RePetition

Nnebe v. United States, No. 05-5713-pr (2d Cir. July 21, 2008)
Pena v. United States, No. 06-0218-pr (2d Cir. July 21, 2008)

This month, the court re-issued decisions in two cases decided in June - one of which the court subsequently withdrew [see prior posts “Role of Certs” and “Withdrawal Symptoms”] - dealing with counsel’s obligation to file a petition for a writ of certiorari.

In Nnebe, an appeal of the denial of a 2255 motion, all parties agreed that appointed counsel violated the court’s CJA plan by failing to seek certiorari despite his client’s request that he do so. At issue here was the appropriate remedy. The government argued that 2255 relief was unavailable, and that this should end the case. Nnebe argued instead that the court should construe the petition as one to recall the mandate and vacate its judgment. The court agreed to do so. Although this is an “unusual remedy,” Nnebe acted with diligence and clearly established that he requested that a certiorari petition be filed.

In Pena, where the defendant had retained counsel, the court held that the constitutional right to the effective assistance of counsel does not include either discussing with the defendant the possibility of seeking certiorari or assisting him in filing a petition. Unlike in Nnebe, the CJA did not apply.

Deceptively Simple

United States v. Finnerty, No. 07-1104-cr (2d Cir. July 18, 2008) (Jacobs, Pooler, CJJ, Restani, J)

The New York Stock Exchange functions, essentially, as an auction market. Specialist firms are designated to facilitate the auction of a particular stock by processing the bids to buy and offers to sell it. Specialists also trade for their own firm’s accounts. “Interpositioning” occurs when the specialist interposes himself in the middle of public trades to make a profit for the firm. It is prohibited by NYSE rules.

Defendant Finnerty engaged in thousands of instances of interpositioning, making $4,500,000 in profit for the firm’s account, and thereby inflating his bonus. He was charged with, and convicted of, three counts of securities fraud. After trial, the district court granted his motion for a judgment of acquittal, holding that the government failed to prove that interpositioning was a “deceptive act” under securities law because the government did not “provide proof of customer expectations.” The government appealed, and the circuit affirmed.

Securities law prohibits any “manipulative or deceptive device or contrivance” in connection with the purchase or sale of securities. The government did not argue that there was any market manipulation here, arguing only that Finnerty’s actions were deceptive. It agreed that he made no misstatements, however, arguing that he engaged in “non-verbal deceptive conduct.” While conduct can be deceptive, it “irreducibly entails some act that gives the victim a false impression.”

Here, the government identified “no way in which Finnerty communicated anything to his customers, let alone anything false.” Rather, what he did was a “garden variety conversion.” Even if some customers might have understood that NYSE rules prohibit specialists from interpositioning and that those rules “amount to an assurance (by somebody) that interpositioning will not occur,” here there was no evidence that this understanding was “based on a statement or conduct by Finnerty.” Thus, he did not commit securities fraud.

Nor was his ability to take advantage of his position by itself deceptive; “not every instance of financial unfairness” constitutes securities fraud absent proof of manipulation, a false statement, a breach of duty to disclose, or deceptive communicative conduct. Finally, the evidence of consciousness of guilt could not overcome this problem. Finnerty clearly knew that he had violated an NYSE rule, and tried to cover it up. But this does not establish securities fraud, either.

Luggage Wreck

United States v. Leerdam, No. 07-1435-cr (2d Cir. July 18, 2008) (Jacobs, Straub, CJJ, Jones, DJ).

Here, the circuit reversed the convictions of two defendants, Andrea and Julio Lorenzo, who had been convicted in a drug importation and distribution conspiracy, finding that the evidence was legally insufficient.

Background

In July 2005, Francisca Leerdam was recruited to smuggle drugs out of the Dominican Republic. She made three successful trips to the Netherlands, then, in September of 2005, made her first trip to the United States. Her handlers gave her a suitcase, some money, a plane ticket and instructions. She made it through customs at JFK, and eventually met a confederate who took her suitcase and gave her a different one. Later, in Queens, the confederate met up with and spoke to Julio. Leerdam met Andrea, who asked her how it went. Andrea and Julio then took her to a hotel and paid for her room. The next day, Julio brought her $14,000 in a duffel bag and told her it was for her handler in the D.R. He drove her to the airport and she flew back, turned in the money and received $3,000.

One month later, she made another trip to New York with two suitcases given to her in the D.R.. This time, she was caught at JFK with 3.25 kilograms of cocaine. She agreed to cooperate by making recorded phone calls and a controlled delivery, assisted by an ICE agent, who posed as a cab driver. She called the phone number she had been given - with instructions to speak to Julio - and Andrea answered. Andrea said that Julio was sleeping, but that she had spoken to Leerdam’s handler, who said that Leerdam should come to their house. Leerdam and the “cab driver” brought the suitcases inside, while Andrea remarked, “so much work, huh?” then said that she had been told to take Leerdam to a hotel.

At this point, both women and Julio were arrested. Andrea made a post-arrest statement denying that she knew Leerdam, and asserting that she was doing a favor for her nephew by bringing Leerdam to a hotel. She also denied knowing what was in the suitcases. Later, she told agents that she had met Leerdam before, but did not know her name. Julio, in his statement, said he did a favor for his nephew by - referring to the September trip - by driving Leerdam around. He denied giving her any money.

The Appeal

The court reversed both defendants’ convictions on the ground that there was insufficient evidence that they entered into the conspiracy with the specific intent to commit the offenses that were its objects or that they had the requisite knowledge.

For Julio, the court held that, while there was “ample” evidence of the existence of the conspiracy and of his presence and participation in events that furthered it, there was insufficient evidence that he did so knowingly and with the intent to further a cocaine smuggling and distribution conspiracy. For the September trip, there was no evidence of the contents of the suitcase, or that Julio know what was in it. Given this, and his “complete lack of participation” in the October events, even the $14,000 he gave to Leerdam in September was not enough. While “indicative of participation in illegal behavior,” it was consistent with a wide variety of offenses, and was by itself insufficient to prove his specific intent to participate in the drug conspiracy. The court also rejected the argument that the fact that Leerdam had been told to call Julio during the October trip rendered the evidence sufficient. The request was not fulfilled, and Julio was dormant during this entire episode. Finally, the court rejected the claim that Julio’s false exculpatory statement rendered the evidence sufficient. The totality of the facts, in the aggregate, was not enough to sustain his conviction.

