The Accidental Terrorist

United States v. Elfgeeh, No. 06-0638-cr (2d Cir. February 14, 2008) (Kearse, Sack, CJJ, Mills, DJ)

Abad Elfgeeh, assisted by his nephew, Aref, ran a money-transfer business out of an ice cream parlor in Brooklyn that funneled money to Yemen and a host of other countries. Although the case had early on been linked to a large-scale terrorism investigation, the defendants were charged only with financial crimes. The district judge took pains to keep the issue of terrorism out of the trial, and the main issues on appeal related to the defendants’ concerns that the trial was nevertheless tainted by its specter.

A. The Terrorism Stuff

1. Testimony

During the trial, an FBI agent mentioned terrorism in response to two of a defense attorney’s questions on cross-examination. The district judge promptly instructed the jury that this was a case about “banking,” and “ha[d] noting to do with terrorism.” Later, when Abad took the stand, the AUSA asked several him questions about whether money he sent was used to purchase weapons or ammunition in connection with tribal violence in Yemen; Abad denied knowing whether this was true.

On appeal, the defendants argued that these events required a new trial, but the circuit disagreed. It found no reason to conclude that the jury could or would not heed the judge’s curative instructions with respect to terrorism. As for Abad’s testimony, the district judge had warned the defendants that he would permit evidence of what the money had been used for if they claimed that they were merely helping immigrants send money to their families. Since Abad clearly opened this door, there was no error.

2. Publicity

Just after the trial began, several of the local tabloids published highly inflammatory articles that linked the defendants to terrorism, and that mentioned evidence that the jury would not otherwise hear. Oddly enough, neither the judge nor any of the attorneys seemed to know what to do in this situation, and no one seemed familiar with the Second Circuit cases that outlined the correct procedures. After a good deal of fumbling around, Aref’s attorney ultimately requested that the jury as a whole be asked whether anyone had read the articles, while Abad’s attorney asked the court not to. The judge sided with Abad’s counsel, and did not poll the jury. He merely told the jurors not to read any press accounts.

Even the circuit recognized that the lower court’s handling of the issue was “a bit haphazard.” But nevertheless a majority found no error. Since the judge was faced with one attorney who wanted the jury questioned and one who did not, the appellate court found no abuse of discretion in the district court’s decision not to poll the jury.

On this issue, Judge Sack dissented. He concluded that there was a real risk that one or more jurors had read the articles and that “there was an extraordinary danger of actual prejudice” if they did. His view was that the district court should have granted Aref’s attorney’s request to poll the jury and that Aref - but not Abad, who was bound by his attorney’s position - should receive a new trial on this ground.

B. Mens Rea

The panel also split on the issue of the district court’s instructions on one of the money-transferring counts. Both Aref and Abad were charged with operating an unlicensed money transfer business after October 2001, under a recently amended statute that required the government to prove that they knew the business was unlicensed. Aref asked the court to so instruct the jury, but it, erroneously, did not.

The circuit held that the error was harmless. As to Abad, this was easy - the government produced (1) a letter from the New York State Banking Department informing him that he needed a license to run a money-transmitting business, (2) evidence from that same agency that the business lacked a license, and (3) testimony from his attorney that he told him the business needed to be licensed.

As to Aref, the majority held that, while the evidence that he knew the business was unlicensed was “more circumstantial” - that is, nonexistent - there was enough. First, his attorney did not put the matter at issue by arguing this point either in his opening or summation. Moreover, Aref did not testify that he was unaware that the business was unlicensed. He claimed that he did not participate in the money-transfer business at all. The majority held that evidence of the “furtiveness” of Aref’s actions constituted “overwhelming evidence that he knew” that the business was unauthorized. Since a license “would indicate authorization, the jury was entitled to find” that he knew it was unlicensed.

Judge Sack once again dissented with respect to Aref. The judge did not believe that there was “overwhelming” evidence of Aref’s knowledge of the “intricacies of an operation run by his uncle.” He saw the evidence as supporting an inference that Aref was merely doing his uncle’s bidding, and that a properly instructed jury might have concluded that Aref believed that his uncle “must have licensed the business,” since he displayed other business licenses in his store.

C. Sentencing Issues

Although Aref struck out on his two seemingly valid trial issues, he eked out a small sentencing victory. The district judge imposed an obstruction of justice enhancement without making any specific findings, and the circuit remanded for that purpose.

The court also vacated the above-Guidelines fine that the district court imposed on Abad. Even under plain error review, the procedural irregularities were severe enough to warrant a remand.

Dismembers Only

United States v. Pepin, No. 06-1462-cr (2d Cir. February 6, 2008) (Walker, Calabresi, Sack, CJJ)

Humberto Pepin is awaiting a capital trial in the Eastern District of New York, where he is charged, inter alia, with murdering two individuals who crossed him, in ways real or imagined, in the course of his drug dealing enterprise. In a series of pretrial rulings, Judge Weinstein (1) precluded from the penalty phase evidence that Pepin had abused his girlfriend’s children and (2) precluded from both the guilt and penalty phases evidence that Pepin dismembered his victims after he killed them. The government appealed, and the circuit affirmed on the child abuse, but reversed on the dismemberment.

