SAMs Club

United States v. Stewart, No. 06-5015 (2d Cir. November 17, 2009) (Walker, Calabresi, Sack, CJJ)

This 191-page opinion - three opinions, actually - deals with the aftermath of the Lynne Stewart trial. The defendants appealed their convictions - without success - while the government appealed the sentences. The court found procedural error with respect to Stewart’s sentence and remanded the case for resentencing.

Background

Beginning in the mid-1990's, Stewart represented Sheikh Omar Ahmad Abdel Rahman, who was convicted of several terrorism offenses - including the 1993 World Trade Center bombing conspiracy - and sentenced to life in prison. Although based in New York, Rahman was the spiritual leader of the Islamic Group, a terrorist organization that was responsible for acts of violence in Egypt.

In 1997, the Bureau of Prisons imposed restrictive Special Administrative Measures (“SAMs”) on Rahman to prevent him from soliciting acts of violence from prison. The SAMs were intended to severely restrict Rahman’s ability to contact outsiders and to receive or transmit communications. In order to maintain contact with her client, Stewart was required to - and did - execute several versions of the SAMs between 1998 and May of 2001. In doing so, she affirmed that she would abide by their restrictions and would not use her meetings with Rahman to pass messages between Rahman and third parties, including the media.

Nevertheless, Stewart, with the assistance of Mohammed Yousry, a translator, and Ahmed Abdel Sattar, a paralegal who had worked on the trial, repeatedly violated the SAMs.

In 1997, the Islamic Group declared a unilateral “cease-fire” in Egypt. Beginning in early 1998 Sattar - who had remained in contact with the Islamic Group - would deliver messages concerning the cease-fire to Stewart and Youssry, who would bring the messages to Rahman in prison. In an elaborate effort to trick the guards who were observing these visits, Yousry would read the messages to Rahman and take down his responses, while they pretended to discuss other matters. When Rahman began to question the effectiveness of the cease-fire, Stewart and Yousry smuggled his position out of the prison and passed it on to Sattar, who communicated it to his associates in Egypt.

As time wore on, Rahman - through more smuggled communications - officially repudiated the cease-fire. In May of 2000, Stewart and Sattar spoke to a reporter based in Cairo and Stewart announced that Rahman had withdrawn his support for the cease-fire; a few days later, after a telephone conversation with Rahman, Stewart contacted the reporter again and confirmed that her previous statement was correct. Stewart’s and Youssry’s surreptitious passing of messages to and from Rahman continued until June of 2001.

The three defendants were indicted in 2002, a superseding indictment was filed in later 2003, and, in February of 2005, a jury convicted them of conspiracy to defraud the United States by violating the SAMs. Sattar was also convicted of conspiring to murder persons in a foreign country and of soliciting crimes of violence. Stewart and Yousry were convicted of providing and concealing material support to Sattar’s murder conspiracy and of conspiring to do so, and Stewart was convicted of two counts of making false statements.

The district court sentenced Stewart to 28 months’ imprisonment, Youssry to 20 months, and Sattar to 288 months.

The Defendants’ Appeal

The defendants raised a host of challenges to their convictions. Only two are summarized here.

1. The Material Support Count

The original indictment charged the defendants with violating 18 U.S.C. § 2339B, which at the time made it a crime to “knowingly provide material support or resources to a foreign terrorist organization” or to attempt or conspire to do so. After the district court found that the statute was unconstitutionally vague and dismissed that count, the government superseded and charged them with violating 18 U.S.C. § 2339A, a similar statute that, unlike § 2339B required the government to prove that a defendant knew or intended that the material support would be used to commit specific crimes of violence. Here, the government alleged that the defendants provided material support or resources - specifically “personnel,” in the form of Rahman himself - to the murder conspiracy knowing or intending that Rahman would help commit the crimes.

Amongst other claims, Stewart and Yousry argued that the evidence was insufficient to support a finding that they provided “personnel” to the conspiracy. The circuit disagreed. The trial evidence supported a reasonable inference that they helped Rahman participate covertly in the conspiracy to engage in violence abroad by communicating to his supporters news of his repudiation of the cease-fire. Nor was it true that the defendants were prosecuted for Rahman’s “pure speech.” The jury reasonably found that, since Rahman was the Islamic Group’s spiritual leader, his messages were a “call to arms” intended to sway the group’s members to commit criminal acts of violence.

2. The False Statements Counts

Stewart challenged her convictions under 18 U.S.C. § 1001, characterizing her disregard of the SAMS as a “broken promise,” and not a false statement.

The court disagreed. The jury was “entitled to conclude” that when Stewart executed the SAMs she affirmed that she had the intention of conforming to their strictures, but that her assertions about her intent were knowingly and willfully false when she made them.

The Sentencing Appeals

For each defendant, the district court imposed a sentence far below that recommended by the Sentencing Guidelines. The government challenged all of them as procedurally and substantively unreasonable. The panel unanimously affirmed Sattar’s and Youssry’s sentences. As for Stewart, although it unanimously agreed that the sentence was the product of procedural error and thus should be vacated, the panel was deeply divided over the precise nature and extent of the error.

1. Sattar

For Sattar, the Guidelines recommended life. Due in very large part to the applicability of the terrorism enhancement, § 3A1.4, his offense level was 43 and he was in criminal history category VI. Under 18 U.S.C. § 3553(a), however, the district court imposed a 24-year sentence instead.

The circuit found no procedural error in the district court’s findings that: (1) the terrorism enhancement did not account for the fact that no injury actually occurred in this case; (2) the terrorism enhancement placed Sattar in criminal history category VI even though he had no criminal history points, thus overstating both his past conduct and likelihood of recidivism; and (3) his “extremely restrictive conditions of [pretrial] confinement” and the likelihood that they would continue were a mitigating factor.

With respect to this last consideration, the court noted that it was “not unreasonable for the district court to conclude that the severity of the conditions of confinement would increase the severity of the punishment and the amount of deterrence associated with a given term of imprisonment in light of the particular conditions of confinement under which Sattar is incarcerated.”

2. Yousry

For Yousry, the district court concluded that the terrorism enhancement did not apply, and thus that his sentencing range was 78 to 97 months. Under § 3553(a), the court imposed a 20-month sentence.

First, the circuit affirmed the district court’s conclusion that the terrorism enhancement did not apply to Yousry because Yousry did not act with the requisite state of mind. The enhancement applies if the offense of conviction is a felony “that involved” or “was intended to promote” a federal crime of terrorism, defined as one that “is calculated to influence or affect the conduct of government through intimidation or coercion.” The district court concluded that the government failed to establish that Yousry acted with the requisite motivation or purpose.