For Andrea, the evidence was “even more sparse.” Indeed, the court issued an order reversing her conviction one day after oral argument. The evidence against her “considered in the aggregate,” supported “at most” an inference that she “knew that she was assisting suspicious behavior.” But it was also consistent with “providing hospitality to her nephew’s girlfriend and regretting” it.

The Amazing Trace

United States v. Crawford, NO. 06-5059-cr (2d Cir. July 17, 2008) (Sotomayor, Wesley, Wallace, CJJ)

This gun possession case arose when defendant Crawford was arrested by parole officers for violating his curfew and smoking marijuana. The officers claimed that they found a gun and ammunition in his bag. At trial, the government called an interstate commerce nexus expert, but did not introduce testimony about a trace report to demonstrate the gun’s legal chain of custody. Crawford testified that there was no gun in his bag and, in summation, his attorney adopted this “frame-up” theme as the defense. Counsel noted in particular that there was no evidence that the government had traced the gun, an effort to suggest that such a trace would have established that the gun belonged to someone other than Crawford.

During deliberations, the jury sent a note asking “why wasn’t the gun traced to the original owner?” As the parties discussed this, the district judge learned that the government had given the defense a copy of the trace report before trial. Accusing defense counsel of gamesmanship, the judge sua sponte reopened the evidence and allowed the government to call the ATF agent who had conducted the trace. The agent explained the result of the trace, and also testified that the report had been provided to defense counsel before trial.

On appeal, the circuit ordered a new trial, holding that the district court abused its discretion by reopening the trial during deliberations. The appellate court adopted the Fourth Circuit’s approach to this issue, which focuses on the “timeliness of the motion, the character of the testimony and the effect of granting the motion.” The party seeking to reopen must give a “reasonable explanation for failing to present the evidence” in its main case, and the evidence must be “relevant, admissible, technically adequate, and helpful to the jury.” The reopening should not imbue the evidence with “distorted importance,” and should not prejudice the opposing party, which must have an adequate opportunity to respond to it.

Here, the reopening failed every part of this test. The government offered no explanation at all for its failure to introduce the trace report; instead, it argued that it did not have to since it did not ask for the reopening. The circuit disagreed. “That the district court played an active role in initiating reopening proceedings does not excuse the government from showing that it had a reasonable explanation for failing to introduce the evidence in a timely manner.” Indeed, here the court noted that it is possible that the government’s failure to introduce the trace report was a “strategic choice” because the content of report lent credence to the theory that Crawford was framed.

Second, as to the character of the evidence, the court agreed that the trace report was relevant and “probably” helpful to the jury. But here, the government also introduced evidence that defense counsel knew that a trace had been conducted. This evidence was “questionable,” to say the least.

Finally, the court considered the overall effect of the evidence. First, it agreed that the belated introduction of the report “probably imbued” it with “distorted importance.” The evidence also greatly prejudiced the defense. Defense counsel’s summation rested on the existing trial record, where there was no trace report. He probably would not have made that argument if the government had introduced the report in its case-in-chief, and he had no ability to respond to it adequately because he could not sum up on it after the reopening.

Moreover, the evidence that the report had been given to counsel was “devastating” to the defense because it suggested that counsel had attempted to mislead the jury into believing something he knew not to be true. On this point, the court categorically rejected the government’s argument that counsel acted improperly in commenting on the absence of evidence about the trace report - it was perfectly “appropriate” for him to highlight the omission of the report in his summation, and he did so in a way that was neither distorting nor misleading.

In concluding, the court noted that, although it was not adopting a “blanket rule” against admitting evidence after the start of jury deliberations, this should be done only with “extreme reluctance.”

Summary Summary

So far, a bunch of interesting summary orders this month. Here’s the roundup:

In United States v. Pryce, No. 07-2210-cr (July 25, 2008), a marijuana trafficking case, the court vacated the sentence and remanded for findings on the scope of the defendant’s participation in the conspiracy.

United States v. Gumbs, No. 06-4708-cr (July 24, 2008), upheld a finding that the defendant’s false claim of United States citizenship to pretrial services warranted a sentence enhancement for obstruction of justice.

In United States v. Marucilli, No. 08-1145-cr (July 23, 2008), the court vacated the defendant’s conviction in a housing fraud case because the district court erroneously instructed the jury that the money that funded the housing subsidy was the property of the United States. This “improperly took out of the hands of the jury the factual issue of whether the United States exercised ‘sufficient supervision and control’ over the funds to support the allegation that they were ‘moneys of the United States.’”

In United States v. Givens, No. 05-5189-cr (July 18, 2008), there court was an Apprendi error in the court’s treatment of a “continuing criminal enterprise” sentence under 21 U.S.C. § 848(a). The critical findings - role and drug quantity - should have been made by the jury, not the court.

In United States v. Mahaffy, No. 07-3570-cr (July 7, 2008), the court vacated a false-statements conviction under 18 U.S.C. § 1001 because the charge on intent was erroneous. A statement that is literally true cannot support a conviction under this section, even if it is intended to mislead the questioner.

Bank Failure

United States v. Carlton, No. 07-2344-cr (2d Cir. July 16, 2008) (Winter, Miner, Cabranes, CJJ)

In June of 2004, after a hearing, Judge Robinson found that Carlton, who was on supervised release for a bank robbery, had committed another one. He sentenced Carlton to 30 months’ imprisonment. About a year later, the government indicted Carlton for that same robbery and the case was randomly assigned to Judge Robinson. Carlton asked the judge to recuse himself, but he refused. A jury convicted Carlton, and the judge sentenced him to 600 months’ imprisonment.

