Have You Hugged A Sex Offender Lately?

United States v. Juwa, No. 06-2716-cr (2d Cir. November 28, 2007) (Walker, Calabresi, Sack, CJJ)

United States v. Baker, No. 05-4693-cr (2d Cir. November 16, 2007) (Summary Order)


The circuit has. Twice, but only once in a published opinion. In Juwa, the court found that a 90-month sentence was procedurally unreasonable because it might have been based on unsubstantiated pending state court charges.

Juwa pled guilty to possessing child pornography, and faced a 24 to 30 month range. At the time of his federal sentencing he was charged in state court with sexually abusing his nephew on multiple occasions, and had worked out a plea agreement under which he would plead to a single count in exchange for a 5-year sentence that would be concurrent to his federal sentence.

At his federal sentencing, however, the district court went way above the agreed-upon range “based on the information before” it about the state case. The court knew that Juwa had not yet pled guilty in the state case but, taking that case into account, sentenced him to 90 months’ imprisonment. The court described this as an upward departure and also imposed it, in the alternative, as a non-guideline sentence.

At times during the sentencing the district judge seemed to recognize that Juwa had agreed to plead to only one count in the state, but the judge also made statements suggesting a finding that Juwa had acted on multiple occasions. In addition, the written judgment noted that Juwa would be pleading guilty in the state to “molesting his nephew for 3 years.”

The circuit reversed. It concluded, at least on this record, that it would have been “improper” for the district court to base the federal sentence on charged conduct alone, a violation of the due process right to be sentenced based on accurate information. Here, apart from the indictment in the state case, there was nothing to establish that Juwa committed any acts other than the one that he had agreed to plead to. The indictment alone could not establish any other facts, even by a preponderance of the evidence. “[A]t sentencing, an indictment or charge within an indictment, standing alone and without independent substantiation, cannot be the basis upon which a criminal punishment is imposed. Some additional information, whether testimonial or documentary, is needed to provide evidentiary support.”

Here, because there was “uncertainty both from the sentencing transcript and the written order” about whether, and to what extent, the sentencing enhancement was based on the court’s assumption that Juwa had engaged in multiple instances of abuse, it remanded the case for clarification.

In Baker, a summary order, the court, remarkably, vacated a within-guideline sentence as unreasonable, an apparent first in this district.

Baker faced a 108-month guideline minimum for transporting child pornography, and that was the sentence he got. He had argued strenuously for a below-guideline sentence, but the district court made it clear “from the outset that it would only consider a sentence within” the range. It did not say why a 9-year guideline sentence was appropriate, nor did it say why a the 5-year mandatory minimum sentence was not. Moreover, the court did not specifically respond to any of Baker’s arguments for a lower sentence, arguments that the circuit found so compelling that the district court, “at the very least,” should have explained why it was rejecting as them as the basis for a non-guideline sentence. Most significantly, the also court concluded that the district court’s statement that it had considered all of the 3553(a) factors was not enough, because it was obvious that the court really had not done so.

The mystery of Baker is whether the court viewed the sentence as substantively unreasonable, or procedurally unreasonable, or both. The disposition of the case - remanding to the district court to provide reasons for the sentence - suggests that this was a procedural unreasonableness case. But the cases the court cites as the basis for the remand, Sindima, and Rattoballi, are substantive unreasonableness cases. Curious, aint’ it?

Joint Pain

United States v. Shellef, No. 06-1495-cr (2d Cir. November 8, 2007) (Pooler, Sack, Wesley, CJJ)

In this decision applying Fed.R.Cr.P 8, the court held that counts were improperly joined against two separate defendants, and that the misjoinders were not harmless. The decision also has an interesting discussion of some unusual wire fraud theories.

Defendants Shellef and Rubenstein were tried together on tax and wire fraud charges. At the same trial, Shellef alone was tried on tax evasion charges relating to some of his personal and business dealings. Both were convicted of all counts.

The tax and mail fraud charges arose from the defendants’ efforts to purchase and resell CFC-113, a highly regulated, ozone-depleting industrial solvent upon which, Congress, in an effort to phase out its use, imposed an excise tax. However, the tax does not apply to CFC-113 reclaimed as part of a recycling process, or CFC-113 that is sold or manufactured for export.

The defendants were charged with attempting to avoid this excise tax, beginning in 1997 or 1998, through a series of complex business transactions. In very brief, they falsified documents so that it would appear that CFC-113 that they had purchased and resold was either reclaimed or was being shipped for export. Similar misstatements duped their suppliers into not charging them the excise tax.

Shellef alone was also charged with tax evasion - he understated his income and assets - relating to his personal and business returns for the 1996 tax year. At trial, Shellef moved to sever the 1996 tax counts from the others, and Rubenstein joined in the motion, all without success.

The circuit reversed. Tax counts can be joined with other crimes from which the tax offenses arose, as when a defendant is prosecuted for fraud and for not paying taxes on the proceeds. Here, however, Shellef’s 1996 tax counts were unrelated to the other charges. The government’s only claimed connection was that all related in some way to the sale of CFC-113 (a claim unsupported by the record for the 1996 conduct) and that all arose from the same businesses. But the circuit held that this was insufficient to support joinder in the prosecution of Shellef under Rule 8(a).