Child Abuse

Judge Weinstein held primarily that the evidence of the child abuse, a non-statutory aggravator, was not relevant to future dangerousness, the theory relied on by the government in the death notice. The judge reasoned that, if spared, Pepin would spend the rest of his life in prison and would not have contact with minors. When the government tried to recast the issue in a new notice as one of “moral condemnation,” and not future dangerousness, the judge stood his ground.

On appeal, the circuit first had to deal with the government’s claim that Judge Weinstein made a legal error - obviously the government was hoping for de novo review. The government lost on this point. In exercising his discretion, Judge Weinstein did not commit a legal error. Despite Supreme Court precedent holding that a wide range of evidence is expected, and perhaps even desirable, at the penalty phase, district courts are not required by law to admit all of the evidence proffered by the government.

Turning next to the district court’s exercise of its discretion, the circuit affirmed, as well. Judge Weinstein supported his ruling with detailed reasoning that was neither arbitrary nor irrational, and the circuit explicitly noted that it was not going to “simply substitute” its judgment for his.

Dismemberment

Judge Weinstein’s primary concern had been that the dismemberment evidence would be too prejudicial to be admitted at the penalty phase. The relevant statute, 18 U.S.C. § 3593(c), permits the exclusion of evidence the prejudicial potential of which “outweighs” its relevance, and the judge concluded that this standard was met. With respect to the guilt phase, Rule 403 permits exclusion only if the prejudice “substantially outweighs” the relevance, a more stringent standard. But, since the same jury was to sit at both phases, the judge concluded that the evidence should be be precluded from the guilt phase as well, to protect the penalty phase.

The circuit first held that Judge Weinstein committed a legal error because he applied the wrong legal standard. In effect, he applied the more lenient § 3593(c) admissibility standard to the guilt phase, when Rule 403 should have governed.

The appellate court did not stop there, however. It also held that the district court abused its discretion by precluding the evidence from the guilt phase, even under Rule 403. Since the issue at the guilt phase was whether the murders were “intentional,” the fact that Pepin dismembered the bodies was “potentially too important a factor in the jury’s determination as to Pepin’s guilt vel non of the crimes of which he is accused for it to be excluded altogether at the guilt phase.” The court went on to note that it might well be that the evidence will be inadmissible at the penalty phase, if there is one, but that “the possibility of curative instructions” would take care of the problem. In any event, the court declined to rule on this issue now.

The court did qualify its ruling somewhat, noting that perhaps “all evidence of dismemberment” should not be admitted at the guilt phase, but that the district court’s “blanket ban” could not stand.

Burglar Alarm

United States v. Brown, No. 05-5462-cr (2d Cir. January 30, 2008) (Kearse, Hall, CJJ, Rakoff, DJ)

This opinion deals with a seemingly straightforward issue: whether a New York State conviction for burglary in the third degree is a “crime of violence” under Guidelines section 4B1.2(a). It turns out, however, that the issue has a complication.

In Brown’s case, the district court held that the burglary conviction increased his offense level under U.S.S.G. § 2K2.1(a), which uses the Chapter 4 definition of crime of violence. The complication is that, under this definition, a crime of violence is “an offense . . . that . . . is burglary of a dwelling . . . or otherwise involves conduct that presents a serious potential risk” of injury. The New York statute proscribes burglary of a “building,” which is broader than a “dwelling,” thus third-degree burglary can only be a crime of violence under the Guideline definition if it falls within the residual, “otherwise involves” clause.

There is a compelling argument that the Guideline language limiting the definition of crime of violence to the "burglary of a dwelling" forecloses applying the “otherwise involves” clause to a non-dwelling burglary. In fact, there is a circuit split on this question, and so far neither the Supremes nor the Sentencing Commission has answered it.

Here, the circuit held that a New York conviction for burglary three is a crime of violence under the Guidelines, but it got there in a roundabout way. Instead of addressing directly this important question of Guidelines interpretation, the court relied on its decision in United States v. Andrello, 9 F.3d 247 (2d Cir. 1993), which held that the identical residual clause in 18 U.S.C. § 924(e) covered a New York conviction for attempted burglary in the third degree. The court then concluded, without explaining why, that the residual clause in the Guideline definition applied to non-dwelling burglaries and thus that, based on Andrello, third-degree burglary is a crime of violence under the Guidelines.

Comment: This opinion is bizarre. By refusing to take a position on the Guidelines interpretation issue, the Court has made a huge mess out of something that could have been resolved very simply. As it happens, Andrello is inapposite, since it did not deal with the interpretive question presented here. In Andrello, the court considered a definition of “crime of violence” that includes “burglary” or an offense that “otherwise involves” a risk of injury. However, unlike the Guidelines definition, the statute does not limit the “burglary” prong to dwellings. Andrello did not expressly consider whether the limitation to “burglary” in the first part of the definition precluded applying the residual clause to attempted burglary, which would have been analogous to the question here. Andrello simply held that attempted burglary was covered by the “otherwise involves” clause because of its inherent risks. Clearly, then, that case has little to do with Brown’s issue. So now we are left with a decision applying the residual clause to a non-dwelling burglary, but with no relevant, Guideline or statutory-interpretation based reasoning behind it. Sloppy work, indeed!

