving a longer continuance." Id. "Thanks to the prudence of the district court in granting the continuance," in sum, "Chin was not deprived of due process." Id.

Proof of Defendant's Predisposition (to Rebut Entrapment Defense) Is Not Same as Proof that Defendant Had the Requisite Intent / Mens Rea

United States v. Taylor, Docket No. 05-6764-cr (2d Cir. Jan. 23, 2007) (Calabresi, Wesley, Rakoff) (per curiam): The Court affirms Taylor's sentence, rejecting his claim that remand for resentencing was required because the district judge denied him acceptance-of-responsibility credit on the basis of an erroneous legal ruling that Taylor's assertion of an entrapment defense at trial was equivalent to a denial of criminal intent to commit the underlying crime. (NB: Darrell Fields of this Office litigated the case on appeal). The Panel affirms the sentence by skirting the ultimate legal question -- i.e., whether assertion of an entrapment defense precludes the possibility of acceptance credit under U.S.S.G. § 3E1.1, a question on which the Circuits have split, see Op. 7-8 -- in favor of a somewhat dubious finding that the district court actually denied acceptance credit on the basis of other, undeniably proper considerations. Op. 5.

Nonetheless, the Panel clarifies that assertion of an entrapment defense is not at all equivalent to a denial of criminal intent. Specifically, the Government's proof that a defendant was predisposed to commit the crime is not the same as proof that he had the requisite mens rea (though the same evidence may be used to establish both predisposition and mens rea). Op. 7; see id. ("It bears emphasizing that no matter how intertwined intent and predisposition may be, they remain separate concepts."). Rather, "[p]redisposition focuses on the source of the criminal intent: whether the government placed the criminal intent in the defendant." Op. 7 (emphasis added).

Panel Revisits Guidelines-Land

United States v. Trupin, Docket No. 05-2934-cr (2d Cir. Jan. 23, 2007) (Wesley, Hall, Jones): The real sentencing action is occurring elsewhere, of course, but someone has to report the news from the provinces. This opinion is bad news indeed, but may become irrelevant by June. Keep your fingers crossed.

Here, on a Government appeal of the 69-year-old tax-cheat defendant's 7-month prison sentence, a Panel of the Circuit vacates the sentence as substantively unreasonable -- i.e., "too darn short for our particular taste." The opinion is fact specific, to be sure, but also portends a broader view of sentencing (at both the district and Circuit levels) quite familiar to most -- the pre-Booker, mandatory Guidelines regime in which sentences outside the Guidelines range were presumptively suspicious and lawful only where exceptional circumstances exist. Also, nowhere seen is the deferential, hands-off appellate posture announced in Crosby and Fleming to establish the post-Booker appellate framework for the Circuit. Instead, this particular Panel essentially assumes the role of a higher sentencing court, overruling the lower court's (irreducibly) subjective judgment about the most "just" and appropriate sentence in favor of its own (and different) subjective judgment about the same. One need not be a cynic to point out that had a different Panel of the same Court heard Trupin's appeal -- for instance the Panel that affirmed a well-below-the-range sentence in Jones, 460 F.3d 191 (2d Cir. 2006) (click here for our discussion), a sentence justified, at bottom, by the district judge's "gut feeling" that the defendant deserved a break -- the result would have been different. Let's hope the Big Court in DC cleans up this mess of its own making.

Here are the relevant details -- though the retrograde nature of the opinion can only be appreciated on a full reading. Trupin is 69 years old. He was convicted at trial of failing to report $6 million in income over a 6-year period, a scam that involved shell companies, phony accounts, etc. At the original pre-Booker sentencing, the judge declined to depart downward on the basis of Trupin's age or family circumstances (he has an ill wife) and imposed a 41-month sentence (the bottom of the applicable range), though stating his personal view that the Guidelines range was too harsh. Following Booker and a remand pursuant to Crosby, the district judge imposed a principal sentence of 7 months' incarceration and 7 months' home confinement (as part of a 3-year term of supervised release).

To justify this sentence, the judge pointed to, inter alia, (1) the fact that, "from everything I can see, Mr. Trupin does everything in his power to take good care of his [ill] wife, even though he doesn't have the means that he once had"; (2) Trupin's advanced age, which means that "service of a lengthy sentence will be a greater hardship on him than in most cases," and further noting that recidivism generally declines with age and opining that "Trupin is not going to go out and commit any more crimes of the sort he's done"; (3) the fact that it's unlikely that the IRS could collect the amounts owed by Trupin anyway, whether he's incarcerated or not; and (4) the court's view that "a few weeks in jail for most of us would be a very, very significant punishment."

The Panel finds fault with each aspect of the district court's reasoning, essentially substituting its own subjective judgment for the lower court's. Op. 7. First, regarding Trupin's age and family circumstances, the Panel points out that the district court denied a downward departure on the same grounds at the original sentencing, and did not reconsider this decision at the post-Booker resentencing. "So what?", one might say in this post-Booker world, but not so the Panel. This fact is significant, Op. 7-8, because it shows that the "court placed far too much weight on Trupin's family circumstances and age without giving adequate weight to the other statutory factors" at the resentencing. Op. 8. Huh.