The government conceded this point on appeal but argued that the enhancement should still apply because Yousry’s offense “involved ... a federal crime of terrorism.” The circuit disagreed, holding that the word “involved” (1) meant that the enhancement could only apply if Yousry himself had committed a federal crime of terrorism, and (2) incorporated the specific intent to “influence or affect the conduct of government by intimidation or coercion.” Since there was “no evidence that Yousry himself sought to influence or affect the conduct of government,” the enhancement did not apply.

Nor could Yousry’s co-defendants’ motivations be imputed to him under the relevant conduct Guideline. Section 1B1.3 applies to “acts and omissions” and a mens rea is not an “act” for the purposes of the relevant conduct guideline.

The court found no procedural error in the district court’s reliance, under § 3553(a), on the following mitigating factors: (1) Yousry’s conduct fell outside the heartland of material support for terrorist activity; (2) no “actual harm to victims occurred” - holding, for the first time, that “a district court may rely on the fact that no harm resulted from the criminal act at issue,” at least to some degree; (3) Yousry’s role was “subservient to the others involved” in the scheme; (4) since Yousry did not act for profit and did not support or believe in the use of violence, he was less dangerous and more easily deterred; (5) his conviction would render him unable to pursue his career as an academic or translator - holding, again for the first time, that the “collateral effects of a particular sentence” are a necessary component of the “just punishment” provision of § 3553(a)(2)(A); Yousry extensively cooperated with the government after the September 11, 2001, attacks; and (7) Yousry will not again be in a position to commit this type of offense.

Finally, the court of appeals found that the resulting sentence was substantively reasonable because these factors could “bear the weight” assigned to them by the district court and because the district court did not give an inappropriate level of deference to the Guidelines.

3. Stewart

For Stewart, the guidelines recommended 360 months, the statutory maximum. Given the applicability of the terrorism enhancement, her offense level was 41 and her criminal history category was VI. After considering § 3553(a), the court settled on a 28-month sentence.

The district court first found that, although the terrorism enhancement applied, and Stewart’s conduct was within that provision’s “heartland,” this case was nevertheless an “atypical” one for the enhancement, because the “thrust” of the conspiracy was providing a co-conspirator, no harm resulted, and the enhancement did not take into account her actual criminal history. The court held that category VI overstated the seriousness of Stewart’s criminal past and the likelihood of recidivism, which the court described as “nil.”

Next, the district court viewed Stewart’s personal history as an attorney as “extraordinary” and concluded that it merited a “substantial downward variance.” The court also took into account her ill health - she was a cancer survivor - and her age, noting that her sentence would represent a “greater portion of her remaining life than for a younger defendant and provide increased punishment.”

All three judges on the appellate panel agreed that the district court committed three procedural errors in sentencing Stewart.

First, there was some evidence that Stewart had committed perjury at trial by testifying that “she understood that there was a bubble built into the SAMs whereby the attorneys could issue press releases containing Abdel Rahman’s statements as part of their representation of him” and by denying knowing about one of Rahman’s confederates in Egypt. Although the district court acknowledged that there was reason to think these were false statements, it declined consider whether the obstruction of justice Guideline should apply because the Guidelines calculations were at the statutory maximum without that enhancement and because it had decided to impose a non-Guideline sentence.

Second, the district court did not consider whether Stewart abused a position of trust, an enhancement under § 3B1.3.

Third, all three judges expressed some concern that Stewart’s sentence was only 8 months longer than Yousry’s, but that her conduct was considerably more serious.

The court accordingly remanded Stewart’s case for resentencing and directed the district court to “determine the issue of perjury and if it finds such perjury to resentence Stewart so as to reflect that finding,” and to consider § 3B1.3 and “reconsider the extent to which Stewart’s status as a lawyer affects the appropriate sentence.” The court also remanded Sattar’s and Yousry’s cases, as well. Although it found no error in their sentences, since the “interrelationship among the sentences of the co-defendants is a principal consideration as to a proper sentence of Stewart, the district court should have the ability, if not the obligation, to resentence them as well.”

There was much, however, that the panel did not agree on.

Judge Calabresi, concurring, stressed the appellate court’s “limited ... institutional role” in reviewing sentences and the need to “avoid second guessing.” That said, and although the majority expressly refrained from addressing the substantive reasonableness of Stewart’s sentence, Judge Calabresi noted that he would be “very reluctant ... to find an abuse of discretion in a conclusion by the district court that Stewart’s conduct, though undeniably serious, was significantly less serious than that of other defendants subject to the terrorism enhancement.”

Judge Calabresi also wrote specifically on the desirability of permitting a district court to correct procedural errors and “exercise its discretion anew” before “prematurely” reviewing a sentence substantively.

Finally, Judge Calabresi suggested a further ground for possible leniency. Other members of Rahman’s legal team - including former United States Attorney General Ramsey Clark - had also violated the SAMS, albeit to a much lesser degree than Stewart, and were not prosecuted at all. Judge Calabresi was “inclined to think that the district court should not be barred from considering the relevance of prosecutorial discretion in a particular case, and that our legal system should take advantage of the district court’s unique position to consider a defendant’s sentence ‘in its complete relevant context.’” He noted, “we should not forget that there might be even greater disparities between a defendant and other individuals who were not charged at all.”

Judge Walker dissented. Although he agreed with the other members of the panel on the three procedural errors, Judge Walker concluded that the sentence was substantively unreasonable and should be vacated on that ground, as well. First, he viewed the district court’s decision to completely eliminate the effect of the terrorism enhancement as error. “Without a reasonable assessment of the seriousness of Stewart’s crime, the district court could not reliably determine the sentence necessary to afford adequate general and specific deterrence” in material support cases. He also found that the district court erred in weighing too heavily Stewart’s age, health and career. “I am at a loss for any rationale upon this record that could reasonably justify a sentence of 28 months’ imprisonment for this defendant under § 3553(a).”

Bye-Bye Baby

United States v. Hasan, No. 08-4921-cr (2d Cir. November 10, 2009) (Cabaranes, Sack, CJJ, Rakoff, DJ)

Syed Hasan was convicted of a number of crimes in connection with his successful scheme to kidnap his infant son and spirit the child off to India. He appealed on a number of grounds. This long opinion covers little new ground, but closes one open question.

In preparation for the kidnapping, Hasan applied for a passport for the child. In the application, he falsely gave his brother's address in South Carolina as the child’s home address . In fact, the child lived in Brooklyn. On appeal, Hasan challenged his passport fraud conviction, arguing that the South Carolina address was not a “material misstatement.”

