Hire Today, Gone Tomorrow

United States v. Lee, No. 05-1684-cr (2d Cir. December 3, 2008) (Straub, Hall, CJJ, Haight, DJ)

Here, a divided panel found that a Crawford error required a new trial for two defendants convicted in a murder-for-hire conspiracy, although the evidence was legally sufficient.

Background

Defendant Williams was the head of a crack-cocaine ring operating in the Bronx. Defendant Lee was one of his dealers. The target of the conspiracy was Kawaine Ellis, who stabbed Lee in the chest in June of 2001. In November of 2001, Williams rented three cars at Newark Airport. Lee was pulled over while driving one of them, and was carrying a gun, which he told the police he had for “protection.” Around that same time, Williams spoke to another member of his crew, Jason Lawton, and told him to return a gun to Williams because Lee had “just got bit,” meaning that he had been stabbed or shot.

About two months later, Maurice Clarke was arrested on gun charges. He told a detective that he had been hired to kill Ellis; he was given a gun and was driven around by someone else who was looking for Ellis, whom they could not find, and was paid for his time. Clarke later said that he would invoke his Fifth Amendment rights if called to testify, so his statement was admitted into evidence through the detective as a statement against Clarke’s penal interest.

In March of 2002, one month after Clarke’s arrest, Orlando Gordon, one of Lee’s drug associates - he bought crack from and sold marijuana to Lee - was assaulted by “Mel,” a member of Lee’s crew. Gordon and Lee spoke about their respective assailants, Ellis and Mel, and discussed a “body for body” swap, under which Lee would deliver Mel to Gordon and Gordon would deliver Ellis to Lee. Gordon, a confidential informant, recorded a conversation with Lee about this plan and, during the conversation, Lee could be overheard placing a call to someone else asking for a “favor” to be “taken care of” - the shooting of Ellis. Lee and Gordon discussed this plan a bit more, but nothing came of it.

The Crawford Error

The court of appeals agreed that the admission of Clarke’s statement through the detective was a Confrontation Clause error under Crawford. Moreover, the error was preserved - although the trial was pre-Crawford, the defense expressly mentioned Confrontation Clause concerns when arguing against the admission of the statement. The court also concluded that the error was harmless.

Effect of the Error on Williams

The majority had little trouble concluding that the admission of Clarke’s statement “contributed to the verdict” against Williams. The only evidence against Williams, absent the hearsay, was that he rented a car and gave it and a gun to Lee, and that he later retrieved a gun from another member of the crew because Lee had “just been bit.” Only Clarke’s statement tended to suggest that Williams gave the car and gun to Lee to help Lee get back at Ellis. “Without the Clarke testimony there is absolutely no indication that the ... car and gun incidents involved a hired killer.” This was true even though Clarke’s statement did not explicitly mention Williams or Lee. A “reasonable juror” could have drawn precisely this inference, and the prosecutor encouraged the jury to do so. Since Williams was not implicated in Lee’s later discussions with Gordon about having Ellis shot, Clarke’s statement was “critical to Williams’ conviction.”

Effect of Error on Lee

The harmless error question was “closer” as to Lee because his conversation with Gordon made is clear that he was “orchestrating a plot to have Ellis shot.” Nevertheless, the majority vacated Lee’s conviction because there was very little evidence that the plan with Gordon included promising something of value to the shooter, an element of the offense of conviction. When Lee called the shooter during his conversation with Gordon, he spoke of shooting Ellis as “a favor for a favor.” This was not sufficient to establish the pecuniary value element.

While there was some other evidence that might have referred to the pecuniary value element - a mention that Lee was “spending more money” - the probative force of that evidence was weak, given that Lee was purchasing marijuana from Gordon at the time of their interactions. Moreover, the government repeatedly referred to Clarke as a “hired killer” who was “paid” to kill Ellis. Since Clarke’s statement “clearly” established the pecuniary value element and the other “money” reference was ambiguous, the government did not establish beyond a reasonable doubt that Clarke’s statement did not contribute to the verdict against Lee.

The Dissent’s View

Judge Straub disagreed. On his review of the record, Clarke’s statement did not contribute to the verdict against either defendant. He viewed the statement as “relatively unimportant to the” government’s case since, it did not “connect either defendant to a murder for hire conspiracy.” Rather, it “only established how far such a conspiracy, irrespective of its participants might have progressed.”

Sufficiency of the Evidence

On the other hand, the court held that the evidence against the defendants, including the Clarke statement, was sufficient. For this, the court turned to United States v. Hardwick, 523 F.3d 94, 101 (2d Cir. 2008), a highly similar case (blogged below under the title For Your Consideration), which held that sufficiency review should take into consideration improperly admitted evidence - a principal not without controversy. Here, a reasonable trier of fact could have found that Williams rented the car and gave the gun to Lee as part of plan for Lee to avenge his stabbing by Ellis. Clarke’s statement could reasonably be interpreted as relating to that plan, and thus that Williams and Lee were “involved in a conspiracy to pay Clarke to murder Ellis.”

How Not To Seek A Change Of Counsel

United States v. Salim, No. 04-2643-cr (2d Cir. December 2, 2008) (Newman, Walker, Sotomayor, CJJ)

With the help of a cellmate, defendant Salim, while awaiting trial for the bombing of the United States embassies in Kenya and Tanzania, abducted an MCC guard and stabbed him in the eye with a sharpened comb, nearly killing him. He pled guilty to conspiracy and attempted murder of a federal official. Although Salim had originally claimed that this was a botched escape attempt, at the Fatico hearing, his story changed. He testified that he abandoned the escape plan as unworkable; rather his goal was to take the guard’s keys, unlock the attorney-client visiting room, and attack his attorneys so that they would withdraw from the case. Salim had indeed, on several occasions, unsuccessfully sought a substitution of counsel from the district court.

The district court credited Salim’s story; it held that the assault was not an escape plan, but rather was a plan to force a change of counsel. In calculating Salim’s sentence, the court imposed a 3-level official victim enhancement, a 2-level obstruction of justice enhancement, and a 3-level restraint enhancement. It declined to impose the terrorism enhancement of U.S.S.G. § 3A1.4, however. Both sides appealed, and the court affirmed as to Salim’s claims, but reversed on the terrorism enhancement.

The Terrorism Enhancement

Guideline section 3A1.4 provides for a dramatic enhancement if the “offense is a felony that involved, or was intended to promote, a Federal crime of terrorism.” The guideline adopts the definition of “Federal crime of terrorism” contained in 18 U.S.C. § 2332(g)(5): a crime that “is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct” and that is a violation of certain enumerated statutes, including the one to which Salim pled guilty.

The district court concluded that the attack on the guard was “in furtherance of his intent to affect or influence [the district court’s] decision about substitution of counsel, and was in retaliation for judicial conduct denying [his] applications for substitution of counsel.” It refused to impose the enhancement, however, because it also held that the enhancement only applied to “conduct transcending national boundaries,” which did not occur here.

The circuit reversed. The district court distilled this extra requirement from 18 U.S.C. § 2332b(f), which gives the attorney general “primary investigative responsibility” for all “Federal crimes of terrorism” ... “[i]n addition to any other investigative authority with respect to violations of this title.” The lower court concluded that this section would be meaningless unless “Federal crime of terrorism” referred only to crimes involving transnational conduct because other sections of title 18 already give the attorney general “broad authority to investigate” intra-national crimes. Thus, the “addition[al]” authority referred to in § 2332b(f) must refer to transnational crimes.

The circuit disagreed, since no transnational conduct requirement is contained in § 2332(g)(5), the definition selected by the Sentencing Commission. Moreover, the district court’s construction of § 2332b(f) was itself erroneous. That section does not give the attorney general additional investigative “authority” for Federal crimes of terrorism, it gives him “primary investigatory responsibility” for them. And “[w]hatever” that phrase means, it is “plainly distinct” from “investigative authority” because “it envisions an authority expressly superior to that possessed by another actor.” It is “not meaningless” to give an officer “primary investigative responsibility over a certain category of crimes, even if he has pre-existing authority to investigate the same crimes.”