Regarding Trupin's wife and his efforts to care for her, for instance, the Panel claims that this factor "is neither sufficiently compelling nor present to the degree necessary to support the sentence imposed." Id. This is so because, among other things, Trupin's presence was not "essential to his wife's well-being." Id. Moreover, the fact that Trupin will not be able to care for his wife during his incarceration is "not sufficiently unique" to him, "but rather is true of every married defendant who runs afoul of the law." Op. 9.

The Panel also finds that the court "placed too much weight on Trupin's advanced age," pointing out that he was in good health and that -- regardless of general recidivism statistics -- Trupin began committing crimes in his 50s and then continued doing so into his 60s. Op. 9. Also, "whether and to what extent the IRS would be able to collect the unpaid taxes" is "an irrelevant variable to include in the sentencing calculus." Id.

Additionally, once again substituting its judgment for the lower court's, the Panel believed that the 7-month sentence does not "reflect the seriousness of Trupin's offense." Op. 9. And, finally, the Panel rejects the district court's claim that even a few weeks in prison is a significant sentence, describing this as a "general policy disagreement[]" that a sentencing judge is forbidden to make. Op. 10.

Another Sign of SDNY-Centrism?

LoCascio v. United States, Docket No. 05-6761-pr (2d Cir. Jan. 9, 2007) (Cardamone, Straub, Koeltl) (per curiam): There is little of interest in this fact-specific opinion, which principally rejects LoCascio's (the co-defendant of the senior John Gotti, RIP) motion to recuse Judge Glasser from deciding his § 2255 petition (based principally on a claim that his attorney suffered from an actual conflict at the trial because Gotti threatened to kill the attorney if he did anything adverse to Gotti's interests). But we must point out that the Circuit errs, twice, in describing this as an appeal "from the judgment of the United States District Court for the Southern District of New York (I. Leo Glasser, Judge)." Op. 1 & 2 (emphasis added). Last we checked, Judge Glasser sits in the EDNY, and the underlying trial -- starring the notorious Sammy "the Bull" Gravano as Government Snitch No. 1 -- occurred in Brooklyn.

Denial of Motion to Dismiss for Untimeliness of Death Notice Not Appealable under Collateral Order Doctrine

United States v. McGriff, Docket No. 06-2014-cr (2d Cir. Jan. 5, 2007) (Parker, Wesley, Hall): In a matter of first impression in this Circuit, the Court holds here that a district court's denial of the defendant's motion to strike the Government's death notice for untimeliness under 18 U.S.C. § 3593(a) is not immediately appealable under the collateral order exception to the final judgment rule. The Court rejects McGriff's effort to characterize the right conferred by § 3593(a) -- requiring the Government to notify a defendant of its intent to seek the death penalty, and the aggravating factor(s) justifying such a sentence, at "a reasonable time before the trial or before acceptance by the court of a guilty plea" -- as a right "not to stand trial for a capital offense except upon adequate notice." Op. 7. Rather, the Court explained that the protection offered by § 3593(a) is akin to "the protections afforded by any number of pretrial rights that involve notification or disclosure for the purpose of allowing the defendant to prepare his case." Op.9. And because "[n]one of these rights amounts to a right not to stand trial . . . [or] supplies a basis for interlocutory review under the collateral order doctrine," id., the Court dismisses McGriff's appeal of the district court's order for lack of appellate jurisdiction.

This decision creates a split among the Circuits. The Fourth and Eleventh Circuits, apparently, consider denials of motions to strike a death notice for untimeliness as immediately appealable under the collateral order doctrine. See United States v. Ferebe, 332 F.3d 722 (4th Cir. 2003); United States v. Wilk, 452 F.3d 1208, 1220 (11th Cir. 2006).

Where Record Is Unclear, Defendant Must Raise IAC Claim, Based on Counsel's Failure to File Timely Notice of Appeal, in a § 2255 Petition

United States v. Moreno-Rivera, Docket No. 05-5760-cr (2d Cir. Dec. 22, 2006) (Cabranes, Sack, Hall) (per curiam): In United States v. Fuller, 332 F.3d 60 (2d Cir. 2003), the defendant claimed, as Moreno-Rivera does in this appeal, that his attorney failed to follow his explicit instruction to file a notice of appeal, resulting in the defendant's failure to file a timely pro se notice of appeal. In Fuller, it was undisputed that Fuller timely asked his attorney to file the notice of appeal, and that the attorney failed to do so. As a result, the Circuit dismissed Fuller's late appeal, but remanded the case to the district court with instructions to vacate the judgment and enter a new judgment, so that Fuller can timely appeal from the new judgment.

The Circuit denies the same remedy to Moreno-Rivera, however, and dismisses his late appeal. This is because, in contrast to Fuller, it is not entirely clear here why a timely notice of appeal was not filed. Specifically, it is not undisputed, as it was in Fuller, that trial counsel "failed to file a requested appeal," which of course would establish Moreno-Rivera's IAC claim. See Garcia v. United States, 278 F.3d 134, 137 (2d Cir. 2002). Rather, the Court concluded, "we cannot ascertain on this record whether Moreno-Rivera actually gave timely instructions to his trial counsel to file an appeal." Op. 5-6. Thus, the usual rule applies: IAC claims requiring development or supplementation of the factual record should be heard not on direct appeal but in a collateral attack via § 2255. See Massaro v. United States, 538 U.S. 500, 504-05 (2003).