On appeal, he argued that it was error for the judge not to recuse himself, but the circuit disagreed. Nothing that the judge said or did at the supervised release revocation would cause his “impartiality reasonably to be questioned.” Moreover, the judge did not have “personal knowledge of disputed evidentiary facts concerning the proceeding.” Judge Robinson’s knowledge did not come from an extrajudicial source; it came only from the revocation hearing. Knowledge acquired from judicial duties does not constitute grounds for disqualification.

The court also rejected Carlton's claims that there was a double jeopardy violation, and that his prior bank robberies should not have been admitted under Rule 404(b). Taken together, the similarities among the robberies established the existence of a pattern.

Comment

The big mystery here is why there is no discussion of the 50-year sentence. Was it challenged on appeal at all? Strange.

Discovery Channel

United States v. Siraj, No. 07-0224-cr (2d Cir. July 9, 2008) (Jacobs, Straub, CJJ, Jones, DJ)

This case holds that, under Fed.R.Crim.P 16(a)(1)(B)(i), a defendant is not entitled to discovery of police reports that memorialize his statements to an undercover officer.

Defendant Siraj was convicted of various offenses relating to his scheme to blow up a subway station in Manhattan. He was dealing largely with an undercover police officer, who would report their conversations to his handler; the handler would then memorialize Siraj’s statements in written reports. The government did not turn over those reports to the defense as pretrial discovery.

The relevant provision, Rule 16(a)(1)(B)(i), requires disclosure of “any relevant written or recorded statement by the defendant.” The court held that this did not cover the reports at issue. Oddly enough, however, the court did not analyze the claim under the language of Rule 16(a)(1)(B)(i) itself. Instead, it looked at Rule 16(a)(1)(B)(ii), which mandates discovery of all statements the defendant makes in response to interrogation by a known government agent. The court concluded that Siraj’s reading of subsection (B)(i) would make subsection (B)(ii) superfluous because “every statement discoverable under subsection (ii) would also be discoverable under subsection (i).”

Second, the court held that, since subsection (B)(ii) expressly makes discoverable only those statements made to known government agents, “Rule 16 implicitly excludes from its scope written memorializations of other oral statements such as those at issue here.”

Finally, the court rejected Siraj’s argument that a 1975 case, Johnson, under which the statements would have been discoverable, applied. Since Rule 16 did not have a provision like (B)(ii) at that time, the case did not govern here.

Comment

This decision is probably correct, although there are better reasons than those cited by the court. The real key here is the word “by” in Rule 16(1)(B)(i). That word seems to limit this provision to statements, or at least writings, attributable to the defendant himself, i.e. those he authored, and not accounts memorialized by others.

It should also be noted that this case is probably not as grave a problem for defendants as it would seem at first glance. It does not seem that Siraj is claiming that he did not get the reports at all. Although one cannot tell for certain from the opinion, it appears that he got the reports as Rule 3500 material of either the undercover or his handler, and that his only real complaint is that he wished he had received them sooner, which he would have under Rule 16. Unfortunately, careless drafting of the opinion makes it difficult to tell for sure. But, obviously, if Siraj got the reports as 3500 material, he would be hard pressed to claim prejudice about the timing of the disclosure. They were, after all, his own statements. The court would therefore not likely be sympathetic to a claim of unfair surprise.

No Sale

United States v. Wallace, No. 05-1424-cr (2d Cir. July 8, 2008) (Jacobs, Kearse, Katzmann, CJJ)

This short opinion holds that a drug purchaser who shares drugs with others socially commits a distribution offense, even though the defendant lacked a commercial purpose, because a distribution can take place without a sale. This is entirely consistent with the statutory language, under which “distribute” means “deliver,” which in turns means “transfer.”

The court also considered, and rejected, two novel arguments.

First, Wallace cited Lopez v. Gonzales, 549 U.S. 47 (2006), to support his claim that proof of commercial dealing is required. Lopez construed the phrase “drug trafficking crime” as used in the immigration statutes, and concluded that “commerce” had to be part of the offense. But that case construed a term - “trafficking” - that is not used in the statute under which Wallace was convicted.

Wallace also sought support in longstanding precedent holding that there is no distribution, where two individuals jointly acquire a drug for their own use. Wallace was not a simple “joint possessor.” He testified that he gave drugs to others that he had previously purchased on his own.

The Secret Guardin'

United States v. Aref, No. 07-0981-cr (2d Cir. July 2, 2008) (Jacobs, McLaughlin, CJJ, Sand, DJ)

In this terrorism prosecution, the court held that the district court can, for “good cause,” restrict a defendant’s access to discoverable material that might impact on national security concerns.

The court first noted that the relevant legal provisions, the Classified Information Protection Act and Fed.R.Crimp.P 16(d)(1), presuppose, without creating, a privilege against disclosing classified information. The privilege itself arises from the “common-law privilege against disclosure of state secrets,” and the court expressly rejected the notion - advocated by some in Congress - that this privilege does not apply in criminal cases. Rather, the court held, the privilege can apply in a criminal case, but it must “give way” when the evidence at issue is material to a criminal defendant’s right to present a meaningful defense.

First, a district court must decide whether the evidence is discoverable at all. Next, it must decide whether the state secret doctrine applies; it does when there is a “reasonable danger” that production of the evidence will expose evidence that, in the interest of national security, should not be exposed, and where the “head of the department” that has control over the matter has said so. If the material is discoverable and privileged, the court must next determine whether it is material to the defense; that is, useful “to counter the government’s case or to bolster a defense.” All of these rulings are reviewed on appeal for abuse of discretion.

Here, the circuit found no abuse of discretion, even though the government did not establish the privilege through the “head” of the relevant “department.” Here, this formality would have been of “little or no benefit.” On its own review, the court agreed that the district court did not deny the defendants any helpful evidence, and that the lower court permissibly relied on ex parte contacts with the government.