Forfeit To Be Tied

United States v. Schlesinger, No. 05-03021-cr (2d Cir. January 30, 2008) (Jacobs, Parker, Wesley, CJJ) (per curiam)

Schlesinger, convicted of mail and wire fraud, made a clever, but unfortunately not clever enough, argument challenging the forfeiture of the proceeds.

The district court had relied on 28 U.S.C. § 2461(c) (2005), which provides that a criminal forfeiture can be alleged in the indictment when “no specific statutory provision is made for criminal forfeiture upon conviction.” Schlesinger pointed out that there is a specific statutory provision for forfeiture of mail and wire fraud offenses, thus § 2461(c) should not apply, but also that the specific provision, 18 U.S.C. § 982(a)(2)(A), applies only to the proceeds of frauds affecting a financial institution, which was not the case here. As the circuit summarized it, although it is not an image one would care to dwell on, Schlesinger argued that the government “falls between two stools.”

The circuit affirmed because the forfeiture here was a civil forfeiture under 18 U.S.C. § 981, which does not limit forfeitures to frauds affecting financial institutions.

Speed Bump

United States v. Abad, No. 06-0338-cr (2d Cir. January 30, 2008) (Jacobs, Parker, Wesley, CJJ) (per curiam)

Here, the court holds that a failure to make a claim under the Speedy Trial Act in the district court results in a waiver of the issue on appeal. Thus, an unpreserved statutory speedy trial claim cannot be reviewed at all, even for plain error.

Comment: This one’s kind of a no-brainer, since the statute expressly so provides. 18 U.S.C. § 3162(a)(2). The only complication is United States v. Sorrentino, 72 F.3d 294, 297 (2d Cir. 1995), in which the court actually reviewed an unpreserved Speedy Trial Act claim for plain error, even though no motion had been made below. The Abad panel devised a double-barreled solution to the conundrum: first, it blamed the lawyers, noting that no party mentioned § 3162(a)(2) in its briefing in Sorrentino, and then, just to make sure, it overruled Sorrentino.

Summary Summary

The court has not issued a published opinion in a criminal case for a while. But here is the most recent set of summary orders of interest.

In United States v. Matthews, No. 04-1657-cr (2d Cir. January 29, 2008), the court vacated the application of the “street gang” enhancement in 18 U.S.C. § 521 because the government failed to prove that the current federal offense occurred within five years of the predicate offenses, as required by the statute.

United States v. Rodriguez, No. 06-1681-cr (2d Cir. January 28, 2008), vacated the restitution order in a case involving the filing of false tax returns, and ordered further fact-finding on whether the restitution amount should be reduced by the amounts that Rodriguez, the tax preparer, returned to his clients.

And, in United States v. Walker, No. 05-6701-cr (January 23, 2008), the court vacated a $100,000 fine imposed on a defendant whom PSR indicated was indigent. Although the district court noted that the defendant had, in the past, made a lot of money from dealing drugs, this was not an adequate finding about his current or future ability to pay.

Summary Summary

Here's another group of summary orders of interest:

In United States v. Whitley, No. 05-3359-cr (2d Cir. January 15, 2008), the court accepted a "minimally sufficient" Anders brief.

In United States v. Leonardo, No. 05-1791-cr (2d Cir. January 14, 2008), the court excused the defendant's waiver of his appeal, and found that the government breached a cooperation agreement by withdrawing its 5K1.1 motion for a reason different from that permitted by the agreement.

United States v. Ramirez, No. 06-2869-cr (2d Cir. January 9, 2008), held that the district court did not err in permitting the defendant to withdraw from a plea agreement - to his ultimate detriment - in light of Booker.

In United States v. John, No. 07-3120-cr (January 8, 2008), the court found no impermissible double counting in an assault case, where the district court added a three-level enhancement for physical contact, rejecting the defendant's argument that this was included in the base offense level.

Finally, in United States v. Hamed, No. 06-3966-cr (2d Cir. January 7, 2008), the district court's error in inadvertently replacing a regular juror with an alternate was harmless.

OPEN SESAME

Two recent cases provide some guidance on the requirement in 18 U.S.C. § 3553(c) that the district court state in “open court” its reasons for imposing a particular sentence.

1. United States v. Day, No. 05-4285-cr (2d Cir. January 15, 2008) (Jacobs, Pooler, Sack, CJJ) (per curiam) is particularly shocking. Day was originally sentenced to fifteen years’ imprisonment, after having been convicted of one offense with a ten-year mandatory minimum and one with a five-year mando. In 2006, the circuit, in a summary order, vacated the sentence because it appeared from the record that Judge Platt erroneously believed that the two minima had to run consecutively.

On remand, Judge Platt, without notice to anyone, and in the absence of Day and his counsel, filed an order resentencing him to the same 180-month sentence. The circuit reversed, naturally, holding that the district court violated Day’s constitutional right to be present at sentencing, and that the error was not harmless. The district court also violated Day’s right to notice of an adverse non-Guideline sentence, and failed to satisfy the “open court” requirement of § 3553(c).

The circuit remanded the case to a different judge for resentencing, being careful to note that there was no evidence of an actual - only a perceived - bias against Day. But having imposed an identical sentence after the first remand, Judge Platt might have difficulty “ignoring his previous views during a third sentencing proceeding.”