The court further held that the government failed to show that this misjoinder was harmless. The 1996 conduct would have been inadmissible at a trial on the other counts under Rule 404(b), because the earlier acts would have led the jury to “reason that if Shellef was willing to lie to the IRS in 1996 he would be willing subsequently to lie to others” or to interpret the 1996 conduct as an “indication of Shellef’s general mendacity.” The court also held that, for similar reasons, the 1996 evidence probably prejudiced the jury’s assessment of the other counts. The absence of any limiting instructions on these issues compounded this prejudice.

After a much less detailed analysis, the court also held that Shellef’s 1996 tax counts were misjoined against Rubenstein. The court simply noted that this was true for “many of the same reasons” that they were misjoined against Shellef, but did not give any specifics. Interestingly, and with no real analysis at all, the court held that Shellef’s 1996 misdeeds posed an “arguably greater” potential for prejudice against Rubenstein, even though that conduct had nothing at all to do with him.

This opinion is also notable for its discussion of the theories of wire fraud advanced in the indictment, the “no-sale” theory and the “tax liability” theory. The no-sale theory posited that Shellef’s misrepresentations to his supplier constituted fraud because the supplier would not have made the sale if it knew of his true plans to improperly sell the chemical domestically. However, the court held that this is not enough. A scheme that does no more than cause a victim to enter into a transaction it would otherwise avoid is not fraud. Fraud is present only if the scheme depends “for [its] completion on a misrepresentation of an essential element of the bargain.” Here, because the indictment alleged only that Shellef’s misrepresentation induced his supplier to enter into the transaction, but did not charge that the misrepresentation had “relevance to the object of the contract,” the indictment was legally insufficient on a “no sale” theory.

The indictment was sufficient, however, on the alternative “tax liability” theory. This theory was that Shellef induced his supplier to continue to sell the chemical without paying the excise tax or including it in the sales price. This was sufficient because it deprived the supplier of money it should have been entitled to - the tax - and it is irrelevant that that money was to be passed on to the IRS. It was sufficient that the supplier “had a right to” the money and that Shellef’s scheme was intended to deprive the supplier of it.

Control Freak

United States v. Carlo, No. 06-2420-cr (2d Cir. November 19, 2007) (Kearse, Katzmann, CJJ, Rakoff, DJ)

This short per curiam opinion discusses the sufficiency of the evidence in a wire fraud prosecution, where the prosecution proceeded on an unusual theory. The defendant Carlo and others defrauded real estate developers by making misrepresentations about Carlo’s efforts to obtain funding for the developers’ projects. In response to the developers’ requests, Carlo falsely assured them that loans were imminent, when in fact they were not. Here, the government did not allege that Carlo defrauded the developers out of any specific money or property, but rather out of their right to control their own assets, which the court held was a permissible theory of fraud. Carlo’s deception harmed the developers by depriving them of material information necessary to determine whether to proceed with their development projects, and this continued or increased the risk that the projects would fail.

To Life!

United States v. Freeman, No. 05-5529-cr (2d Cir. November 14, 2007) (Straub, Katzmann, Parker, CJJ)

Michael Freeman was convicted of drug trafficking, robbery and gun possession, but acquitted of two homicide counts. The district court nevertheless imposed a life sentence, based on its preponderance finding that Freeman committed the murders of which he was acquitted.

The court rejected various challenges to the sentence. It held - again - that the statutory maximum for violating 18 U.S.C. § 924(c) is life, thus the life sentence was legal. It also held that the district court had complied with the circuit’s requirement that it “consider” the acquittal, and that the district court properly found that Freeman himself committed the murders.

Freeman also challenged an evidentiary ruling. At trial, the court admitted a redacted version of his confession that contained only the inculpatory part, but omitted exculpatory statements suggesting that some of his actions constituted self defense. Freeman had objected to this, citing the so-called “rule of completeness,” Fed.R.Evid. 106. The circuit affirmed, agreeing with the district court that the redacted portion, which dealt with what occurred during the robbery, neither explained the admitted portion, which dealt with the planning of the robbery, nor placed it in context.

Venue Wish Upon A Star

United States v. Rommy, No. 06-0520 (2d Cir. November 6, 2007) (Jacobs, Walker, Raggi, CJJ).

Henk Rommy, a Dutch national, was tried in this district on charges that he managed a vast ecstasy importation scheme from Europe. The scheme’s ties to this district were quite thin - although the goal was to get the drugs to New York, only five things actually occurred here: a call from a cooperating witness in Manhattan to Rommy in the Netherlands; a second call between Rommy and the New York informant about one year later, although there was a dispute as to who initiated it; a call to a local FBI agent from Rommy and the informant, both in Europe, although there was a dispute as to whether Rommy or the informant placed the call; and, finally, two calls from the agent in Manhattan to Rommy in Europe.

At trial, Rommy claimed lack of venue. The court charged the jury that if it found that, after the conspiracy was formed, “a telephone call in furtherance of the conspiracy was made to a location in the [district] that would be sufficient, ... even if the call was made to an undercover agent or some other nonconspirator.” During deliberations, the jury sent the court a note asking if venue could be proved by a call from the agent to Rommy. The court answered in the affirmative - as long as the conspiracy was already formed and the call furthered it. The court also instructed that venue could be established if nonconspirator made the call, again, as long as the call was induced by the conspiracy or furthered it.

On appeal, the court upheld the instruction, a question of first impression here, agreeing with the First and Seventh Circuits that “a telephone call placed by a government actor within a district to a conspirator outside the district can establish venue within the district provided the conspirator uses the call to further the conspiracy.” In fact, the court stressed, who placed the call, just like its direction, is irrelevant. What matters is whether the conspirator used the telephone call to further the objectives of the conspiracy. By doing so, he “effectively propels not only his voice but the scheme itself beyond his own physical location into that of the person with whom he is speaking.”

