“Copyright-Like” Statute that Exceeded Congress’ Powers Under the Copyright Clause Is Valid Under the Commerce Clause

United States v. Martignon, No. 04-5649-cr (2d Cir. June 13, 2007) (Pooler, Sack, CJJ., and Garaufis, DJ).

In 2004, Jean Martignon was charged under 18 U.S.C. § 2319A, which makes it a crime to manufacture, publish or distribute “bootleg” recordings of musical performances; that is, those made without the consent of the performers. Martignon moved to dismissed the indictment, arguing that the statute violated the Copyright Clause, because live performances were unfixed, and hence not “writings,” and because the statute protected them in perpetuity, rather than for a limited time. The district court agreed, and granted the motion. Martignon also made a First Amendment argument, which the court did not get to.

The Appellate Court’s Decision

On the government’s appeal, the Court of Appeals reversed. Since the government conceded that Section 2319A could not have been enacted under the Copyright Clause, the court had to decide whether Congress had the authority to enact the statute under the Commerce Clause. This question turns on whether the Copyright Clause is an exclusive grant power that limits Congress’ ability to regulate creative works under any other grant of authority.

The Supreme Court has sometimes held that Congress can enact legislation under one constitutional provision that it could not have enacted under another, but has also held that, in some circumstances, it cannot. After a detailed analysis of those precedents, the court here concluded that those cases would “allow the regulation of matters that could not be regulated under the Copyright Clause in a manner arguably inconsistent with that clause unless the statute at issue is a copyright law.”

It went int to conclude that Section 2319A is not a “copyright law.” All copyright laws share a common feature - they create, bestow, or allocate property rights to or among authors or inventors. Section 2319A does not - it is a criminal statute that “creates a power in the government to protect the interest of performers from commercial predations.”

Thus, since Section 2319A is not a copyright law, and is a valid exercise of Congress’ Commerce Clause power - it regulates activity that is commercial or economic - it is constitutionally valid.

What Next?

The case now goes back to the district court to consider the First Amendment argument.

Sentencing Court Must Apply Preponderance Standard to Guidelines Factfindings, Even After Booker

United States v. Salazar, No. 06-0198-cr (2d Cir. June 13, 2007) (per curiam) (Sack, B.D. Parker, Hall, C.JJ.).

The headline says it all. Or almost. The court notes that the Guidelines say that the preponderance standard is "appropriate" to Guidelines findings, U.S.S.G. § 6A1.3, comment., and concludes: "[T]he discretion afforded district judges by Booker applies only to their consideration of a Guidelines range as one of the § 3553(a) factors after that range has been calculated. Booker does not affect a district judge's obligation to perform a Guidelines calculation or the burden of proof applicable to facts relevant to sentencing upon which that Guidelines calculation is made."

Court Applies Seibert for First Time; Remands for Sentencing Findings

United States v. Bearam, Docket No. 05-2823-cr (2d Cir. June 8, 2007) (Cardamone, Straub, Wallace C.JJ.) Here, the Court applies Missouri v. Seibert, 542 U.S. 600 (2004), for the first time, joining the parade of courts that have limited Seibert to cases involving a deliberate "two-step" interrogations. The Court also vacates a sentence where the district court made inadequate findings as to narcotics quantity and the defendant's role.

Facts: Agents executed a search warrant at a Brooklyn restaurant that Bearam managed. They found crack and powder cocaine, heroin and marijuana. Bearam was seated at a table near a closet where some of the drugs were found. When an agent asked Bearam about some of the drugs, Bearam said it was "bad coke." Bearam was not read his Miranda rights before this questioning; the agent testified that he had asked Bearam whether he had been read his rights and Bearam replied: "I don't know." The agent also asked other agents, who gave the same reply. About an hour later, agents brought Bearam to their headquarters, read him his rights, which he waived, and obtained a confession.

The district court suppressed the first statement, but allowed the post-Miranda statement to be used at trial.

Bearam was convicted after a jury trial. The initial PSR contained estimates of certain drug quantitites, and did not recommend a role adjustment; it identified the guideline range as 188 to 235 months' imprisonment. The government filed an objection, arguing that the drug quantity should be increased and that Bearam should receive a four-level role enhancement. In an addendum to the PSR, the Probation Department agreed with the government, changing its recommendation so that the range was 360 to life.

At sentencing, the district court did not make specific findings as to the drug quantity or Bearam's role, but adopted the new, higher range recommended by Probation. It sentenced Bearam to 360 months' imprisonment, without mentioning 18 U.S.C. § 3553(a), although the court did indicate that this sentence was "sufficient for that crime that was committed."

Ruling: For the Miranda issue, the Court took its first opportunity to untangle the meaning of Seibert; not an easy task, given the confusing line-up of opinions in that case. In the end, the Court took the easy way out, joining the host of other circuits that have limited Seibert to those cases where law enforcement officers deliberately attempted to circumvent Miranda by using a two-step interrogation process. Here, the Court had little trouble finding that there was no deliberate Miranda violation. The unwarned interrogation involved only one question, and did not overlap to a large degree with the full confession. The two interrogations were conducted by different agents, at different locations, and more than one hour elapsed between them. Moreover, here, the second agent did not even know about the first statement at the time he questioned Bearam.

On these facts, the Court held that this case was governed by Oregon v. Elstad, 470 U.S. 298 (1985), and not Seibert. Under Elstad, the only question is whether the second statement was voluntary. Here, the Court concluded that the second statement was preceed by proper Miranda warnings, which were validly waved, and was accordingly voluntary.