Relatedly, this decision also deals with NYCLU’s motion to intervene in the case. First, the court had to decide whether such a motion is even proper. It is, given the public’s First Amendment right to access to criminal proceedings. Since federal courts have the inherent power to formulate procedural rules to implement a remedy for the violation of recognized rights, “a motion to intervene to assert the public’s First Amendment right of access to criminal proceedings is proper.”

The court next held that the standard of appellate review of the disposition of such a motion is abuse of discretion, and that there was no abuse of discretion here.

Finally, the district court did not err in denying NYCLU access to its sealed orders and other documents relating to the privileged materials, although the court stressed that district courts should avoid sealing judicial documents “in their entirety” unless it is truly necessary.

Lethal Rejection

United States v. Fell, No. 06-2882-cr (2d Cir. June 27, 2008) (Walker, Cabranes, Parker, CJJ)

Donald Fell was not having a good day. During a card game, he killed his mother’s boyfriend, while his buddy, Charles Lee, killed Fell’s mother. Together, they then carjacked a car from a Vermont grocery store, drove to New York, and killed the car’s owner. Eight days later, they were arrested in Arkansas.

After Lee “accidentally[?]” hanged himself in prison, Fell faced a capital trial alone. He did not seriously contest his guilt, and was convicted. After a two-week penalty trial, the jury sentenced him to death, and Judge Sessions imposed that sentence. On appeal, Fell raised a series of challenges to the death sentence, all of which the court of appeals rejected.

Jury Selection

Fell’s primary complaint was that the district court improperly rejected for cause three potential jurors who were in fact qualified to serve. The court of appeals used a “substantial[ly] deferen[tial]” standard of review, in light of the district court’s “dependence on its direct observations of demeanor and subjective assessments of credibility,” and affirmed.

The first, Juror 64, had expressed strong reservations about the death penalty, but stated that she could nevertheless follow the court’s instructions and apply the law. Although viewing this as a “close[] call” the court found no error in her dismissal.

This juror had indicated, in a written questionnaire, that she strongly opposed the death penalty, although she could envision some circumstances, such as genocide or mass murder, that would warranted it. During voir dire, however, she indicated that she could follow the law and the “process,” although with further probing she vacillated somewhat, ending with a statement that she would “definitely lean more” toward life imprisonment. On the government’s motion, the judge excused her, finding that she could not be “fair and impartial.”

The circuit agreed. Although this juror said she could put aside her personal aversion to the death penalty and follow the law, she “walked a fine line” throughout her questioning. Accordingly, the district court’s conclusion that she could not be fair was within its “broad” discretion.”

The next juror, Number 141, indicated in the questionnaire that he was neither strongly in favor of nor strongly opposed to capital punishment. During voir dire, however, he several times said that he would not impose the death penalty absent evidence of premeditation. After extensive questioning, however, he reversed himself and indicated that he could consider a death sentence on the basis of reckless, but not intentional, conduct that resulted in death. The district court concluded that the question of this juror’s fairness was “so close” that it would be unfair to permit him to serve.

Again, the circuit found no error. The district court “properly
considered all of Juror 141's responses in the context in which they were given and did not err in concluding that his views would significantly interfere with his duties as juror.”

The last challenge was to Juror 195, who, in writing, indicated that she was a strong supporter of the death penalty. During questioning, however, she repeatedly expressed uncertainty as to whether she could impose it if the decision were in her hands. The district court properly excluded her because her inconsistent responses created a legitimate doubt that she could follow the court’s instructions.

Evidentiary Issues

The court rejected several claims relating to the district court’s evidentiary rulings.

The government had originally offered Fell a plea agreement that would have resulted in a sentence of life imprisonment. Fell and his attorneys signed it, but the government did not. It submitted the agreement to Main Justice for approval, but the Attorney General rejected it. Fell wanted to enter the proposed agreement into evidence, but the district court would not let it in. Instead, it permitted him to admit a stipulation that provided that he had unsuccessfully offered to plead guilty in exchange for a life sentence.

In summation, Fell argued that this stipulation showed that he had accepted responsibility, while the government argued, in rebuttal, and with no objection, that it did not. The government argued that Fell only offered to plead because he knew the evidence against him was overwhelming. The prosecutor also argued that the government had rejected the offer because it wanted a jury to decide the penalty, that Fell’s plea of not guilty forced the government to try him, and that Fell could still have pled guilty if he wanted to.

On appeal, the court upheld the exclusion of the plea agreement itself, describing the ruling as within the court’s “traditional authority” to exclude evidence of marginal relevance.

It was more troubled by the prosecutor’s rebuttal comments, but found no plain error. First, it found the record “virtually conclusive” that the jury understood that Fell was willing to plead guilty. Thus, the rebuttal did not open the door to the admission of the plea agreement itself.

The court separately analyzed the government’s arguments that, as a result of Fell’s pleading not guilty, the government had to try him, and that he could have pled guilty if he wanted to. The court began by warning that prosecutors are not supposed to make comments that “trench[] on the defendant’s constitutional rights and privileges.” Nevertheless, in a page surely copied right out of the government’s brief, the court characterized the government’s comments as simply an effort to place Fell’s use of the stipulation “in context,” and hence as a “reasonable” response to Fell’s own arguments.

Fell next claimed that the government, in its summation, improperly argued that the jury should reject mitigating evidence - in particular, that relating to Fell’s horrendous childhood - that did not relate to the crime itself. Although, in a footnote, panel revealed some disagreement as to whether the comments were even improper, the court in any event found no plain error. The district court’s instructions made clear that the jury must consider all of the mitigating information, that the arguments of counsel were not evidence, and that if those arguments differed from the court’s instructions the instructions controlled. Here, moreover, the verdict form indicated that the jury credited the mitigating evidence relating to Fell’s background and childhood.