2. By contrast, in United States v. Espinoza, No. 05-0711-cr (2d Cir. January 11, 2008) (Cabranes, Sack, Katzmann, CJJ) (per curiam), the court found that a district court’s reliance on the entire record, including the PSR, was sufficient to satisfy the “open court” requirement, even though this reliance was only revealed in the written Judgment.

In this drug case, defense counsel objected at sentencing to the PSR’s recommendation of an aggravating role enhancement, but did not give any specifics. The judge never mentioned the enhancement again, then imposed a 360-month sentence, the bottom of the range that included the enhancement. The written statement of reasons (“SOR”) included with the Judgment, however, indicated that the court had adopted the PSR and its Guideline calculations “without [c]hange.”

First, the circuit decided to review only for “plain error.” Even though Espinoza objected to the enhancement, he apparently did not do so with sufficient vigor for the circuit. Since the PSR and sentencing colloquy put him “on notice” that the court was applying the enhancement, his supposed failure to object “cannot be excused.” The court went on to conclude that the cryptic reference to the PSR in the SOR, while clearly not enough, did not constitute plain error. “[F]ailure to satisfy the open court requirement ... does not constitute ‘plain error’ if the district court relies on the PSR, and the factual findings in the PSR are adequate to support the sentence.”

Comment: These cases are both disturbing, although in different ways. Day is disturbing because of the completely bizarre way that the district court dealt with the remand. This was not a so-called Jacobsen remand, in which the circuit asks the district court what it would have done if it had properly understood its authority. It was a full-on plenary remand for resentencing. What was Judge Platt thinking?

Espinoza is disturbing because of the circuit’s highly suspect holding that Espinoza had forfeited his claim. Espinoza objected to the enhancement at sentencing, and that should have been enough to preserve the issue. While the circuit found fault with him for not giving specific evidence that he was not an organizer/leader, in fact, Espinoza had no such obligation -- the government had the burden of proof on the enhancement.

PORN AGAIN

As the Blog has observed, see Post of 11/29/07: Have You Hugged A Sex Offender Recently?, recently sex offenders fared pretty well in the circuit. Until now. In this most recent crop of cases, sex offenders lost three out of four, and the win was in a summary order, to boot. Here they are:

1. United States v. Hawkins, No. 06-4061-cr (2d Cir. January 16, 2008) (Winter, Straub, Sotomayor, CJJ) (per curiam)

In this case, the court rejected a double-barreled challenge to 18 U.S.C. § 2423(b), which makes it a crime to travel with the intent to engage in illicit sexual conduct, finding that the statute violated neither the Commerce Clause nor the First Amendment. It should be noted that there have been a few cases in other courts claiming that this statute impermissibly impinges on the constitutional right to travel interstate, but that issue remains open in this circuit.

2. United States v. Dupes, No. 05-5522-cr (2d Cir. January 9, 2008) (Walker, Calabresi, CJJ, Keenan, DJ)

Here, the court upheld the imposition of sex-offender-specific conditions of supervised release on a defendant who was charged with and convicted of fraud offenses only, but who had also, in a different case, sustained a contemporaneous conviction for a sex offense. The court also rejected a host of challenges to some of the specific conditions, although the court reviewed them only for plain error, since the particular conditions had not been objected to in the district court.

3. United States v. Lee, No. 06-5034-cr (2d Cir. January 18, 2008) (summary order)

This is the winner of the lot. In this apparent - the order does not specify what the defendant was actually convicted of - sex abuse case, the court vacated the sentence out of concern for the district court’s findings in connection with a vulnerable victim enhancement. Specifically, the district imposed the enhancement after concluding that the victim, who was home-schooled, led a “relatively simple and sheltered life.” The circuit was concerned that these generalized characterizations were not supported by the specific facts required under the enhancement. The sentencing judge also relied on a “double-hearsay statement in the PSR” that the victim had been abused in the past. This was insufficient to support a finding that the past abuse had occurred, and there was, in any event, no evidence to establish a correlation between any past abuse and the victim’s susceptibility to future abuse.

4. United States v. Bowles, No. 06-4319-cr (2d Cir. January 16, 2008) (summary order)

Here, the court upheld the imposition of lifetime supervised release on Bowles, who was convicted of distributing child pornography. This was a huge variance from the Guidelines, which recommended a three-year maximum. The sentence was procedurally reasonable, because the court properly weighed all of the statutory factors. It was also substantively reasonable, even though Bowles’ offense did not involve the actual sexual abuse of a child. The reasons given by the court - Bowles’ limited support network, his problems with “sexual deviance,” and his drug and alcohol problems - supported the sentence. The court did note, however, that under 18 U.S.C. § 3583(e)(2) Bowles has a statutory right to seek a reduction of his supervised release term in the future, if any of those factors change. Unless, of course, Congress repeals the statute.

TRUTH EXTRACTION

United States v. Glover, No. 05-5047-cr (2d Cir. January 4, 2008) (Pooler, Raggi, CJJ, McMahon, DJ)

At this firearms trial, the judge charged the jury, over objection, that “the crucial, hard-core question” to answer was, “Where do you find the truth?” He also instructed: “The only triumph in any case, whether it be civil or criminal, is whether or not the truth [has] triumphed.” One defendant was acquitted; the other was not and appealed.