Bearam fared a bit better on his sentencing claims, even though he had not objected to his sentence (which is curious, given that he received a sentence nearly twice as long as that recommended by the PSR before the government started meddling with it). The Court first held that it was plain error for the district court to fail to make any factual findings as to drug quantity other than to find that the informant was a credible witness.

As for Bearm's role, the district court likewise failed to make the necessary specific findings, holding only that the role guideline "covers this defendant." In some cases, a role adjustment wil be upheld if the district court adopts the findings of fact contained in the PSR. But here, the judge did not even do that. He said nothing in open court, and adopted the PSR only in the "Statement of Reasons" section of the written Judgment. The Court found this to be plain error because the factual findings in the PSR were inadequate. It simply made reference to the informant's testimony about the number of dealers that Bearam supplied, but did not contain any of the specific information that the role guideline requires.

Comment: There are several interesting things about this case. First is something curious about the Miranda issue. At least as described in the opinion, Bearm was not in custody when he was first questioned - he was sitting at a table in his restaurant. If that is right, then he was not entitled to warnings, and the whole Seibert issue would seem to evaporate. There are also a few curiosities about the sentencing issues. First, as noted above, if the opinion is accurate, Bearam's counsel did not object to the 360-month sentence, or apparently even ask for a lower one. Let's hope that his counsel at rensentencing is a little bit more together. One other item: here, the district court did not mention 3553(a) or any of its factors (except for the guideline range, of course) at all when it sentenced Bearam. The Court of Appeals did not have a problem with this; it relied on a presumption that the judge "faithfully discharged" his statutory duty. It is easy to see how this presumption might apply in a case where the judge mentions the statute but does not specifically indicate his or her thinking about each and every factor in the statute. But it seems kind of a stretch to conclude that a judge has considered the statute where he has not mentioned it at all.

District Court's Reliance on Community-Specific Considerations Renders Non-Guideline Sentence Unreasonable

United States v. Cavera, Docket No. 05-4591-cr (2d Cir. June 6, 2007) (Cardamone, Calabresi, Pooler, C.JJ.). Here, both the government and the defendant argued that an above-Guideline sentence was unreasonable. The Court agreed, and vacated the sentence.

Facts: The facts of this case are fairly straightforward. The defendant was arrested in the midst of a scheme in which guns were purchased in Florida, then transported to New York for sale. He pled guilty to one count of conspiracy, and faced a Guideline sentencing range of twelve to eighteen months' imprisonment. Judge Sifton, however, imposed a twenty-four months sentence, finding that gun trafficking in urban areas like New York City requires a greater degree of punishment.

Ruling: The Court of Appeals made short work of the district court's reasoning, holding that "community-specific" considerations cannot support a non-Guideline sentence because injecting regional and local factors into a sentencing results in unwarranted geographic sentencing disparities.

Judge Sifton had likened his reasoning to that behind "fast-track" programs, in which illegal reentry defendants in certain areas receive a reduced sentence in exchange for their waiver of certain rights. But the Court of Appeals noted that Congress participated in the establishment and regulation of fast-track programs, ensuring that they do not undermine the statutory goals of sentencing. This is quite different than a federal court, "acting unilaterally," which is not in a position to assess national costs and benefits.


Judge Sifton also indicated that he was acting explicitly under 18 U.S.C. § 3553(a)(2), which directs that the sentence reflect the seriousness of the offense and the need for deterrence. But the facts here, according to the Court, were not of the kind properly considered under this section, because they were not particular to the individual defendant. "[C]ourts may not sentence on the basis of facts that apply to whole classes of crimes."

Comment: The Court's reaffirmance of its view that Booker and § 3553(a) require individualized sentencing and do not permit the district court to inject its own policy preferences into the process is not surprising, and nothing new.

It is Judge Calabresi's concurring opinion that is of some interest, however. He posits that the line between "categorical factors," which cannot serve as the basis for a non-Guideline sentence, and "individual factors," which can, is "logically questionable." Judge Calabresi notes that a court can always take into consideration the "nature of the victim" in setting a sentence, and that the locality where a crime has been committed is highly similar to this. It affects the harm caused by the offense, the culpability of the offender, and the effectiveness of a given deterrent. He goes on to give some fairly compelling examples of this type of reasoning. In the end, he concurs in the result here, if not the reasoning, because he is uncertain whether the district court's reasoning was based on "sufficiently objective" geographical considerations or "intuitions and hunches."

One can surmise that, if Judge Calabresi has his way, this issue might resurface some day, in a way that would not benefit New York City defendants. After all, it is hard to think of a commonly prosecuted federal offense that would appear to be less serious in an urban setting than elsewhere.

No Warrant? No Problem!

United States v. Howard, Docket No. 06-0457-cr (2d Cir. June 5, 2007) (Jacobs, Leval, Sotomayor, C.JJ.). Here, on the government's interlocutory appeal, the Court reverses the district courts order suppressing evidence obtained from the warrantless searches of two automobiles.

Facts: This case actually involves two unrelated, but factually similar, searches. In each case police officers had probable cause to believe that an automobile contained evidence of drug trafficking. Instead of obtaining search warrants, the officers stopped the automobiles on the highway, then used a ruse to lure the occupants away. In the occupants' absence, the cars were searched and evidence was seized before the occupants were returned to the cars.