The circuit affirmed. It looked at the text of the statute, which makes it a crime to “willfully and knowingly make[] any false statement in an application for a passport,” and concluded that “the statute plainly does not require that the false statement be material.”

The Things We Do For Love

United States v. Caraballo, No. 08-4640-cr (2d Cir. November 5, 2009) (Leval, Raggi, Livingston, CJJ)

Gilberto Caraballo was a large-scale drug supplier in the Sunset Park section of Brooklyn. In September of 2000, he started dating Quincy Martinez, former girlfriend of Jose Fernandez, a dealer who worked for Caraballo. Three months into their relationship, Martinez asked Caraballo to murder Fernandez because he had been abusive toward her. Caraballo answered, “Say no more.”

Caraballo recruited one of his former drug dealers, Aguilar, and Aguilar’s associate, Taylor, to help do the job. Caraballo had previously cut off Aguilar’s supply over an unpaid drug debt, but promised to forgive the debt and resume supplying to him in exchange for the hit. Taylor, who realized that his own sales would increase once Caraballo started supplying Aguilar again, agreed to help and was to receive $5,000 in cash or drugs.

Aguilar, Taylor and Caraballo did the deed and, as promised, Caraballo gave Taylor cocaine and ecstacy pills, forgave Aguilar’s drug debt and arranged for both of them to begin receiving drugs on consignment. As a result of this arrangement, Caraballo was convicted of violating 21 U.S.C. § 848(e)(1)(A), which makes it a crime for “any person engaging in” a specified drug crime to kill or solicit a killing.

On appeal, although he conceded that the evidence supported his conviction for the predicate drug offense, Caraballo argued that the evidence was insufficient to support a finding that he committed the murder while “engaging in” the drug conspiracy.

The circuit affirmed. It first noted that the statutory language - “engaging in” - would seem to require only a temporal connection between the murder and the drug crime. But the Second Circuit, like every other court, has concluded that the government must prove a “substantive, and not merely temporal, connection” between the murder and the drug predicate. This requirement saves the statute from a possible Commerce Clause challenge and furthers the law’s purpose, which is to “target drug-related killings.”

Previously, the court has held that the “engaging in” element is satisfied by proof that there was a drug-related motive for the killing, although the court has made clear that it does not have to be the “primary” motive, or even of equal importance to any non-drug-related motive. But here, the court rejected Caraballo’s argument that these precedents required that the government prove that the killing was, at least in part, in furtherance of the drug crime.

Rather, the court explained, those precedents are simply illustrations of one type of substantive connection; they do not hold that proof of a drug-related motive is the only way to establish it. Nor is there any legitimate policy reason for limiting the scope of the statute to cover only killings that are specifically motivated by the predicate drug crime.

With that as a background, the court had little trouble finding the evidence sufficient here. “[W]e see no reason why [the substantive connection] is not also proved by evidence that the defendant used qualified drug dealings to procure the murder.” Thus, here, while the motive for the killing - Caraballo’s romantic relationship with Martinez - was not drug-related, using the drug conspiracy’s proceeds as a tool to procure the killing was “sufficient to permit a reasonable jury to find that Caraballo killed Fernandez while ‘engaging in’ the charged drug conspiracy.”

In a footnote, however, the court reiterated its view - still dicta, since it has not yet come up - that a drug dealer who killed a spouse in a purely non-drug-related domestic dispute would not satisfy the “engaging in” requirement of § 848(e)(1)(A).

Summary Summary

Two summary orders of interest:

In United States v. McDarrah, No. 07-1849-cr (2d Cir. November 5, 2009), a child enticement case, the district court admitted opinion testimony from an FBI agent that was improper in two ways. First, the agent used "we" to preface one of his opinions, which suggested that the opinion was based on his and other agents' collective knowledge and experience, and thus was "specialized knowledge" and not a "lay" opinion. Second, the agent expressed his opinion that the defendant was in fact guilty of attempted enticement. However, the court found the errors to be harmless.

In United States v. Creary, No. 06-2233-cr (2d Cir. November 3, 2009), the court noted that it is "plain error" for a district court not to adopt the presentence report in open court at sentencing, but not where the report adequately supports any contested enhancements.

Cash and Quarry

United States v. Byors, No. 08-4811-cr (2d Cir. October 29, 2009) (Cabranes, Livingston, CJJ, Korman, DJ)

Defendant, while ostensibly raising money for a Vermont marble quarry, made material misrepresentations to his investors. He also converted substantial amounts of their money to pay for his personal expenses, including vacation homes, cars and horses. He pled guilty to multiple fraud and money laundering offenses and was sentenced to 135 months’ imprisonment. On appeal, he raised two unsuccessful challenges to his Guidelines calculations.

He first argued that the district court should have deducted from the loss calculation - about $9 million - the “legitimate business expenditures” that went into his efforts to “capitalize” the quarry business. The circuit disagreed. Under the “plain language” of Application Note 3(E) to the fraud guideline, the loss amount is only offset by any “value” that the victims receive, and not by legitimate expenditures. Byors' expenditures conferred nothing of value and no benefit to his victims. He rendered no “services” to them and did not deliver any return on their “investment.” Even accepting his claim that he used the money for the purposes he promised his victims, there was no error here. Byors' victims were left with nothing of value when the fraud was uncovered.

Byor, who tampered with a witness during the investigation into his fraud, also raised an issue about the interaction between the general obstruction of justice guideline, § 3C1.1, and the specific provision dealing with obstruction in the money laundering Guideline, § 2S1.1, comment. n.2(C). These two provisions seemingly conflict in cases where the defendant has obstructed a predicate offense, but not the subsequent money laundering offense itself.

The money laundering guideline provides that the application of § 3C1.1 “shall be determined based on the [laundering of criminally derived funds] ... and not on the underlying offense from which the laundered funds were derived.” Byors argued that under this provision the Chapter 3 adjustment could only apply if the obstruction related to the money laundering offense, and not the underlying fraud. The circuit disagreed. The Chapter 3 obstruction enhancement covers the offense of conviction, “any relevant conduct,” or “a closely related offense.” The fraud that underlay the money laundering offense, during which Byors obstructed justice, was either relevant conduct or “closely related” to the money laundering offense.

The court refused to conclude that an application note to a separate offense conduct guideline “creates an exception” to § 3C1.1, since that would be contrary to its practice of seeking to “harmonize” commentary with the Guidelines.

Action Jackson

United States v. Jackson, No. 08-5151-cr (2d Cir. 2009) (McLaughlin, Katzmann, CJJ, Korman, DJ)

Here, the circuit concluded that erroneous introduction of prejudicial “other acts” evidence required a new trial.