The circuit affirmed. It agreed that these instructions, in isolation, would be error because they do not ensure that the jury will have a correct understanding of the presumption of innocence or the government’s burden of proof. In addition, the court strongly discouraged their use in the future: “[T]o the extent that a trial court thinks it appropriate in a criminal case to identify for the jury a single ‘crucial, hard-core question,’ that question should be framed by reference not to a general search for truth but to the reasonable doubt standard . . . .”

Here, however, the error was harmless. The court’s review of the entire jury charge found “no reasonable likelihood” that the jury would think it could return a guilty verdict on anything less than proof beyond a reasonable doubt. The charge as a whole referenced the reasonable doubt standard “at least twenty-seven times.” It also correctly instructed that the presumption of innocence lasted “throughout the trial and even into jury deliberations.”

The court was unmoved by the fact that the erroneous language came at the conclusion of the charge. The jury had a full copy of the charge at its disposal during deliberations, and there was a later, supplemental charge that correctly defined the jury’s task.

Comment: One hopes that this case will put an end to off-the-wall instructions on the bedrock due process issues relating to the burden of proof and the presumption of innocence. What is interesting about the decision is that the court missed the most obvious indication that the error was harmless - despite the “search for truth” charge, the jury acquitted one of the defendants.

Summary Summary

Here is the latest installment of the Blog's round-up of summary orders of interest. In United States v. Fernandez-Quesada, No. 06-4446-cr (2d Cir. January 4, 2008), the court dismissed a sentencing appeal as moot because the defendant had been released, even though he had a "potentially valid claim" that his sentence was based on an unlawful upward departure. In United States v. Collazo, No. 06-5236-cr (2d Cir. January 3, 2008), a government appeal, the court found the sentence to be procedurally unreasonable where the district court declined to include an aggravating role enhancement in the Guidelines calculations, but did not give adequate reasons. United States v. Johnson, No. 06-4001-cr (January 3, 2008) and United States v. Stewart, No. 06-3411-cr (December 21, 2007), are the court's first two cases to incorporate Gall and Kimbrough; each contains a cryptic order expressing "no view on the reasonableness vel non" of the sentence imposed, but remanding for "plenary reconsideration" under those cases.

Permanent Waive

United States v. Quinones, No. 04-5554 (2d Cir. December 28, 2007) (Winter, Cabranes, Raggi, CJJ)

This case has lengthy discussions of two important issues. It turns out that the one that has received the less press is actually the more interesting of the two, so we’ll begin with that.

1. Sentencing Error Waived

Facts: In this capital case, the defendants initially faced three counts that exposed them to the death penalty. Two related to murder in aid of racketeering under 18 U.S.C. § 1959; for these, a life sentence was mandatory if death was not imposed. The defendants were acquitted of these counts.

They were convicted only of murder in relation to a continuing drug enterprise (“CCE”) under 21 U.S.C. § 848(e). At the time, that section provided for a mandatory minimum sentence of 20 years’ imprisonment and a maximum of life if death was not imposed. Nevertheless, the defendants repeatedly asserted, both before the jury and to the district court, that life without parole was the only legal option if they were acquitted of death. While this was true under the then-mandatory Guidelines, it was not true under the statute. On appeal, they asserted that they should be resentenced due to the district court’s mistaken belief that a life sentence was mandatory.

Holding: The circuit disagreed. Although it recognized that the district court erroneously believed that life sentences were mandated, and not just by the Guidelines, the court concluded that the judge had not “misread or misunderstood” the statute. Rather, it found that “a more likely explanation” was that “the defendants agreed to life imprisonment as the only possible non-capital sentence to strengthen their argument to the jury, at the penalty phase of this case, that justice did not demand their deaths.”

The circuit noted that, even after the defendants were acquitted of the racketeering counts for which life truly was mandatory, they continued to “insist” that the jury be charged that the only two sentencing possibilities on the CCE count were life imprisonment or death, and asked the court to emphasize this in its instructions, which it did. Moreover, the defendants then repeatedly argued this to the jury. Characterizing this as a “tactical” decision, the court held that the appellate claim that the district court erred in believing that a life sentence was required was waived - “truly” waived, such that not even plain error review would apply - and not merely forfeited. “A finding of true waiver applies with even more force when, as in this case, defendants not only failed to object to what they now describe as error, but they actively solicited it, in order to procure a perceived sentencing benefit.”

The court concluded that it was “no doubt that it was a tactical decision” by the defense attorneys to agree that a life sentence was the only alternative to death, and not a mistake, citing numerous treatises that have observed that capital juries are less likely to impose the death penalty if they believe that the defendants will not be released from prison. The court also noted that this tactical decision was a “reasonable” one, likening it to accepting a Rule 11(c)(1)(C) plea.

Comment: This is a tough case, because it really does seem that both the district court and the defense attorneys misread the CCE statute. It is, after all, a confusing provision that does mandate a life sentence in some circumstances, although, oddly enough, not in murder cases. The circuit is clearly off the mark in finding that the district judge did not misread the statute, since the judge repeatedly said that the section mandates a life sentence, and never said that it reached this conclusion based on the defendants’ offer to accept a life sentence. Nevertheless, the court is on firmer ground in finding that the defendants waived their appellate claim by inviting the error in the district court, since they clearly did so.