Salim also argued that the enhancement should not apply because the rulings of a judge do not constitute “government conduct” under § 2332(g)(5). The court found this claim “patently meritless.” A federal judge is a “government official,” and thus the “conduct of government” includes judicial rulings.

The Obstruction Enhancement

The district court found that Salim lied at the Fatico hearing about his motive for the attack when he testified that his intent was merely to force his attorneys to resign and not to influence the district court’s determination about whether to grant a substitution of counsel.

An obstruction enhancement based on this finding was proper. Salim’s main argument on appeal was that his motive for attempting to attack his attorneys was immaterial, because he pled guilty only to attacking the guard. But this relied on an “impermissibly narrow notion of materiality.” The issue under consideration was whether the terrorism enhancement applied, which in turn required the court to consider the purpose of the attack. For the obstruction enhancement, a statement is material if it “would tend to influence or affect the issue under determination.” Since motivation is clearly a factor in the terrorism enhancement, Salim’s statements were material.

They were also false. The district court did not clearly err in concluding Salim’s testimony that he believed that a change of counsel could be effectuated unilaterally by his counsel was a lie. Finally, the district court made adequate findings as to every element of the enhancement, including intent.

Official Victim

Salim challenged this enhancement on the ground that there was no evidence that the attack was motivated by the guard’s “official status.” But Salim clearly knew of the guard’s status, and testified that he was trying to obtain a key that the guard possessed only as a result of his official status. This satisfied the enhancement.

Restraint

Salim claimed that, since he did not restrain the guard until after he had been disabled by the stabbing, the restraint enhancement should not apply. The circuit disagreed: “Handcuffing a victim and locking him in a cell after a potentially lethal attack prevents a victim from seeking aid and thereby adds to the underlying offense of attempted murder.”

The Waist Band

United States v. Padilla, No. 07-5359-cr (2d Cir. December 2, 2008) (Raggi, Calabresi, CJJ, Keenan, DJ)

October is the cruellest month. That’s when a New York City detective recovered a gun from Hector Padilla’s waistband. Padilla was sentenced to 120 months’ imprisonment, the statutory maximum. On appeal, his principal challenge was to the stop-and-frisk.

The Terry Stop

The detective, who was on surveillance in a “high-crime” area, became suspicious when he saw Padilla and another person following a “skinny,” “disheveled” white male down a secluded wooded path. The officer thought either that the two men were planning to rob the disheveled man or that the three were going to engage in a drug deal together. The officer drove around the block; when he saw the three again they were on the other side of the path and appeared to be walking as a group. This did not dispel his suspicions. It was still possible a robbery could take place; it was also possible that a drug deal had occurred during the time the three were out of view. Moreover, as he pulled up, he saw Padilla adjust something in the center of his waistband. The object appeared heavy, and Padilla’s motion was “consistent with the adjustment of a gun lodged in one’s waistband.” Accordingly, the detective and his partner drew their guns and ordered all three men to place their hands on the police car. The detective immediately patted down Padilla and, feeling a “hard object shaped like a gun,” recovered a .38 caliber revolver.

The Court’s Ruling

The circuit agreed with the district court that there was reasonable suspicion both for the stop and the frisk. As for the stop, the detective was justified in believing that Padilla and his accomplice might be targeting the disheveled man for a robbery or that a drug deal was about to take place, particularly given the “high-crime nature of the neighborhood.” Moreover, the detective’s explanation of why he continued to be suspicious after the men emerged from the path was “reasonable.” Thus, the officer’s concerns were not based on an “inchoate and unparticularized suspicion or hunch.”

The frisk was also justified. Given his police experience, including prior arrests of armed individuals and the “regular sight of his fellow officers adjusting concealed firearms,” it was reasonable for the detective to suspect that Padilla was carrying a gun. Nor was the court persuaded that Padilla’s gesture was “ambiguous.” The detective testified that the adjustment was not consistent with any of the innocent explanations proposed by defense counsel at the hearing; even if it were, the “distinctive” nature of the waistband adjustment provided the detective with reasonable suspicion that Padilla was armed.

Embassy Suite

In re Terrorist Bombings of U.S. Embassies in East Africa, No. 01-1535-cr (2d Cir. November 24, 2008) (Feinberg, Newman, Cabranes, CJJ)

This trio of long opinions, captioned In re Terrorist Bombings of U.S. Embassies in East Africa, resolves the appeals of the defendants convicted of the embassy bombings in Kenya and Tanzania in 1998. One opinion deals with trial and sentencing issues, the second deals specifically with Fifth Amendment claims, and the third deals specifically with Fourth Amendment claims. The convictions of all defendants were affirmed, although one defendant asked for, and received, a Fagans remand.

The Trial Opinion

This opinion covers a host of issues, some of which are surprisingly mundane and are treated rather cursorily by the court. A few, however, are more interesting and are discussed here.

1. The Capital Indictment

Defendant Al-'Owalhi was charged with capital offenses. Although not sentenced to death, he challenged the sufficiency of the capital counts in the indictment. Specifically, he claimed that those counts did not sufficiently allege statutory aggravating factors, as required by Ring v. Arizona, 536 U.S. 584 (2002). The circuit found that the indictment was sufficient, because each capital count alleged the requisite intent and at least one statutory aggravator.

2. The Classified Information Procedures Act

Defendant El-Hage raised a number of claims relating to the procedures the district court invoked under CIPA. He first claimed that the district court erred in limiting access to classified information to persons with a security clearance. While El-Hage’s attorney received such a clearance, he himself did not. As a result, there was evidence that only his counsel could see. The court held that CIPA authorizes such limitations “as long as the application of this requirement does not deprive the defendant of evidence that would be useful to counter the government’s case or bolster a defense.” Here, the district court committed no error in imposing a security clearance requirement given the nature of the case.

El-Hage also argued that the security clearance requirement violated both his Fifth and Sixth Amendment rights. The circuit disagreed. It first noted that the materials at issue were not discoverable under Rule 16 and that, even if they had been, El-Hage’s interest in personally inspecting them was outweighed by the government’s interest in avoiding disclosure of matters that, in the interest of national security, should not be divulged. Indeed, the “production of materials to a party’s attorney alone falls within the common meaning of ‘discovery.’” Moreover, here, the government agreed to stipulate to the information that El-Hage sought to introduce, stipulations that in some instances were better for El-Hage than the actual evidence. Accordingly, there was no violation of his right to present a defense.

Nor did the restriction violate El-Hage’s right to counsel; it fell within the narrow category of situations where a court can restrict a defendant’s ability to consult with his attorney. Here, El-Hage’s attorneys were permitted to share the relevant facts with him, even though they could disclose the actual materials.

Finally, El-Hage’s exclusion from the district court’s CIPA hearings did not violate his Fifth Amendment right to be present. The justification for doing so was compelling - the need to avoid jeopardizing lives through the unauthorized disclosure of sensitive information. Moreover, El-Hage’s ties to Osama Bin Laden created a strong reason to doubt that he could keep the classified information confidential. His attorneys were present and permitted to participate in the hearings, and the matters at issue “bore no relationship at all to the question of [his] guilt or innocence.”

3. Severance

El-Hage also argued that his case should have been severed from the death-eligible defendants for trial. The circuit rejected out of hand his claim that he was prejudiced by being tried by a “death qualified” jury. It also rejected his claim that his defense and theirs were antagonistic because the death-eligible defendants “attempted to rationalize the targeting” of the embassies and “elicited evidence about the violent nature of al Qaeda” in an effort to “emphasize their lesser culpability.” El-Hage claimed that this prejudiced him because it represented an attempt to justify acts that he considered unjustifiable and because it undermined his claim that he was unaware of the violent agenda of his Al Qaeda associates. But the circuit found “no conflict” between El-Hage’s position and his co-defendants' strategy.

4. Post-Conviction Disclosure of a Prosecution Witness’ Statements

Several months after trial, the government discovered that twelve of the government’s pretrial teleconferences with a cooperating witness had been videotaped by that witness’ liaison to the witness security program. After the government received the videos, they transcribed them and turned them over to the defense. El-Hage then moved for a new trial under Rule 33.