The Facts

Police officers responding to a “shots fired” call in Queens encountered Jackson and others outside the target apartment building. Jackson fled, and has he ran, one of the officers claimed to see what looked like the butt of a gun in his pocket. Jackson was arrested later coming out of a different building. He was unarmed, but the police found a gun in a trash can in the courtyard that separated the two buildings. Jackson was charged with being a felon in possession of that gun.

The next day, the police executed a search warrant in the target apartment and found guns, drugs, bulletproof vests and cash. Jackson was not charged with possessing those items, but at 11:15 on the night before the trial was to begin, the government moved to admit them at trial, claiming it had “eye witnesses” testimony that they were his. The government claimed that the evidence was “necessary background” and would go to “opportunity, plan and lack of mistake.”

The district court admitted it, holding that evidence that Jackson was in an apartment with “that kind of armament” is “highly relevant” and “not unduly prejudicial.” Accordingly, the government called a witness who testified that, on the night Jackson was arrested, he brought her to the target apartment so that she could use the bathroom. This was the government’s only evidence tying him to the apartment. The government also introduced into evidence photographs of all of the contraband found in the apartment, as well as four actual guns.

The Evidence Was Erroneously Admitted

The circuit reversed, finding that the evidence from the apartment was “not admissible for any proper purpose.” First, it was not proper background evidence, as it was “not particularly helpful to explain the crime.” The only crime that Jackson was charged with occurred on the street, not in the apartment, and the government did not need to introduce the contents of the apartment to explain why the police were at the building, why they pursued Jackson after he bolted, or why he was charged with possessing a gun.

The court also rejected the government’s argument that the evidence was relevant to Jackson’s opportunity or motive. These matters were not really at issue at trial, since Jackson’s defense was that he did not have a gun at all. Moreover, even though evidence that Jackson had ready and contemporaneous access to guns was relevant circumstantial evidence that he possessed the gun he was charged with, the evidence the government introduced went “far beyond what was necessary for this purpose,” and the government never argued at trial that the evidence showed opportunity.

The Error Was Not Harmless

This case presented the perfect storm of harmfulness: a weak case, improper use by the government, and truly baffling limiting instructions.

First, the circuit found the government’s case to be “by no means overwhelming.” The officer who said he saw what looked like the but of a gun in Jackson’s pocket admitted on cross-examination that he was not sure it was a gun. No one saw Jackson put anything in the trash can where the gun was found, and the gun had no fingerprints on it.

The government also misused the evidence by “invit[ing] the jury to infer that Jackson at least associated with dangerous drug dealers equipped with an array of weapons who operated a narcotics business out of a residential apartment building.” In its summation the government argued that the evidence showed “exactly what was going on that day” and “who the defendant really is.”

Finally, the district court’s limiting instructions were terrible. The court told the jury that the case had “nothing to do with a narcotics charge” and that the jury should not consider the drugs “for any reason whatsoever” because they were being admitted simply to show what was found in the apartment. The circuit concluded that there was an overwhelming probability that the jury would be unable to follow an instruction to ignore the drug evidence. Moreover, the instruction only mentioned the drugs, not the guns, leaving open the possibility that the “jury might have believed that the weapons [found in the apartment] ... could contribute to a finding that Jackson possessed the gun” he was charged with. A jury is not likely to be able to follow an instruction that evidence is “merely background” where the evidence is highly prejudicial and the government puts it “at the center of the trial.” Since that was true here, the error was not harmless.

Summary Summary

Two more summary orders of interest:

In United States v. Howard, No. 08-0944-cr (2d Cir. October 26, 2009), the court, when considering the denial of a motion to suppress wiretap evidence, questioned whether the district court correctly rejected without a hearing the defendant's claim that the government illegally began tapping his phone before it obtained a wiretap order. One record was "troubling," in that it seemed to support the defendant's claim, and the government's explanation - that the record was a "data entry error" - was unconvincing. The court noted that "[i]f we were in the district court's position, we would have conducted a hearing to delve further into this bare explanation," although it was not an abuse of discretion to decline to do so.

In United States v. Carrasco-Abreu, No. 08-4420-cr (2d Cir. October 20, 2009), the court held that an alien who failed to leave the the country under an order of voluntary departure and was removed by the immigration authorities years later, was still "deported" within the meaning of the illegal reentry statute.

Drug Abuse

United States v. Wright, No 08-0322-cr (2d Cir. October 19, 2009) (Jacobs, McLaughlin, Parker, CJJ)

Here, the circuit held that the admission of defendant McCallum’s two prior drug convictions - which it termed “propensity evidence in sheep’s clothing” - during his federal crack trafficking trial was an abuse of discretion. It also found the error to be harmless, however, and affirmed.

McCallum was a member of a drug crew in Spring Valley, New York. At trial, the government sought to offer into evidence his two prior convictions for possession and attempted sale of cocaine, arguing that they were admissible under Rule 404(b) to show his knowledge and intent. The district court allowed the evidence, but did not explain why it believed it was admissible.

The circuit began by noting that its “inclusionary approach” to Rule 404(b) does not give the government “carte blanche” to offer “any prior act of the defendant in the same category of crime.” In fact, where the government offers the evidence to establish knowledge or intent it must show a “similarity or connection between the two acts that makes the prior act relevant.” But, because of the risk that a jury will engage in “generalized reasoning about a defendant’s criminal propensity” such evidence “merits particularly searching, conscientious scrutiny,” particularly when it involves prior convictions, as opposed to other bad acts. Prior convictions should only be admitted after a careful Rule 403 balancing.

Here, there was no indication that the district court “engaged at all in the Rule 403 inquiry, let alone the required conscientious one” and the circuit would not presume that the district court “appreciated the seriousness of the risk that introducing the convictions would undermine the fairness of the trial.” While it was true that McCallum did not clearly indicate that the issues of knowledge or intent would not be disputed, which rendered them “sufficiently in dispute for the similar acts evidence to be relevant and ... admissible,” there was no basis for the district court to find any sort of probative need. There was extensive testimony from McCallum’s co-conspirators about the operation of the conspiracy, and the government introduced drugs seized from the apartment they shared along with extensive audio and video surveillance. “Given all of this evidence, we are at a loss to understand how the court or the government could believe that the prior convictions were necessary to prove ... intent and knowledge and that they passed muster under Rule 403.” It was accordingly an abuse of discretion to admit the convictions.

The error here was harmless in light of the government’s “indisputably strong” case against McCallum. The court warned, however, that in a “different case, in which prior convictions were admitted but the government’s other evidence was not overwhelming, or where the other harmless error factors tilted more strongly in the defendant’s favor, or where the government’s summation emphasized the prior convictions, a different result could well be indicated.”