The court also considered - and rejected - several other highly fact-specific evidentiary claims, most of which were not objected to below, and a claim regarding their cumulative impact: (1) the timing of a hearing on some expert testimony; (2) evidence concerning Fell’s apparent religious beliefs which, although troubling, was proper in “context” and not prejudicial; (3) out-of-court statements of his mother indicating that she was afraid of him - an “excited utterance”; and (4) Fell’s own out-of-court statements indicating a willingness to commit multiple murders and his desire to kill his mother, offered to rebut Fell’s claims regarding background.

Aggravating Factors

The court next held that three of the non-statutory aggravating factors, all of which related to Fell’s participation in the carjacking victim’s death, did not improperly overlap, even though they were supported by the same evidence.

The Indictment

The court rejected Fell’s argument that the indictment was defective because it did not allege the non-statutory aggravating factors. The court disagreed, holding that only those factors that comprise death eligibility - intent and statutory aggravators - need be alleged in the indictment.

CASH AS CACHE CAN

United States v. Jones, No. 05-5879-cr (2d Cir. June 24, 2008) (Leval, Cabranes, Raggi, CJJ)

In 2004, Jones was present in a “gatehouse” - an apartment used solely for the purpose of selling drugs - when Rochester police executed a search warrant. The officers found, inter alia, twenty-two grams of crack residue and $883 in cash hidden in the apartment. Jones admitted “selling a little.” Despite this admission, the jury convicted him only of simple crack possession.

At sentencing, the court held him accountable for possessing forty-seven grams of crack. This comprised the twenty-two grams of crack residue, plus an estimated twenty-five additional grams, which was based on the probable amount that Jones had sold to realize the $883.

The Appeal

Drug Quantity

On appeal, Jones argued, primarily, that it was unreasonable for the court to translate the money into drugs for the purposes of calculating drug quantity under the sentencing suidelines, an issue that, surprisingly, the court had never before addressed in a precedential opinion. It did so here, however, and affirmed.

The court joined eight other circuits to conclude that where the sentencing court finds by a preponderance of the evidence that seized currency is the proceeds of drug trafficking, it may “consider the market price for the drugs in which the defendant trafficked in determining the drug quantity represented by that currency.” Here, there was no error in the district court’s findings that: (1) Jones possessed the money; (2) the money was drug money, and (3) that, based on the price an informant had recently paid for crack from that same apartment, the $883 would have purchased about twenty-five grams.

Kimbrough to the Rescue

The court also held, however, that the district court committed a procedural error by apparently treating the guidelines for crack cocaine as presumptively reasonable, without recognizing its discretion to reject the notorious 100 to one ratio. Although the record was somewhat ambiguous, and the sentencing occurred before Rita, Gall and Kimbrough were decided, the court of appeals gave Jones the benefit of the doubt, and vacated the sentence.

Comment

This is a great decision, filled with unusually strong language about the sentencing court’s discretion in general and the crack cocaine guidelines in particular. Put it on your summer reading list!

Summary Summary

Here are June's first two summary orders of interest.

In United States v. Heredia, No. 07-0849-cr (2d Cir. June 20, 2008), the court agreed that introducing hearsay evidence as a prior consistent statement was error, but found the error to be harmless. In addition, the court condemned some of the prosecutor's comments in summation - he compared an omission in a stipulation signed by both parties to an omission in the arresting officer's memo book. This comment "falsely" implicated defense counsel in the government's error, misrepresented the police officer's testimony, and attempted to use defense counsel as a witness. Nevertheless, this too was harmless.

In United States v. Cammacho, No. 07-2370-cr (2d Cir. June 3, 2008), the court held that the sentencing record seemed to indicate that the district court incorrectly believed that it was required to make a supervised release violation sentence consecutive. The case was remanded for clarification.

Affirm Stance

United States v. Walker, 06-0594-cr (2d Cir. June 19, 2008) (Jacobs, Leval, Cabranes, CJJ)

The evidence at Walker's drug trial included: (1) recordings of two drug-related meetings with a cooperating co-defendant in which they discussed both past and future drug activity and in which the cooperator gave Walker money to pay for a previous shipment; (2) Walker's two detailed confessions about his drug dealing activities; and (3) the testimony of four of his associates.

In addition, a DEA agent testified, and it was this testimony that was the subject of the appeal. Here, the circuit agreed that the government elicited “numerous” instances of “improper testimony” from the agent. This included: (1) highly prejudicial statements about the DEA’s investigation of Walker; (2) information the agent developed that “corroborated” Walker’s guilt, such as hearsay reports from other agents that drug customers had implicated Walker; (3) lengthy testimony that cooperating witnesses and other informants had confirmed Walker’s involvement in drug dealing, again, all of which was hearsay; (4) the agent’s unfavorable assessment of Walker’s character; (5) the agent’s vouching for the credibility of other witnesses; and, perhaps most shockingly, (6) his "personal assurance that the government’s entire case was reliable.” The agent also “several times asserted his own belief that” Walker was guilty and “made direct assertions about” Walker’s drug dealing as if the agent had witnessed the activity himself, when in fact he had not.

The circuit carefully cataloged these numerous improprieties, and rejected the government’s theory of admissibility, which was that this was all "background" testimony. Here, the testimony was not properly admitted as “background,” since there was no need for that “background” to implicate Walker directly. For example, the agent could have testified that a coconspirator explained the provenance of the drugs he was selling, without going on to explain that the coconspirator had implicated Walker. Accordingly, the portions of the "background" evidence that “prejudicially incriminated Walker” clearly violated Rule 403.

What is most shocking about this trial, however, is not the government’s dirty tactics. It is that the defense did not object to any of it. Thus, on appeal, Walker had to surmount the plain error standard. The circuit cut the defense a bit of slack - it recognized that the government “ambushed” it by carefully crafting questions that would not give advance warning that the agent's answer would contain something improper. Accordingly, the defense often “did not have a fair opportunity to object until after the jury had heard the damaging matter, when it was already difficult to limit or cure the harm.” Nevertheless, the appellate court could not get past the fact that the defense let this all happen.

