PC WORLD

The court's latest per curiam ("PC") opinion deals with the narrow definition of "crime of violence" in the illegal reentry guideline, U.S.S.G. § 2L1.2. United States v. Gamez, No. 07-3660-cr (2d Cir. August 20, 2009) (per curiam), holds that the New York State offense of criminal possession of a weapon in the second degree, which makes it a crime to possess various types of firearms "with the intent to use the same unlawfully against another" is not a crime of violence under that section. The 2L1.2 definition of "crime of violence" includes certain enumerated offenses, not implicated here, as well as any other offense that "has an an element the use, attempted use, or threatened use of physical force gainst the person of another." Since the New York statute prohibits the intended use of force, but not the attempted use of force, it is not covered by this definition. And, since the "categorial approach" to recidivism statutes prohibits looking back at the defendant's actual conduct, it is irrelevant that Gamez actually shot someone - twice.

It should be noted that this decision is confined to its narrow context. The 2L1.2 "crime-of-violence" definition is pretty much the only one out there that does not have an "otherwise involves" catchall. The circuit long ago held that the same New York statute is a crime of violence under this broader definition.

It is perhaps more important, then, that the court also held that being sentenced under a "significantly overstated advisory Guidelines range" constitutes plain error.

Cap’n Crunched

United States v. Pizzonia, No. 07-4314-cr (2d Cir. August 19, 2009) (Calabresi, Straub, Raggi, CJJ)

Dominick Pizzonia, a one-time captain for the Gambino crime family, was convicted of a racketeering conspiracy and sentenced to fifteen years in prison. On appeal, he raised an unsuccessful statute of limitations claim.

The government filed the indictment against Pizzonia on May 26, 2005; since a five-year statute of limitations applied, the government had to prove that Pizzonia’s participation in the conspiracy extended past May 26, 2000.

Pizzonia’s indictment charged a broad pattern of racketeering activity encompassing the entire spectrum of Gambino malfeasance. It alleged specifically that the pattern “consisted of” seven specified predicates. The jury found that he participated in only two of them: a 1992 double-murder conspiracy and a 1994-96 gambling offense. It also concluded that these two seemingly distinct events were sufficiently related to constitute a racketeering “pattern.” Finally, although the predicates ended well before May 26, 2000, the jury concluded that Pizzonia’s participation in the conspiracy continued beyond that date.

On appeal, Pizzonia argued that because the pleading alleged a racketeering pattern that “consisted of” seven acts, this temporally limited the conspiracy to the predicates. And, because the only proven predicate acts did not extend into the post-May 2000 limitations period, he argued, his conviction could not stand.

The circuit disagreed. The court held that the temporal scope of a RICO conspiracy is not limited to the charged or proven predicate acts. “[W]here, as here, the affairs of the enterprise in which a defendant agreed to participate through a pattern of racketeering are broadly defined to encompass all its criminal money-making objectives and all means used to protect those objectives, the conspiracy does not end, as a matter of law, with the last proved predicate.” Even if the government pleads a pattern that “consisted of” or “included” specified predicate acts, a defendant’s completion of those predicates “does not, as a matter of law, dictate the end of the pattern, much less the attainment or abandonment of the conspiracy’s overall objective.” Accordingly, an indictment drafted in this way does not “limit the temporal scope of the charged racketeering conspiracy to the time-frame of those predicates.”

Here, since Pizzonia “effectively concede[d]” that there was sufficient evidence that he participated in the conspiracy, although not in a charged RICO predicate, after May 26, 2000, the court affirmed his conviction.

On a Role

United States v. Ware, No. 07-5222-cr (2d Cir. August 18, 2009) (Kearse, Sack, Hall, CJJ)

For five months in 2001 and 2002, Ware, an attorney, ran a “pump and dump” scheme, in which entities he controlled issued fraudulent, and supposedly independent, press releases promoting two penny stocks that he owned. When other investors acted on the false releases, the stocks went up and Ware sold his shares, earning a profit of more than $200,000. He was convicted of securities and wire fraud offenses, and the district court sentenced him to 97 months’ imprisonment.

On appeal, he represented himself pro se, raising a host of trial and sentencing issues. In this long opinion, which covers little real new ground, the court affirmed the conviction, but remanded for further sentencing findings on a leadership role enhancement.

The trial evidence revealed that Ware had three associates in the scheme: Jones and Epps, two young securities traders that he hired to find small companies to promote, and to draft press releases; and a clerical assistant, Williams, who helped distribute the releases.

At sentencing, the district court imposed a four-level leadership role enhancement under U.S.S.G. § 3B1.1(a). This section applies where the defendant was an “organizer or leader of a criminal activity that involved five or more participants” or was “otherwise extensive.” Circuit precedent requires highly specific findings on leadership role: it is “not enough for the court merely to repeat or paraphrase the language of the guideline and say conclusorily that the defendant meets those criteria.” Nor is it sufficient to adopt the PSR if the “PSR itself does not state enough facts to permit meaningful appellate review.”