Horizontal Relatedness for RICO Purposes May Be Proven by Evidence of Vertical Relatedness

United States v. Daidone, Docket No. 04-3784-cr (2d Cir. Dec. 15, 2006) (Newman, McLaughlin, Hall) (per curiam): This opinion does not appear to break new ground, but simply confirms that in a RICO prosecution, proof of "horizontal relatedness" between the alleged predicate acts -- i.e., proof that the predicates are related to each other -- may be satisfied by the same evidence used to prove "vertical relatedness" -- i.e., evidence establishing that the predicates are related to the RICO enterprise. Daidone, a made guy in the Luchese family of LCN, complains on appeal that his RICO convictions under § 1962(c) & (d) must be vacated because the three predicate acts (two whackings and a long-term shylocking) "were committed years apart, by different people and for entirely different reasons," and thus did not constitute a "pattern of racketeering activity" as required under RICO. He especially complains that the prosecution's evidence showed, at best, that the predicates were linked to the RICO "enterprise," i.e., the Luchese family, but did not demonstrate that the predicates were related to each other.

The Circuit rejects this argument and affirms Daidone's conviction. It agrees, first, that under Circuit law, proof of "relatedness" among the predicate acts -- derived from the statute's reference to a "pattern of racketeering activity" -- requires proof both that the acts are "related to each other ('horizontal' relatedness), and . . . related to the enterprise ('vertical' relatedness)." Op. 7 (quoting United States v. Minicone, 960 F.2d 1099, 1106 (2d Cir. 1992)); id. 8 ("To form a pattern of racketeering activity, predicate acts must be related to each other and to the enterprise."). Second, vertical relatedness may be proven by evidence showing either that (1) "the defendant was enabled to commit the predicate offenses solely by virtue of his position in the enterprise or involvement in or control over the affairs of the enterprise," or (2) "the predicate offenses are related to the activities of that enterprise." Op. 7. Third, horizontal relatedness may be established by evidence showing that "each predicate act is related to the RICO enterprise." Id. (quoting United States v. Polanco, 145 F.3d 536, 541 (2d Cir. 1998)). This is because "predicate crimes [linked to the same enterprise] will share common goals (increasing and protecting the financial position of the enterprise) and common victims (e.g., those who threaten its goals), and will draw their participants from the same pool of associates (those who are members and associates of the enterprise)." Op. 8-9.

Therefore, "the requirements of horizontal relatedness can be established by linking each predicate act to the enterprise, although the same or similar proof may also establish vertical relatedness." Op. 7. And because the Government "sufficiently demonstrated that each of Daidone's three predicate acts . . . were related to the Luchese enterprise," it satisfied both aspects of the relatedness inquiry. Op. 10.

Failure to Provide Prior Notice of Upward Variance Constitutes Plain Error

United States v. Gilmore, Docket No. 05-6195-cr (2d Cir. Dec. 8, 2006) (Miner, Pooler, Katzmann) (per curiam): In United States v. Anati, 457 F.3d 233 (2d Cir. 2006), the Circuit held that a district court must give reasonable notice of its intent to exceed the advisory Guidelines range (via consideration of the § 3553(a) factors) prior to sentencing. Here, the Court extends Anati and holds that failure to provide the notice required by Anati constitutes "plain error" warranting reversal and remand for resentencing, even where the defendant failed to object to the lack of notice at sentencing.

State Felony Conviction for Simple Drug Possession Is Not an "Aggravated Felony" within Meaning of the Immigration and Nationality Act

The Supreme Court ruled yesterday in Lopez v. Gonzales that a state felony conviction for simple drug possession does not qualify as an "aggravated felony" for purposes of the Immigration and Nationality Act. And although the Court had granted cert. in a companion case involving the same interpretive question but in the Sentencing Guidelines context, the Court dismissed that criminal case in a one-sentence order stating that the "writ of certiorari is dismissed as improvidently granted."

This outcome yields some uncertainty for those who practice in the Second Circuit, because this Circuit has divergent holdings on this issue depending on whether it arises in the immigration context or the Guidelines context. Thus, on the one hand, the Circuit ruled in Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996), that a state possession felony is not an aggravated felony in the immigration context. On the other hand, the Circuit ruled in United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. 1999), that a state possession felony is an aggravated felony in the Guidelines context. Thus, Lopez could be read very narrowly as simply affirming Aguirre, and saying nothing about Pornes-Garcia -- a very bad result for defendants in this Circuit.

There are, however, very strong arguments to be made that (1) Lopez applies to the Guidelines context as well (see especially Op. at 2 and 10, which seems to equate the two contexts), and that (2) the Circuit's divergent reading of "aggravated felony" in the two contexts is itself wrong (see footnote 8 of the Supreme Court's Leocal decision, stating that statutory language must be interpreted "consistently, whether we encounter its application in a criminal or noncriminal context"), and thus that Lopez requires a ruling that a state possession felony is not an "aggravated felony" in either context. Indeed, we do not yet know what the Government's position on this is -- DOJ may well concede that the same term should be read the same way in either context.

Our colleague Steve Sady of the Oregon FPD has already come up with some strong arguments for extending Lopez to the Guidelines context. (Luckily for us, the 9th Circuit had the same two-faced reading of "aggravated felony" as the 2d Circuit, pre-Lopez). Click here for his discussion.

In any event, everyone should be on the lookout for this issue, and object to any attempt to follow Pornes-Garcia after Lopez.