The circuit found no abuse of discretion in the denial of that motion. First, those responsible for the discovery violation were not the prosecutors, but representatives of the United States Marshals service, who did not intentionally commit a discovery violation; indeed, they had “no idea they were” obligated to produce the tapes. In addition, there was no reasonable probability that the result would have been different if the evidence had been disclosed before trial.

5. Sentencing Issues

El-Hage challenged several aspects of the district court’s calculations under the sentencing guidelines. Of particular note was his claim that the hate crime enhancement should not apply.

El-Hage received the hate crime enhancement because he selected his victims based on their national origin. His primary argument was that his victims were selected out of his political beliefs, and not out of hatred. But the “line ... between political activism and hate as the basis for the selection of his victims is a false distinction.” The enhancement does not turn the defendant’s motivations; it turns on intent. As long as the defendant intentionally selected any victim on the basis of one of the listed factors, there is no “good reason” for doing so, and the enhancement applies.

He also argued that he selected victims based on their United States citizenship, and not their national origin. This was “[e]ven less persuasive,” since the jury found that he conspired to murder “nationals of the United States,” and there are categories of persons who are nationals, but not citizens. In any event, there was no evidence that al Qaeda distinguished between United States citizens and others with ties to the United States, thus no evidence that the conspiracy in fact selected its victims based on citizenship and not national origin.

The court rejected all of El-Hage’s other sentencing claims, but, as noted above, granted him a Fagans remand since the district court treated the guidelines as mandatory, and the error was preserved.

The Fifth Amendment Opinion

Two defendants were interrogated by U.S. representatives abroad, and raised Fifth Amendment challenges to the introduction of the resulting statements at trial.

The circuit agreed that the Fifth Amendment’s self-incrimination clause prohibited the use at an American criminal trial of involuntary statements taken by agents of the United States in foreign countries. Here, however, there was no credible claim that the statements were actually coerced or involuntary; the issue was whether, and to what degree, Miranda applied. The circuit “assumed” but did not actually hold, that the Miranda “framework” should apply to U.S.-conducted interrogations overseas: “we proceed on the assumption that the Miranda ‘warning/waiver’ framework generally governs the admissibility in our domestic courts of custodial statements obtained by U.S. officials from individuals during their detention under the authority of foreign governments.” But, given the variations in foreign law with respect to the right to counsel, there is a great deal of flexibility in how the warnings can be worded.

Here, the defendants were correctly advised that they had the right to remain silent, were not required to speak at all, and that if they did speak their statements could be used against him. There was some difficulty, however, as to how the right to counsel was explained. Both defendants were initially given an advice of rights form (the “AOR”) that explained that, in the United States, they would have the right to speak to attorney, to have the attorney present during questioning, and to have counsel appointed before any questioning, but that because they were not in the United States, there was no way to “ensure” that counsel could be appointed before questioning. A short time later, each was read standard Miranda rights by an AUSA.

The district court found significant problems with the AOR’s treatment of the right to counsel - in that court’s view the AOR seemed to indicate that the arrestee had no opportunity to obtain counsel before or during questioning. The circuit did not think that the AOR was that bad - it did not indicate that counsel was unavailable, only that because the suspects were not in the United States, under local law the U.S. agents “could not ensure” that counsel would be appointed. That said, the court noted that the “advice as to the right to counsel could have been made clearer.” U.S. agents working abroad are not required to study local criminal procedure and urge local authorities to provide counsel, if requested, so as to “replicate” Miranda. The agents are supposed to be a source information to the suspects, not their advocates. Thus as long as they advise them of their rights under the U.S. Constitution and the procedures through which they might vindicate those rights locally, Miranda is satisfied.

The court also suggested alternative language for the AOR to avoid any future misunderstanding by a suspect. The AOR should state what rights are available, not what rights would be available had the interrogation occurred in the United States. The circuit’s suggested AOR would inform suspects that whether they can retain counsel, have counsel appointed, or consult with counsel before questioning depends on local law.

The Fourth Amendment Opinion

Defendant El-Hage, a United States citizen, argued that the warrantless search of his residence in Nairobi, Kenya, and the warrantless monitoring of his Kenyan telephone lines, all by U.S. agents, violated the Fourth Amendment. The circuit held that the Fourth Amendment’s warrant requirement does not apply to foreign searches of U.S. citizens by U.S. agents; such searches “need only satisfy the Fourth Amendment’s requirement of reasonableness.”

The court offered several reasons for recognizing an exception to the warrant requirement for “foreign soil” searches. First, “nothing in our history or precedents” suggests that U.S. agents must obtain a warrant in a domestic court before conducting an overseas search. Second, “nothing in the history of the foreign relations of the United States would require that U.S. officials obtain warrants from foreign magistrates before conducting searches overseas or, indeed, to suppose that all other states have search and investigation rules akin to our own.” Third, “if U.S. judicial officers were to issue search warrants intended to have extraterritorial effect, such warrants would have dubious legal significance, if any, in a foreign nation.” Finally, there is no apparent authority for U.S. judicial officers to issue warrants for overseas searches.

Here, the warrantless searches were reasonable, and in fact El-Hage did not “explicitly contest the District Court’s reasonableness determination.” The intrusions into El-Hage’s privacy were outweighed by the government’s “manifest need to monitor his activities as an operative of al Qaeda because of the extreme threat al Qaeda presented, and continues to present, to national security.”

The search of El-Hage’s home occurred during the daytime, in the presence of his wife, and was limited in scope. It “was not covert,” was under the authority of a “Kenyan warrant authorizing [a search],” and the agents gave his wife an inventory of the items seized. Moreover, the search occurred only after several months of investigation revealed that El-Hage was an al Qaeda operative; thus, it was not based on a “whim” or an “unsubstantiated tip.”

The monitoring of El-Hage’s telephone lines was also reasonable, even though it lasted a year, covered many calls made for social, family or business purposes, and the surveillance was not properly “minimized.” The court recognized the “significant invasion of privacy” that El-Hage suffered. Nevertheless, the court agreed that this invasion was outweighed by the government’s interest in investigating “threats to national security presented by foreign terrorist organizations.” Organizations like al Qaeda - “complex, wide-ranging, and decentralized” - require sustained and intense monitoring. Moreover, foreign intelligence must “delve into the superficially mundane because it is not always readily apparent what information is relevant.” In addition, terrorists often “communicate in code, or at least through ambiguous language” and decoding their messages is “further complicated” by the fact that the communications occur in foreign languages.

Simply Possession

Alsol v. Mukasey, No. 07-2068-ag (2d Cir. November 14, 2008) (Calabresi, Straub, Raggi, CJJ)

This decision, although an immigration case, clarifies an important legal issue that also arises in criminal cases.

Here, each petitioner had been convicted of two New York State drug misdemeanors involving simple possession of a controlled substance. The immigration courts, relying on the circuit’s decision in United States v. Simpson, 319 F.3d 81 (2d Cir. 2002), held that the second simple possession misdemeanor was a “drug trafficking crime,” and hence an aggravated felony, because such an offense could have been prosecuted as a felony under federal law. The immigration consequences were profound, as each defendant was denied “cancellation of removal,” the only available relief from deportation.

The circuit disagreed, however, and granted the two petitioners relief. The relevant immigration statute, 8 U.S.C. § 1101(a)(43), includes as an aggravated felony any “drug trafficking crime,” a phrase that includes any “felony punishable under” the Controlled Substances Act, 21 U.S.C. § 801 et seq. (the “CSA”). Under the CSA, simple possession of controlled substance, generally, is a misdemeanor. However, if a person commits simple possession of a controlled substance after a prior conviction for any drug offense, he can be exposed to a felony under the CSA if the government invokes, and the court complies with, the notice procedures set out in 21 U.S.C. § 851.