The court also held that Rommy did not need to have actual knowledge that the call affected this district; reasonable foreseeability is sufficient.

This decision leaves open the somewhat mythical defense of “manufactured venue.” The defense arises from a footnote in a 1982 case, but the court has never actually applied it. Although two other courts have outright rejected it, and one more has questioned it, here the court did not weigh in because the “evidence clearly does not support its application to this case.”

Rommy’s case also contains an interesting discussion of evidence obtained in a foreign country through the Mutual Legal Assistance Treaty (“MLAT”) between the United States and the Netherlands. Like his venue claim, this issue was ultimately unavailing for Rommy: the actions complained of did not violate U.S. law, and the treaty does not create “any judicially enforceable individual right that could be implicated by the government’s conduct here.”

Lastly, Rommy claimed that his interview with a DEA agent while Rommy was in prison in Spain violated the Fifth and Sixth Amendments. But here there was no Miranda issue because Rommy’s statements were voluntary, and thus the interview did not constitute “interrogation.” His Sixth Amendment claim was a closer call; he was interviewed after having been indicted, and did not expressly waive counsel. The court ducked the issue by characterizing the interview as “a meeting that [Rommy] had requested with persons he knew were law enforcement officers [where he] was asked a few neutral follow-up questions in the course of a lengthy volunteered statement.” It held that, even if these “follow-up” questions violated the Sixth Amendment, any error in admitting Rommy’s statement was harmless.

SUMMARY SUMMARY

The Summary Summary is our periodic round-up of summary orders of interest. So, here we go:

United States v. Zavala, No. 05-7001-cr (2d Cir. November 1, 2007). Here, the district court applied cumulative aggravating role enhancements under U.S.S.G. § 3B1.1, giving both the 4-point enhancement under subsection (a) and the 2-point bump under subsection (c). The government conceded that this was error, and also agreed that the court failed to make adequate factual findings.

United States v. Duran-Colon, No. 06-0974-cr (2d Cir. October 31, 2007), has an interesting discussion of the use of uncharged Rule 404(b) conduct introduced into evidence to show how the relationship between two co-conspirators developed. It noted that, at a jury trial, if "the uncharged conduct is highly similar to the charged offense, such evidence may be unduly prejudicial insofar as it suggests to the jury the defendant's propensity to commit the offense." This case, however, arose from a bench trial, so there was no error.

In United States v. Raftopoulos, No. 05-5963-cr (2d Cir. October 29, 2007), the court upheld a sentence that included lifetime supervised release for a sex offender. However, it remanded the case for clarification of one of the conditions - that prohibiting the defendant from being in a park or other such areas without prior approval from his probation officer. The condition did not contain language limiting the restriction to areas "in which children are likely to congregate," and the court was concerned that, without it, the probation officer would have "too much discretion in interpreting an ambiguous supervised release condition," an impermissible delegation of judicial power.

United States v. Williams, No. 05-6036-cr (2d Cir. October 23, 2007), contains a helpful discussion of Fed.R.Evid 803(3), which permits statements of a declarant's then-existing state of mind.

We close with two interesting harmless error cases. In United States v. Alvarez, No. 06-0107-cr (2d Cir. October 19, 2007), the court held that a procedural error in the calculation/imposition of sentence was harmless. And, in United States v. Nadal, No. 06-2924-cr (2d Cir. October 16, 2007), the court held that the defendant was not prejudiced by the absence of a written statement of reasons in the Judgment, required by 18 U.S.C. § 3553(c)(2) for above-Guideline sentences. Here, since the oral statement of reasons was adequate, a remand on this ground would have been "futile."

The Good Shepard

United States v. Rosa, No. 05-3621-cr (2d Cir. October 30, 2007) (Kearse, Sack, CJJ, Mills, DJ)

The Armed Career Criminal Act (ACCA) requires increased penalties for defendants in federal gun possession cases who have three prior convictions for serious drug offenses or “violent felonies.” This case concerns the “categorical approach” to determining whether a prior conviction resulting from a guilty plea was to an offense that qualified as a “violent felony.”

In 1991, Rosa pled guilty to robbery in the first degree, an offense he committed when he was 15, in violation of N.Y. Penal Law § 160.15(4), which makes it an offense to commit a robbery and display “what appeared to be” a firearm. The government contended that this conviction was an ACCA predicate as an “act of juvenile delinquency ... involving the use or carrying of a firearm.” Two other ACCA predicates were not in dispute.

The district court agreed with the government, and sentenced Rosa to the ACCA fifteen-year mandatory minimum. The circuit reversed, however, concluding that the available information did not establish that Rosa’s 1991 plea “necessarily admitted, and supported a conviction for” an offense involving a firearm, under Shepard v. United States, 544 U.S. 13 (2005). During his state court plea, all Rosa admitted was that the robbery involved “what appeared to be a firearm.” Other available documents, such as the state bill of particulars and PSR, indicated that there might have been a real gun involved, although no gun was recovered.

The crux of this decision is its discussion of the kind of evidence that a district court is permitted to consult in deciding whether a predicate conviction qualifies under ACCA, what the circuit calls “Shepard evidence.” Where the predicate resulted from a guilty plea, the Shepard decision limits the available evidence to that arising from the record of conviction, and not other materials, such as police reports. Shepard cites specifically the plea colloquy, plea agreement, or other findings of fact adopted by the defendant when entering the plea as the appropriate sources. Here, clearly, the plea allocution by itself did not establish an offense involving a firearm, and the circuit rejected all of the other sources of information relied upon by the district court.