Here, the district court's findings were too general. The court noted that the scheme “obviously involved ... five or more participants and unknowing participants and was otherwise extensive.” By “unknowing participants” the court meant “the wire services that published [the] false press releases.” The court also noted that the scheme “took place over a period of time.”

The circuit, on plain error review, since Ware did not object to the enhancement at sentencing, had “several difficulties with this explanation.” First, the findings did not identify the “five or more” participants, and the trial record produced only “four obvious” candidates. In addition, the court faulted the district court’s inclusion of the wire services through which Ware distributed the press releases as “unknowing participants.” Under § 3B1.1(a), a “participant” must have criminal exposure, and the record did not support a finding that the wire services could be criminally liable. The district court also made insufficient findings on the alternative, “otherwise extensive,” basis for the enhancement. Its observation that the scheme “took place over a period of time,” was, “standing alone,” insufficient, since the scheme spanned only five months. Nor did Ware’s use of wire services make the activity “otherwise extensive.”

The court accordingly remanded the case for additional findings on the leadership role enhancement.

Same S***, Different Day

United States v. Parker, No. 08-4199-cr (2d Cir. August 14, 2009) (McLaughlin, Calabresi, Raggi, CJJ)

Travious Parker received a 180-month sentence after a jury trial. This sentence comprised a 120-month drug mandatory minimum and mandatory sixty-month consecutive sentence on a § 924(c) count. On appeal, he argued that under United States v. Williams, 558 F.3d 166 (2d Cir. 2009) and United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), he was ineligible for the § 924(c) sentence. The circuit affirmed, because conduct underlying the drug count that carried the ten-year mandatory minimum and that underlying the § 924(c) count occurred on different dates.

Parker was charged in a multi-count indictment that covered several different dates. As pertinent here, the § 924(c) count (Count One), charged that Parker used or possessed a gun in connection with a crack sale (Count Two), a violation of 21 U.S.C. § 841(b)(1)(C), that carried no mandatory minimum sentence. Both Count One and Count Two alleged conduct that occurred on July 19, 2002.

Count Five of the indictment alleged additional crack activity occurring April 30 to May 1, 2002, and charged a violation of 21 U.S.C. § 841(b)(1)(B). This count carried a ten-year mandatory minimum - the usual (b)(1)(B) five-year term, doubled due to Parker’s prior drug felony conviction. Since § 924(c) requires that the five-year mandatory minimum be imposed consecutive to any other sentence imposed on the defendant, the district court found that Parker was subject to a 180-month mandatory minimum, and imposed that sentence.

On appeal, the circuit affirmed. While it is true that Williams holds that a § 924(c) sentence cannot be imposed on a defendant who faces a higher drug-related mandatory minimum, the circuit distinguished Williams because, here, “the predicate drug crime underlying Parker’s [§ 924(c)] conviction [did] not dictate a mandatory minimum sentence.” The drug offense that carried the mandatory minimum occurred on a different date, and the Whitley/Williams rule was therefore not “called into play.” That rule applies only to “minimum sentences for predicate statutory offenses arising from the same criminal transaction or operative set of facts.” (emphasis in original). Thus, even though Count Five carried a greater minimum sentence than that prescribed by § 924(c), Parker was still eligible for the § 924(c) sentence because he was not convicted of using or carrying a gun in connection with that count.

Summary Summary

Here is the latest collection of summary orders of interest:

In United States v. Bender, No. 08-3103-cr (2d Cir. August 14, 2009), the court rejected both substantive and procedural challenges to an upward departure in a child pornography case, even though the district court "should have provided a written statement of the specific reasons for its sentence."

In United States v. Giordano, No. 07-3487-cr (2d Cir. August 12, 2009), the court affirmed the decision not to resentence the defendant on a Crosby remand, even though the district court had "mischaracterized the record in rejecting" the defendant's harsh conditions of pretrial confinement - solitary confinement for 23 hours each day - as a "consideration that might justify a decision to resentence." The court's "misstatement" did not undermine it's decision not to resentence, since it also concluded that the original sentence would not have been materially different had it known at the time of the original sentencing that the guidelines were advisory.

United States v. Garcia, No. 07-3779-cr (2d Cir. August 11, 2009), found that trial counsel was not ineffective in failing to attend the presentence interview. The probation officer did not question the defendant about the offense, and the attorney reviewed the first draft of the report and had no objections to it.

Suffer the Little Children

United States v. Freeman, No. 08-1886-cr (2d Cir. August 10, 2009) (Cabranes, Wallace, CJJ)

In United States v. Delmarle, 99 F.3d 80 (2d Cir. 1996), the circuit held that it was within the district court’s discretion to apply the guideline enhancement for possessing child pornography that depicted sadistic or masochistic conduct where the image showed a “young child [subject] to a sexual act that would have to be painful.”

Here, the defendant challenged the imposition of that same enhancement. He argued that the district court’s findings were inadequate because the court did not specifically use the word “sadistic” in describing the images found in his computer. The circuit held that, under Delmarle, as long as the district court finds that "(1) an image depicts sexual activity involving a minor and (2) the depicted activity would have caused pain to the minor,” the findings are adequate. Since the district court made those findings here, the circuit affirmed.