But that a second state controlled substance misdemeanor could be prosecuted as a felony in federal court under the CSA is not enough. The question is not whether the state conduct could have been charged and punished as a federal felony; rather, only a “state offense of conviction that is [itself] punishable as federal felony is an aggravated felony.” Under the “categorical approach,” the inquiry is limited to the elements and nature of the state offense, and not the particular facts underlying it. Accordingly, the “fact of recidivism must be reflected in the conviction the government seeks to classify as an aggravated felony, not merely in petitioner’s underlying conduct.” Where an alien has been convicted of simple possession of a controlled substance and did not either admit his status as a recidivist or have it determined by a court or jury within the prosecution for the second offense, there is no conviction for an aggravated felony.

The court went on to make clear that the contrary language in Simpson was dictum; it was “not necessary to the analysis” or holding of that case.

Confrontational

United States v. Figueroa, No. 06-1595-cr (2d Cir. November 18, 2008) (Kearse, Sack, Hall, CJJ)

In an interesting companion to Brinson v. Walker [blogged below under the title "Confrontation Claws"], the court treated a highly similar issue, this time under both the Confrontation Clause and the federal rules of evidence.

At Edwin Figueroa’s gun possession trial, he wanted to cross-examine a government witness about the fact that the witness had swastikas tattooed on his body. Since Figueroa was a member of a minority group, he argued that the tattoos would show that the witness was biased. Citing Rule 608, the district court precluded the questioning as inadmissible evidence of “bad character.”

On appeal, the circuit disagreed, holding that precluding the cross-examination violated the Confrontation Clause. “Inasmuch as the tattoos suggested that [the witness] harbored animus against racial or ethnic minority groups and their members, they were relevant to and probative of [his] credibility, bias, and motive to lie when testifying against Figueroa.” On the facts here, however, the error was harmless, since the witness was one of several who tied Figueroa to the gun.

Of particular interest in this opinion is the court’s discussion of the relevant rules of evidence. The court held that the district court erred “as a matter of law” in precluding the evidence under Rule 608. Impeachment for bias is admissible under Rule 402 even if the impeachment materials are not independently admissible under Rule 608 as “concerning” the witness’ “character for truthfulness or untruthfulness.” The opinion also noted that, since the district court did not exclude the testimony under Rule 403, there was no basis for reviewing its ruling on Rule 403 grounds. However, the court suggested that “[b]ased on the proverbial cold record before us, the reasons the court excluded the relevant tattoo evidence seem relatively modest compared to the Rule 403 factors favoring admissibility,” although it ultimately “express[ed] no opinion” as to whether excluding the evidence under Rule 403 would have been within the trial court’s discretion.

Summary Summary

This week there were three interesting summary orders:

In United States v. Solano, No. 07-1656-cr (2d Cir. November 14, 2008), the government repeatedly insisted before trial that a detective had not taken notes when he interviewed the defendant. Mid-trial, the government did an about-face and disclosed that the notes had once existed but had been destroyed. The circuit granted the defendant no relief, but did note that the government’s behavior “was far from exemplary. We would expect the government to review their procedures to assure against a repetition.”

In United States v. Johnson, No. 07-5356-cr (2d Cir. November 12, 2008) the court granted a Regalado remand even though the defendant did not ask for one on appeal.

And, in United States v. Medley, No. 06-3204-cr (2d Cir. November 12, 2008), defense counsel did not file a timely notice of appeal, despite his assurances to the client that he would. The appellate court remanded the case to the district court with instructions to enter a new judgment from which a timely appeal could be taken.

Confrontation Claws

Brinson v. Walker, No. 06-0618-cr (2d Cir. November 13, 2008) (Kearse, Leval, Sack, CJJ)

In this state prisoner’s habeas corpus case, the circuit affirmed the grant of the writ because the state court’s refusal to permit the defense to cross-examine a supposed robbery victim about his racial bias violated the confrontation clause.

Brinson, the petitioner, testified at trial that this was not a robbery, but rather a small - ten-dollar - marijuana sale that had gone bad. He had hoped to raise a defense that the witness’ robbery accusation was false, and was motivated by a racial hatred of African-Americans. Defense counsel had a compelling offer of proof: first, he indicated that the witness had refused to serve African-Americans when he worked as a waiter, and that he was prepared to call the victim’s supervisor if the witness denied it. In addition, an acquaintance of the witness was prepared to testify that the victim had “used a demeaning racial epithet in her presence.” Nevertheless, the state trial court refused to let the defense pursue this, holding that it was irrelevant because those particular events occurred after the robbery. The Appellate Division affirmed on a different ground - that the evidence would demonstrate only “general ill will of the complainant and not his specific hostility toward defendant.”

A federal magistrate granted Brinson’s habeas petition, and the circuit affirmed. “[A]t least where the racial bias sought to be exposed is of sufficient intensity that it is reasonably likely to result in the falsification of the witness’s testimony against the accused, a preclusion of cross-examination on the ground that racial bias is general and not specifically directed against the defendant is an unreasonable application of Supreme Court decisional law.” This does not necessarily mean that a trial judge must permit cross-examination on “even the mildest forms of a witness’s bias relating to a class to which the defendant belongs.” But here, the offer of proof established an “extreme form” of bias in the witness, one of “such intensity [that it] might distort his testimony against an object of his bias on account of it.” It was not “within a trial court’s reasonable discretion to preclude this cross-examination.”

Moreover, the confrontation violation was not harmless. The witness’ testimony was critical to the prosecution’s case, because he was the sole witness to the alleged robbery, and there was no other evidence to corroborate his accusation. Moreover, Brinson had no money on him when he was found by the police a short time after the alleged robbery, which “raise[d] some doubt about the accusation.” In addition, the cross-examination that the trial court did permit did not cure the error because all that the court permitted was a single question about whether the witness had used a racial epithet, and the victim denied it. Finally, overall, the prosecution’s case was “far from overwhelming” and the cross-examination that was prohibited was “of a nature that was likely to affect the result.”

Uninformed Consent

United States v. Lopez, No. 081269-cr (2d Cir. November 13, 2008) (McLaughlin, Leval, Pooler, CJJ)

Albert Lopez violated his supervised release by failing a drug test, and marshals went to his house to arrest him. After he was cuffed, the marshals took his girlfriend upstairs to get clothes for him. Once there, they asked the girlfriend if they could search the bedroom. She gave consent and the marshals found a loaded gun under a pillow. Lopez was charged with possessing the gun, and moved to suppress arguing that the search of the bedroom was unreasonable because, although the girlfriend consented, the marshals did not seek his consent.

On appeal, the circuit disagreed. Under the relevant Supreme Court precedents, the Fourth Amendment permits searches consented to by a co-occupant. Nor did Lopez’ case present a situation like that in Georgia v. Randolph, 547 U.S. 103 (2006), which held that where one occupant consents to the search but the other objects, the search is unreasonable as to the objector. Rather, “having obtained the consent of one co-occupant, the officers are under no obligation to inquire of the other occupant whether he consents, even when the other occupant is present at the premises when the consent is given.” Indeed, dictum in Randolph specifically noted that officers are not required to seek consent from potential objectors.

Here, the girlfriend’s consent was voluntary, and there was no claim that the marshals separated her from Lopez to hide the fact that they were going to solicit her consent. Nor did it matter that the marshals would not have to “find” Lopez because he was right downstairs. Consent by a co-occupant suffices even when a potentially objecting co-occupant is readily accessible.

False Promise

United States v. Buie, 07-0258-cr (2d Cir. November 13, 2008) (McLaughlin, Leval, Pooler, CJJ)

For a drug conviction to be an ACCA predicate, it must be of an offense “for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). David Buie pled guilty to a drug offense in New Jersey that carried a ten-year statutory maximum, but at his plea hearing the judge promised that he would not sentence Buie to more than eight years: “The [eight-year] plea bargain is the maximum. I could go under. I can’t go over.” The court of appeals rejected Buie’s argument that this promise took the conviction out of ACCA, noting that “Supreme Court precedent ... requires that we look to the definition of the offense established by the state legislature.” Moreover, this is not the type of situation where a court looks “beyond the statutory definition and fact of conviction in order to determine whether a prior offense qualifies as a predicate for ACCA purposes.” There is no exception to the “categorical approach for a case, such as this, in which the defendant pleaded guilty to an offense carrying maximum term of imprisonment [of ten years] under a plea bargain restricting the punishment to a term shorter than that specified in the statute.”