First, it rejected the use of the state’s bill of particulars. Even though a bill of particular might be considered a charging document, the bill did not help define the crime of which Rosa was convicted, or serve to limit the charges that he could have pled guilty to. And, since Rosa’s plea allocution mentioned “what appeared to be” a handgun, the plea trumped the bill’s mention of an unrecovered real gun.

Next the court considered, and rejected, the use of the federal PSR as Shepard evidence. The federal PSR relied entirely on the state PSR, and Rosa had objected to the conclusion in the federal PSR that he was subject to ACCA.

Third, the court held that the state PSR was not Shepard evidence, even though it contained a description of the offense conduct. Even the government agreed that this document did not establish that Rosa “necessarily” pled to an offense involving a firearm. Indeed, the court concluded that the state PSR was not any more useful to the Shepard inquiry than a police report, particularly since that report drew its offense statement from the police reports themselves.

Fourth, the state sentencing transcript, even taken together with the PSR, did not satisfy Shepard. Throughout Rosa’s plea the state trial judge carefully described an offense involving “what appeared to be a firearm.” Accordingly, its offhand reference to “the gun” at sentencing could not be considered an “explicit factual finding” that there was a gun. In addition, in light of this, Rosa’s failure to object to the sentencing court’s use of the word “gun” did not qualify as an admission by silence.

Finally, the government argued that by pleading guilty to first-degree robbery, Rosa waived a statutory affirmative defense that the gun was inoperable, a defense that, if established, would reduce the charge to second-degree robbery. The court disagreed. It viewed his plea as simply an admission that the state had met its burden of establishing that he displayed “what appeared to be” a firearm, and nothing more.

Comment: This is a great decision, but there is a twist. The conviction at issue here was actually a New York State Youthful Offender adjudication (a “YO”). Rosa did not raise, and the circuit did not consider, whether YO’s can be ACCA predicates at all. This an open question in the circuit. But, in United States v. Fernandez, 390 F. Supp.2d 277 (S.D.N.Y. 2005), Judge Patterson held that a YO was not an ACCA predicate, and the government, which had agreed that this was so in the district court, did not appeal.

Who's SORA Now?

Willette v. Fischer, No. 06-1422-pr (2d Cir. October 29, 2007) (Meskill, Newman, Sotomayor, CJJ)

Although the Blog does not regularly report on decisions in state prisoners’ habeas corpus proceedings, this nifty case has relevance to federal criminal practice.

Steven Willette, a convicted sex offender in New York State, was tried and convicted, inter alia, of multiple violations of New York’s Sex Offender Registration Act (SORA). During 1997 and 1998, Willette was living with his girlfriend but, on the four occasions that he was supposed to report his address (SORA prescribed ninety-day intervals), he falsely stated that he was still living with his father. Willette was found guilty of four SORA counts of failing to report change of address. He received a six-month misdemeanor sentence on the first SORA count, and three consecutive felony sentences on the others, for a total of ten and one half to twenty-one years’ imprisonment.

Here, the circuit agreed with Willette’s claim that his “multiple punishments” for “more than one violation of a single statute” violated the Double Jeopardy Clause. Based on a close reading of the relevant statutes, the court rejected the state’s claim that the relevant “unit of prosecution” for this type of SORA violation was “each day that a sex offender fails to report a new address.” For Willette, who lived with his girlfriend four about fourteen months, this “daily offense” theory would have exposed him to 3,000 years in prison. Thus, while the six-month sentence on the first SORA violation was valid, the court vacated the consecutive sentences imposed on the three additional SORA counts.

The relevance to federal practice is that there are now various federal statutes that require sex offender registration, and impose criminal penalties for the failure to do so. See, e.g., 42 U.S.C. § 16913 and 42 U.S.C. § 14072. This decision should be kept in mind in those cases when the feds try to charge multiple violations.

Score: Form 1; Substance 0

United States v. Rutkoske, No. 06-4067-cr (2d Cir. October 25, 2007) (Newman, Winter, Katzmann, CJJ).

This stock fraud decision deals primarily with the timeliness of a superseding indictment.

An initial indictment not naming Rutkoske was filed on December 11, 2003; S1, the first superseder, was filed on April 6, 2004. It named Rutkoske, and described a single overt act within the five-year statute of limitations. Suspiciously, that act occurred “on or about April 9, 1999,” making the indictment timely by only about three days. After repeatedly being pressed by the defendant to pin down the details of the April 9 act, the government superseded again, in July of 2005. S2 charged Rutkoske with the same offenses as S1, but the government dropped the April 9 overt act and instead alleged two others, on April 15 and April 16, 1999. When Rutkoske moved to dismiss S2 as untimely under the five-year statute of limitations, the government conceded that the April 9 act had not occurred on that date, rendering S1 retroactively untimely. Nevertheless, the district court denied the motion, and the court of appeals affirmed.