You Can’t Bet On It

United States v. Battista, No. 08-3750-cr (2d Cir. August 6, 2009) (Walker, Wesley, Wallace, CJJ)

James Battista was part of an illegal NBA gambling operation. He pled guilty to conspiring to transmit wagering information, in violation of 18 U.S.C. §§ 371 and 1084, and his sentence included restitution to the NBA. On appeal he unsuccessfully challenged this order.

Background

The gambling scheme began with a corrupt NBA referee, who would transmit “picks” through an intermediary to Battista, who would then place bets on those games. Battista paid the ref a fee for each game where the ref picked the winner. The ref and the intermediary each pled guilty to wire fraud, while Battista pled guilty to the wagering conspiracy. At sentencing, the district court ordered the three defendants to pay more than $ 200,000 in restitution to the NBA.

The Appeal

On appeal, Battista argued that the NBA was not a “victim” of his wagering offense and that the league’s attorneys’ fees and investigative costs were not recoverable under the restitution statutes. The circuit affirmed.

The court first was asked to determine which restitution statute applied in Battista’s case. Under 18 U.S.C. § 3663A (the “MVRA”) full restitution is mandatory for certain types of offenses, including Title 18 “offense[s] against property ... including any offense committed by fraud or deceit.” 18 U.S.C. § 3663(c)(1)(A)(ii). Offenses not covered by the MVRA are covered by 18 U.S.C. § 3663 (the “VWPA”), under which restitution is discretionary, to be imposed only after the court balances the victim’s losses against the defendant’s resources.

Here, while Battista conceded that his offense conduct involved fraud or deceit, he argued that, since the statute under which he was convicted did not have fraud or deceit as an element, the MVRA did not apply to him. It is an open question whether the MVRA applies to fraudulent or deceitful conduct that is charged under a non-fraud or non-deceit statute, but the court did not resolve it here. It found that even if the discretionary VWPA applied, restitution under was proper. The district court’s findings as to Battista’s financial circumstances were not clearly erroneous. Moreover, the court properly considered the need to treat Battista and his co-defendants equally. They pled guilty to wire fraud and thus, for them, restitution was indisputably mandatory.

Next, the court held that the NBA was properly deemed a “victim” under the restitution statutes, since it was “directly and proximately harmed as a result of the commission of” Battista’s offense.

Finally, the court concluded that the NBA’s attorneys’ fees were recoverable. The restitution statutes contain a list of the kinds of losses that are covered, including “other expenses related to participation in the investigation or prosecution of the offense.” The district court properly included in the restitution order those attorneys’ fees that were “directly related to” the investigation as “other expenses.”

Going Down!

United States v. Perez, No. 08-4131-cr (2d Cir. August 3, 2009) (Newman, Pooler, Parker, CJJ)

Here, the circuit concluded that an internal BOP investigation into corrections officers’ use of force against an inmate constituted an “official proceeding” within the meaning of 18 U.S.C. § 1512. The court rejected the defendants’ sufficiency challenge and affirmed their convictions.

The case arose from the beating of an inmate by a CO in an elevator at the MDC. Two other CO’s watched the beating, although one of them finally put a stop to it, and all three were convicted of violating 18 U.S.C. § 1512(c) by making false statements in the paperwork that they were required to fill out by the BOP’s administrative procedures - various “use-of-force” memoranda.

The BOP investigates every use of force by a staff member. That investigation begins with the use-of-force paperwork, which is reviewed by an After-Action Review Committee that comprises the Warden and three other officials. This Committee must determine whether BOP policy was adhered to, and complete a report that includes its findings and a decision whether the incident requires further investigation. A use-of-force incident can be referred to the DOJ’s Inspector General, the BOP’s Internal Affairs bureau, or the FBI.

The statute at issue makes it a crime to “corruptly obstruct ... an official proceeding,” which is defined, to the extent pertinent here, as “a proceeding before a Federal Government agency which is authorized by law.” 18 U.S.C. § 1515(a)(1)(C). At issue here was whether a BOP use-of-force investigation was an “official proceeding,” since such an investigation involves neither live witnesses nor sworn testimony.

The circuit, after considering three different precedent lines that might help interpret the term, decided not to follow any of them. It ducked the broader question of “[w]hether or not agency investigations in general can satisfy the official proceeding element of subsection 1512(c)(1),” and held that, here, the “particular procedures required by the BOP” in use-of-force situations “suffice to support a conviction.” The court’s focus was on the degree of formality required. The BOP Program Statement that governs use-of-force investigations “contemplates more than a preliminary investigation; it sets forth a detailed process of review and decision-making.” Accordingly, the court held, “[b]ecause the review panel must ‘determine’ if there has been a violation of BOP policy, must make ‘findings,’ and may ‘decide’ to refer the matter to senior departmental authorities, its work is sufficiently formal to satisfy the ‘official proceeding’ element of subsection 1512(c)(1).”