Civil Rights Violation Qualifies as "Crime of Violence" for Purposes of § 924(c)

United States v. Acosta, Docket No. 05-3346-cr (L) (2d Cir. Nov. 30, 2006) (Jacobs, Parker, Oberdorfer) (per curiam): This short opinion holds that convictions under (1) the second clause of 18 U.S.C. § 242 (violating someone's civil rights when either "bodily injury results" or involved "the use, attempted use, or threatened use of a dangerous weapon") and (2)18 U.S.C. § 241 (conspiring "to injure, oppress, threaten, or intimate" a person exercising his/her civil rights) both qualify as a "crime of violence" under 18 U.S.C. § 924(c) (mandating additional consecutive sentence when a firearm was possessed / used / brandished "during and in relation to any crime of violence . . . for which the person may be prosecuted in a court of the United States"), which defines a "crime of violence" as a felony that either "(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense," 18 U.S.C. § 924(c)(3).

The Court's conclusion is not particularly surprising, though one may question its reading of § 241. The opinion is nonetheless useful as a reminder that in determining whether an offense qualifies as a "crime of violence," a court must take a "categorical approach" that "focus[es] on the intrinsic nature of the offense rather than on the circumstances of the particular crime." Op. 4. Thus, in deciding whether Offense X constitutes a "crime of violence," "only the minimal criminal conduct necessary for conviction under [] statute [X] is relevant." Id. (emphasis added).

District Court Must Impose Below-the-Range Sentence If It Finds that Such a Sentence Serves the Ends of Sentencing as Well as a Guidelines Sentence

United States v. Ministro-Tapia, Docket No. 05-5101-cr (2d Cir. Nov. 28, 2006) (Walker, Leval, Raggi): The Parsimony Clause is alive in the Second Circuit! See 18 U.S.C. § 3553(a) ("The district court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of [§ 3553(a)]."). Though Mr. Ministro-Tapia loses his appeal challenging his bottom-of-the-Guidelines-range sentence, the Court's opinion represents a great win for criminal defendants generally. (Disclosure: Phil Weinstein of this Office represents Mr. Ministro-Tapia on appeal). While ultimately rejecting the defendant's argument that the district court violated the parsimony command by imposing a Guidelines sentence when a below-the-range sentence would have advanced the ends of sentencing equally well, the Circuit unequivocally rules that "if a district court were explicitly to conclude that two sentences equally served the statutory purpose of § 3553, it could not, consistent with the parsimony clause, impose the higher" one. Op. 10; see also id. (where a Guidelines sentence is "in equipoise with [a] below-the-range sentence," parsimony clause requires imposition of the lower sentence). All practitioners should cite this passage in future sentencing memoranda to district courts.

The Court nonetheless affirms Mr. Ministro-Tapia's sentence because (1) counsel below did not explicitly invoke the parsimony clause at sentencing, seeking instead a "reasonable" sentence below the Guidelines range, Op. 8-9; and because in any event (2) "[t]he sentencing record, viewed as a whole, does not convincingly demonstrate that the district court in fact viewed the Guidelines sentence that it selected as in equipoise with the below-the-range sentence that the defendant sought." Op. 10 (citing passages in record suggesting that sentencing court did not truly believe that a non-Guidelines sentence was "adequate"). The latter explanation is particularly troublesome, since the district judge herself stated when imposing sentence:

"All in all, I could make an argument for a guidelines sentence. I could make an argument for a nonguideline[s] sentence. And where it's six of one and half dozen of the other, I believe that the best course of action is to come down on the side of the guidelines, and I will impose a guideline[s] sentence."

Op. 7 (emphasis added). Nonetheless, despite the Court's erroneous refusal to apply the parsimony command to the facts of this particular case, this opinion is a clarion call to district courts to impose in each case the lowest sentence necessary to achieve the ends of sentencing.

Retained Counsel Are Unique, but Appointed Counsel Are Fungible

United States v. Parker, Docket No. 05-6991-cr (2d Cir. Nov. 14, 2006) (Cabranes, Sotomayor, Raggi): This opinion does not break new legal ground, but is nonetheless of interest in highlighting the disparate treatment of defendants who can afford retained counsel and defendants who cannot. The contrast between (1) the Circuit’s easy affirmance here of the district court's unilateral decision on a Crosby remand to replace the defendant’s CJA counsel – who had represented the defendant for well over 3 years by this time – with new CJA counsel, over defendant’s objection, and (2) the Supreme Court’s decision last June in United States v. Gonzalez-Lopez, 126 S. Ct. 2557 (2006), holding that an erroneous refusal to allow a defendant to proceed with retained counsel of his choice is a structural error requiring automatic reversal of his conviction (i.e., no showing of prejudice is needed), is hard to miss. Our two-tiered system of justice is rarely so visible.

The essential facts are these. In the summer of 2005, Parker appeared before District Judge Arcara for a Crosby remand (to determine whether the Judge would have imposed a different sentence had the Guidelines not been considered mandatory at the original, pre-Booker sentencing). By that time, Mark Mahoney had been Parker’s attorney for well over 3 years. Mahoney was originally retained by Parker, but became appointed counsel under the CJA in April 2002 when Parker lost his income.

Simultaneously, an appeal was pending in the Circuit concerning whether the district judge had erred in not appointing Mahoney as CJA counsel at an earlier time, as he and Parker had requested. The Circuit ultimately affirmed the district court’s decision in United States v. Parker, 439 F.3d 81 (2d Cir. Feb. 21, 2006) (click here for our discussion).