The district court suppressed the fruits of both searches, holding that, for various reasons, the automobile exception of Coolidge v. New Hampshire, 403 U.S. 443 (1971) did not apply.

Ruling: The Court of Appeals rejected all of the district court's reasons for suppressing the evidence.

The lower court first held that, due to the defendants' absence, the vehicles were not readily mobile, and hence Coolidge did not apply. The Court disagreed, because the automobile exception turns on the inherent mobility of all automobiles, and not on the particular facts of the case. There is no need for a finding of some additional exigency, such as the proximity of the occupants of the car, for the automobile exception to apply. The Court also remarked that the district court ignored entirely the secondary justification for the automobile exception: the reduced expectation of privacy in a car.

The district court's second finding was that the police had ample time to obtain warrants. But, as the Court pointed out, the Supreme Court has held that a warrantless automobile search is reasonable as long as probable cause exists. Since a warrant is never necessary in this situation, the timing is irrelevant.

Finally, the district court held, citing Coolidge, that the failure to notify the vehicles' occupants rendered the searches unreasonable, calling notice a "hallmark" of the automobile exception. The Court of Appeals found "no support" for this position in Coolidge. "The occupants' lack of awareness that a search has been conducted does not necessitate either that a warrant be procured, or that the occupants be notified a search has taken place."

Comment: In the end, it seems like the district court's decision was fairly off the wall. One can surmise that it was a response to the utterly outrageous conduct of the police in these two cases. Unfortunately, outrageous and unreasonable are two different things when it comes to the Fourth Amendment.

Shoplifting Is not "Similar" to Passing a Bad Check

United States v. Ubiera, Docket No. 05-5256-cr (2d Cir. May 15, 2007) (Jacobs, Cardamone, Sotomayor, C.JJ.). Guidelines section 4A1.2(c)(1) excludes convictions for certain petty offenses and those "similar" to them from a defendant's criminal history score. Here, in a case of first impression, the Court rejected the defendant's argument that his two New Jersey prior convictions for shoplifting were "similar" to the listed offense of passing bad checks and should not have generated criminal history points.

The Circuit has long used a multi-factor test in determining similarity under 4A1.2(c). The factors include the relative punishments, the elements of the offenses, the level of culpability, the degree to which the commission of the offense predicts recidivism, and any other factor that is "reasonably" relevant to the question.

Ubiera was convicted of stealing $248 worth of merchandise from a Paramus department store in 1999, for which he was fined $553. His second conviction involved the attempted theft of $903 worth of merchandise; he was fined $550. The Court had little trouble finding that these offenses were not "similar" to passing bad checks. First, Under New Jersey law, while the penalties for shoplifting and passing a bad check are comparable, only shoplifting carries a minimum sentence of community service. Second, shoplifting is a more serious type of offense because it is harder for the victim to detect. And, because it is "trespassory," it poses risks of a confrontation that are less likely to occur when a bad check is passed. In addition, "because shoplifting diminishes trust in the retail marketplace, it has insidious collateral impacts on the public as a whole." Finally, since shoplifting is harder to detect, a person with two such convictions has probably committed more just two shoplifting offenses, while this would not be true for passing bad checks.

This case is very fact-specific, but is a good example of the methodology that the Court uses in such situations. It should be noted that the Court has, more often than not, been receptive to such "similarity" arguments.

Department of Odd Coincidences: Here is the true oddity of this case. One of the attorneys for the appellant is Steven A. Feldman, while the AUSA is Steven D. Feldman. Even the Second Circuit would have to conclude that these names are "similar."

Defendant Forfeits Confrontation Clause Claim by Soliciting the Murder of the Declarant

United States v. Stewart, Docket No. 05-1989-cr (2d Cir. May 8, 2007) (Kearse, Sotomayor, C.JJ., and Koeltl, D.J.). In this extremely fact-bound opinion, the Court concludes that the district court correctly found, by a preponderance of the evidence, that the defendant procured the unavailability of a hearsay declarant.

The "forfeiture-by-wrongdoing" rule is well established, and has been codified in Rule 804(b)(6) since 1997. The defendant here did not contest the rule itself, nor did he did introduce Crawford into the mix (perhaps his trial was pre-Crawford), but rather challenged only the district court's finding that the defendant was responsible for the murder of one of the witnesses against him. The Court was utterly unsympathetic to this claim, mapping out the apparently compelling, albeit circumstantial, evidence that the defendant ordered a confederate to do the deed.

More interesting was the defendant's argument that the forfeiture rule should not be applied because the effort to eliminate the witness was focused at the time on a different trial, not the instant federal trial. The Court rejected this claim as well, adopting a Fourth Circuit holding that "A defendant who wrongfully and intentionally renders a declarant unavailable as a witness in any proceeding forfeits the right to exclude, on hearsay grounds, the declarant's statements at that proceeding and any subsequent proceeding."

15-Level Downward Departure Is ... You Guessed It ... Reversed

Untied States v. Canova, Docket No. 05-6459-cr (2d Cir. May 8, 2007) (Meskill, Newman and Sack, C.JJ.) In this case, for the second time, the Court finds fault with the district court's lenient treatment of John Canova.

Facts: Canova was convicted after a jury trial of making false statements and various similar offenses, all the result of his efforts to obstruct a Medicare investigation into his pacemaker monitoring business. At his first sentencing, which was post-Booker, the district court imposed a Guideline sentence of one year's probation and a fine. It arrived at this sentence principally by concluding that there was no loss (the government alleged a $5 million loss) and granting a six-level downward departure for Canova's "extraordinary record of civil and public service." On the government's appeal, the Court vacated the sentence, holding that the district court's finding of no loss was error. However, the Court remarked that the district court could reconsider the extent of the downward departure in light of the higher range that would result from a proper loss calculation.