In the end, the court was genuinely torn as to whether it should reverse this conviction on plain error grounds. Here, the evidence “powerfully demonstrated the defendant’s guilt” and he did not “take steps to curtail the abusive practice.” On the other hand, the court did not want to “condone or reward an abusive disregard of the rules” by the government. In the end, it affirmed, in light of the overwhelming evidence of guilt. The court could not find plain error here, although it strongly hinted that it would have reversed if the testimony had been objected to.

Feckless Enganderment

United States v. Legros, No. 05-2828-cr (2d Cir. June 17, 2008) (Jacobs, Calabresi, Sack, CJJ)

When police officers responded to a “shots fired” radio call, they encountered three men. One of them, Legros, ran off, and tossed a gun along the way. That gun matched several spent shell casings recovered from the scene. A jury convicted Legros of being a felon in possession of a firearm.

At sentencing, he received the statutory maximum, 120 months; this was a guideline sentence - the range was 110 to 137 - that included a four-level enhancement for possessing the gun in connection with another felony offense. The theory advanced by the probation department (obviously just serving as a mouthpiece for the government) was that Legros had been shooting at someone named Christopher Passius, in a gang-related retaliation.

Legros contested the enhancement and, at a sentencing hearing, the government introduced, through a police officer, the hearsay statement of a witness who said he had seen Legros fire the gun. The statement indicated that there was a “crisis between Chris [Passius] and Herb [Legros]” and that “Herb was firing in the air.”

Based on this, the district court decided that Legros had either committed felony “reckless endangerment” or “aggravated assault.” The circuit, however, held that the court’s findings could not support either conclusion.

Under New York state law, the only felony involving reckless endangerment requires “circumstances evincing a deprived indifference to human life” along with reckless conduct “which creates a grave risk of death to another person.” Accordingly, the district court was required to find both that Legros created a “grave risk of death” and that he acted with a “depraved indifference to human life.” But here, the district court made no mention of either of these elements, and relied instead only on the fact that Legros fired a gun in the air in “a neighborhood.”

The circuit agreed with these, as findings of fact, but held that they could not, “standing alone,” support a finding of felony reckless endangerment. Absent a “further explanation from the district court,” its application of the enhancement based on felony reckless endangerment could not be affirmed.

Nor did the district court’s findings support its alternative holding - that Legros committed felony “aggravated assault.” There is no such crime in New York, although Legros might have committed attempted assault in the first degree, a felony, if he in fact fired shots at Passius. Here, however, as with the reckless endangerment, the district court “did not mention the essential elements of the offense or identify facts in the record that satisfied them.” Firing a gun “in the air” cannot support a finding of attempted first-degree assault. Moreover, although the police found a bullet from Legros’ gun found in a car parked nearby, there was no evidence that Passius, or anyone else, was in or near the car when the gun was discharged.

Shipping Bricks

United States v. Bermudez, No. 06-5119-cr (2d Cir. June 17, 2008) (Walker, Calabresi, CJJ, Underhill, DJ)

Richie Bermudez was convicted, after a jury trial, of being a felon in possession of a firearm. On appeal, he challenged an evidentiary ruling, as well as the district court’s jury selection method.

The Evidentiary Ruling

Police officers were watching Bermudez on the street in a high-crime area of the Bronx. The officers were in an unmarked car, and three of them overheard him tell an associate that he had “fresh bricks back at his apartment.” Shortly thereafter, they saw him open the trunk of his car and give a gun to someone named Delgado, at which point both were arrested. Delgado pled guilty to gun possession, was sentenced to seventy months’ imprisonment, and did not appeal.

Bermudez went to trial, and his first jury hung. At the retrial, he introduced Delgado’s testimony from a suppression hearing, where Delgado indicated that Bermudez was not the source of the gun. Nevertheless, he was convicted, and received the same sentence, seventy months, as Delgado.

On appeal, he challenged the admission of the drug-related statements as only marginally probative, and highly prejudicial. A majority of the panel disagreed. Since the entire defense theory was that the police were lying, the majority concluded that it was “important” for the government to establish why the police had focused on Bermudez that night. “Without a reasonable explanation for singling out Bermudez, the officers’ testimony as to everything that followed could have been suspect.” In addition, the district court gave two “detailed limiting instructions” that the “jury could reasonably be expected to comply with.”

In an extremely nuanced and thoughtful opinion (of the sort not typically seen in this circuit when it comes to Rule 404(b)), Judge Underhill dissented. He viewed the drug statements as improper “bolstering evidence” and noted that the district court did not rely on credibility in admitting them. “Simply offering an alternative version of events (or here, merely anticipating that the defense will do so) does not amount to a defense attack on the credibility of government witnesses, and certainly does not justify the admission of bolstering evidence during the government’s direct examination.”

Bermudez’ drug dealing was not “relevant to any of the substantive issues in this felon-in-possession gun case.” Here, although the majority make this clear, the government had called Bermudez a drug dealer in its opening, and had all three officers to testify about the drug statement before their credibility had been attacked by the defense. To this judge at least, permitting the government to preemptively bolster its witnesses’ credibility before it had even been challenged was both improper and unprecedented.

Not only did Judge Underhill view the evidence as irrelevant, he found that its probative value was surpassed by its prejudicial potential. “In my view, the officers’ motivation for watching Bermudez was entirely irrelevant, unless and until Bermudez attacked their credibility on the ground that they were not motivated to watch him,” which he never did.

Jury Selection

Bermudez also challenged the so-called “blind strike” method of jury selection, under which the parties simultaneously exercise their peremptory challenges, and thus do not know which jurors the other has struck. Here, since during one round, he and the government struck the same juror, he argued that he was deprived of the full use of his allotted number of challenges.

The circuit disagreed. The Supreme Court approved of this method in 1894, and there has been no intervening change in the law.

Withdrawal Syptoms

Today the court withdrew the opinion in Nnebe v. United States, No. No. 05-5713-pr (2d Cir. June 12, 2008), blogged below under the title "Role of Certs."