The defendants also challenged - on appeal only, no objection was registered at trial - the district court’s jury charge, which was arguably overbroad, since it included all “investigations as well as other administrative functions” of a government agency in the definition of “official proceeding.” But the circuit found no plain error.

Car, Men, Miranda

United Statse v. Plugh, No. 07-2620-cr (2d Cir. July 31, 2009) (Jacobs, Wesley, Hall, CJJ)

In September of 2005, FBI agents arrested Gordon Plugh on child pornography charges. In the car, an agent read him his Miranda rights and asked him to sign a waiver form. Plugh told the agent that he understood his rights because he was a former correction officer. But he added that he was “not sure” if he should make any statements and wondered whether he needed a lawyer. Plugh refused to sign the form, however, and said that he did not want to sign anything at that time.

During the long ride to headquarters, the agents told Plugh what he was charged with, and he asked them what he should do. The agents told him that they would relay any cooperation to the AUSA. Later, after processing him at their office, the agents told Plugh that they were about to hand him over to the Marshals and that if he “wanted to make any statements this was the” time to do it. Plugh then agreed to make statements, was re-advised of and waived his Miranda rights, and confessed.

The district court suppressed the resulting statement and, on the government’s appeal, the a divided panel affirmed.

The majority first held that Plugh’s refusal to sign the advice-of-rights form constituted an “unequivocal” invocation of his right to remain silent. Although Plugh’s pre-refusal statements were “ambiguous,” his refusal to sign was a clear signal that he was not willing to waive his rights.

An invocation of the right to remain silent must be “scrupulously honored." Here, it was not. Under circuit precedent, both telling a suspect that his cooperation will be brought to the prosecutor’s attention and telling him that “now is the time” to talk constitute interrogation. Accordingly, the district court correctly suppressed the confession that was precipitated by these remarks.

In dissent, Chief Judge Jacobs disagreed with the majority’s premise that Plugh’s refusal to sign the written waiver operated as an invocation of his Miranda rights, particularly in light of his nearly simultaneous ambiguous statements.

Transmission Lines

United States v. Bah, No. 07-4370-cr (2d Cir. July 31, 2009) (Jacobs, Walker, Calabresi, CJJ)

Boubacar Bah ran a licensed money transmission business in New Jersey, but did not have an equivalent license in New York. He was convicted of operating an unlicensed money transmitting business, in violation of 18 U.S.C. § 1960, but the circuit reversed, finding that the district court erred in explaining the scope of § 1960 in its jury instructions.

Section 1960 makes it a crime to operate an “unlicensed money transmitting business” in interstate or foreign commerce in a “State where such operation is punishable as a misdemeanor or a felony under State law.” Under New York State law, it is a crime both to receive money for transmission and to transmit it without a license. Only the second of these is covered by § 1960, however, since the federal statute does cover the receipt of money for transmission.

This was Bah’s defense. He testified that customers would bring cash to him in New York. He would take the money to New Jersey and then lawfully transmit it to Africa. But the district court erroneously charged this defense out of the case. It rejected Bah’s request for an instruction that “1960 does not make it unlawful to receive money for transmission without a license,” even as it instructed - correctly, but irrelevantly - that it was a crime in New York to be in the business of receiving money for transmission without a license.

This charge “likely misled” the jury “as to the scope of Section 1960,” and was not harmless error, since under the charge as given, “Bah’s defense at trial - that he received money in New York for transmission in New Jersey - amounted to a concession of guilt.”

Summary Summary

Here are two more summary orders of interest.

In United States v. Nash, No. 08-0136 (2d Cir. July 29, 2009), a fraud prosecution, the court remanded the case for further record development on the question whether the "10 or more victims" enhancement should apply.

United States v. Zavala, No. 08-2727-cr (2d Cir. July 27, 2009), remanded the case for findings on whether an aggravating role enhancement was appropriate. The enhancement was based on the defendants' supervising their daughter, but she was a minor for part of the time. "Specific findings" are necessary "as to acts constituting her participation in the parents' offenses after she turned 18," since a minor child is not a "participant" for the purposes of a role enhancement.

Formula 404

United States v. Mercado, No. 08-1017-cr (2d Cir. July 17, 2009) (Calabresi, Wesley, CJJ, Droney, DJ)


In this split decision, the court upheld the admission of Rule 404(b) evidence - prior firearms sales - on the issue of intent in a drug conspiracy trial. The majority did not delve too deeply into the facts; instead, it rather formulaically noted that the prior transactions showed how the relationship of trust between the defendant and his co-conspirator developed, and rebutted the defendant’s argument that his actions were the innocent acts of a friend. The court also found no error in the district court’s Rule 403 balancing.

Judge Droney dissented, giving a much more complete picture of the facts of the case. The charged conduct involved the defendant, Townsend, and his friends, Jones - a cooperating witness - and Winfree. On the day he was arrested, Townsend drove them on some errands, one of which was a stop for Jones to purchase cocaine, which Winfree had arranged. Jones then persuaded Townsend to go back to Townsend’s apartment, where Jones cooked the powder into crack.