PC World

Here are the two most recent PC’s.

In United States v. Bell, No. 08-5506-cr (2d Cir. October 20, 2009) (Miner, Cabranes, CJJ, Rakoff, DJ) (per curiam), the court reversed the district court’s grant of a new trial under F.R.Cr.P. 33 and remanded the case for sentencing.

After the defendant was convicted of attempted murder of a federal officer, assault and discharging a firearm in connection with those offenses, the lower court concluded that it had given the jury an erroneous definition of the term “intentional” that did not clearly distinguish between intentional and accidental conduct. The circuit disagreed, holding that the district court’s chosen language - that the defendant’s act must have been the product of his “conscious objective rather than the product of a mistake or accident” was not error. The appellate court was equally unimpressed with the district court’s alternative reason for granting a new trial: the uncontested use of a general verdict form. The form was not error, nor were the court’s instructions on how to consider the relationship between the counts.

In United States v. Thrower, No. 08-2016-cr (2d Cir. October 14, 2009)(Parker, Wesley, CJJ, Restani, JCIT)(per curiam), the court resolved an open question by holding that larceny from the person under N.Y. Penal Law § 155.30 (McKinney Supp. 2009) constitutes a “crime of violence” for the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2006) (“ACCA”). Larceny that involves a physical nexus between the victim and the property creates a risk of violent confrontation. Moreover, the offense is “roughly similar” to burglary - which is specifically listed in ACCA - in that it is “as inherently violent and aggressive.”

A Matter of Substance

United States v. Rigas, No. 08-3485-cr (2d Cir. October 5, 2009) (Feinberg, Winter, Cabranes, CJJ)

When we last heard about the Rigas père et fils - former senior officers at Adelphia Communications who were convicted of conspiracy, securities, wire and bank fraud - the circuit affirmed the majority of their convictions, but reversed a single count of bank fraud for insufficient evidence. United States v. Rigas, 490 F.3d 208 (2d Cir. 2007). Probably because the court remanded the case for resentencing, the 2007 opinion did not address the defendants’ long prison sentences: twenty years for the father and fifteen for the son, where the Guideline recommendation for each was life.

This case is the appeal from the remand. The decision covers little new ground, but provides very helpful guidance from the court on the standard it applies when reviewing a sentence for substantive reasonableness.

To get there, however, the court fist had to consider whether the district court correctly handled the resentencing. Under circuit precedent, where a conviction on one or more counts is overturned on appeal, the circuit’s “default rule” is that the case should be remanded for a de novo resentencing. Here, the district court viewed this rule as too “mechanical,” and instead treated the reversal of a single count of this multi-count indictment as a “sentencing error,” not a “conviction error.” It therefore conducted only a limited resentencing. Even so, however, the court reduced each defendant’s sentence by three years and noted that, alternatively, it would have done the same at a de novo resentencing.

The circuit held that the district court’s treatment of the remand was error. When any part of a conviction has been overturned on appeal “a district court ... is required to resentence de novo [and] must reconsider the sentences imposed on each count.” Here, however, the error was harmless, in light of the district court’s alternative ruling.

The court then turned to the substantive reasonableness of the resulting sentences. The court’s last decision to discuss meaningfully this issue, the en banc in Cavera, left us with a standard that was fairly amorphous. “[W]e will set aside a district court’s substantive determination only in exceptional cases where the trial court’s decision cannot be located within the range of permissible decisions.”

Here, the court gave some more structure to that language. First, it insisted, as it has before, that substantive reasonableness review is not a “rubber stamp.” It then likened the standard for substantive reasonableness to similar standards that apply in other situations: the “manifest-injustice” standard for granting Rule 33 motions and the “shocks-the-conscience” standard for intentional torts by state actors. All three standards are deferential to district courts and provide relief “only in the proverbial ‘rare case.’” They are also “highly contextual,” which means that they “do not permit easy repetition in successive cases." And, finally, they are “dependent on the informed intuition of the appellate panel that applies these standards.” All told, these standards provide a “backstop for those few cases that, although procedurally correct, would nonetheless damage the administration of justice because the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of law.”

Under these principles, the court had “no trouble” concluding that the Rigas’ sentences were substantively reasonable. The court noted that stiff Guideline sentences for white collar crimes reflect Congress’ judgment as to the appropriate national policy for such crimes. Moreover, the Rigas’ crimes were specifically intended to create a false picture of profitability at Adelphia, even for professional analysts, and were motivated by the defendants’ personal financial circumstances and outright greed.

Summary Summary

Here's a fairly large crop of summary orders of interest.

In United States v. Smith, No. 07-5740-cr (2d Cir. October 8, 2009), the court agreed that it was error to admit a picture of the defendant's tattoo - which depicted the skull, arms and ribcage of a skeleton firing a weapon - in a homicide case. Other than to show propensity, the evidence was irrelevant. The error, however, was harmless.

In United States v. Jackson, No. 08-0541-cr (2d Cir. October 2, 2009), the court found no error in allowing the government to prove two assaults through hearsay at a supervised release violation hearing. The government justified the hearsay by asserting that the victims were no longer cooperating with the authorities - one had recanted and the other had indicated that she was afraid of the defendant. The court found that the government conclusively demonstrated the reliability of the hearsay.

In United States v. Tejada, No. 07-3419-cr (2d Cir. September 30, 2009), the government, on its own initiative, noted that a seven-year consecutive § 924(c) sentence was illegal under Williams and agreed to a remand.

In United States v. Seifer, No. 08-5864-cr (2d Cir. September 30, 2009), the court affirmed the denial of the defendants' attorneys fees under the Hyde Amendment. But the court also acknowledged the district court's criticism of the government's conduct in the case, "criticism that the government appears to concede was warranted."

United States v. Mends, No. 08-0158-cr (2d Cir. September 17, 2009), vacated a guilty plea to aggravated identity theft under Flores-Figueroa, because the defendant did not allocute to knowing that he was using the identification of an actual person.

Murder, She Dotes

United States v. Young, No. 07-2729-cr (2d Cir. October 8, 2009) (Jacobs, Walker, Leval, CJJ)

Defendant Laval Farmer was a member of the Bloods street gang, charged with a 2001 gang-related murder and and 2002 gang-related attempted murder, along with various associated firearms offenses. At least three years before the charged offenses he acquired the unfortunate nickname of "Murder." At his trial the court allowed witnesses to refer to him by that name and the prosecutors to repeatedly use it in highly inflammatory ways. As a result, the court of appeals vacated the attempted murder conviction, but let the murder conviction stand based on the strength of the evidence.