The court began with the two-part test for relation back of a superseder: the original indictment must have been be validly pending and the superseder must not “materially broaden or substantially amend the charges.” The question raised here, one of first impression in this circuit, was “whether an indictment that is facially valid only because of one alleged overt act within the limitations period should be considered . . . validly pending . . . when the Government concedes that [that] overt act did not occur within the limitations period.” In answering this question in the affirmative, held that since S1 was “facially timely” when it was returned, it did not matter than it was, in actuality, untimely. The court noted that if the case had gone to trial on S1, the government could have satisfied the statute of limitations by proving a different, timely overt act. The court also noted that the government’s concession that S1 was untimely did not occur until after the return of S2. Thus, S1 was “facially timely and validly pending” at the time that S2 was returned.

The court also held that S2 did not broaden or amend the charges, since it merely extended the dates of the conspiracy by one week.

Comment: This is a disturbing decision. S1 was, as a factual matter, untimely both when it was filed and when S2 was filed. Why on earth should the case turn on the fact that S1 erroneously appeared to be timely? Is form really more important than substance? While the court carefully notes that there is no evidence that the government “deliberately withheld” its concession that the April 9 overt act had not occurred until after S2 was filed, the court’s confidence in the government would seem to be a bit naive. The facts here surely support a strong inference of deliberate withholding. The government must have known that there was a problem with the April 9 act when it decided to supersede; the defense had been pressing for an explanation of that act for more than a year. Given this, why else would the government have superseded unless it knew it had a timing problem? The government saved its case by not disclosing the defect until after S2 was filed. This decision would thus seem to give a free pass to all ethically challenged prosecutors - as long as they successfully hide their misconduct until it is cured, the defendant has no remedy.


On the brighter front, this case has a nice discussion of one of the most vexing Guidelines issues - the instruction that loss calculations under § 2B1.1 need not calculated with precision and that a “reasonable estimate” is sufficient.

Calculating loss can be particularly difficult in stock fraud cases because so many factors contribute to the decline of share prices. Surprisingly, this is not an area where the circuit has given much guidance. Here it does, turning, unusually, to civil law - the “principles governing recovery of damages in civil securities fraud cases” - for assistance. These principles a triggered remand for resentencing because the district court relied exclusively on the testimony of a NASD expert that, in essence, attributed the total decline in the stock price to the defendant’s conduct. The court's failure to “even consider[] other factors” relevant to the decline was error.

We Value Your Opinion

United States v. Tsekhanovich, No. 05-4809-cr (2d Cir. October 24, 2007) (Miner, Cabranes, Straub, CJJ) (per curiam)

Treading no new ground, the court reminds us that a lay person can give opinion testimony if it is both based on his first-hand perceptions and rationally derived from them.

Here, a cooperating witness in a fraud case was permitted to describe several conversations that he had with the defendant, and explain what he thought certain of the defendant’s comments meant. There was a solid foundation for the testimony - the witness had known the defendant for years - and the witness did not “speculate about the general knowledge or intent” of the defendant. Rather, his testimony was limited to discrete matters.

“Might” Makes Right

United States v. Zhang, No. 05-6662-pr (2d Cir. October 23, 2007) (Winter, Cabranes, CJJ, Korman, DJ)

During a plea allocution, advising a defendant that he might be deported was good enough, even though ICE believed that deportation was mandatory.

Zhang, a chemist, manufactured and sold an illegal bodybuilding supplement, DNP. One of his customers died after taking Zhang’s concoction, while another was in a coma for ten days. Zhang ultimately pled guilty to one count of mail fraud. During the plea allocution, the prosecutor stated that Zhang was subject to “possible” deportation as a result of the plea. The magistrate judge echoed this, saying that the plea “could” result in his deportation. Similar equivocal statements about the possibility of deportation were made by the prosecutor and district judge at Zhang’s sentencing.

Once sentenced, however, Zhang was served a notice by ICE indicating that he faced mandatory deportation as a result of his conviction for an aggravated felony. He filed a 2255 motion that he was affirmatively misled by the prosecutor and the court about the immigration consequences of his plea, a violation of Rule 11. The district court agreed, and vacated the plea.

The circuit had a different view, and reversed the district court, at least on the particular facts presented here. Fraud offenses are only aggravated felonies if the loss to the victim(s) exceeds $10,000. At the time Zhang pled guilty it was “far from clear” that he was pleading to an aggravated felony because and the ultimate loss amount had not yet been settled. Although the plea agreement contained a larger loss amount, Zhang reserved the right to contest it. Thus, telling him that he faced
“possible” deportation was “completely accurate.”

This is a sad case. Zhang came to the United States at the age of seven after his family was granted political asylum. He has lived in the United States for more than twenty years, is married to an American citizen, and is not proficient in Chinese. The circuit has left a door open for him, however; his 2255 also argued that his attorney was ineffective. The court has remanded the case back to the district court for consideration of that claim.

BYE-BYE, BRUTON?

United States v. Williams, No. 05-6036-cr (2d Cir. October 23, 2007) (Newman, Walker, Straub, CJJ).

In this curious but very troubling case, the court seems to have concluded, sub silentio, that Crawford trumps Bruton.

Brothers Bobby and Michael Williams were tried for a drug-related triple homicide. Neither brother testified. At trial, over objection, the court permitted two civilian witnesses to testify that, after the shootings, Bobby made statements to them admitting his involvement in the shootings. Some of those statements implicated Michael. On appeal, Michael argued that the admission of Bobby’s statements violated the Confrontation Clause and Fed.R.Evid. 804(b)(3).

Obviously, Michael’s Confrontation Clause claim raises Bruton issues; indeed, this is the classic Bruton situation - the out-of-court statement of one defendant is used against a co-defendant. But here, the court never even got to Bruton. It held that Bobby’s out of court remarks were not “testimonial” under Crawford, and thus “our Confrontation Clause inquiry is at an end.” In other words, the court denied the Bruton claim without even mentioning Bruton.