When the Crosby proceeding was before the district court, in sum, Parker and Mahoney’s challenge to the same court’s earlier refusal to appoint Mahoney under the CJA was still pending in the Circuit. Citing the possible appearance of conflict between him and Mahoney, Judge Arcara sua sponte removed Mahoney as Parker’s attorney and appointed new CJA counsel over Parker's objection. Arcara had considered recusing himself to cure the potential conflict, but chose to remove Mahoney instead because of the unique nature of a Crosby remand. Arcara further noted that Parker would suffer no prejudice, since new CJA counsel was an experienced criminal practitioner.

Parker challenges this decision on appeal, and the Circuit easily affirms. It begins by citing Morris v. Slappy, 461 U.S. 1 (1983), for the proposition that "[t]here is no constitutional right to continuity of appointed counsel," and adds that "courts are afforded considerable latitude in their decisions to replace appointed counsel, and may do so where a potential conflict of interest exists . . . and in the interests of justice." Op. 7. The Circuit thus finds no abuse of discretion in Arcara’s decision to remove Mahoney for the Crosby remand, given the adversarial proceeding then-pending between the Judge and Mahoney in the Circuit and the "unique" nature of a Crosby remand. Op. 7-8. And since no one claims that new CJA counsel was ineffective at the Crosby remand, Parker was not prejudiced by the decision to replace Mahoney.

As noted, we quarrel not so much with the Court’s decision in this case (in light of existing law) as with the chasm in the treatment of defendants capable of affording retained counsel versus those unable to do so. If a defendant’s choice of retained counsel is so important as to warrant automatic reversal where erroneously denied, regardless of a showing of prejudice, as the Supreme Court held in Gonzalez-Lopez, we fail to see why the same principle would not at least entail searching scrutiny of a court’s decision to override an indigent defendant’s desire to continue with appointed counsel, especially one who has represented him for so long.

The Court concludes its opinion by emphasizing its "paramount interest in effectively implementing the CJA to ensure that legal services in this Circuit 'will be performed with devotion and vigor so that the lofty ideal -- equality before the law for all persons -- will be achieved." Op. 9 (quoting Second Circuit CJA Plan). But these words ring hollow when one contrasts the outcome here with that in Gonzalez-Lopez. A defendant's right to counsel of choice is sacred if s/he can afford counsel, but meaningless if s/he cannot.

In § 846 Conspiracy, Drug Quantity Aggregation Proper to Determine Penalty under § 841(b)

United States v. Pressley, Docket No. 05-2487-cr (L) (2d Cir. Nov. 14, 2006) (Cardamone, Walker, Straub) (per curiam): In United States v. Harrison, 241 F.3d 289 (2d Cir. 2001), the Circuit ruled that where a defendant is convicted of two or more separate substantive counts of drug distribution, in violation of 21 U.S.C. § 841(a), the quantity of drugs distributed in the separate counts may not be aggregated for purposes of determining the proper penalty under the weight-driven graduated scheme of § 841(b). In this case, Pressley was convicted of conspiring to distribute 1 kilogram or more of heroin, in violation of 21 U.S.C. § 846, and thus seemingly subject to the harsh penalties of § 841(b)(1)(A) (mandatory minimum of 10 years and maximum of life imprisonment). He relied on Harrison to argue, however, that he should be punished under § 841(b)(1)(c) (carrying no mandatory minimum penalty and a 20-year maximum) because although the decade-long conspiracy encompassed over 1 kilogram of heroin, no single transaction exceeded this quantity. Rather, the 1-kilo threshold represented the aggregate of thousands of street-level sales of very small quantities.

The Circuit rejects this argument, finding that "[b]ecause a conspiracy is a single, unified offense, it constitutes "a violation" for purposes of § 841(b). Op.5; see Op. 4, quoting 21 U.S.C. § 841(b) ("In the case of a violation of subsection (a) of this section involving. . . 1 kilogram or more ... of heroin ... such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life.") (emphases in Opinion). The Court distinguishes Harrison on this basis. There, each separate substantive drug distribution count constitutes a separate "violation" within the meaning of § 841(b). Here, in contrast, the single conspiracy count is itself the "violation" under § 841(b), a "violation" that "'involves' the aggregate quantity of all the subsidiary transactions attributable to that particular member" of the conspiracy. Op.5.

Yet Another Courtroom Closure Case

Yung v. Walker, Docket No. 03-3023-pr (2d Cir. Oct. 31, 2006) (Pooler, Sotomayor, Kaplan): This is but the most recent iteration of a long and tedious line of habeas cases in which the petitioner claims that his Sixth Amendment public trial right was violated when the New York state trial judge, at the prosecutor's request, closed the courtroom during the testimony of an undercover police officer at petitioner's trial for drug selling. The very sweet District Judge granted Yung's petition, finding that the state failed to offer sufficient justification to support the exclusion of Yung's mother, baby-mother, and "sister-in-law" (what does one call the sister of one's baby-mother?) from the courtroom during the undercover's testimony. The Circuit agrees with this conclusion, but generously remands in order to allow the state trial court to conduct -- 12 years after the original event -- a new hearing to determine whether closure was warranted. Those interested in the whys and hows will have to consult the fascinating opinion themselves. See Op.19-22.