Background

In July of 2001, members of a rival gang, the Crips, assaulted two members of Farmer's Bloods crew. Farmer took it upon himself to avenge the beatings. Believing that a fourteen-year-old boy wearing blue clothing was a Crip, Farmer shot and killed him. It turned out that the boy was a popular fourteen-year-old, and not a gang member.

A few months after the shooting, Farmer moved to Pennsylvania and associated with another Blood, Jaquel Patterson. Farmer and Patterson had a strained relationship; Patterson frequently disparaged Farmer's Bloods bona fides, and there were occasions where Patterson did not honor the Bloods' code of behavior during incidents involving Farmer. In July of 2002, Farmer decided to teach Patterson a lesson. He entered Patterson's bedroom with a gun, forced Patterson to apologize and plead for his life, then shot him in his body, legs, arms and face. Patterson survived.

The Trial

At trial, Farmer moved to strike the nickname "Murder" from the indictment and preclude any reference to him by that name at the trial. The district court denied these requests, and Farmer was referred to as "Murder" throughout the trial. The government referred to him by that name at least three times in its opening, and several times more in its summation, suggesting that he was trying to "live up to his name of Murder." Worse still, in the rebuttal summation the government used the name nearly thirty times, repeatedly tying it to Farmer's offense conduct.

The Appeal

On appeal, the circuit was highly critical of the government's conduct.

It first surveyed the case law on the use of nicknames, holding that a trial court need not preclude the use of a suggestive nickname where "it help[s] to identify the defendant, connect him to the crime, or prove other relevant matter, or when coherent presentation of the evidence entail[s] passing reference to it," as long as the name's probative value outweighs its potential for prejudice.

Here, it was error for the district court to permit the government to elicit testimony of Farmer's nickname, except for references by witnesses who knew him by that name. Farmer's identity was not at issue and his nickname had "no legitimate relationship to the crimes charged." Rather, the name strongly suggested "a propensity to commit particularly heinous crimes, including the very offenses charged in the indictment."

But the more serious problem here arose from the "prosecutors' frequently repeated, gratuitous invocation of Farmer's nickname in their addresses to the jury, uttered in a context that, in effect, invited the jurors to infer that the defendant had earned the nickname among his gang colleagues as a a result of his proclivity to commit murder." Here, the government's conduct amounted to a "flagrant abuse." Even so, however, the court did not grant Farmer a new trial on every count.

The 2001 murder was "supported by such overwhelming evidence that conviction was a certainty." For the 2002 attempted murder, however, the evidence was "far less conclusive." The shooting was not witnessed, and it was plausible that Farmer acted in self-defense. Alternatively, there was a view of the evidence that Farmer shot Patterson to settle a personal score, not to elevate his status within the Bloods, as required by the statute of conviction. The court accordingly vacated the counts associated with the attempted murder and remanded the case for a new trial on those counts only.

Plea Circus

United States v. Carreto, No. 06-2295-cr (2d Cir. October 8, 2009)(Parker, Livingson, CJJ, Chin, DJ)

Three defendants were charged with various offenses relating to a scheme in which young women were smuggled into the United States from Mexico and forced to engage in prostitution. Soon after they were indicted, the government offered a "global" plea agreement with a February 18, 2005, deadline. Two days before the deadline, the district court had a conference to address whether the defendants would accept the plea. At that point, they were still undecided. The next day, the defendants rejected the offer and the government revoked it. The court set an April trial date.

On the scheduled date, the court selected and empaneled a jury. Just as the trial was about to commence, however, the defendants indicated that they were ready to plead guilty to the entire indictment without an agreement. The court closely examined the defendants and their attorneys about whether they understood the implication of their pleas. Each defendant expressed satisfaction with his attorney - one of them had previously repeatedly asked for a change of counsel - and read aloud a statement acknowledging his guilt.

About one year later, the defendants appeared for sentencing, but had by then filed pro se motions to withdraw their pleas. The motions alleged that the defendants had not been adequately advised of their right to testify at trial, the court did not verify that the pleas were voluntary, and that their lawyers were ineffective in failing to obtain documents from Mexico. As to this last point, the attorneys told the court that they had just learned of potentially exculpatory transcripts from a Mexican trial in which the victims had testified.

The district court denied the motions, and the circuit found no abuse of discretion. The defendants did not assert their innocence in their plea withdrawal motions, did not move to withdraw their pleas until a year after they had been entered, and the government would have been prejudiced by a withdrawal after more than a year's delay. More generally, the defendants did not show a "fair and just reason" for withdrawing their pleas. Even the Mexican transcripts did not "alter the fact that [the] defendants had knowingly and voluntarily pled guilty to the charges against them." The Mexican trial took place before the victims came to the United States and thus would not have "significantly undermined" the defendants' admissions.

PC World

This set of per curiam decisions deals with mes rea elements.

In United States v. Romero-Padilla, No. 08-1817-cr (2d Cir. October 7, 2009) (Calabresi, Cabranes, Hall, CJJ), the court held that 21 U.S.C. § 959(a), a drug importation statute, requires the government to prove that the defendant actually, as opposed to constructively, knew that a controlled substance he distributed or manufactured would be illegally imported into the United States.

United States v. Grandt, No. 08-1834-cr (2d Cir. October 1, 2009) (Parker, Wesley, CJJ, Murtha, DJ), looked at 18 U.S.C. § 2421, one of the provisions of the Mann Act. This section makes it a crime to "knowingly" transport an individual in interstate commerce with the intent that the individual engage in prostitution. Under Flores-Figueroa v. United States, 129 S.Ct. 1886 (2008), the district court should have charged the jury that it had to find that defendants knew that individuals were being transported for prostitution.

Summary Summary

Here are three more summary orders of interest.

In United States v. Delacruz, No. 08-1192-cr (2d Cir. September 11, 2009), the district court did not inform the defendant of the possibility of a forfeiture during the plea allocution, but still entered a forfeiture order at sentencing. While the allocution error was not enough to warrant vacating the judgment of conviction, the court granted a limited remand so that the forfeiture order could be vacated.

In United States v. Serna, No. 07-5288-cr (2d Cir. September 11, 2009), the court denied an ineffectiveness claim on direct review, instead of deferring judgment and inviting a future 2255 motion, which is its usual practice. Here, the court concluded "beyond any doubt" that the defendant, who avoided a ten-year mandatory minimum through "safety valve" relief, could not establish ineffective assistance of counsel.

In United States v. Valentine, No. 06-2679-cr (2d Cir. August 31, 2009), the court found a sentencing error to be moot because the sentence had expired.