When the district court resentenced Canova, it imposed the same sentence, using a different methodology. It calculated the sentence under the Guidelines, this time factoring in a $5 million loss, then granted a fifteen-level downward departure.

Ruling: The Court vacated the sentence once again, finding fault with almost all of the court's grounds for departing.

The Court first held that the lower court abused its discretion in holding that the $5 million loss overstated the seriousness of the offense because the district court considered only the actual harm, and not the intended harm. The Court warned, however, that this departure might not apply in cases like Canova's at all, which was substantially different from the example in the Guideline's commentary. The Court also took issue with the district court's conclusions that Medicare's own conduct or the defendant's restitution were grounds for departure.

Finally, the Court embarked on a lengthy, but ultimately inconclusive, discussion of the substantive reasonableness of the sentence. There is no "particular method for assessing the extent of a departure in order to determine its reasonableness," but "it seems evident that the starting point should be considered." Here, the Court was clearly troubled by a departure that reduced the top of the applicable range by eighty-nine percent, and was even more troubled with the "blunt fact" that the district court treated Canova as though he intended to cause no loss at all, despite the Court's instruction in the first appeal that Canova caused some actual loss and intended a loss of $5 million. The Court indicated that imposing the same sentence on remand in such circumstances would "require a persuasive justification," but made "no ultimate ruling on the reasonableness of the departure," preferring instead to wait until the district court expressly considered the impact of the intended loss on Canova's ultimate fate.

Comment: This all looks pretty grim for Canova, but it should be noted that the Court rejected the government's request that the case be remanded with instructions that the district court impose a sentence of at least twelve months' imprisonment. All the Court did at this stage was urge "careful reconsideration in light of this opinion." If Canova's case illustrates anything, it is the post-Booker truism that what the district court says when imposing sentence is just as important as what it ultimately does. Let's hope, for Canova's sake, that the district court gets it right on the third round.

Court Upholds Warrantless Search of Probationer's Bedroom

United States v. Chirino, Docket No. 06-1207-cr (2d Cir. April 12, 2007) (Kearse, McLaughlin, Straub, C.JJ). In a decision that breaks no new ground, the Court upholds the search of a probationer's bedroom and dresser - where officers found a firearm -that was based on reasonable suspicion that the defendant was in violation of the terms of his probation.

Here, before the search, the officers had information that the defendant, who was on probation for robbery, was in a street gang. Moreover, he had recently been seen in the company of a fourteen-year-old girl who was missing, and who had been held against her will and sexually abused by members of the same gang. When the officers encountered the defendant, he was in bed, nearly naked, with two other underage girls. The Court's conclusion that these facts constituted reasonable suspicion should shock no one.

The Court also, unsurprisingly, rejected a claim that the evidence recovered during the search should be suppressed because the officers did not comply with state-law procedures.

The only noteworthy, in a bad way, of course, aspect of this opinion is Judge McLaughlin's concurrence, which articulates his "continuing belief that something less than reasonable suspicion may support the search of the dwelling of a felon on probation." Indeed, McLaughlin seems to believe that even suspicionless searches of probationers are permissible. Let's hope that (1) he is wrong, and (2) the question does not get to the Supreme Court anytime soon.

Improper Lay Opinion Testimony Voids Fraud Conviction

United States v. Kaplan, Docket No. 05-5531-cr (2d Cir. April 11, 2007)(Feinberg, Leval, Cabranes, C.JJ). Here, improper testimony by a co-conspirator about the defendant's knowledge of the fraud resulted in the reversal of some, but not all, counts of conviction.

Facts: This case involved a complex insurance fraud scheme, with staged automobile accidents and corrupt doctors, all aided by a corrupt lawyer named Galkovich, who actually filed the claims. In 2001, Galkovich was arrested and risked losing his law license, so other conspirators arranged for his firm to be sold to defendant Kaplan. At trial, Galkovich was permitted to testify, over objection, that his initial conversations with Kaplan led him to conclude that Kaplan knew that the insurance claims were fraudulent (e.g., "I think he knew exactly what he was getting into.").

The district court also permitted Galkovich to testify that both he and others knew about the fraud. The district court characterized this as circumstantial evidence of Kaplan's own knowledge.

Ruling: As to the first issue, the Court analyzed Galkovich's opinions under Rule 701(a), which requires that a lay person's opinion be "rationally based on the perception of the witness." Galkovich testified that he based his opinion on his "experience," "what people said" about Kaplan, Kaplan's own statements and "everything" he had been involved in. The Court held that this "extremely vague" foundation did not satisfy the Rule's requirement of a rational basis.

On the second claim, the Court, after grappling with seemingly contradictory precedents, harmonized them into a single rule: "Evidence regarding the knowledge of individuals other than the defendant should be admitted only if there is some other evidence in the record ... from which to conclude that the defendant had the same knowledge." Here, the Court concluded that the evidence was was irrelevant, because there was no evidence that the same knowledge was communicated to Kaplan, or that Kaplan had been exposed to the same sources from which the others derived their knowledge of the fraud. It also held that the minimal probative value of the testimony was far outweighed by its potential for unfair prejudice under Rule 403 because there was a high risk that the jury would misuse the testimony to infer that Kaplan had the same knowledge that the others had.