Townsend was charged with a cocaine conspiracy, a crack conspiracy, and a firearms charge - there was a gun hidden in his car - but was convicted only of the cocaine charge.

The Rule 404(b) evidence was that three months before the drug transaction Jones - who was already cooperating with the government - made arrangements for Townsend to purchase a handgun, and that one month before the drug transaction Jones purchased a different handgun from him.

Judge Droney carefully deconstructed the proffered reasons for admitting the 404(b) evidence, and found them all lacking. As to “background,” he noted that “some particular aspect of the background or the relationship of mutual trust must be in issue and the proffered evidence must be particularly relevant to that issue.” He found none of those characteristics present here, since the charged drug conspiracy had “no similarity” to the prior gun sales, and Townsend’s role in the gun sales “was not offered to support a theory regarding his role in the drug conspiracy.”

The gun sales were also “not particularly relevant to the development of mutual trust between Jones and Townsend.” Townsend did not dispute that relationship, and admitted that he and Jones had known each other since childhood, had lived together for a time, and were very close at the time of the offense.

Judge Droney also found fault with the district court’s Rule 403 balancing, particularly since the court permitted the two guns themselves to be entered into evidence, which “likely contributed to the substantial prejudicial effect of the testimony regarding the gun sales. The impact of the handguns as full exhibits far exceeded their very low probative value.” Finally, he noted that the gun sales were initiated by Jones when he was already cooperating, further diminishing their probativeness as to Townsend’s intent to join in Jones’ later effort to purchase cocaine.

Judge Droney next found that both the limiting instructions and the final jury charge on the Rule 404(b) evidence were inadequate. They included “knowledge” as one of the issues on which the evidence could be considered, even though Townsend’s knowledge of Jones’ cocaine activity was not at issue at the trial. The district judge also cited an incorrect time period, potentially confusing the jury as to which acts or agreements could form the basis for the conspiracy conviction.

Finally, Judge Droney concluded that these errors affected the outcome, since the government had a weak case as to Townsend’s intent, the only disputed issue in the case. The primary evidence on that issue was the testimony of Jones, who was “hardly a credible witness.”

INTRODUCING A NEW FEATURE - "PC WORLD"

The circuit is increasingly publishing per curiam (or "PC") opinions in criminal cases. These opinions tend to either answer open questions or make official rulings that have previously appeared only in non-precedential summary orders. PC's are generally short and contain little or no reasoning, which render them very much like - except for their precedential value - summary orders. In light of this, the Blog will now gather PC's in a separate, occasional feature known as "PC World," so that time and space can be dedicated to the court's more salient work. With that introduction, here are the first two:

In United States v. Amico, No. 08-1338-cr (2d Cir. July 21, 2009) (per curiam), the court joined the Sixth, Seventh and Tenth Circuits in holding that a 2001 ameliorating amendment to the "gross receipts" provision, codified in the November 1, 2008, guideline manual as U.S.S.G. § 2B1.1(b)(14)(A), is not retroactive. This had been an open question here.

In United States v. Martinez, No. 08-3454-cr (2d Cir. July 13, 2009) (per curiam), the court held that a crack defendant who was sentenced as a career offender was not eligible for a sentencing reduction under 18 U.S.C. § 3582(c)(2) because his original sentence was "based on" the career offender guideline and not the crack cocaine guideline. The court had previously so held only in summary orders.

Daye of the Weak

United States v. Daye, No. 08-1012-cr (2d Cir. July 10, 2009) (Miner, Raggi, Livingston, CJJ)

Bruce Daye received an 180-month ACCA sentence. On appeal, he raised challenges to the use of all of his prior convictions as ACCA predicates, and the court sent the case back for further findings.

1. Escape

One of Daye’s prior convictions was for escape, most likely under Vt. Stat. Ann. tit. 13, § 1501. At the time of his federal sentencing, circuit law provided that, categorically, all escape convictions were crimes of violence for ACCA. Thus, although defense counsel objected to the characterization of the escape as a crime of violence, the district court made no findings as to the nature of the escape, which is now dispositive under Chambers v. United States, 129 S.Ct. 687 (2009).

Here, the PSR strongly suggested that Daye’s conviction arose from failing to return from a furlough, rendering it likely that the conviction is not an ACCA predicate. Since the record is incomplete, however, the court remanded the case to the district court for consideration of whether, under Chambers, Daye’s escape conviction is an ACCA predicate.

2. Sex Abuse of a Minor

Crime of Violence

Daye also had three prior convictions for sexual assault of a child under a Vermont statute that makes it a crime to engage in a “sexual act with another person” who is “under the age of 16.” A “sexual act” includes any physical contact with the sex organs, and any act of genital or anal penetration.

The circuit concluded that engaging in an illegal sex act with a child is a crime of violence under ACCA’s “residual clause,” which covers conduct that “presents a serious potential risk of physical injury to another.” Infliction of a sexual act upon a child by an adult clearly qualifies under this section given that such offenses “typically occur in close quarters,” where the adult is older, stronger and more experienced and is likely to have coerced the child. The court also rejected the view of some other circuits that such conduct is not a crime of violence where the child, unless “particularly young,” professes to consent. The very nature of the conduct, along with the child’s relative physical weakness, will always create a “serious risk that physical injury will result.”