Driving While Incriminated

United States v. Lopez, No. 06-3730-cr (2d Cir. November 10, 2008) (Kearse, Leval, Cabranes, CJJ)

Police officers arrested Lopez for drunk driving. He has a gun in his pocket. Meanwhile, other officers, while looking for Lopez’ girlfriend’s identification, found cocaine in her purse.

Both were arrested and the car was brought to the 41st Precinct, where officers conducted an inventory search. This produced, in addition to some innocuous personal items, two glassines of cocaine in the center console, and a bag in the trunk that contained cocaine and cocaine trafficking equipment. Later, while arranging for a family member to pick up his personal belongings, an officer looked in the glove compartment of the car and found a second gun.

After a combined suppression hearing and bench trial, Lopez was convicted and received a seventy-month sentence.

On appeal, he challenged the inventory search on the grounds that it was not a true inventory search because it was not dictated by a standardized policy, and because the police did not create a complete inventory list of the objects found. The circuit affirmed.

Lopez first pointed to the lack of a standard NYPD policy as to whether the officers must produce an itemized list of every object found, or whether items of little value can be grouped under a general category. But the circuit did not view the relevant Supreme Court cases as requiring that “every detail of search procedure must be governed by a standardized policy” because a “standardized policy governing” things like the order in which the parts of a car are searched or the way the results are reported “would do nothing to safeguard the interests protected by the Fourth Amendment.”

Likewise, there was no Fourth Amendment violation even though the officers grouped items of little value under the general category “personal belongings” and did not itemize each one. “That an officer might use a catch-all to cover objects of little or no value in no way casts doubt on the officer’s claim that the purpose of the search was to make an inventory” and it would “serve no useful purpose to require separate itemization of each object found, regardless of its value, as a precondition to accepting a search as an inventory search.”

Finally it did not matter that the search was motivated by the officers’ desire to find more incriminating evidence. “Such motivation ... cannot reasonably disqualify an inventory search that is performed under standardized procedures for legitimate custodial purposes.”

Summary Summary

Things have been eerily quiet in the circuit - no published decision in a criminal case in nearly two weeks. But there have been a few summary orders of note. First, in United States v. Dean, No. 07-3015-cr (November 7, 2008), the court vacated an above-guideline sentence because, although the district court indicated that it was departing upward on criminal history grounds, it did not "follow the recommended procedure in § 4A1.3(a)(4) for calculating its upward departure, nor, ultimately, did the court settle on an amended Guideline range." And, in United States v. Feliz-Ramirez, the court considered a Fatico hearing at which the government failed to provide 3500 material that might have contradicted the star witness' testimony about the defendant's role in the offense. The court found no error in the district court's refusal to strike the testimony because the government's
"inadvertent failure to produce [the material] was harmless error." Sufficient additional established the defendant's managerial role.

The Fugitive

United States v. Zedner, No. 07-1049 (2d Cir. October 28, 2008) (Kearse, Pooler, CJJ, Cote, DJ)

While on supervised release, and with his appeal pending, Jacob Zedner received his probation officer’s permission to go to Israel for two weeks to attend his brother’s funeral. While there, he was arrested and was told to remain in the country. Citing this and a lack of funds, Zedner did not return to the United States. The government then moved to dismiss the appeal; a sharply divided panel invoked the fugitive disentitlement doctrine and dismissed the case with prejudice.

Background

Zedner’s was surely the longest-running criminal case in this circuit. The offense involved his trying to negotiate multi-million dollar “bonds” that were riddled with misspellings and that were purportedly issued by the “Ministry of Finance of U.S.A.” The case itself began in 1996, when he was indicted for attempted bank fraud. After prolonged competency proceedings and multiple appeals, a jury convicted him in 2003. More appeals followed, culminating in a Supreme Court victory, which resulted in a 2006 retrial. He was convicted again and, having fully served the sentence imposed in 2003, was sentenced to time served and supervised release.

On this appeal, he raised several substantial issues, the most pertinent being that the district court lacked jurisdiction to retry him, because it did so before the circuit had issued the mandate.

The Majority’s Decision

As noted above, while the appeal was pending, Zedner went to Israel and did not return, citing various factors beyond his control. He insisted that he was willing to come back once he was able. Nevertheless, the majority declared him a fugitive, rejecting the argument that his absence was not willful. To the majority, his traveling to Israel without the means to return rendered the absence willful. In addition, his arrest in Israel occurred after he was supposed to return to the United States, thus he “did not shed his fugitive status by being accused of new criminal conduct that led to foreign governmental restrictions more than three months after the deadline for his return.”

The opinion has an unusually detailed discussion of the disentitlement doctrine itself, culminating in a summary of the justifications for dismissing a fugitive’s criminal appeal: “1) assuring the enforceability of any decision that may be rendered against the fugitive; 2) imposing a penalty for flouting the judicial process; 3) discouraging flights from justice and promoting the efficient operation of the courts; and 4) avoiding prejudice to the other side caused by the defendant’s escape.”

The majority found that “each of” these justifications warranted dismissal of the appeal here. Worse still, it dismissed the case with prejudice, and did so with very little analysis, just a passing mention that “the goals of punishment and deterrence generally warrant a dismissal with prejudice” because anything else would “dilute the sanction.”

The Dissent

Judge Pooler, in dissent, strongly disagreed. She viewed the complex jurisdictional issues here as “dispositive,” and noted that, in her view, Zedner was right: the judgment of conviction against him was “a nullity,” as was the notice of appeal, which was also filed before the mandate issued. Accordingly, both Zedner’s appeal and the government’s motion to dismiss it were moot, because, in Judge Pooler’s view, jurisdiction of the case has been exclusively in the district court since the mandate came down: “we are obligated to correct that error, and accordingly, we are not permitted to reach the merits either of Zedner’s appeal or the government’s motion to dismiss.”

Even if the appeal could be heard, however, Judge Pooler was “deeply troubled” by the majority’s discretionary decision to invoke the fugitive disentitlement doctrine, citing Zedner’s history of mental illness and the unusual circumstances that prevented him from returning to the United States. She further characterized the “profoundly troubl[ing]” decision to dismiss with prejudice as “ungenerous,” noting that “Zedner has had a long and tortured history with our judicial system. I can think of no worse ending to this matter than what the majority has unreasonably decided to do.”

Sir Speedy

United States v. Oberoi, No. 04-4545-cr (2d Cir. October 23, 2008) (Jacobs, Kearse, Katzmann, CJJ)

Tejbir Oberoi, proceeding pro se, claimed on appeal that he was denied a speedy trial. He lost the case, but it took the circuit about fifty pages to sort things out.

Background

Oberoi was a dentist who defrauded insurance companies by making false reimbursement claims for procedures he never performed. He was first charged with mail and healthcare fraud in a complaint October of 1999. An indictment was returned against him about two months later; it charged 34 counts of mail fraud and 123 counts of making false statements in connection with health care benefits.

The case had a tortured procedural history, including competency proceedings, six or seven changes of counsel, and three interlocutory appeals. The trial was finally set for January of 2004, by which time Oberoi had made, and lost, a motion for dismissal under the Speedy Trial Act (the “STA”). Oberoi pled guilty to one count of mail fraud and one false statement count (the government agreed to dismiss the remaining 155 counts) on the day the trial was set to begin, having reserved the right to appeal the speedy trial issue. He was sentenced to 63 months’ imprisonment, which he has fully served. As the circuit noted, he filed more than a dozen motions in the court of appeals that “delayed the assignment of his appeal to a panel for nearly four years.”

Pre-Indictment Delay

Fifty-eight days passed between October 18, 1999, when Oberoi was charged in the complaint, and December 16, 1999, when he was indicted. He argued that this violated the 30-day time limit for the government to seek an indictment.