The Court concluded that these errors were not harmless as to all of the counts relating to the fraud, and remanded for a new trial on those counts. Unfortunately for Kaplan, he was also convicted of two counts related to hindering the investigation (witness tampering and false statements). As to these counts, the Court agreed that some of the district court's jury instructions were error, but found the errors to be harmless.

Comment: This case stands out for a couple of reasons. It is not all that uncommon for the Court to find that evidentiary errors, particularly errors as blatant as those present here, are error. But it is quite a bit rarer for the Court to conclude that the error was not harmless. This case serves as a good example of the kind of harm that the Court will be looking for in future cases. Also, the Court rarely reverses on Rule 403 grounds, so this case might be useful for that reason, as well.

Hiatus Is Over

We're back from "spring break," and are catching up on Second Circuit decisions since our last post.

Normal Programming Will Soon Resume

We apologize for our recent unannounced hiatus. We expect to resume normal blogging within a week or so. Thank you for your patience.

DNA Search of Non-Violent Probationers Upheld

United States v. Amerson, Docket No. 05-1423-cr (2d Cir. Mar. 29, 2007) (Calabresi, Katzmann, B.D. Parker, C.JJ.): In this case, the Court upholds, against a Fourth Amendment challenge, the federal program of DNA testing, to which prisoners, those on supervised release, and probationers are subject, as applied to probationers convicted of non-violent crimes. On its face, such a program faces a Fourth Amendment obstacle, since it constitutes a search without any suspicion of wrongdoing, much less probable cause, a search that is ordinarily unreasonable. The Court follows its previous decisions in Roe v. Marcotte, 193 F.3d 72, and Nicholas v. Goord, 430 F.3d 652, in holding that the proper Fourth Amendment test to apply to such a case is the "special needs" test rather than a "reasonableness" test evaluated on the totality of the circumstances. That test, as applied by the Supreme Court, has required the existence of a "special need" for the search that was either not related to the "general interest in crime control" or, in one case, was questioning of the general public to find witnesses to a nearby crime, a procedure that was neither an intrusion on a suspect nor one to which the concept of "suspicion" logically applied. The Court finds a "special need" here, as it did in Marcotte and Nicholas, even though the purpose of the DNA search is principally to solve a crime committed by the person searched. The Court goes on to apply the second prong of the special needs test, balancing the Fourth Amendment intrusion against the governmental need. The Court finds the intrusion involved in a blood test to obtain and analyze the DNA quite "small," given the nature of the intrusion itself and statutory limits on the DNA analysis and its dissemination and use. On the other hand, it finds the governmental interest in solving crime, and occasionally excluding a suspect, is "strong," "compelling," or "monumental." Given this balance, it holds that the DNA testing and analysis does not offend the Fourth Amendment.

There are a number of observations worth making concerning this holding. The most important is that it has no limit. The fact that the person from whom the DNA was taken was on probation plays almost no role in the constitutional analysis, and that analysis can be extended to anyone. The need to obtain identification of those who might commit crime is always great and the personal interest in avoiding a blood test or saliva swab small. The government, indeed, likens DNA tests to fingerprints, and some states require a fingerprint to obtain a driver’s license. The analysis in this opinion would logically permit DNA to be taken in those circumstances. This is not, moreover, a far-fetched result. Congress has recently extended the DNA program to require DNA searches "from individuals who are arrested, facing charges, or convicted, or from non-United States persons who are detained under the authority of the United States." See Pub. L. No. 109-162 § 1004, 119 Stat. 2960 (2006) (codified at 42 U.S.C. § 14135a(a)(1)(A)). Indeed, there have been scholarly calls for universal DNA testing. The courts owe it to the public to adopt an analysis that indicates that it has some limit on such a clearly unacceptable result. It is a shame that there have not been more judges with the wisdom and courage of Judge Kozinski, who pointed out that this program created a "huge end run around the Fourth Amendment" since it was "hard to see how we can keep the database from expanding to include everybody." United States v. Kincade, 379 F.3d 813, 872 (9th Cir. 2004) (Kozinski, J., dissenting).

The second observation is that the opinions on this subject, and perhaps the litigants themselves, ignore a salient aspect of the government’s program. The government, that is the FBI, retains the actual blood sample taken from the subject indefinitely, even after analysis of its DNA. This is not necessary to "identification" of the individual, and it opens the door to serious abuse, since it gives the government possession not only of identification material, but of material that identifies a person’s race, health status, congenital defects, or the like. The government has no need justified by the Fourth Amendment to retain these samples.

Finally, the nature of this subject leads the Circuit into some odd, and apparently illogical, conclusions. The basic one, that collecting DNA to solve crimes is not a "normal" law-enforcement function, and rather serves only some "special" need, springs from the odd distinction between collecting a person’s DNA because he is suspected (without probable cause) of having committed a crime now, and collecting his DNA now to use in identifying him in the future if he commits a crime (or if he is later suspected of a crime he has already committed); the rationale that makes the former search impermissible but the latter proper is hardly clear. Similarly, it is odd how the court in Amerson makes a virtue of suspicionless searches, whereas one might have thought they were the least favored sort of search. Thus, the court finds that one reason that the DNA search fulfills a "special" need is that it "does not involve any suggestion that the individual is being suspected of having committed a crime." Normally, we would have thought, this would be a good reason for not permitting the search, not grounds for allowing it.