You Can't Get A Ten With A Gun

United States v. Whitley, No. 06-0131-cr (2d Cir. June 16, 2008) (Newman, Sack, Parker, CJJ)

Background

Whitley used a gun to rob a grocery store; during the robbery, the gun accidentally went off. He was convicted after a jury trial of robbery, possessing the firearm as a previously convicted felon, and discharging that same firearm in connection with a crime of violence, under 18 U.S.C. § 924(c)(1)(A)(iii). Because he was an armed career criminal, the felon-in-possession count subjected him to a fifteen-year mandatory minimum sentence (18 U.S.C. § 924(e)), and the district court also sentenced him to a ten-year consecutive sentence for discharging the gun, as required by § 924(c)(1)(A)(iii). This part of the sentence was the subject of his appeal.

The Court’s Ruling

Section 924(c)(1)(A)(iii), in pertinent part, provides that “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law,” a person who, inter alia, discharges a firearm in connection with a crime of violence is subject to a mandatory minimum ten-year sentence, which must be consecutive to any other sentence. Whitley argued that, since he received a fifteen-year mandatory minimum on the felon-in-possession charge, the “except” clause meant that he was not subject to the ten-year consecutive § 924(c) sentence.

Going against at least four other circuits, the appellate court agreed that a “literal reading” of the “plain meaning” of the statute supported Whitley’s claim. The court acknowledged that, where an illogical result or one manifestly not intended would be produced, literal adherence to a statutory text might not be warranted. But, except for the out-of-circuit cases on this issue, all of which went the other way, the court indicated that it knew of “no decision rejecting the literal meaning of statutory language to the detriment of a criminal defendant.”

Here, the court found, the plain text of the statute clearly exempted Whitley from the § 924(c) ten-year minimum, because he received a higher, fifteen-year mandatory minimum sentence on the felon-in-possession count.

The court also rejected the government’s arguments that the “design” of the statute, or its purpose, would be frustrated if it applied the statutory text literally. The court noted that its holding was not at all inconsistent with Congress’ purpose in enacting § 924(c). Rather, it concluded that in § 924(c), Congress “provided a series of increased minimum sentences and also ... made a reasoned judgment that where a defendant is exposed to two minimum sentences ... only the higher minimum should apply.” In fact, the court concluded that “such a sentencing pattern seems eminently sound.”

Finally, the court noted that its holding is particularly warranted because the higher mandatory minimum that exempted Whitley from the ten-year § 924(c) minimum was also for a firearms offense. It observed that most of the courts that have rejected this reading of the “except” clause did so where the defendant was subject to a narcotics mandatory minimum, but indicated that it the clause would apply where the other mandatory minimum sentence was for a gun charge.

Comment

This decision, although it probably reaches the right result, raises several vexing questions.

1. What About “to the extent”?

The main problem here has to do with the court’s supposedly “literal” reading of the statute. In fact, the court did not read the statute “literally” at all. What the statute actually says is that the § 924(c) minimums apply “except to the extent that a greater minimum” sentence is applicable to the defendant. Here, the circuit ignored the phrase “to the extent that” and replace it with something like “in a case where.”

But the phrase “to the extent that” must mean something. Although it is not very clear, perhaps what Congress was trying to do was prescribe that the minimum sentence ordinarily mandated by § 924(c) be reduced by the “extent” to which another minimum sentence exceeds it. Thus, for example, here, where Whitley was subject to a fifteen-year mandatory minimum on another count, five years - the “extent that” this exceeded his ten-year § 924(c) minimum - should be deducted from the § 924(c) sentence, leaving him with a five-year mandatory (and consecutive) sentence on the § 924(c) count. While this reading is not perfect (in some cases this method would result in a negative number on the § 924(c) count, which would then have to be treated as a zero), and would certainly not be in Whitley’s interest, it seems to be closer to what Congress actually wrote.

2. What About the Rule of Lenity?

A better way to have decided this case, rather than relying on a “literal” reading that is not literal at all, would have been under the rule of lenity. It really is quite difficult to figure out the meaning of this statute. In fact, there are now at least three different interpretations of the statute spread among four or five circuits. Given this, it would have been much better for the circuit to call the statute ambiguous, which it is, and give Whitley the benefit of the doubt under the rule of lenity.

3. What About Drug Cases?

The most frustrating thing about this case is that it refuses to say with any clarity whether this same “literal” reading would apply in the much more common situation where the defendant faces a mandatory minimum sentence for a drug count that is longer than his § 924(c) mandatory minimum.

The decision seems to be pulling in two different directions on this. First, it suggests that limiting the “except” clause to cases where the other mandatory minimum is for a firearms offense might address some of the supposed anomalies that the government pointed out, and also notes that two other circuits have read the statute this way.

But it also requires a “literal” reading of the “except” clause, which waives the § 924(c) sentence where a higher minimum is provided “by any other provision of law.” This "literal" reading would seem to mean that there cannot be a “firearms only” limitation.

The court should have done a better job of explaining itself. Now it is going to have to decide another one these cases.

4. So What Is the Penalty for § 924(c) When the “Except” Clause Applies?

Finally, this case presents one last conundrum. Taken at face value, it holds that, in cases where the “except” clause applies, a conviction under § 924(c) has no penalty. The opinion clearly states that taking the “except” clause literally does not merely excuse the consecutive nature of § 924(c) sentences - it excuses the entire penalty: “If the ‘except’ clause is read literally, those less-than-fifteen year minimum punishments would not be imposed at all.”

It seems odd that there could be a criminal conviction - and a serious one, at that - for which there is no authorized penalty at all. It also bears noting that, under this decision, there is no guideline recommendation for such offenses either, since under the guidelines the sentence for a § 924(c) violation is whatever the statute requires.

The court’s solution to this is to suggest that the sentencing judge can simply increase the sentence on other counts. This seems like an odd solution, since it is hard to see how this would be consistent with § 3553(a).