The court also concluded that such conduct is similar in kind to the predicate offenses that are specifically listed in ACCA. The Vermont statute, although it imposes strict liability as to the age of the victim, requires “deliberate and affirmative conduct,” and a child is typically unable to deter an adult from using coercive force.

Different Occasions?

Two of Daye’s sex abuse convictions arose from a single incident in which he took four boys blackberry picking, while the third arose from a separate incident.

An infrequently invoked provision of ACCA requires that the predicate convictions arise from acts “committed on occasions different from one another.” Under circuit precedent, acts are committed on different occasions if they do not stem from the same “criminal episode.” The relevant considerations include whether the victims were different, whether the crimes were committed at different locations and whether they were separated by the passage of time.”

Here, the district court had no occasion to consider whether Daye’s two “blackberry picking” convictions arose from crimes committed on different occasions. The circuit remanded the case for consideration of this question, as well.

Resolution of the issue is clearly important here. If, as seems likely Daye’s, escape conviction is not a crime of violence, and one of his three sex abuse convictions is knocked out because it was committed on the same occasion as another, which also seems likely, then Daye might not be subject to ACCA.

Back to the Future

United States v. Pearson, No. 07-0142-cr (2d Cir. July 2, 2009) (Miner, Katzmann, Raggi, CJJ) (per curiam)

Title 18, U.S.C. § 2259 provides that, in sex abuse cases, restitution is mandatory for the full amount of any loss to the victim, including the costs of medical or psychiatric care. Here, in a case of first impression in the circuit, the court held that this section includes restitution for estimated future expenses.

In this case, then, the district court properly ordered such future restitution. The circuit sent the case back anyway, however, because the district court, which arrived at a figure of nearly $ 1 million - the victims were two young girls - did not adequately explain how it arrived at the figure it selected.

The court also held that the issue survived the appellate waiver in Pearson’s plea agreement. With respect to restitution, the agreement merely stipulated that Pearson would pay “in full,” without specifying an amount. This language “plainly contemplate[d] a future determination of the amount necessary to provide ‘full’ restitution.” Thus, while the waiver would have covered the district court’s decision to impose full restitution, it did not “unambiguously” cover an appeal of “possible errors in the determination of what amount constitutes full restitution.”

No Escape

United States v. Mills, No. 07-0308-cr (2d Cir. June 26, 2009) (Kearse, Sack, Livingston, CJJ) (per curiam)

Gary Mills was convicted of violating 18 U.S.C. § 922(g), and received a 188-month sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA). But for ACCA, his statutory maximum would have been 120 months’ imprisonment.

On appeal he argued, and both the government and the court of appeals agreed, that under Chambers v. United States, 129 S.Ct. 687 (2009), his Connecticut conviction for first-degree escape was not a violent felony.

The Connecticut statute proscribes a variety of conduct, ranging from escape from a correctional institution (which probably is a crime of violence) to failing to return to a halfway house or from a furlough. Here, at the sentencing hearing, the evidence established that Mills had been released from prison to “transitional supervision.” He lived in a private residence, but was required to report regularly to a community enforcement officer. After he repeatedly failed to do so, and the officer could not locate him, Mills was charged with escape.

The government conceded that all it would ever be able to prove was that Mill’s “escape” was merely a failure to return or report. And, as the court agreed, after Chambers, a “failure to report or failure to return is not a violent felony under the ACCA.”

Summary Summary

Interesting summary orders have been piling up. Here is the latest crop:

In United States v. Strand, No. 08-3730-cr (2d Cir. July 8, 2009), the court held that the district court lacked the authority to impose a drug sentence lower than the mandatory minimum to “adjust” for time served on state sentences for related conduct, where the state sentences had been fully discharged several years before the federal sentences were imposed. The court also held that a valid claim that the defendants were not subject to consecutive § 924(c) sentences under Whitley and Williams was waived by the appellate waiver in the plea agreement.

In United States v. Brown, No. 08-3364-cr (2d Cir. July 6, 2009), the court held that a commerce clause challenge to one of the failure-to-register statues, 42 U.S.C. § 14072, was “not jurisdictional,” and hence was waived by a guilty plea.

In United States v. Douglas, No. 08-0597-cr (2d Cir. June 29, 2009), although the court affirmed the conviction, it was unusually critical of the government's performance. First the court gave "special comment" to the government's discovery violations, including its failure to disclose a recording of the defendant's telephone conversation with his mother and its failure to provide advance notice of an expert witness' testimony. The court also noted with displeasure the government's careless word choice during a critical aspect of its summartion.

In United States v. Hossain, No. 08-3805-cr (2d Cir. June 24, 2009), the court remanded for resentencing because the district court did not adopt the PSR in open court, only in written, post-sentencing writings. This did not satisfy the obligation to calculate and identify the applicable guideline range.