In any event, we expect that the growing governmental thirst for private information about its citizens will lead to more litigation of this kind. That litigation will call upon the courts to provide sounder constitutional analysis, greater wisdom, and more courage than they have provided to date.

(By David Lewis)

Telephone Informant Who Gives Her Name and Phone Number to the Police Is ... er, Not "Anonymous"

United States v. Elmore, Docket No. 05-1734-cr(L) (2d Cir. Mar. 29, 2007) (Pooler, Raggi, Sand): This case makes me want to practice in the District of Connecticut. Here, the district court ruled that a Terry stop of the defendant's vehicle (resulting in the subsequent recovery of a firearm) was not supported by reasonable suspicion because the informant who supplied the tip leading to the stop of the car was (1) "anonymous" and (2) had not given sufficient "predictive information" to justify the stop under cases such as Florida v. J.L., 529 U.S. 266 (2000). The district court categorized the informant as anonymous even though she called a police detective and gave him (1) her full name ("Dorothy Mazza") (2) cell phone number, and (3) home phone. Op. 3. But while the detective was able to call the informant back on the cell phone number she provided (thus verifying that bit of information), he did not do much else to confirm her identity. He did not, for instance, meet with her personally, call the home number, check phone company records to verify her identity, or "quiz[] her on her address or date of birth." Op. 16. Moreover, Mazza refused to meet in person with the detective because "she was afraid of what would happen to her if she was seen working with the police." Op. 4.

On these facts, the district court concluded that "because the police did not do enough to confirm Mazza's identity and 'therefore [the detective] did not really know with whom he was speaking,' she should be treated as an anonymous informant." Op. 7. And because the informant did not provide the sort of predictive information required by JL to justify a Terry stop based on a tip from an anonymous informant, the court suppressed the gun found in the defendant's car.

Predictably, the Circuit reversed, finding that Mazza should not have been categorized as an anonymous informant of the JL-variety (i.e., a totally anonymous caller who supplies a tip but refuses to disclose any information about his or her identity). The Circuit explained that "informants do not all fall into neat categories of known or anonymous. Instead, it is useful to think of known reliability and corroboration as a sliding scale." Op. 13 (emphasis in original). And because the informant here was closer to the known-informant end of the spectrum than the anonymous-informant end, less corroboration was required to justify a Terry stop based on her tip. As the Circuit explains, "Mazza gave the police enough information about herself to allow them to identify her and track her down later to hold her accountable if her tip proved false. She gave them her name, her relationship with the defendant, and two telephone numbers at which she could be contacted." Op. 15.

Possible Error in NY State Certificate of Disposition Triggers Remand for Resentencing

United States v. Green, Docket No. 05-3830-cr (2d. Cir. March 13, 2007) (Kearse, Sotomayor, Parker). Here, the circuit accepted a defendant's claim that the government might not have properly proven a recidivism enhancement - the six-level bump for having a prior drug trafficking conviction under U.S.S.G. § 2K2.1(a)(4)(A) .

In 1996, Michael Green was convicted of attempted criminal possession of a controlled substance in the third degree under N.Y. Penal Law §§ 110.00 & 220.16 (McKinney 1987). Section 220.16, the drug statute (§ 110.00 is the attempt statute), has multiple subsections; pertinent here are Subsection 1, which makes it a crime to possess a "narcotic drug with intent to sell it" and Subsection 12, which makes it a crime to possess more than one-half ounce of a narcotic drug. Subsection 1 triggers the enhancement under 2K2.1(a)(4)(A), because it involves the intent to distribute, but Subsection 12 does not. Green had pled guilty under an indictment that described conduct that would trigger Subsection 1, but there was no contemporaneous record describing which subsection he actually pled to. The committment order simply described the offense as "ATT CPCS 3." A Certificate of Disposition generated in 2004 specified Subsection 1 but Green argued both that the certificate might not be accurate and that, under Shepard v. United States, 433 U.S. 13 (2005), the district court could not consider it at all. The district court rejected both arguments and imposed the enhancement.

The court of appeals disagreed with Green's second argument. It noted that Shepard permits inquiries into the nature of a prior conviction by reference to charging document, plea agreement or colloquy, or "some comparable judicial record of this information." A New York State Certificate of Disposition satisfies this last clause.

However, the court found merit in Green's complaint as to the possible inaccuracy of the certificate. It noted that while such certificates are presumptive evidence of the facts they contain, the presumption is rebuttable. Significantly, the court described litigation in a state case, People v. Jamal Green (the opinion does not indicate whether Jamal Green and Michael Green are related), that revealed that if no subsection was entered into the computer at the time the defendant pled guilty, the state's computers were automatically programmed to to indicate Subsection 1 when a subsequent certificate of disposition was produced.

Thus, here, the reference to Subsection 1 in Michael Green's Certificate of Disposition could have been the result of this "default mode" during the "recording, inputting, or accessing" stages of the state's record-keeping. If this occurred, "then the reference to [Subsection 1] ... could not properly be taken at face value." As a result, the court remanded the case to the district court for further proceedings, placing squarely on the government the burden of proving that the reference to Subsection 1 in the certificate was accurate, and not merely included by default.