By the way, it is no accident that the court goes to such lengths to characterize the actions of defense counsel as “tactical” and “reasonable.” These findings, unnecessary to the disposition of this appeal, are an obvious effort to preempt any future claim that the defense attorneys were ineffective. Although the court never mentions Strickland, it is clearly the subtext of this portion of the decision.

2. Jury Selection

This case also has an interesting discussion of jury selection issues in capital cases. At trial, the district court dismissed a few jurors for cause based solely on their responses on written questionnaires that indicated, in essence, that they would never impose the death penalty in any case. The appellate court strongly urged district courts, particularly in capital cases, to question prospective jurors before dismissing them for cause, but refused to characterize this as a constitutional mandate. It also noted that any error here was rendered harmless by the jury’s refusal to impose the death penalty. The court rejected, at least on these facts, the notion that this type of error could produce a jury that was more likely to convict at the guilt phase. Here, the jury acquitted the defendants of two of the three capital counts.

Breach Baby

United States v. Griffin, No. 05-4106-cr (2d Cir. December 21, 2007) (Pooler, Sack, Wesley, CJJ)

In this case, a divided panel concluded that the government breached its plea agreement in a child pornography case by twice suggesting that the defendant might not be entitled to a downward adjustment for acceptance of responsibility.

Facts: Defendant Michael Griffin pled guilty to possessing child pornography by using the file-sharing service Kazaaa. His plea agreement left open a number of disputed Guidelines issues, which were the subject of a lengthy evidentiary hearing, but stipulated that the government would not oppose a three-level acceptance of responsibility adjustment. Before sentencing, Griffin filed numerous objections to the Guidelines calculations in the presentence report; most pertinently, he denied knowingly possessing a particularly disturbing video known as “BabyJ,” and also denied telling the FBI, in a post-arrest statement, that he knew that the video had been on his computer.

In response to these objections, the government wrote to the district court and noted that it was “troubled by some of the defendant’s objections which seem to raise questions regarding whether the defendant has truly accepted responsibility.” The letter went on, however, to remind the court that the defendant had timely notified the authorities of his intention to plea guilty. In a subsequent, unsolicited, communication with the Court, the government took up this theme again, noting again that Griffin’s arguments were “troubling,” and, again, that the government questioned “whether the defendant has truly accepted responsibility.” This second brief contained a long discussion of the case law about acceptance of responsibility and it noted that a defendant’s guilty plea can be “outweighed by conduct that is inconsistent with acceptance of responsibility.” It concluded that it was “unclear” whether Griffin’s objections rose “to the level of outweighing his acceptance of responsibility,” but that they surely raised “questions on the issue of acceptance.”

During the sentencing hearings, which took place a few months after this briefing, the judge repeatedly warned the defendant that his apparently false denials relating to the BabyJ video and his post-arrest statements put his acceptance at risk. After the hearings, and just one day before sentencing, Griffin suddenly changed his position and “corrected” his previous statements. He admitted that he possessed a BabyJ video, and indicated that he might have told the FBI, although he did not recall for certain.

The district judge ultimately decided against applying the acceptance of responsibility adjustment, but indicated that he came to this position on his own, and was not influenced by the government’s briefing. Griffin received a 120-month sentence, the statutory maximum.

The Circuit’s Decision: The majority concluded that the government’s second letter was “beyond the pale,” and violated the plea agreement. First, the arguments Griffin made that triggered this response were “permitted by the plea agreement.” Moreover, the government’s extended discussion of the law of acceptance was not solicited by the court; rather, the government, “on its own initiative,” warned the court about the defendant’s “troubling” arguments and extensively reviewed the law surrounding acceptance of responsibility. The government’s letter also exceeded the bounds of the plea agreement, which only permitted it to correct inconsistencies in fact or law made by Griffin. Moreover, the government did nothing to retract its statements or ameliorate their impact. Although the government never expressly opposed the adjustment, it “could have done little more to attempt to persuade the court to deny it.” Finally, the majority was unimpressed by the district court’s disclaimer of reliance on the government’s statements; the appellate court did not want to have to speculate whether the court “was in fact influenced, even unconsciously.”

As it always does when the government has breached a plea agreement, the court remanded the case for resentencing before a different judge.

Comment: This case provoked an interesting debate between the dissent and the majority. Judge Wesley, in dissent, agreed that the government’s second communication to the court breached the plea agreement. His beef was with the majority’s choice of remedy, given that Griffin ultimately admitted that he had falsely denied important aspects of the relevant conduct. Judge Wesley acknowledged that since the government breached first, a later finding that Griffin lied after that initial breach would not render the breach harmless. But Judge Wesley saw this case differently. Griffin’s last minute change of position was, to Judge Wesley, an indication that Griffin had been lying along. Thus, Judge Wesley would have affirmed on a basic contract principle - Griffin did not bargain in good faith. “I am ... hard pressed to award defendant a remand in light of his acknowledged untruthfulness long before the government’s breach.” The majority’s response to this is actually fairly weak: it notes that the government “never made” this argument, and that there is “no authority” for Judge Wesley’s position.