In United States v. Suriel, No. 08-3952-cr (2d Cir. June 4, 2009), the court held that the wording of a Southern District plea agreement’s appellate waiver permitted the defendant to appeal an adverse “safety valve” determination.

Unlucky Day

United States v. Lucky, No. 08-1939-cr (2d Cir. June 19, 2009) (Calabaresi, Katzmann, CJJ, Eaton, J CIT)

Damon Lucky appealed the denial of his Speedy Trial Act (STA) dismissal motion. The circuit, finding only 69 days of nonexcluded time, one short of the magic number, affirmed.

Lucky’s argument was that there was no proper STA exclusion during the 70 days from May 20, 2005, to July 28, 2005, because the district court excluded the time from the STA calculations without making an “ends of justice” finding. The government countered that the time had been properly excluded to give the parties time for plea negotiations, and that plea negotiations are automatically excluded as “other proceedings concerning the defendant” under § 3161(h)(1) of the STA, with no “ends of justice” finding required.

While two other circuits have so held, the Second Circuit is “not yet convinced” by this argument. The phrase “other proceedings” typically refers to “formal judicial processes,” and the statute itself includes as examples “formal processes over which the parties have no direct control.” Plea negotiations, by contrast, are controlled by the parties, not the court, and thus do not “fit comfortably into the ‘other proceedings’ section.”

Ultimately, however, the court ducked the question. It identified a single day during the 70-day period upon which the district court held a status conference. Since a status conference is definitely a “proceeding,” and is “very similar” to the examples listed in § 3161(h)(1), that day was automatically covered by the district court’s exclusion order, and did not require an “ends of justice” finding. This rendered Lucky’s “plea negotiations” argument moot - the court’s thoughtful analysis is thus merely dicta - since with that single day excluded, Lucky could identify only 69 nonexcluded days. Accordingly, his conviction was affirmed.

Gray's Anatomy

United States v. Jass, No. 06-4899-cr (2d Cir. June 16, 2009) (Walker, Cabranes, Raggi, CJJ)

Marian Jass was jointly tried with her much older boyfriend, Kenneth Leight, on charges that they sexually exploited Leight's daughter and one of her friends. Leight, but not Jass, was also charged with several child pornography counts, based on materials found in his home. The evidence of sexual exploitation consisted mainly of the testimony of the two girls. The government also relied on an agent's testimony that Leight gave a detailed oral, unsigned and unacknowledged, confession about the episode involving the daughter's friend. The statement, which incriminated Jass and referred to her seven times, was admitted over her objection after being redacted to substitute the phrase "another person" for each reference to her name. Leight did not testify and could not be cross-examined about the statement attributed to him. The court instructed the jury that it could not consider the statement against Jass. Jass was convicted along with Mr. Leight and was sentenced to 65 years imprisonment.

The opinion concerns the admissibility of the redacted statement and a sentencing guideline issue. The Court rejected in a summary order other evidentiary and sentencing arguments.

The Redacted Statement

The defendants’ activities came to light soon after the New Jersey trip, and both were arrested. Post-arrest, Leight gave a detailed statement about the New Jersey trip that implicated both him and Jass. At the defendants’ joint trial, Leight’s confession was admitted, but was redacted of its references to Jass, who was either referred to as “another person” or “the other person.” The district court also gave instructions limiting the jury’s use of the statement to Leight and prohibiting its use against Jass.

On appeal, Jass argued that the admission of Leight’s confession violated her confrontation right under Bruton because the use of neutral pronouns or phrases such as “another person” was inadequate under Gray v. Maryland, 523 U.S. 185 (1998), which held that replacing a defendant’s name with an obvious blank or a “deleted” reference was insufficient to avoid Bruton error. Jass claimed that the redaction here was insufficient because it still obviously implicated her, and that the circuit’s pre-Gray case law - which permitted the substitution of neutral words for a defendant’s name - had been abrogated by Gray.

The circuit disagreed. It first noted that it had already held, in a 2001 case, that this was not so and that there was no basis for reconsidering that case.

Nor did it matter that in Jass’ case the redacted confession implicated only one person other than the declarant and only the declarant and one other person were on trial. While Leight’s redacted confession alluded only to a single, presumably female, confederate, this circumstance is not analogous to Gray because the “another person” redaction effectively concealed from the jury the fact that Leight had referred directly to another person at all, let alone that the person he identified was Jass.

According to the circuit, this is the core element of the Bruton/Gray line of cases: a concern that juries not learn that a declarant defendant has “specifically identified a co-defendant as an accomplice in the charged crime,” because such “specific testimony” is “more vivid than inferential incrimination” and is thus “more difficult to thrust out of mind.” But the Bruton rule is “narrow,” confined to those situations where there will be an “overwhelming probability” that the jury cannot ignore one defendant’s specific implication of another. Where the redaction adequately conceals from the jury the specific identification of a co-defendant, there is no reason to fear that a jury will be unable to follow the court’s instruction that it should consider a confession only against its maker. The Confrontation Clause does not require that a “confession be redacted so as to permit no incriminating inference against the non-declarant defendant.”