Tapped Out

United States v. Concepcion, No. 08-3785-cr (2d Cir. August 31, 2009) McLaughlin, Calabresi, Sack, CJJ)

On this government appeal, the court reversed a district court order suppressing evidence obtained pursuant to a wiretap.

Background

One of Concepcion’s former cellmates (the "CI") went to the FBI claiming that Concepcion planned to assist foreign terrorists in attacking the United States. Based on this, the government applied for and received authorization from Judge Marrero to tap Concepcion’s cell phone for 30 days. The wiretap uncovered no evidence of terrorism, but Concepcion’s telephone conversations led the FBI to believe that he was involved in drug trafficking.

After 30 days, the government submitted a second wiretap application to Judge Marrero that focused on this new evidence. As required under 18 U.S.C. § 2518(1)(c), the supporting affidavit detailed investigative techniques other than wiretaps that had either failed or were likely to fail. It alleged that the government could not use the original CI, because he was incarcerated. The FBI had tried to introduce an undercover agent through the CI, but Concepcion would not take the bait. And, since the government did not know any of Concepcion’s other associates, it could not investigate his activities through the use of other informants. The affidavit next reviewed the FBI’s "limited surveillance" of Concepcion; since none of his associates had been identified, the affidavit indicated that surveillance would be of "limited utility."

Based on this affidavit, Judge Marrero authorized a second wiretap. During the following month, the wiretap picked up additional conversations indicating that Concepcion was involved in a drug conspiracy. A few months later, Concepcion was arrested, and the case was assigned to Judge Scheindlin.

Judge Scheindlin granted Concepcion’s motion to suppress the wiretap evidence, holding that the government had failed to establish that alternative investigative techniques had failed or were likely to fail.

The Circuit’s Decision

The appellate standard of review is highly deferential, limited only to whether the "facts set forth in the application were minimally adequate to support the determination that was made." In this case, however, the court had to decide to which district judge this deference was owed, since Judge Marrero found the wiretap application sufficient, while Judge Scheindlin did not. The court did not definitively settle the question, because here the parties agreed during oral argument that the decision to be reviewed was that of Judge Marrero, and the court accepted the concession.

Next the court reviewed the wiretap statutes themselves, pausing to note the important privacy considerations that are incorporated into those rules. "[T]he question is not whether a wiretap provides the simplest, most efficient means of conducting an investigation; telephone surveillance may only be used when it is necessary to assist in law enforcement."

The facts here were unusual; the FBI "stumbled across" the drug activity during its fruitless terrorism investigation, leaving it with only two means of investigation other than wiretaps - the CI or physical surveillance. While characterizing the case as "exceptionally close," the court disagreed with Judge Scheindlin’s conclusion that the wiretap application was insufficient with respect to those investigative techniques.

The court agreed with the FBI that there was no reasonable way that the CI could be used to investigate Concepcion - Concepcion would not work with him because he was still incarcerated. This left the government only with "traditional surveillance."

As to this consideration, the court noted with displeasure that the supporting affidavit was "less than thorough." Many of the affidavit’s statements about surveillance - such as a claim that drug traffickers are "extremely surveillance conscious" - apply "to all drug cases." Moreover the affidavit did not detail the government’s specific attempts at surveillance. It simply alleged that they had been "numerous." "These general explanations leave a reviewing court to wonder how many times the [FBI] attempted surveillance, at what time, where exactly, and why the [FBI] could not ‘definitively identify’ any of Concepcion’s associates." It is not true that a wiretap is necessary "simply because other unknown individuals" are involved in a conspiracy. "[P]art of the reason law enforcement performs physical surveillance is to identify co-conspirators."

However, despite its defects, here the affidavit was "at least ‘minimally adequate to support’" Judge Marrero’s decision to grant the wiretap. It contained "just enough" facts to indicate that other techniques were not working and that, because of the unusual origins of the case, the FBI could not develop new leads in any other way.

The court accordingly reversed the suppression order, although it ended with a fairly strong admonishment to the government: "we do not endorse the effort put forth by the Government in its affidavit. A first read leaves the impression that the Government chose to reapply for the wiretap not because it was necessary, but because it was easier than beginning a new investigation." In the future, the government "would do well to spell out in more detail its investigative efforts" if it wishes to avoid "future suppression orders."

All of which is, of course, a cold comfort for Mr. Concepcion.

Delay Gratification

United States v. Ray, No. 08-2795-cr (2d Cir. August 27, 2009)(Leval, Cabranes, Livingstone, CJJ)

In this decision, the court holds that an unexplained and prejudicial fifteen-year delay in imposing sentence amounted to a Fifth-Amendment due process violation, but did not violate the Sixth Amendment right to a speedy trial.

Background

In 1991, Ray pled guilty to her role in a $200,000 bank fraud. In 1992, the district court, unmoved by her family circumstances, sentenced her to twelve months’ imprisonment, the bottom of the then-mandatory range. Ray, who was free on bail, appealed. While her appeal was pending, the court of appeals decided a different case that eased somewhat the standard for family circumstances departures. As a result, with the government in agreement, Ray moved for a remand. The circuit granted the motion on January 21, 1993, but neither the district court nor the government took any further action on the case.

Ray herself caused the case to be reopened in 2007 when she applied for a city job, and needed documentation as to the resolution of her 1992 conviction. She contacted the court clerk, an action that prompted the district court to set a “re-sentence” date of March 5, 2008.

By this time, Ray had fully rehabilitated. Living openly in the Eastern District, she had been employed for the entire fifteen-year period and had never been rearrested. She raised three children, owned a home and a car and was in college, as were two of her children.

At the resentencing hearing, the court faulted both the defendant and her attorneys - but not itself or the government - for the delay. The government, on its part, raised the question of whether the delay violated Ms. Ray’s right to a “speedy sentencing.” After the parties had briefed the issue, the court found no violation and imposed sentence: one day in prison plus three years of supervised release. The court ordered six months in a halfway house as a condition of the supervision, even though counsel pointed out that the only available facility was far from both Ray’s job and her home.

The Appeal

On appeal, the court first held that the district court erred in finding that it had been Ray’s own responsibility to return to court and face resentencing. A “defendant does not bear the burden of seeking her own sentencing.” With this, the court went on to analyze the constitutional issues.

1. No Sixth Amendment Violation

Both the government and the defense took the position that the Sixth Amendment right to a speedy trial included the right to a speedy sentencing. This is significant, since under the Speedy Trial Clause, the remedy is “categorical: dismissal of the charges.”