Business Records (and Public Records) Not Testimonial under Crawford

United States v. Jose Erbo, Docket No. 02-1665-cr (2d Cir. Oct. 25, 2006) (Wesley, Hall, Trager): Yet another awful decision from the Circuit, this time badly misreading Crawford v. Washington, 541 U.S. 36 (2004), and holding via classic circular reasoning that "a statement properly admitted under Fed. R. Evid. 803(6) [or 803(8)] cannot be testimonial because a business [or public] record is fundamentally inconsistent with what the Supreme Court has suggested comprise the defining characteristics of testimonial evidence." Op.11. At issue specifically was whether the admission of autopsy reports prepared by the NYC Medical Examiner's Office -- which, unlike a hospital's pathology department, generally conducts autopsies only when a person has died "from criminal violence, by casualty, by suicide . . . or in any suspicious or unusual manner," NYC Charter § 557(f) -- without testimony from the doctors who performed the autopsy violated Erbo's Sixth Amendment Confrontation Right, in light of Crawford. The Court says no, principally because autopsy records are business records, which means that they were not prepared in anticipation of litigation, which in turn means that they are not testimonial under Crawford.

Because this Blog cannot say it any better, here is a critique from the Blog "Indignant Indigent" regarding the line of reasoning used in Erbo and how it flouts Crawford:

Despite an autopsy report's seeming fit into the factors set forth in Crawford describing a testimonial statement, the majority of courts that have reached the issue have held an autopsy report is not testimonial in nature and admissible under the business records exception to the hearsay rule. (citing cases) . . . The reasoning underpinning those decisions holding an autopsy report to be non-testimonial can be simply summarized: 1) an autopsy report has traditionally been considered a "business record" for hearsay purposes, 2) Justice Scalia noted in Crawford (when discussing those hearsay exceptions that existed at the time of the 6th Amendment's creation) that "[m]ost of the hearsay exceptions covered statements that by their nature were not testimonial--for example, business records or statements in furtherance of a conspiracy"; and thus 3) since Crawford states business records are "by their nature . . . not testimonial", and because autopsy reports are treated as business records, therefore autopsy reports are not testimonial. . . .

This reasoning . . . ignores the core concerns of Crawford and, by accepting as given that autopsy reports are "business records" and working towards a conclusion from that point, avoids asking the very question that Crawford and the 6th Amendment requires -- whether an autopsy report, by the nature of its content and purpose, is testimonial. Almost any document can be made into a "business record", because the foundational requirements for establishing a "business record" have nothing whatsoever to do with the actual content or purpose of the document, but rather on the manner in which the document is generated and kept. [See Fed. R. Evid. 803(6)] . . . Police reports containing the results of custodial interrogation can easily meet the technical "business records" requirement if they are prepared and kept in a manner meeting [the Rule's] foundational requirements; however, these statements nevertheless fall squarely within the definition of "testimonial" under Crawford and [should be] excluded absent an opportunity to cross-examine the declarant. . . .

The idea that the analysis can begin and end with the observation that autopsy reports have traditionally been admissible hearsay under the "business records" exception ignores the broader implication of Crawford that guts the rationale for treating "business records" as admissible hearsay if the person preparing the document is not subject to cross. "The justification for the admission of regularly kept business records is based upon grounds similar to all of the hearsay exceptions, namely, that such records bear a great degree of reliability." (People v Selassie, 140 Misc.2d 616, 619 [NY Sup Ct Bronx County 1988].) But Crawford expressly held that the 6th Amendment "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination . . . Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes." Crawford, 541 US at 62. Thus, Justice Scalia's observation that most "business records" are not testimonial in nature should not be taken as a blanket rule that any document that would have been treated as a "business record" under a pre-Crawford analysis is therefore not testimonial, because to do so would short-circuit the analysis that Crawford and the 6th Amendment requires.

Undoubtedly, most business records will not be testimonial, simply because most businesses do not keep records with an eye towards prosecuting criminals. The phone company keeps billing records in order to be paid and to have a record of payment; the shopkeeper keeps inventory records to better run his business; but a medical examiner who prepares an autopsy report does so primarily to "collect[...] and document[...] evidence collection for legal proceedings." Under any definition suggested by Crawford, the overriding intent, purpose and substance of an autopsy report places it squarely within the Supreme Court's concept of "testimonial," because autopsy reports are created primarily to facilitate the prosecution of alleged murderers. Crawford, 541 US at 51-52. To argue around this conclusion because autopsy reports were admissible as "business records" pre-Crawford is to exploit a loophole that a plain reading the entire Crawford decision neither supports nor intends.

The problem courts seem to be having is recognizing that Crawford fundamentally changed the game -- no longer is the "reliability" of the statement (as roughly measured by the various hearsay "exceptions") the focus. Rather, the first question to answer is whether a statement is testimonial or not. If not testimonial, a statement is probably subject to the old hearsay rules and can be admitted if covered by a hearsay exception or otherwise reliable (although Crawford does not expressly decide that question). But if a statement is testimonial, "the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination" -- regardless of whether the statement falls within a classic hearsay exception or is otherwise "reliable." Id. at 68. As Justice Scalia put it in Crawford, the Confrontation Clause "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined." Id. at 61.