This case, if it stands, would limit Bruton to cases where the co-defendant’s out-of-court statement was taken by the police, or is otherwise “testimonial” for some reason. The court might well be right - although only the Supremes will tell us for sure. But one would have hoped that if the court really wanted to take on such a radical and new issue (as of this writing, no other Circuit has so held), it would come out and say so directly, rather than leaving the entire bar to guess. Let’s that hope the Williams brothers file cert petitions.

Another troubling aspect of this case is the court’s treatment of the “declaration against interest” issue. Michael would seem to have a strong claim that those portions of Bobby’s statements that implicated Michael were not sufficiently against Bobby’s interest to render them trustworthy. It was surely against Bobby’s interest to admit his own role in the murders, and, at least arguably, it was against his interest to admit that he acted with another person. But identifying that other person was not against Bobby’s interest at all; at best, it would seem to have been neutral to his interests. But the court did not see it that way. It held that since Bobby was not “attempting to minimize his own culpability, shift blame onto Michael, or curry favor with the authorities” his statements that mentioned Michael were “sufficiently self-inculpatory.”

Finally, this case has a fairly good discussion of the court’s current views on Daubert, in the context of ballistics.

Attempt-ation

United States v. Gaqliardi, No. 06-4541-cr (2d Cir. October 22, 2007) (Walker, Calabresi, Sack, CJJ).

This case shuts the door on number of common challenges to convictions under 18 U.S.C. § 2422(b), which makes it a crime to entice a minor to engage in an illegal sexual act, or to attempt to do so. In relatively short order, the court held that: (1) because the statute prohibits attempts, it covers sting operations in which there is no minor victim (here the court joins six other circuits); (2) the statute is not vague, in that its various terms - entice, persuade, coerce, etc., - although not defined, are words in common usage that have ordinary meanings (joining five other circuits); (3) the statute does not criminalize speech that is protected First Amendment and hence is not overbroad.

Gagliardi also made some novel arguments, which the court also rejected. The five-year mandatory minimum that he received does not violate the separation of powers doctrine, and the fact that the FBI agent and his confederate, a private citizen, posed as thirteen-year-olds is not impermissible sentencing manipulation. In addition, the evidence was sufficient both to overcome an entrapment defense and to meet the “substantial step” requirement for an attempt.

Finally, Gagliardi argued that the documentary evidence, mostly emails and transcripts of instant-message chats, were not properly authenticated and thus might have been fabrications. The court was not impressed: The bar for authentication is “not particularly high” and the testimony of the agent and his pal that the transcripts were accurate was enough.

Location, Location, Location

United States v. Cavera, No. 05-4591-cr (2d Cir. October 11, 2007) (Cardamone, Calabresi, Pooler, CJJ)

Gerard Cavera received an above-Guidelines sentence based on the district court’s view that gun offenses were more serious in densely populated areas like New York city. This opinion is the court’s second attempt to deal with a location-specific reason for imposing a non-Guideline sentence. Confusingly, both attempts have been in this same case.

The first opinion here, back in June, held unequivocally that a district court’s “reliance on community-specific characteristics, such as population density, to impose a non-Guidelines sentence constituted legal error and rendered [the] sentence unreasonable.” This opinion held that it was always inappropriate to use “community-specific” considerations as the basis for deviating from the Guidelines, because such sentences would lead to unwarranted regional disparities in sentencing. Judge Calabresi concurred in the result, but disagreed with the majority’s analysis, rejecting the “broad language . . . that denies the possibility of any consideration of geographic factors” in sentencing. He went on to decry the “false dichotomy” between sentencing factors that relate to individual culpability and those that do not, calling it a “legal fiction.” He suggested that it would be “permissible” for a court to conclude that “taking into consideration all the circumstances of the particular crime, including geography, the sentence should be enhanced.”

And now we have a new opinion to replace the one from June. It should first be noted, however, that the court has not done a particularly good job of explaining itself. A footnote reveals that the June opinion “prompted comments from several members of the Court,” without saying what the comments were. Well, whatever they were, they were sufficient to prompt the panel to withdraw both the June opinion and Judge Calabresi’s concurrence and try again.

The new opinion seems to have embraced, to a much greater degree, Judge Calbresi’s view. It definitely leaves open the possibility that, in some circumstances, findings about the characteristics of the location of the offense could legitimately affect the sentence, at least if those findings are tied to something specific about the case. The new opinion is more nuanced than that of the June opinion. It holds that under the “circumstances of this case” the reliance on location specific factors was error because the district court made “no reference to any characteristic particular to the defendant or his crime” and relied instead “entirely on circumstances common to all defendants charged with gun trafficking in New York and similar large cities.” Just to make the point clear, the court says the same thing again, about four pages later, too. It even drops a couple of footnotes on this issue: one that expressly holds, contrary to the June opinion, that it is not true that a court may “never consider characteristics of the locality” in deciding the seriousness of a crime, and another that gives an example of one type of argument that might support a location-based variance.

So where does this leave us? Well, pretty much where we already were. The court of appeals clearly prefers sentences that are based on particular findings that relate to the individual defendant and his offense, and it continues to be skeptical of categorical sentencing decisions. One interesting side-bar to this case relates to the still unresolved issue of state-federal sentencing disparities, which are clearly “location based.” So far, the court has held that a district judge is not required to consider them, but has not yet decided whether a district court is permitted to do so. When the court finally gets to that question, this case will clearly weigh heavily in its decision.