The STA provides that an indictment or information “shall be filed within thirty days from the day on which such individual was arrested ... [on] such charges.” In Oberoi’s case, 17 days after his arrest on the complaint, a magistrate judge granted the parties' joint request for an adjournment to December 1, 1999, but did not mention the STA. On December 1, 1999, the parties requested two more weeks, but this time the magistrate solicited the parties’ consent to excluding time. Fifteen days later, Oberoi was indicted.

The court found no pre-indictment STA violation. The STA requires dismissal only of “such charge” against the defendant “contained in such complaint,” language that the court reads “strictly.” Thus, an indictment is not untimely if it pleads different charges from those in the complaint, even if the indictment’s charges “arise from the same criminal episode as those specified in the original complaint or were known or reasonably should have been known at the time of the complaint.” The test is an elements test, similar to the familiar Blockburger double jeopardy test.

Here, the court held that the indictment charged something different from the complaint. The complaint charged Oberoi with healthcare and mail fraud from December 1992 to February 1999. But one of the counts in the indictment that he pled to was a false statement charge that was “fresh” to the indictment. While he also pled guilty to mail fraud, the count he pled to was quite specific: submitting a fraudulent claim to a particular employer’s dental plan on December 24, 1995. The complaint made no reference to that particular mailing, nor did the affidavit attached to it, which listed scores of mailings.

The court noted that it need not here “define what features would make two charges the same for the purposes” of the [STA]; it is enough that, here, the specific offenses to which Oberoi pled guilty did not appear in the complaint. Thus, neither count of conviction should have been dismissed under the STA as a result of pre-indictment delay.

Post-Indictment Delay

Oberoi also pointed out “28 discreet periods of post-indictment delay,” spanning “1,487 days” that he claimed were not “properly excluded under the STA. Before even getting to those periods, however, the court was called upon to resolve two questions that were open in this circuit.

1. Does the Clock Stop for Motion Preparation?

There is a “substantial question” as to the propriety of excluding time for preparing motions. Section 3161(h)(1)(F) of the STA stops the clock for “delay resulting ... from the filing of [a pretrial] motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” Much of the delay here was occurred as “various defense lawyers prepared to file pretrial motions.”

The problem is that this section is not clear as to whether the time for preparing the motions is excluded, or whether the clock stops only once the motion has been filed. According to the circuit, there is “consensus among the circuits” that motion preparation time can be excluded under the general “interests of justice” provisions of the STA - § 3161(h)(8)(A), as long as the judge makes a contemporaneous prospective finding that the exclusion is warranted.

But here, the exclusions were made under the motions section - (h)(1) - not under section (h)(8), and there is a split among the circuits as to whether motion preparation is covered under section (h)(1). The First, Seventh, Ninth, Tenth, Eleventh and D.C. Circuits have held that delay attributable to motion preparation can be excluded under section (h)(1). The Fourth and Sixth, however, take the opposite view.

Here, the Second Circuit joined the majority, holding “that the time needed for the preparation of pretrial motions can be excluded under § 3161(h)(1).” Since this section automatically stops the clock for the preparation of response papers, it make sense that it would also exclude the time for the preparation of the motion itself. However, there is one “critical” caveat. The lower court “must expressly stop the speedy trial clock, either on the record or in a written order.”

2. The Effect of a Magistrate Judge’s Report and Recommendation

Other “close questions” exist with respect to the filling of a report and recommendation by a magistrate judge. Such filings in this case caused delays that Oberoi argued should be counted on the STA clock.

Section (h)(1)(F) automatically stops the clock when the motion is first filed; once it is fully briefed, subsection (h)(1)(J) automatically stops the clock for up to 30 additional days while the motion is under advisement. When a motion is fully submitted to a magistrate judge is the clock stopped under § (h)(1)(J) while the motion is “under advisement” of the magistrate judge? And what happens when magistrate judge issues a report and recommendation - does this “effectively refile[]” the motion in the district court, stopping the clock again, or does it restart the clock until a party files an objection?

Once again, these questions, open in the Second Circuit, have been answered differently by other circuits. After surveying the cases, the court went along with the Eighth Circuit, which has held that once a pretrial motion has been fully briefed and submitted to a magistrate judge, subsection (h)(1)(J) gives the magistrate a 30-day “advisement” period within which to rule. Once the report and recommendation issues, a new excludable period begins under § (h)(1)(F).

3. Oberoi’s Periods of Delay

Based on these holdings, the opinion surveys Oberoi’s claimed periods of delay in great detail, and makes for fairly dull reading. But the bottom line is that the court found only 57 days could be counted on Oberoi’s speedy trial clock, fewer than the 70 days that the Act permits.

A Crime of Violins

United States v. Sprysak, No. 07-3353-cr (2c Cir. October 22, 2008) (Newman, Calabresi, Parker, CJJ)

Adam Potocki was convicted of conspiracy to sell stolen property, a Stradivarius violin that was later determined to be fake. The court of appeals held that the evidence was insufficient on two elements: whether Potocki believed the violin was worth at least five thousand dollars, and whether the offense involved goods that moved in interstate commerce.

Background

Potocki was an associate of Krzysztof Sprysak, who was part of a Brooklyn criminal gang known as the “Greenpoint Crew.” Sprysak called Potocki in December of 2005 to tell him that he might have a Stradivarius violin to sell. He said that the violin had been brought from Europe illegally and was stolen. Potocki agreed to show an antiques dealer a picture of the violin so that it could be appraised, and said that the dealer might be able to sell the violin as well.

In later conversations, Potocki said that the appraiser needed to see the violin itself, not just a photograph, because there are “many fakes.” In their final conversation, Potocki pressed Sprysak to bring the violin to him quickly. Nothing ever happened, and they never spoke about the violin again.

Unbeknownst to Potocki, Sprysak began looking into selling the violin through two other people, one of whom was an informant. In early 2006, the Sprysak and his new conspirators brought the violin from New Jersey to Manhattan to meet with an appraiser, who was actually and undercover detective. It was ultimately determined to be counterfeit, worth no more than one thousand dollars.

Discussion

The court first held that the government failed to prove beyond a reasonable doubt that Potocki believed that the violin was worth at least five thousand dollars, a requirement of the statute, 18 U.S.C. § 2315. The conversations between Potocki and Sprysak only showed that Potocki “anxiously entertained the possibility” that the violin might be valuable, even as he noted that there were many counterfeit Strads. He never expressed a belief that the violin was both genuine and valuable; rather, he merely hoped that these would both be true. Potocki’s “serious questions” about the “provenance and value of the violin” meant that the government “failed to prove beyond a reasonable doubt Potocki’s belief that the instrument was worth at least five thousand dollars.”

The government also failed to prove the interstate commerce element of § 2315, which requires that the stolen goods must have “crossed a State or United States boundary after being stolen.” Here, the government attempted to satisfy this element by showing that the instrument had been brought from New Jersey to New York for the 2006 meeting. But there was no evidence that Potocki knew that the meeting occurred, let alone its background, participants or purpose.

Thus, there was no evidence that Potocki’s discussions with Sprysak months earlier were part of a broader “collective venture” to help Sprysak sell the violin in 2006. Rather, Sprysak abandoned the possibility of working with Potocki and “sought out other avenues to achieve a sale.” Thus, this was not a “classic conspiracy” - an “overarching illegal enterprise with multiple members and sustained, organized objectives.”

Comment

Judge Calabresi wrote a short opinion, concurring dubitante - which means, roughly, “doubting the correctness of the decision.” He felt that the evidence might reasonably show that Potocki attributed a value of more than $5000 to the violin since, “[e]ven if Potocki held only a 1 in 100 hope that the violin was a Stradivarius (which he told Sprysak, could fetch 1.5 million dollars), the expected value to him would still be $15,000, well above the $5000 required by the statute.” Since the government did not advocate this approach, however, the court was not really wrong to reject it, although he found the matter “a tad puzzling.”

Puzzling to this commentator is Judge Calabresi’s agreement with the majority - and the majority’s view itself - on the interstate commerce element. Here, the evidence was clear that when Sprysak first approached Potocki he told him that the violin had been brought from Europe and was stolen. Potocki must therefore have believed that the violin was stolen in Europe, then brought to the United States from there. This belief would seem to clearly satisfy the statute.