[While] . . . Crawford does not define the term "testimonial" or otherwise set forth a bright-line test for determining whether a statement is "testimonial" or not, e.g., id. at 68 ("We leave for another day any effort to spell out a comprehensive definition of 'testimonial.'".), Justice Scalia observed generally that "[t]estimony [...] is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.'" Id. at 51. Beyond this general definition, Justice Scalia noted three possible "formulations of this core class of "testimonial" statements: 1) "ex parte in-court testimony or its functional equivalent -- that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially"; 2) statements contained in "formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions"; and 3) statements "that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 51-52. Common to all three of these potential standards is one factor -- whether a reasonable, objective declarant would expect the statement to be used by the prosecution at trial.

Under Justice Scalia's general definition of "testimonial" or any of the three potential "formulations" set forth in Crawford, an autopsy report is testimonial. A report detailing autopsy findings, prepared by a medical doctor employed by the government, is by its nature a "solemn declaration or affirmation made for the purpose of establishing or proving some fact,'" and far removed from the hypothetical non-testimonial "casual remark to an acquaintance." Id. at 51. An autopsy report is nothing more than a written record of a medical examiner's findings during autopsy related to manner and cause of death, and is in every important way simply a written version of a medical examiner's testimony at trial. Thus, it is hard to see how an autopsy report is anything but the "functional equivalent" of a medical examiner's expected "in-court testimony", and thus testimonial under at least one of Crawford's proposed "formulations" of the term. See Crawford, 541 US at 51-52. That an autopsy report is not technically in the form of an affidavit (specifically mentioned in Crawford) should not change the otherwise testimonial nature of an autopsy report. Indeed, in most cases, the testifying medical examiner (if he or she did not prepare the autopsy report and did not participate in any way in the autopsy of the victim) do little more at trial than vocalize the contents of the autopsy report for the jury. As to the remaining Crawford factors, there can be little question that a medical examiner prepares an autopsy report with the reasonable expectation that such a report will "be used prosecutorially" and will "be available for use at a later trial." Crawford, 541 US at 51-52. . . . To pretend that autopsy reports are not generated in large part with an eye towards prosecuting murder defendants is to indulge a fiction.

(Click here for the full discussion).

We additionally note that Erbo (argued in July 2005) barely touches on the Davis / Hammon case decided earlier this summer, 126 S. Ct. 2266 (June 19, 2006), in which the Court focused on the "primary purpose" of the statements at issue to gauge whether they were testimonial. Davis/Hammon held that while statements made to police officers for the purpose of resolving an on-going emergency were non-testimonial, similar statements concerning events already expired and potentially relevant to a later criminal prosecution were indeed testimonial. As the Court explained, while statements "made . . . under circumstances objectively indicating that the[ir] primary purpose . . . is to enable police assistance to meet an ongoing emergency" are non-testimonial, statements "are testimonial when the circumstances objectively indicate that . . . the[ir] primary purpose . . . is to establish or prove past events potentially relevant to later criminal prosecutions." 126 S. Ct. at 2273-74; see id. at 2278 (non-testimonial statements concern "what is happening" while testimonial statements concern "what happened"). Autopsy reports, especially those made by the City's Medical Examiner's Office, are clearly closer to the latter than the former.

Finally, Crawford's own Jeff Fisher has recent sought cert. on a similar question -- whether a forensic lab report (concerning whether the residue found was marijuana) was admissible as non-testimonial under Crawford. Click here for the fine cert. petition in Pinks v. North Dakota.

Addendum: One final critique of this opinion, which repeatedly cites a New York State court decision -- cited by the opinion as "People v. Durio, 794 N.Y.S.2d 863, 867 (2005)," Op. 12 -- to support its conclusion. See Op. 12, 13, 15, 16 & 18. Based on the form of the Circuit's citation and its heavy reliance on Durio, we assumed that Durio was decided by the New York Court of Appeals (or, at least, one of the Appellate Divisions).

This turned out to false: Durio is a decision by a justice of the Kings County Supreme Court -- i.e., the basic felony trial court in Brooklyn -- and thus of very little precedential value even in New York courts. The correct Bluebook citation should be "People v. Durio, 794 N.Y.S.2d 863 (Sup. Ct. 2005) ", see Bluebook Rule 10.4(b), which would have properly informed the reader of the value of this authority.

We assume that the error was inadvertent (though, among the lawyer population, one would assume that freshly minted ones -- especially those fortunate enough to obtain a federal clerkship -- have Bluebook rules freshest in mind). But the error is nonetheless a critical one that hides the weakness of the opinion and its reliance on questionable authority.

Bad Crimes Make Bad Law: Circuit Misreads Rule 404(b) and Uses Junk Science to Link Possession of Child Porn to Actual Illicit Sex

United States v. Brand, Docket No. 05-4155-cr (2d Cir. Oct. 19, 2006) (Miner, Wesley, Friedman): It appears that child sex cases have surpassed drug cases in their ability to create bad law and erode civil liberties. We saw in last year's "Candyman" cases an erosion of the Fourth Amendment's probable cause requirement; in Brand, we see the Circuit (1) greatly expand the scope of evidence admissible under Rule 404, in contravention of well-settled law; and (2) conclude based on junk science (or, simply, ungrounded assumptions) that possession of images of child sex constitutes proof of a person's predisposition to commit actual child sex. One almost wishes that these kiddie-sex cases would disappear solely because of the misguided law they leave in their wake. (Disclosure: Colleen Cassidy of this Office litigated the case on appeal).