Steal This Footnote

United States v. Johnson, No. 05-3811-cr (2d Cir. October 10, 2007) (Meskill, Cabranes, Wesley, CJJ)

This is pretty much a case about nothing. The only real nugget is in footnote 4.

Johnson appealed his 120-month gun sentence - the statutory maximum - on several grounds. As is often true, his case had begun in state court, but was later transferred to federal court. Johnson pointed out that had the state prosecution gone forward, he could not have received more than seven years’ imprisonment. On appeal he argued that the district court was required to sentence him so as to take into account (1) the disparity between his sentence and his co-defendant’s, a claim that the court has already rejected, and (2) the disparity between his federal sentence and the sentence he would have received in the state court.

The court rejected this second claim as well, holding that a district court is not “required” to consider potential federal/state sentencing disparities. However, footnote 4 expressly leaves open the more important question, which is whether such consideration is permitted.

SUMMARY SUMMARY

Summary orders do not have precedential effect. But, those filed after January 1, 2007, can now be cited as long as certain citation requirements are met. See Fed.R.Ap.Proc. 32.1 and Second Circuit Local Rule 32.1. In light of this, starting October 2007, the Second Circuit Blog is introducing a new feature, called Summary Summary. In it we briefly comment on summary orders of interest.

So, here we go!

United States v. Watson, No. 05-6184-cr (October 3, 2007)(summary order). During deliberations, a juror became convinced that the government’s main witness was the same man who had raped the juror’s daughter the year before, and the court discharged her. The court of appeals held there was “good cause” under for the discharge under Fed.R.Crim.Proc 23.1.

United States v. Tyson, No. 06-1727-cr (October 12, 2007)(summary order). Tyson appealed several aspects of his sentence, including an obstruction of justice enhancement. The court held that it needed “more specific findings by the district court” on this issue, and remanded the case under United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir. 1994).

This is perhaps the Blog’s first look at so-called “Jacobson remands,” so here are a few words about them. Once upon a time, when the Second Circuit believed that the district court had not made adequate findings in support of an a sentence enhancement, including the obstruction enhancement, it would file a published an opinion remanding the case. See, e.g., United States v. Williams, 79 F.3d 334 (2d Cir. 1996); United States v. Catano-Alzate, 62 F.3d 41 (2d Cir. 1995).

Meanwhile, in Jacobson, 15 F.3d at 21-22, the court described its procedure for seeking supplementation of a sentencing record while retaining appellate jurisdiction in cases where the reasons for the particular sentence were unclear. Jacobson did not involve a challenge to a particular enhancement; rather, there, the district court’s reasons for the particular sentence were alleged to be unconstitutional, and the appellate court remanded the case so that the district court could explain them better.

Somewhere along the way, the circuit decided that the Jacobson procedure could be used whenever the district court record was lacking, and not just in the specific circumstance when the reasons for the sentence were unclear. A quick search reveals twenty or so cases since 1996 that have utilized this procedure, with the vast majority of them occurring within the past three years.

So - is this a good thing or a bad thing? Probably bad. Remanding the case for a limited set of findingsrestricts what defense counsel can do once the case goes back to the district court. A resentencing, on the other hand, would give the defense a second bite at the apple.

Be that as it may - it looks as if the Jacobson remand is here to stay.

Why Oh, Why Oh, Y.O?

United States v. Jackson, Docket No. 06-5928-cr (2d Cir. October 5, 2007) (Miner, Cabranes, CJJ, Crotty, DJ) (per curiam)

This case continues the court’s seemingly relentless, and highly questionable, line of cases upholding the use of New York State youthful offender adjudications (“Y.O.”’s) as sentencing enhancers.

In United States v. Sampson, 385 F.3d 183 (2d Cir. 2004), the court held that a Y.O. constituted a prior drug felony for purposes of the sentencing enhancements contained in 21 U.S.C. §§ 841(b) and 851.

Here, Jackson, whose Y.O doubled a five-year mandatory minimum, tried to capitalize on a potential hole in Sampson. He argued that the Sampson court’s observation that the defendant served his Y.O. sentence in an adult institution created a requirement that district courts find this to be true before enhancing a drug sentence based on a Y.O.

The court disagreed. A finding of fact on this question is not required. It is enough that, despite the Y.O., Jackson was tried and convicted in adult court of an adult drug offense that was punishable by more than one year in prison.

The court went on to note that Jackson himself never provided any evidence that he was housed in a juvenile facility, despite being in the best position to do so. It appears that this is dicta, since the rule has always been that the government has the burden of proving a sentencing enhancement.

Et Tu, Brute - NOT!

United States v. Brutus, Docket No. 06-2710-cr (2d Cir. October 2, 2007) (Jacobs, Walker, Calabresi, CJJ)

Waline Brutus testified at her drug importation trial. During the charge, Judge Glasser instructed the jury, in relevant part, that she had a “deep personal interest in the outcome of the case” that “creates a motive to testify falsely.”

Following in the footsteps of its recent decision in United States v. Gaines, 457 F.3d 238 (2d Cir. 2006), the court held that this instruction was error. This case is significant because there had been a tension between Gaines and United States v. Tolkow, 532 F.2d 853 (2d Cir. 1976), which upheld very similar language. Here, the court very neatly cuts through the confusion and overrules Tolkow, creating a “prophylactic rule” that any “instruction that the defendant’s interest in the outcome of the case creates a motive to testify falsely impermissibly undermines the presumption of innocence” and is error. When the defendant testifies, the district court should simply tell the jury to evaluate her credibility in the same way it judges the testimony of any other witness.