Here, accordingly, the redaction was adequate. First, it did not indicate to the jury that Leight’s original statement contained actual names. The way the agent described the confession - e.g., “Mr. Leight told me that he and another person had taken [Victim 2] to ... New Jersey” - in no way suggested that Leight had given the agent the actual name of his accomplice.

Nor did the redacted confession “immediately” inculpate Jass. Here, the inference that the jury would have had to make to connect Jass to the redacted statement was sufficiently attenuated, because the jury would have had to refer to other trial evidence to make the link. Viewing the statement in isolation, it would not have been immediately apparent that the references to “another person” must have meant Jass, even though some of the redactions made it fairly clear that the “other person” was a woman. A “simple gender reference ... lacks the specificity necessary to permit a jury to draw an immediate inference that the defendant is the person identified in the confession.” This is true even though Jass was the only other person on trial with Leight. All a juror could infer from this was that the prosecution believed that Jass was the other person that Leight mentioned in his confession but who, as far as the jury knew, he did not identify further. Accordingly, there was no Confrontation Clause violation here.

The court concluded with a brief review of the evidence of Jass’ guilt apart from Leight’s statement, and found that that the testimony of the girls rendered any confrontation error harmless, although this review did not expressly discuss the corroborating effect of Leight's statement.

The Sentencing Issue

Before the New Jersey trip, Leight used a computer, with Jass’ knowledge, to “groom” the daughter’s friend by showing her images of adults having sex with children so as to persuade her that such acts were normal. The district court subjected both defendants to the two-level enhancement under guideline section 2G2.1(b)(3)(B)(ii), which prescribes a two-level enhancement for the use of a computer to “solicit participation with a minor in sexually explicit conduct.” Jass argued that this enhancement did not apply, since it was the minor’s own participation - and not a third party's - that had been solicited.

The circuit agreed. It would make no sense to say that there should be a two-level increase because Leight used a computer to “solicit [Victim 2's] participation with [Victim 2] in sexually explicit conduct.” It is more natural to read this section as addressing a situation in which one person solicits another person to engage in sexual activities with a minor; otherwise the phrase “participation with” is rendered effectively meaningless. Accordingly, here, it was error to enhance Jass’ sentence under this provision.

But the error was harmless. The district court gave Jass a below-Guideline sentence of 65-years’ imprisonment - Leight got 115 years - and specifically indicated that it would have imposed the same sentence without the enhancement.

Gambling Problem

United States v. Ivezaj, No. 06-3112-cr (2d Cir. June 11, 2009) (Feinberg, Miner, Parker, CJJ)

Six defendants were convicted of racketeering and related offenses arising from their efforts to break the hold that New York City’s traditional organized crime families had on illegal gambling.

The primary challenge on appeal concerned two RICO predicate acts that alleged violations of New York state’s extortion statute. In New York, extortion involves compelling another person to “deliver ... property” to himself or a third person through fear of a future injury. “Property” is any personal property or “article, substance or thing of value ... which is provided for a charge or compensation.” The defendants argued that control over illegal intangible property such as a gambling operation was not “property” and could not be “delivered.”

The circuit disagreed. Surveying New York case law, the court first concluded that the state recognizes that intangible property - for example, a tenant’s right to occupy an apartment - is covered by the extortion statute. New York courts have also held that “illegal tangible goods,” such as narcotics, can constitute “property.” From those two propositions, the circuit readily concluded that illegal intangibles are also “property” under New York law.

The circuit’s own Hobbs Act jurisprudence bolstered this conclusion. Indeed, the court in 2006 held that “intangible property rights can qualify as extortable property under the Hobbs Act,” whether legal or not.

The court characterized the defendants’ claim that control over an illegal gambling business could not be “obtain[ed]” or “deliver[ed]” as “imaginative but overly literal,” since New York courts have already held that intangible property rights can be extorted.

Relatedly, the defendants also claimed that one of their beating victims was not a “victim” of the inchoate extortion offense, since he was not an “owner” of the extorted property. The court held that, since the defendants were charged with attempt and conspiracy offenses, it was sufficient that the defendants thought he was an owner.

Finally, the defendants challenged their § 924(c) convictions, which related back to the substantive racketeering count, arguing that racketeering did not constitute a “crime of violence.” Applying the traditional “categorical approach” to both the racketeering statute and the statutes underlying the predicate acts, the court disagreed. “[W]here the government proves (1) the commission of at least two acts of racketeering and (2) at least two of those acts qualify as ‘crime[s] of violence’ under § 924(c)," a racketeering conviction serves as a predicate for a § 924(c) conviction.

Finally, the court tackled an open Guidelines question in racketeering cases. One defendant challenged his aggravating role enhancement on the ground that the district court should have looked only to the conduct alleged in the charged RICO predicates, and not to his role in the enterprise as a whole. The circuit disagreed, adopting the reasoning of a Seventh circuit case. In racketeering prosecutions, role adjustments function just as they do in any other prosecution: the sentencing court is to look to the count of conviction and all relevant conduct.