This opinion is extremely important; far more than it might seem at first blush. There are many guideline recidivism enhancements that require proof that a prior conviction was of a particular type, and some of these enhancements are enormous, such as the "career offender" provision and the 16-level bump in § 2L1.2(b)(1)(A). The Green decisions (both this one and the state litigation alluded to by the court) show that indications on a rap sheet or other criminal history record of a conviction under any Subsection 1 might well be a default entry that is not provably accurate. Thus, in any case where this makes a difference, defense counsel should always demand that the government prove that the reference is accurate, and not a default. If the government cannot, then the defendant will avoid a major sentencing enhancement.

At Long Last, Circuit Finds Above-Guideline Sentence Unreasonable

United States v. Siindima, Docket No. 06-2245-cr (2d Cir. March 5, 2007)(Sack, Katzmann, Parker). It has long seemed as if reasonableness review in the Second Circuit was a one-way street permantently running in the wrong direction. Bucking the trend, at last, is Sindima. Here, the Court found that a 36-month probation violation sentence was substantively unreasonable, where the guideline sentencing range was 4 to 10 months.

Sindima's saga began in 2003, when he was sentenced to three years' probation on what appears to have been a $9,000 mail fraud. Although both the district court and the appellate court referred to this sentence as a "break," it in fact was a guideline sentence, not a variance, since the guideline sentencing range was 0 to 6 months' imprisonment.

About two years into his term of probation, Sindima engaged in an elaborate check-kiting scheme, for which he was arrested by local authorities, but never prosecuted. Despite the dismissal of those charges, the government filed a violaton petition and, after an evidentiary hearing, the court found him guilty. At an initial sentencing conference, the court indicated that it was considering an upward variance to the statutory maximum of 60 months' imprisonment, although the recommended guideline range was 4 to 10 months' imprisonment. This conference was not transcribed, so there is no record of the court's stated reasons, if any, for a variance.

A few months later, the court sentenced Sindima to 36 months' imprisonment, rejecting both sides' request for a sentence within the guideline range. The court's reason for the sentence was that the defendant had engaged in "egregious conduct" while on probation - a "calculated pattern of fraudulent activity on a repeated basis" that required a lengthy sentence to "deter the defendant from future acts of fraud." The court also accepted mitigating information about Sindima, however - his continued education and good works while on probation - and noted that these were the reasons why it was not imposing the 60-month maximum sentence it had previously contemplated.

On appeal, the circuit reaffirmed its basic approach to reasonableness review, which focuses on the totality of the record. Rather than requiring the reason for the sentence to be more compelling the farther the sentence deviates from the advisory range (citing Ratoballi), the focus is on whether the district court's stated reasons can justify the sentence it imposed, particularly when the sentence is "marginal." Here, the 36-month sentence was clearly "marginal"; 260 percent greater than the 10-month guideline maximum. The court of appeals accordingly found fault with both aspects of the lower court's reasoning.

First, the court found that the stated reasons could not support the sentence. Because this was a sentence on a probation violation, the sentence was supposed to punish the defendant primarily for the breach of trust inherent in that violation; the guidelines instruct that the seriousness of the conduct itself is to be considered only to a limited extent. Here, both of those factors were included in the sentencing commission's recommendation of a 4 to10 month sentence, thus the court's exclusive reliance on the defendant's criminal conduct, a factor "for which the guidelines range was designed to account," could not support a sentence nearly three times greater that the guideline maximum.

The court of appeals was also concerned about the way the district court considered Sindima's personal characteristics. The lower court identified them as reasons not to follow its initial inclination to impose the statutory maximum. But, as the appellate court observed, the "proper starting point" for that analysis should have been the guideline range, and not the statutory maximum.

In the end, the court held that the "present record" did not present sufficiently compelling reasons to support the sentence imposed. It remanded the case for resentencing, and urged the court to provide an adequate statement of reasons, both orally and in the written judgment (which it completely failed to do the first time) to support whatever sentence it selects. The court also, unusually, urged the district court to act within sixty days, presumably because Sindima has been in custody for a long time already.

In the end, while this decision is heartwarming, it is also, almost certainly anomalous. Its reasoning is so specifically tied to the particular issues surrounding violation sentences that it is unlikely to be of much help in cases involving appeals from the original sentence.

Sentence Based on District Court's Desire to Deter Others from Defendant's Ethnic Community Vacated

United States v. Kaba, Docket No. 05-3813-cr (2d Cir. Mar. 8, 2007) (Walker, Sack, Wesley): In this case, the government urged, in support of the proposed sentence, that the defendant came from a tightly-knit West African community, and that a stiff sentence would deter her countrymen here and elsewhere in the world from engaging in drug crimes. The district court essentially adopted this rationale for its sentence. It noted initially, and sensibly, that general deterrence was rarely a big factor in setting a sentence, but went on to adopt the government’s notion that in this case, because of the defendant’s origins, its sentence would serve to deter those of her nationality. The defendant appealed, arguing that it was impermissible to base her sentence on her national origin, and the Circuit agreed.

The Circuit found the case indistinguishable from United States v. Leung, 40 F.3d 577 (2d Cir. 1994), in which the sentencing court had also stated that its intent was to deter members of the defendant’s Asian community. The Court adhered to the rule it had stated in Leung, that while it was permissible for a court to mention the defendant’s race or nationality, it was erroneous to base the sentence on that factor. Here it found that the district court had done the latter. It was permissible for the court to consider the defendant’s life of deprivation and abuse in her homeland in mitigation, as the defense suggested, but not to base the sentence on her "identification with the West African community."