Unlike the defendant in Gaines, however, Brutus did not win her case. The government, which bore the burden of establishing harmlessness beyond a reasonable doubt - the standard for a preserved constitutional error - did so. The circuit viewed this as “not a close case” and characterized Brutus’ trial testimony as “manifestly incredible.” In fact, Judge Glasser called it “the most incredible perjury I’ve ever heard in any case I’ve ever tried in this court.”

Too bad. Brutus, who has two small children, received a ten-year sentence, and will be a guest of the American taxpayers for at least eight and one half years before being deported back to Haiti. Perhaps if she had won her appeal something shorter could have been negotiated for her.

GET YOUR STASH HOUSE IN ORDER

United States v. Wilson, Docket No. 05-5985-cr (2d Cir. September 24, 2007) (Jacobs, Katzmann, Hall, CJJ) (per curiam)

This short decision disposes of a sufficiency claim that has not yet arisen in this Circuit relating to “stash house” prosecutions under 21 U.S.C. § 856(a)(2).

Wilson shared two apartments with a drug dealer - the tools of his trade were in open view all over the place. She argued that the evidence was legally insufficient because the government did not prove that she herself intended that the premises would be used for an unlawful purpose.

The Circuit made short work of this. The phrase “for the purpose” in § 856(a)(2) refers to the purpose of the person who is permitted to engage in drug activity in the premise, and not she who permits him. By contrast, § 856 (a)(1) makes it a crime for the person controlling the premises to have such a purpose. Thus, under Wilson’s reading of the law the two sections would proscribe the same conduct.

Here, the government only needed to prove that Wilson knew that her residence was being used for drug trafficking, and it did so.

OBJECT LESSONS

United States v. Villafuerte, Docket No. 06-1292-cr (2d Cir. September 21, 2007) (Walker, Cabranes, CJJ, Goldberg, DJ)

United States v. Hirlman, Docket No. 05-3677 -cr (2d Cir. September 27, 2007) (Winter, Walker, Sack, CJJ)

These two cases, although not related, together provide new insights into an extremely important area - the need to preserve sentencing issues for appeal.

Villafuerte is a very disturbing case. For nearly two decades, the conventional wisdom in the Second Circuit has been that appellate claims relating to the procedural aspects of sentencing - e.g., whether the court understood its departure authority, made adequate legal findings in support of an enhancement, or gave the defendant an opportunity to allocute - would be reviewed on appeal, even where there was no specific objection pointing out the procedural failing.

Villafuerte changes all that. In this case, the Circuit holds that the most common post-Booker claims about procedural unreasonableness - that the district court did not make adequate findings under § 3553(a), and that it did not provide a sufficient statement of reasons under § 3553(c), which are neither “novel” nor “complex” - must be objected to at the time of sentencing. If not, they are reviewed only for plain error, under the stringent standards of Fed.R.Crim.P. 52(b) and United States v. Olano, 507 U.S. 725 (1993). Here, the court had no trouble concluding that such claims, raised for the first time on appeal, were not plain error. It affirmed.

Hirlman, on the other hand, decided six days later, gives a nice lesson in how to do what Villafuerte requires.

In this case, a government appeal of the sentences of two brothers, the government argued that Judge Elfvin did not give adequate notice of its decision to depart from the Guidelines and did not make adequate findings in support of the departures. The government also registered objections in the district court that were specific enough to preserve those claims.

At the first brother’s resentencing, the judge did not say why he had selected the particular sentence. The prosecutor asked for findings, and the court said that it would provide them later, in writing, but never did so. At the second brother’s resentencing, the government did even more, objecting specifically to the court’s failure to give adequate notice of its intention to depart downward, and “press[ing] the court to explain” the departure, which it did not do. The Circuit reviewed the government's claims and vacated the sentences. It probably would have done so anyway, but it certainly did not help that the government objected with specificity.

Comment: It now appears that prudent lawyers must do something akin to what the AUSA did in Hirlman. Here’s something to try if words fail: “Respectfully, your honor, the defense does not believe that the court has made adequate findings in support of the sentence, because ...” or something like that.

One can easily foresee the ugly kettle of fish that the court has opened for itself in Villafuerte. Given the many procedural requirements of the sentencing statutes (and let us not forget Rule 32, as well), post-Booker sentences are open to a large number of procedural challenges on appeal. Thus, the court is going to have to resolve preservation/plain-error questions in a large number of cases that previously would have been more quickly and easily disposed of by simply ruling on the particular claim that has been raised. The Circuit could well end up having to develop an entirely new body of preservation jurisprudence for sentencing appeals - something that is entirely unnecessary, since the previous system worked just fine.

Villafuerte is also clearly in tension with the court’s recent decisions bouncing Anders briefs that did not address what were surely unpreserved claims of procedural unreasonableness. How this tension will play itself out remains to be seen.

An additional word about Hirlman: The Circuit remanded the case to a different judge, using unusually critical language about Judge Elfvin and his record on appeal. At least one assistant federal defender in the Western District feels that this portion of the opinion was both unnecessary and gratuitous; Judge Elvfin is no longer hearing criminal cases, thus a remand to different judge would have happened as a matter of course.