The Ecstasy and the Ecstasy

United States v. Ogando, No. 05-0236-cr (2d Cir. October 20, 2008) (Kearse, Calabresi, Sack, CJJ)

Francisco Ogando, a licensed livery cab driver, was convicted of participating in an ecstasy importation and distribution conspiracy. On appeal, the circuit held that the evidence was insufficient.

Background

Angel Gomez, a drug courier, was arrested at Kennedy Airport with ecstasy that he had imported from Belgium, and agreed to cooperate. He told the agents that he was supposed to call “Frank” - defendant Ogando - on arrival. He did so, and Ogando said he was right near the airport. Ogando found Gomez and brought him to his car. They did not discuss drugs, money or where they would be going, and were arrested before they got into Ogando’s car.

Ogando was found to have a cellphone - Gomez had been given that number by his handlers - a business card that mentioned Brussels and noted what Gomez would be wearing, and other papers with the names and telephone numbers of other conspirators, some of whom Ogando was related to. In a post-arrest statement, Ogando told the agents that he was at the airport because a friend named Alex - another co-conspirator - had asked him to pick up someone at the airport. He falsely declared that he did not know Alex’ last name, and also said that he did not know any of the other conspirators and did not know why their names and numbers were found in his car.

Other evidence showed that Ogando had been in the Philadelphia area when one of the conspirators was arrested there, and that after that arrest, Ogando made several calls to others associated with the scheme.

The Circuit’s Ruling

The court began by noting that, to prove conspiracy or aiding and abetting, the government must show more than “evidence of a general cognizance of criminal activity, suspicious circumstances, or mere association with others engaged in criminal activity.” All of the counts of which Ogando was convicted required a showing of specific intent - that he “consciously assisted the commission of the specific crime in some active way.”

Where the alleged conspirator is a driver, there must be more evidence than a co-conspirator’s testimony that he was to meet the driver at the airport and the driver’s actual presence there. Simply “waiting for someone qt an airport, even under ... suspicious circumstances ... is not by itself an act from which knowing guilty involvement can be reasonably inferred.” Here, the court held, that was all, in essence, the government proved.

Nothing about Ogando’s presence was in any way out of the ordinary for a livery cab driver meeting a passenger at the airport. And his personal relationship with some of the conspirators simply explained why they hired him as a driver, rather than someone else. It did not show that he “knew the nature of the conspirators’ business.” Thus, this evidence was probative of the co-conspirators’ state of mind, but not Ogando’s. Moreover, the evidence that Ogando was in Philadelphia when another participant was arrested indicated that Ogando was there to pick him up, but still did not prove that he knew the nature of the conspiracy. It simply showed that “Ogando was a livery cab driver regularly used by members of this conspiracy.”

Finally, Ogando’s false exculpatory statements on arrest could not fill the void. Although circumstantial evidence of a consciousness of guilt, “falsehoods told by a defendant in the hope of extricating himself from suspicious circumstances are insufficient proof on which to convict where other evidence of guilt is weak and the evidence before the court is as hospitable to an interpretation consistent with the defendant’s innocence as it is to the government’s theory of guilt.”

Comment

This is a great victory for Ogando. Sadly, he had completed his 30-month sentence by the time he won his appeal. Indeed, this case seems to have taken an unusually long time to get to this point - the conduct occurred in 2002, the appeal has a 2005 docket number, but was not heard until 2008. The opinion contains no explanation for the delay.

Buyer's Remorse

United States v. Hawkins, No. 07-3018-cr (2d Cir. October 16, 2008) (Straub, Raggi, CJJ, Sessions, DJ)

Alex Luna sold drugs in Danbury, Connecticut, from 2002 to 2005. Warren Hawkins was convicted, after a jury trial, of one count of conspiring with Luna to distribute less than 500 grams of cocaine and less than five grams of crack. After the verdict, the district court granted Hawkins’ Rule 29 motion, finding that, although Hawkins bought drugs from Luna with intent to resell them, there was insufficient evidence to establish that Hawkins participated in Luna’s conspiracy. On the government's appeal, the circuit reversed.

Background

In February 2005, Hawkins spoke with a another Luna co-conspirator about purchasing five grams of cocaine. They discussed price, quality, and how Hawkins would raise the money, but the sale did not take place. A few days later, Hawkins spoke with Luna and said that some of his co-workers were looking for drugs; they agreed on a quantity, 3.5 grams, and the sale was completed. Five days later, Hawkins purchased 7 more grams from Luna. Six days after that, Hawkins called Luna and asked him to sell him 3.5 grams on credit. Hawkins said he would sell the drugs to the customer and immediately repay the debt. This sale did not take place.

One co-conspirator testified that Hawkins was an addict who bought drugs, but was neither a drug dealer nor a member of the Luna organization. This witness characterized Hawkins as a “go-between.”

The Circuit’s Decision

The court began its analysis with a discussion of the “buyer-seller rule,” under which a mere buyer-seller relationship “is insufficient to establish a conspiracy” because there is no agreement to “advance any joint interest.” However, while the existence of buyer-seller relationship alone does not establish a conspiracy, if there is additional evidence showing an agreement to join together and accomplish an objective beyond the sale transaction, the evidence can support a finding that the parties participated in a conspiracy. Some of the factors that should be considered on this question are the length of the parties’ affiliation, the level of mutual trust, standardized dealings, sales on credit, and the quantities involved. However, even evidence that a buyer intends to resell the product instead of personally consuming it does not necessarily establish that the buyer has joined the seller’s distribution conspiracy, because more is required than “mere knowledge of the purpose of the conspiracy.”

Here, however, it was clear that (1) the Luna conspiracy existed, (2) Hawkins knew about it, (3) purchased drugs from it, (4) intended to resell at least some of the drugs, and (5) Luna knew this. The court found that these last two factors constituted sufficient evidence that Hawkins participated in Luna’s conspiracy by entering into a distribution agreement with Luna himself that “afforded Hawkins a source of cocaine and Luna another outlet - albeit small - for his contraband.” Moreover, the evidence supported an inference that Hawkins was “not freelancing;” but rather that he “agreed to engage in this conduct with Luna on an ongoing basis” and that “Hawkins and Luna trusted each other to work together as supplier and street-level dealer.”

Hawkins purchased drugs, or sought to, from Luna on several occasions within a short time. He brought potential customers to Luna’s attention, made arrangements with Luna to obtain cocaine for resale, and used the cellphone number that Luna had given him. There was also a level of mutual trust - Hawkins indicated that he preferred Luna over other local dealers and Luna agreed, at least in principle, to extend credit to Hawkins. This conduct established sufficiently that Hawkins was more than a mere “go-between.”

Sexually Charged

United States v. Rivera, No. 06-4946-cr (2d Cir. October 15, 2008) (Jacobs, Kearse, Katzmann, CJJ)

Carlos Rivera was convicted of various offenses relating to the sexual exploitation of children. One count involved the production of child pornography for which Rivera, a recidivist, received a mandatory life sentence. His primary argument on appeal was that the district court incorrectly charged the jury on the definition of “lascivious” with respect to that count. Finding no error, the court of appeals affirmed.

At issue were six photographs that Rivera took of a sixteen-year old boy lying naked on a hotel bed, in various suggestive poses. The statute, 18 U.S.C. § 2251(a), prohibits coercing or enticing a minor to engage in “sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” “Sexually explicit conduct” is defined to include the “lascivious exhibition of the genitals or pubic area of any person.”

Courts have struggled to define “lascivious,” which is “not self-defining.” Here, the district court relied on United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), in which the district court cited six factors that should be considered in addition to any others relevant to the particular case: (1) was the focal point of the visual depiction the child’s genital area; (2) was the setting sexually suggestive; (3) was the child depicted in an unnatural pose or inappropriate attire given his age; (4) the degree of nudity; (5) did the image suggest sexual coyness or a willingness to engage in sexual activity; (6) was the image intended to elicit a sexual response from the viewer.