In addition, also following Leung, the court found the error reversible despite the absence of a defense objection and found that it was necessary to remand for resentencing before a different judge. The Circuit did this, although it found that there was no evidence of actual bias on the district court’s part. It followed Leung’s holding that the possible appearance of injustice required that a new judge be assigned. "If the same judge were to give the same or a higher sentence on remand," the Circuit wrote, "it would be difficult to avoid the impression that he or she was continuing to base the defendant's sentence on the defendant's national origin, at least to some extent." The Circuit treated Leung as having established "a prophylactic rule meant to assure [that] groups distinguished by their religion, race, national origin or the like ... need not fear that one of their number is being treated adversely because of his or her membership in that group," and thus that it was the "better practice" to remand to a different judge.

(By David Lewis)

Statute Prohibiting Forgery of Judicial Signature or Seal Does Not Require Proof of Intent to Defraud

United States v. Reich, Docket No. 06-1445-cr (2d Cir. Mar. 2, 2007) (Kearse, Sotomayor, Koeltl): This opinion principally holds that 18 U.S.C. § 505, which makes it a crime to "forge[] the signature of any judge ... of any court of the United States ... or forge[] or counterfeit[] the seal of any such court . . . " does not require proof of an intent to defraud. This holding aligns the Second Circuit with the Tenth, see United States v. Cowan, 116 F.3d 1360 (10th Cir. 1997), and against the Sixth, see Levinson v. United States, 47 F.2d 470 (6th Cir. 1931). The Circuit's lengthy exegesis of why this is so, see Op. 13-18, is interesting for those who care about this issue.

The opinion also unsurprisingly holds, though technically as a matter of first impression in this Circuit, that the particular version of the obstruction law embodied in 18 U.S.C. § 1512(c)(2) -- punishing anyone who "corruptly ... obstructs, influences, or impedes any official proceeding, or attempts to do so" -- includes a "nexus" requirement. That is, the defendant's allegedly obstructive act must "have a relationship in time, causation, or logic with the judicial proceedings; in other words, the endeavor must have the natural and probable effect of interfering with the due administration of justice." Op. 10-11 (quoting United States v. Aguilar, 515 U.S. 593, 599 (1995)).

Standard Appellate Waiver Does Not Bar Appeal of District Court's Decision re Concurrency

United States v. Stearns, Docket No. 05-2550-cr (2d Cir. Mar. 2, 2007) (Calabresi, Parker, Hall) (per curiam): This short opinion principally confirms, as a general matter, that appellate waivers must be narrowly construed (and in the defendant's favor) and, more specifically, that a standard appellate waiver (wherein the defendant "waives the right to appeal ... any sentence imposed by the Court which is the same as or less than" a specific number of months or years) does not bar an appellate challenge to the district court's decision to run the federal sentence only partially concurrent to an undischarged state sentence. Op. 4-5. The Circuit had previously held the same in United States v. Williams, 260 F.3d 160, 164-65 (2d Cir. 2001), and United States v. Brown, 232 F.3d 44, 48 (2d Cir. 2000).

Moreover, for purposes of determining the scope of the appellate waiver, it did not matter that the district court told the defendant during the Rule 11 colloquy that it had the authority to impose a concurrent, partially concurrent, or consecutive sentence. As the Circuit explains,"construing the agreement narrowly and in Stearns' favor, [as we must], we believe that merely acknowledging the existence of that authority is not sufficient to constitute a waiver of the right to appeal the manner in which it has been exercised." Op. 5.

Of course, this is only a pyrrhic victory for Mr. Stearns. The Circuit -- no surprise -- concludes that the district court did not abuse its discretion to impose a partially concurrent sentence. Op. 4-5.

Yet Another Time-Warp Opinion

United States v. Capanelli, Docket No. 05-3056-cr (2d Cir. Mar. 1, 2007) (Jacobs, Sack, Oberdorfer) (per curiam): This opinion follows the Rattoballi line of cases, which emphasize the continuing centrality of the Guidelines in sentencing despite Booker. The panel rejects Capanelli's claim that his sentence must be vacated as procedurally unreasonable because the district court "gave complete deference to the guidelines" at sentencing. Op. 4. Among other things, the district judge, while repeating the "of course the Guidelines are now advisory" mantra, stated that the Guidelines should be "given significant and substantial deference" at sentencing.

No problem!, this panel says, because the Guidelines range "'should serve as a 'benchmark or a point of reference or departure' for a sentencing court," (emphasis in original) and because

"A sentencing judge's decision to place special weight on the recommended guideline range will often be appropriate, because the Sentencing Guidelines reflect the considered judgment of the Sentencing Commission, are the only integration of the multiple [§ 3553(a)] factors and, with important exceptions, . . . were based upon the actual sentences of many judges."

Op. 5 (citations omitted). Let us hope, once more, that the Big Court in DC rescues us from such nonsense in Rita / Claiborne.

The opinion goes on to affirm a 5-level brandishing enhancement under § 2B3.1(b)(2)(C) of the Guidelines, describing in detail the standard for conspiratorial liability under the Guidelines. Essentially, the court must find that the "intended action [here, the brandishing of a firearm during a planned robbery] must be part of the conspiratorial plan [that the defendant generally agreed to join] for the enhancement to be imposed." Op. 11. This requires a greater showing than that required under Pinkerton (defendant liable so long as the act is a reasonably foreseeable one in furtherance of the conspiracy, even if not part of the "intended plan" to which the defendant agreed), but a court need not find that the defendant himself had a specific intent regarding the brandishing of the gun to apply the enhancement. Op. 9-11.