Out of Hindsight

Parisi v. United States, No. 06-1148-pr (2d Cir. June 13, 2008) (Winter, Hall, CJJ, Oberdorfer, DJ)

In this 2255 appeal, the defendant unsuccessfully argued that his counsel was constitutionally ineffective for failing to move for dismissal based on a Speedy Trial Act violation.

Facts

In 2001, Parisi was charged, in a complaint, with child pornography-related offenses. Although, under the Speedy Trial Act, the government had thirty days within which to indict him, the indictment was not filed until nearly 200 days later. During that period, counsel executed three “stipulations” seeking sixty-day continuances for plea negotiations. Each stipulation agreed that the ends of justice to be served by the delay would outweigh defendant’s and the public’s right to a speedy trial. The district court “so ordered” each stipulation.

In 2003, Parisi pled guilty under a plea agreement that included an appellate waiver, and received a 150-month sentence. He later filed a 2255 motion arguing that his attorney was ineffective in failing to make a speedy trial claim based on the delay between the complaint and indictment. While the 2255 matters were pending, the Supreme Court decided Zedner v. United States, 547 U.S. 489 (2006), under which the “so ordered” ends of justice findings were almost certainly invalid.

The Court’s Resolution of the Motion

The court first had to consider whether the claim was waived by the plea agreement. While a straightforward speedy trial claim would be waived, here the ineffectiveness claim was not. The court construed it as a claim that counsel "was ineffective in advising [Parisi] to accept the plea agreement rather than advising him to move to dismiss the indictment with prejudice based on alleged Speedy Trial Act violations." This survived the guilty plea and the appeal waiver because, "by focusing on the advice Parisi received from his attorney, it connects the alleged ineffectiveness of Parisi’s attorney with the voluntary nature of his plea."

Nevertheless, the court found no Sixth Amendment violation. It agreed that Zedner “serves as a reminder that the district court has an obligation independently to determine whether a continuance serves the ends of justice,” and that there was a “strong argument” that such an independent determination did not occur here, particularly since, under Zedner, the mere agreement to the continuance by the parties does not satisfy the Act.

Nevertheless, there was no ineffectiveness. Counsel did not act unreasonably in failing to anticipate Zedner, which was decided some five years later. Even today, if the circuit were to hold that the stipulations did not have the effect of stopping the speedy trial clock, it would be “articulating law on a previously unaddressed question.”

Recuse Me

United States v. Hasarafally, No. 06-4239-cr (2d Cir. June 12, 2008) (Cardamone, Sotomayor, Raggi, CJJ)

The defendant moved in the circuit to disqualify the entire justice department from representing the government on this appeal, because the judgment under review was rendered by Judge Mukasey, who is now Attorney General.

The court denied the motion. It began by noting that there was “very little precedent” on the “potential conflict of interest created by the transition from judge to prosecutor.” The court surveyed a few possible areas of conflict, but skipped the most obvious one: A prosecutor will be unlikely to confess error on appeal if he was the trial judge in the case.

In any event, here there is no possibility for conflict because, the government advises, the attorney general has recused himself “from all matters in which he participated as a United States District Judge.” Thus, he will play no role in this appeal, and in the unlikely event that supervision at the level of the Attorney General’s office becomes necessary, someone else will do it.

This screening process is adequate, particularly given the enormous burden on the government and the public in disqualifying the entire department of justice.

Role of Certs

This pair of decisions, both arising from 2255 motions, gives helpful guidance on counsel’s obligations to file a petition for a writ of certiorari.

In Pena v. United States, No. 06-0218-pr (2d Cir. June 12, 2008) (Jacobs, Parker, Wesley, CJJ)(per curiam), the court held that a retained attorney was not ineffective for failing to advise his client of the right to seek certiorari. While the Sixth Amendment right to counsel covers a first-tier appeal, there is no constitutional right to counsel beyond that. Seeking certiorari is the first step in the non-Sixth Amendment discretionary appeal, and not the last step in the first-tier appeal. Accordingly, Pena’s counsel was not ineffective in failing to inform him of his right to seek certiorari.

The court noted that the Criminal Justice Act imposes greater obligations on appointed counsel. But since Pena’s counsel was retained, that statute did not apply. That said, the court advised that “as a matter of sound professional practice, retained counsel representing federal criminal defendants” in the Second Circuit “should, like their [appointed] counterparts, inform their clients of the availability of, and the process for, pursuing certiorari review and assist them with filing appropriate certiorari petitions, if retained to do so.”

In Nnebe v. United States, No. 05-5713-pr (2d Cir. June 12, 2008), the same panel, this time in a decision authored by Judge Parker, considered the same issue in a case where counsel was appointed.

After Nnebe’s conviction was affirmed by the circuit, appointed counsel wrote to him and explained that the next step was to seek certiorari. Counsel enclosed a draft cert petition and a form motion for IFP status. Nnebe returned the IRP motion, but counsel did not respond and, without telling his client, never filed the cert petition. Nnebe ultimately sought 2255 relief.

The circuit held that Nnebe’s counsel violated the Criminal Justice Act, which sets out appointed counsel’s duties with respect to cert petitions. The difficulty here was Nnebe had sought relief under § 2255. But there was no constitutional violation, and the “complete miscarriage of justice” exception for non-constitutional errors did not apply because Nnebe could not show prejudice. His cert petition would “almost certainly” have been denied.

Taking its cue from Wilkins v. United States, 441 U.S. 468 (1979), the court construed Nnebe’s appeal as a “motion to recall the mandate and vacate [its] judgment so that a new one can be entered,” which it granted. This will give Nnebe a chance to file a timely cert petition. Given its “construction” of the appeal, the court indicated that it would be “illogical” to continue treating the case as if based on a § 2255 motion, thus Nnebe was relieved of the need to show prejudice.

The court’s final word was a reminder that “recalling a mandate is an unusual remedy intended for extraordinary circumstances.” But this case was extraordinary. The defendant acted with diligence and “proffered compelling documentary evidence” in support of his claim.