In its charge here, the district court gave a general definition of “lascivious exhibition,” noting that “[n]ot every exposure of the genitals or pubic area constitutes a lascivious exhibition.” It then told the jury to consider the Dost factors.

The court of appeals affirmed this charge. It noted that Dost has “provoked misgivings,” although most of those misgivings have pointed out that the Dost factors are over-generous to the defendant. Here, the court addressed the fifth and sixth factors in particular. As for the fifth factor, many courts have noted that the focus should not be on the characteristics of the child photographed but of the exhibition that the photographer sets up. The sixth factor has been criticized as the most confusing, because it shifts the focus from the photograph to the viewer.

Here, the court held that “[n]otwithstadning” these valid criticisms about Dost, there was no error in the charge. Jurors need “neutral references and considerations to avoid decisions based on individual values or the revulsion potentially raised in a child pornography prosecution.” The Dost factors are not definitional, and do not purport to be. Rather, they are factors to consider in a particular case that are not “mandatory, formulaic or exclusive” and serve to “mitigate the risk that jurors will react to raw images in a visceral way, rely on impulse or revulsion, or lack any framework for reasoned dialogue in the jury room.” They therefore “impose useful discipline on the jury’s deliberations,” albeit “imperfectly.” Thus, is it “no error” for a district court to recommend the Dost factors as considerations, making any adaptations or allowances warranted by the facts and charges in a particular case.

Slight Change

United States v. Huezo, No. 07-0033-cr (2d Cir. October 14, 2008) (Newman, Walker, Sotomayor, CJJ)

Defendant Huezo was convicted, after a jury trial, of money laundering and money laundering conspiracy. The district court granted his post-verdict Rule 29 motion, and the government appealed. A divided appellate panel reversed. It also, however, unanimously wrought an important change in conspiracy law: an elimination of the so-called "slight evidence" rule.

Background

On November 5, 2004, two of Huezo’s co-conspirators drove from Connecticut to New York in a Jeep registered to Heuzo to discuss delivering $1 million to an undercover agent, who was posing as a money launderer. Three days later, Huezo drove one of them back to New York, opened the trunk from the driver’s seat, and the agent recovered a bag containing half of the money. It was packaged in bundles, as is typical for money laundering transactions. The two men returned to a house Connecticut, picked up the third co-conspirator, and went out to dinner.

Two days later, Huezo left the house carrying a small back bag that he put in the Jeep. He then left the Jeep and watched as one of his associates put a black suitcase in the back. They drove to New York, but en route, they were pulled over for speeding. The Jeep was registered in Huezo’s name at the address in Connecticut, although the registration was not yet on file, which suggested that it was newly registered. The car was impounded and, during an inventory search, officers discovered $500,000 in the black suitcase and $6000 in Huezo’s own bag.

Further investigation revealed that the three men had traveled from California to Connecticut a few days before the deliveries.

The Majority’s View

Huezo was convicted of “transaction” money laundering, under which the government was required to prove that he knew that “the purpose or intended aim of the transaction was to conceal or disguise a specified attribute of the funds.” This same intent must be proven for aiding-and-abetting and conspiracy. Here, the majority held that there was sufficient evidence for a rational jury to conclude that Huezo had the requisite criminal knowledge and intent.

First, the court noted that there was ample evidence that the money involved in the two deliveries constituted the proceeds of criminal activity - drug trafficking, specifically - and that those deliveries were transactions designed to conceal the nature of the money.

It also concluded that there was sufficient evidence to connect Huezo to the conspiracy and establish both that he knew the conspiracy’s goals and shared his co-conspirator’s specific intent. The evidence here “went well beyond mere presence or association.”

First, while there was no direct evidence that Huezo “saw or knew what was in any of the bags,” there was sufficient circumstantial evidence. His “special treatment” of the small bag was evidence that the $6000 “constituted payment” for his efforts, and the $6000 was packaged in the same way as the rest of the laundered funds. Moreover, Huezo resided in the same house as the co-conspirators, which was also where the money was kept. From this, a jury could “reasonably infer that Huezo had the requisite knowledge and specific intent” to commit money laundering.

In addition, jurors relying “on their common sense and experience in drawing inferences” could reasonably conclude that “the principals in the conspiracy would not have trusted an outsider (with no knowledge of their criminal purpose) to transport $1 million in laundered funds,” to be present when the funds were delivered, and to share their house for several days.

Finally, the court viewed the evidence of the three conspirators' joint travel as further supporting a finding of guilt. It led to a “reasonable inference that the three men traveled from California to Connecticut and met for the express purpose of facilitating the money laundering conspiracy,” and thus that Huezo participated in it by design and not simply by happenstance.”

The Dissent

Judge Sotomayor dissented. In her view there was insufficient evidence that Huezo had either the requisite knowledge or the specific intent to launder. Rather, the evidence only “weakly” supported a view that Huezo “may have known” that the suitcases contained money and that the money was the proceeds of criminal activity, but there was not enough evidence that he knew the purpose of the transactions; that is, that the money was to be laundered.

The “Slight Evidence” Rule

There was one thing, however, that united all three judges, and indeed, the entire court, since the opinion was circulated to all of its judges: a rejection of formulation - invoked by the government here - that, once a conspiracy has been established,” the evidence necessary to link a defendant to it “need not be overwhelming,” or need only be “slight.” This opinion conclusively holds that these “formulations do not accurately describe the government’s burden of proof in conspiracy cases, and the use of [them] should be discontinued.”

Indeed, in his concurrence, Judge Newman, does a terrific job of debunking this language, tracing it back to its origins in a 1930 Fifth Circuit case, where it appeared “without any citation,” then noting that the Fifth Circuit itself found the use of the “slight evidence” formulation in a jury charge to be structural error - that is, one for which no harmless error analysis is required - in 1977.

Bonnano Republic

United States v. Massino, No. 07-1618-cr (2d Cir. October 10, 2008) (Hall, Livingston, CJJ, McMahon, DJ) (per curiam)

Patrick DeFilippo was convicted of racketeering and other offenses in connection with his involvement with the Bonnano crime family, and the district court sentenced him to forty years’ imprisonment. He challenged two evidentiary rulings, albeit without success.

1. Mobsters are Always “Guilty as Charged”

During a recorded conversation between a Bonnano cooperating witness and DeFilippo’s co-defendant, the cooperator remarked that the feds usually charged mobsters with “nine thousand six hundred and eight-four other charges.” At trial, the government asked the cooperator why he had said this and he replied “to win their confidence.” Not satisfied with this answer, however, the prosecutor went back to the subject twice more, asking him whether he knew of anyone involved in organized crime who had ever “been charged with a crime that they were not guilty of.” The cooperator said that he did not.

On appeal, DeFilippo characterized this as improper opinion testimony. The circuit agreed, finding that the questioning seemed “designed to prompt the witness to declare that anyone linked to organized crime who is charged with a crime is in fact guilty of that crime.” This had nothing to do with DeFilippo, “did not address issues relating to” his guilt, and hence was error.

However, the court held that the error was harmless. There was substantial other evidence of DeFiloppo’s guilt, and the prosecutor did not emphasize the improper testimony in its arguments to the jury.

2. “Killing the Kids”

When cross-examining the cooperator, defense counsel attempted to show that the witness could not recall any of his recorded conversations except for the two that he testified about on direct-examination, in an effort to show that he had been coached. To rebut this, the prosecutor elicited the cooperator’s recollection that, in one conversation, other Bonnano family members discussed killing the children of anyone who cooperated against the family.

The court of appeals held that this testimony was relevant to rebut the defendant’s argument, but was “troubl[ing]” under Rule 403. The statement was “highly inflammatory” and went far beyond establishing the witness’ ability to remember other recorded conversations. Moreover, his credibility could have been rehabilitated with “any one of a number of ‘evidentiary alternatives.’” The appellate court even went so far as to conclude that the government selected this particular memory precisely for its “unfairly prejudicial” effect.

Nonetheless, it found no abuse of discretion, since the district court engaged in the proper Rule 403 balancing, and did not act arbitrarily or irrationally.