This case is also interesting for what it does not say. Griffin raised a host of other issues - a Rule 16/due process argument based on the government’s refusal to turn over a copy of his hard drives, and challenges to certain enhancements that were based on his use of Kazaa. The majority ultimately ducked these, although Judge Wesley, perhaps imprudently, noted that he would have resolved them all in the government’s favor. With respect to the Rule 16 claim, the majority noted that last year’s Adam Walsh act contains provisions that address these matters; since similar Adam Walsh challenges have not yet reached any court of appeals “we think it better for the district court to address” the arguments first. More interestingly, for the Kazaa issues, the majority noted that, despite a lengthy hearing about the operation of Kazaa, the record is “confused and difficult to follow.” The appellate court suggested that it “would benefit from further exposition and clarification in the district court.”

Summary Summary

Welcome to yet another installment of the blog's roundup of summary orders of interest.

In Mickens v. United States, No. 06-0140-pr (2d Cir. December 19, 2007), the court held that defense counsel's failure to communicate a plea offer to his client was unreasonable, satisfying the first prong of the Strickland ineffectiveness test, although second prong was not satisfied because there was no credible evidence that the defendant would have accepted the offer. In United States v. Turner, No. 06-0967-cr (2d Cir. December 17, 2007), the court remanded for resentencing where the government breached the plea agreement in four different ways; the court ordered that the case be sent back to a different judge, which it always does when the government has breached a plea agreement. In United States v. Miley, No. 06-1105-cr (2d Cir. December 13, 2007), the court affirmed an above-Guideline sentence of 48 months' imprisonment (the range was 24 to 30), finding that the district court properly based its decision on pending charges, arrests, outstanding warrants, the defendant's pattern of fraudulent activity, and the atypicality of the charged fraud.

Blurry Vision Leads to Clear Error

United States v. Lin Guang, No. 05-4724(L)-cr (2d Cir. December 13, 2007) (McLaughlin, Wesley, CJJ, Sessions, DJ)

Two defendants in an extortion case raised a host of garden-variety challenges to their conviction, to little effect, and to their sentence, one of which prevailed.

During one of the extortions, a victim was beaten and a caustic substance was sprayed into his eyes, briefly blinding him. Once he rinsed it out, his eyes felt better, but from that point on he found it painful to read for long periods of time, and thus had stopped reading the newspaper. Based on this account, the district court imposed a six-level Guideline enhancement for permanent injury, which is defined as “loss or substantial impairment of the function of a bodily member, organ, or mental faculty that is likely to be permanent.”

The circuit held that the district court’s finding that the impairment, as described, was both substantial and permanent, was clearly erroneous. While it was clear that the victim suffered a substantial impairment of his eyesight at the time of the assault, his testimony that, having recovered, it still hurt his eyes to spend time reading did not constitute a substantial impairment that was likely to be permanent. The case was remanded for resentencing.

Not-So-Fast Track

United States v. Liriano-Blanco, No. 06-2919-cr (2d Cir. December 11, 2007) (Walker, Calabresi, Sack CJJ)

In this unusual case, the circuit entertained an appeal despite a waiver. Liriano-Blanco pled guilty to illegal reentry under a plea agreement in which he agreed to waive any appeal of a sentence of 60 months or less, with a Guideline range of 57 to 71 months. At his sentencing, he asked for a below-Guidelines sentence to avoid “the disparity caused by the existence of fast-track programs in other districts.” The district judge was sympathetic to this argument, and agreed that there was an unwarranted disparity. He indicated that he would like to give a four-level downward departure for this, but thought that he was not permitted to. Erroneously believing that Liriano-Blanco could appeal the sentence, the judge invited him to do so: “Hopefully, maybe, the Second Circuit may disagree with me and [I’ll] be able to give a lesser sentence when they send it back.” After an uncontested criminal history departure, the court sentenced Liriano-Blanco to 46 months and, despite the waiver, he appealed.

Here is how the circuit untangled this mess. First, it observed that the ultimate question - whether a district court can impose a non-Guideline sentence in response to fast-track disparities - is still open in this circuit and is not “frivolous,” since its answer is “not a foregone conclusion.” But it decided it could not answer it here, because of the appeal waiver.

But the court very obligingly gave Liriano-Blanco a second bite at the apple, out of its “concern regarding mistaken statements by [the] sentencing judge about the defendant’s right to appeal.” The district court “relied on the possibility of appeal” in choosing a higher sentence, and the AUSA did not correct the judge’s error by pointing out that the appeal had been waived. The circuit concluded that, although it could not decide the case on the merits, there was nothing in the waiver to bar the court from returning the case to the district court so that, “having been made aware that Liriano-Blanco cannot appeal its decision, it might resentence him if it sees fit to do so.”

As for the fast-track question itself, we’ll just have to wait and see.

Underprivileged

In re Grand Jury Subpoena Dated July 6, 2005, No. 05-6891-cv (2d Cir. November 16, 2007, posted December 10, 2007) (Pooler, Parker, Wesley, CJJ)

In January of 2005, an Eastern District AUSA contacted counsel for the unnamed appellant, a former mortgage broker, and advised that appellant was the subject of a grand jury investigation. Appellant proffered on January 12, 2005, and, sometime after that date, surreptitiously recorded his telephone conversations with another broker, who was also a subject of the investigation. At later proffer, appellant told the government about the tapes, which he said he had made “on advice of counsel to protect himself.” When the government subpoenaed those recordings, appellant resisted, claiming that they were privileged. The district court ordered compliance, and the circuit affirmed.