Brand is a New Jersey voice teacher in his late 30s. He engaged in chat-room (and then phone) conversations with -- you guessed it -- an FBI agent posing as a 13-year-old girl. The chats began innocently, with talk of voice lessons and hand-holding, but eventually turned to sexual activity -- a subject matter admittedly initiated by the Government agent / liaison. Op. 26. Brand ultimately arranged to meet the faux teen at the Port Authority Bus Terminal, whereupon he encountered instead several FBI agents and their handcuffs. A later search of Brand's NJ residence found some child porn on his computer, though most of it had been deleted or resided in temporary cache files. Brand was indicted for (1) traveling across state lines with the intent to engage in sex with the faux teen, in violation of 18 USC § 2423(b), and (2) using the internet to entice said agent-teen into engaging in illicit sexual activity, in violation of 18 USC § 2422(b). He was not charged with possessing porn (likely for venue reasons).

Brand's principal defense at trial was entrapment, though he also argued that the evidence was insufficient to show that he had the requisite mens rea. Over objection, the district court admitted, inter alia, (1) sixteen images of child porn found on his computer under Rule 404(b) to show "intent", and (2) many more images of child porn to demonstrate that Brand was "predisposed" to commit the charged offenses. He was convicted and appealed.

We focus on two particularly troubling aspects of the decision affirming Brand's conviction.

First, the Court upholds the 404(b) ruling on the ground that Brand's possession of the porn had a "similarity or some connection" to the charged acts. Op. 30, quoting United States v. Garcia, 291 F.3d 127, 136 (2d Cir. 2002). And "some connection" between the two exists, the Court explains, "because a direct connection exists between child pornography and pedophilia" as a general, social-science conclusion. Op.31. To support this "finding," the Court cites (1) a Fifth Circuit case holding that in a prosecution for porn possession, the defendant's prior acts of pedophilia were relevant (i.e., the reverse of the situation here), and (2) a Congressional "finding" in this regard, based on (surely unbiased) testimony from an FBI agent. We'll address this odd "fact-finding" by the Circuit below.

For 404(b) purposes, the Court's principal error is its misuse of Garcia. There, the Circuit ruled that other-crimes evidence offered to show intent to commit the charged crime must involve misconduct very similar to, or was connected with, the misdeed for which the defendant is being tried. Indeed, Garcia ruled that the district court there abused its discretion in allowing evidence of a prior conviction (involving possession of a small amount of drugs) in Garcia's trial for conspiring to distribute a large quantity of drugs to show intent, since the acts were not connected or sufficiently similar.

In Brand, the Court seizes upon the "some connection" language from Garcia to uphold the admission of the 404(b) evidence, but in a manner totally divorced from the original context. It is clear from Garcia that by "some connection," the Court meant that the prior act was literally linked to the charged act -- e.g., because of an overlap of participants, similarity in modus operandi, and so on. Here, in contrast, the Court claims that the "some connection" requirement is satisfied because of its own "fact-finding" that possessing child porn was linked, as a social-science matter, to committing actual sex crimes against children. As the Court states, "The 'similarity or some connection' requirement is satisfied in the instant case because a direct connection exists between child pornography and pedophilia." Op. 31. In support, it cites the aforementioned 5th Circuit case, as well as FBI testimony before Congress. Op. 31-32.

This is seriously misguided. First, as mentioned, Brand misreads Garcia's "some connection" requirement for 404(b) evidence offered on intent. The connection required by that earlier decision was not the pseudo-scientific link between possessing child porn and actual pedophilia, as a general matter, recited by the Court, but rather a specific connection between the particular defendant's earlier act and the particular defendant's charged act. Second, under Brand's construal of the "some connection" requirement, there seems nothing left of Rule 404's anti-propensity principle: What difference is there between what the Court allows in Brand and simply using the prior porn possession as propensity evidence? None, so far as we can see.

Finally, perhaps the oddest aspect of this ruling is the Court's fact-finding of a connection, based on bad science, between possessing porn and committing sex crimes on actual children. Where, exactly, does Rule 404(b) call for such a fact finding -- and by a court of appeals, no less? None of this "evidence" was apparently before the district court; at the least, the district court made no such findings of a "direct connection" between, generally, possessing sexually explicit images of children and committing sex crimes on real children.

The Court's related conclusion that evidence of Brand's porn possession was admissible to show that he was predisposed to committing crimes against actual children is similarly flawed. E.g., Op. 36 ("Both Congress and at least one other court have concluded that possession of child pornography signals abnormal sexual attraction to children."). But in addition, this conclusion is flawed because it operates at too high a level of generality. Surely, e.g., any prior misconduct by the defendant "signals abnormal willingness to violate the law"; yet does that justify the admission of any prior misconduct to show predisposition for a particular crime? No, of course, for to answer otherwise would contradict the Circuit's decision in United States v. Harvey, 991 F.2d 981, 994 (2d Cir. 1993), requiring predisposition evidence to be evidence of "past conduct ... 'near enough in kind to support an inference that his purpose included offenses of the sort charged'".

To say that possession of porn predisposed Brand to engage in actual sex acts with actual children because both involved "abnormal sexual attraction to children" begs the question. The real issue in discerning whether predisposition exists in a case where Government inducement has been shown, as here, is whether there is evidence that the defendant previously committed acts sufficiently similar to the one for which he is charged as to support an inference that the defendant would have committed the charged act in the absence of inducement. And to say that possessing images of activity X predisposes one to commit activity X goes way too far in this regard.