Appellant’s primary claim was that the recordings were work product. The circuit concluded that the recordings were “fact” work product, that is, the result of a factual investigation, and not “opinion” work product, which is entitled to greater protection, because opinion materials might reveal the mental impressions of counsel. On this point, the court faulted appellant’s presentation to the district court; he relied solely on a conclusory affirmation from counsel that claimed that appellant was acting on his instructions, but did not give the court the tapes themselves for in camera review.

The court then grappled with the degree to which the work product doctrine applies to grand jury proceedings, which fall into a gap between Civil Procedure Rule 23(b)(3), which privileges materials prepared in anticipation of civil litigation, and Criminal Rule 16(b)(2), which privileges materials prepared by the defendant or counsel during the investigation or defense, but only in a “pre-trial proceeding in which there is a known defendant.” The court held that a “grand jury is entitled to fact work product where the government shows that the grand jury has a ‘substantial need’ for the materials and that it has ‘exhausted other means of obtaining’” them.

Here, both prongs were satisfied, although the court’s reasoning is a bit skimpy. For the first prong, the court simply held that a grand jury must have “access to the data it needs,” which “clearly includes” the recordings. Thus, there was “no doubt” that the need was “substantial.” Not the most satisfying analysis: the grand jury needs it, thus its need is “substantial.” With respect to the exhaustion prong, the court did better. It rejected appellant’s argument the government could have asked him about the contents of the recordings; this would not likely have been productive, since appellant had already claimed that they were privileged. Moreover, the government could not get what it needed from the other participant in the conversations, since his own account of the conversations would not replicate the “unique memorialization” contained in the tapes themselves.

In a separate summary order, the court rejected appellant’s alternative arguments. With respect to the Fifth Amendment, since the tapes were voluntarily prepared, there was no compulsion. And appellant could not claim an act of production privilege; the government knew enough about the existence of the tapes and their location - most likely they were either with appellant or his counsel - and requiring him to produce them would not require him to incriminate himself by admitting these facts. Nor would production “implicitly authenticate” the recordings. Finally, the recordings could not be deemed memorializations of appellant’s own communications with his counsel, since they did not involve the attorney himself.

SUMMARY SUMMARY

Welcome to the Blog’s periodic roundup of summary orders of interest.

In United States v. Rodriguez, No. 06-1681 (November 29, 2007), the court vacated a restitution order for further factfinding in a case involving the filing of fraudulent tax returns.

In United States v. Perez, No. 06-1040 (2d Cir. November 27, 2007), the court, yet again, bounced an Anders brief. Here it ordered counsel to file a supplemental brief that either (1) addressed the court’s Guidelines findings and calculations and the reasonableness of the sentence, or (2) explained why a discussion of reasonableness was unnecessary. If the brief really lacked all of these things, one wonders what it actually said!

Graft Dodger

United States v. Ganim, No. 03-1448-cr (2d Cir. December 4, 2007) (Jacobs, Sotomayor, Wesley, CJJ)

Until his downfall, Joe Ganim was the mayor of Bridgeport, Connecticut. In 2003, he was convicted of racketeering, bribery and other offenses arising out of a bribery and kickback scheme. In essence, he had a fee-splitting arrangement with public relations and engineering firms to which he would steer city business in exchange for “cash, meals, fitness equipment, designer clothing, wine, [and] jewelry.” At trial, he acknowledged receiving these “gifts,” but asserted that they represented tokens of friendship and legitimate lobbying activity. The jury felt otherwise, however, and Ganim ultimately received a 108-month sentence.

On appeal, he took issue with the district court’s jury instructions with respect to the various bribery-related crimes of which he was convicted: bribery, bribe receiving, extortion in violation of the Hobbs Act, and “honest services” mail fraud. His claim was that in situations where a bribe is given in exchange for a future act, the government is required to prove a “direct link” between the benefit received and a specifically identified future official act. The court disagreed, and affirmed his conviction. The “requisite quid pro quo ... may be satisfied [by] a showing that a government official received a benefit in exchange for his promise to perform official acts or to perform such acts as the opportunities arise.” The government need not draw “direct link” between the bribe and a particular future act.

Hmmm. The court’s rule sure sounds like it covers plain old lobbying. But, anyway, that’s the law.

Writ Small

United States v. Richter, No. 06-1930-cr (2d Cir. December 4, 2007) (per curiam)

Richter was sentenced in 1992 and did not appeal. In 2006, he petitioned pro se for a writ of audita querela to make a collateral Booker challenge to his sentence. The court rejected the claim, because Booker does not apply retroactively on collateral review.

This opinion is interesting, however, because the court identifies a situation when this obscure writ would lie. Most past cases have noted only the writ is “probably available,” or “might be deemed available,” or “might be available” in certain circumstances. Here, the court makes clear, without apparent qualification, that the writ would lie “if the absence of any avenue of collateral attack would raise serious constitutional questions about the laws limiting those avenues.” Now we know.