The Supreme Court and several circuits - including this one - have assumed without deciding that the Speedy Trial Clause includes a right to a speedy sentencing. But this panel's own examination led it to hold otherwise. It began by noting a tension in the precedents - Speedy Trial Clause violations require a dismissal, but the Supreme Court has held that dismissal of the charges is an inappropriate remedy for a sentencing error. This tension evaporates if the Sixth Amendment does not cover delays in sentencings.

Next, the court considered the original meaning of the word “trial” in the Speedy Trial Clause, looking both to Blackstone and early American court decisions. It had little difficulty concluding that the American court system has always “distinguished between trial and sentencing.” Thus, “the word ‘trial,’ as understood at the time of the Founding, would not have encompassed sentencing proceedings.” Moreover, modern authorities, such as the Federal Rules of Criminal Procedure, and the Speedy Trial Act - which does not include sentencing proceedings in its time calculations - have preserved this “basic divide between trial and sentencing.”

Finally, the court looked at the interests protected by the Speedy Trial Clause - oppressive pretrial incarceration, the defendant’s anxiety, and the possibility that the defense will be impaired by the passage of time - and found that “these harms do not arise when there is a delay between conviction and sentencing.” While other harms can arise from a delayed sentencing, for example, the defendant and victim are left “in limbo concerning the consequences of conviction,” these concerns are “not the same as those that animate the Speedy Trial Clause.”

2. Fifth Amendment Violation

The court found a better fit in the Due Process Clause of the Fifth Amendment, which “has a limited role to play in protecting against oppressive delay.” The court considered two factors to determine whether Ray was deprived of her “due process right to a prompt sentencing”: (1) the reasons for the delay; and (2) the prejudice to the accused.

Here, the specific reasons for the delay were unknown, and the court treated the delay as the result of “ordinary negligence on the part of the government.” But the court held this against the government, and reiterated that it was not Ray’s duty to see that she was speedily sentenced.

The court next held that to prevail Ray had to show “substantial and demonstrable” prejudice. But the court weighed the extraordinary length of the delay in Ray’s favor, particularly since she underwent a “complete rehabilitation” in the interim. The court concluded that removing Ray “from her current life and compel[ling] her to reside for six months in a halfway house would undermine her successful rehabilitation,” since the restrictions imposed on the liberty of a halfway house resident are “substantial.”

After balancing all of the factors, the court held that, in light of Ray’s “successful and prolonged rehabilitation, and the upset that a custodial sentence would now entail,” she had successfully established a Due Process Clause violation. The remedy the court selected was to vacate the six-month halfway house portion of her sentence.

Out Of Range

United States v. Main, No. 08-4088-cr (2d Cir. August 27, 2009) (Walker, Wallace, CJJ)

Christopher Main pled guilty to a crack cocaine offense pursuant to a Rule 11(c)(1)(C) agreement that stipulated to maximum sentence of 96 months, which was below the 120 to 150-month guideline range, and provided a “carve-out” for Main to seek a downward departure. The district court accepted the plea agreement, granted Main a modest departure and sentenced him to 84 months’ imprisonment.

Three years later, Main moved for a sentence reduction under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10 because the Sentencing Commission had retroactively ameliorated the guideline covering crack offenses. The district court denied the motion, and the circuit affirmed.

Under the statute, a defendant is eligible for a sentence reduction only where the original sentence was “based on a sentencing range” that the Sentencing Commission has subsequently lowered. Here, however, Main’s sentence was “based on” the terms of his plea agreement, which stipulated to a sentence that was lower than that recommended by the guidelines. Under Rule 11(c)(1)(C), once the court accepted the agreement, it was bound to impose the agreed-upon sentence. Main’s sentence was therefore not “based on” the range recommended by the guideline for crack cocaine offenses.

The court rejected Main’s arguments that because his plea agreement provided for a sentencing cap, not a particular sentence, and permitted him to seek a downward departure, the sentencing guidelines still “played a role in determining his sentence.” Section 2D1.1, the particular guideline that the Sentencing Commission subsequently modified, played “no role in the sentence that Main received.”

Summary Summary

For your reading pleasure, here are more summary orders of interest:

In two related decisions, both captioned United States v. Salvagno, Nos. 06-4201-cr and 06-4202-cr (2d Cir. August 28, 2009), the defendants, who were father and son, complained of a confict of interest between some of their attorneys - they were employed at the same firm - at sentencing. The circuit concluded that the district court's Curcio hearing, while "not examplary" was adequate because the conflict was waived by each defendant's non-conflicted attorney, with the defendants present and "evidently in agreement."

In United States v. Rodriguez-Nieves, No. 08-0783-cr (2d Cir. August 28, 2009), the court agreed that, where the the defendant was convicted of being the principal administrator of a continuing criminal enterprise ("CCE") under 21 U.S.C. § 848, his convictions of two lesser included offenses - an underlying drug conspiracy count and a conviction for basic administration of the same CCE - were unauthorized.

In United States v. Peguero, No. 07-2306-cr (2d Cir. August 19, 2009), the court vacated a sentence where the district court presumed that the guideline sentence was reasonable by saying, "I have the ability to do justice and depart [or impose] a sentence independently of the Guidelines, but my opinion is that that is reserved for really special situations, and I even then take the Guidelines into serious consideration."

Khat Man, Two

United States v. Hassan, No. 05-6949 (2d Cir. August 21, 2009) (Calabresi, Pooler, CJJ)

Hassan was convicted of three conspiracy counts - (1) importation of a controlled substance (2) distribution of a controlled substance, and (3) money laundering - along with forty-one substantive money laundering counts, in connection with his importation of khat into the United States. In September of 2008, the court of appeals reversed his conviction on the substantive money laundering counts due to insufficient evidence, and remanded for a new trial on all of the conspiracy convictions because of an erroneous jury instruction. See “Krazy Khat,” posted September 27, 2008.

Both sides sought rehearing, and this amended opinion, which deals with the claims raised in the rehearing petitions, supersedes the original without changing the outcome. In the court’s own words, here is the difference between the original opinion and the new one:

[T] his amended opinion replaces in its entirety our earlier decision in United States v. Hassan, 542 F.3d 968 (2d Cir. 2008) (“Hassan I”), to which both parties petitioned for rehearing. Having reviewed the petitions, we have concluded that each presents at least one valid ground for granting rehearing and have amended the opinion accordingly. We grant Hassan’s request that we consider the sufficiency of the evidence for the single count of money laundering conspiracy because we agree that we are required to reach that issue since Hassan’s retrial would be barred by Double Jeopardy if the evidence presented by the government was insufficient. See United States v. Riggi, 541 F.3d 94, 108 (2d Cir. 2008). We conclude that the trial evidence was sufficient to support a conviction on this count. We decline Hassan’s invitation to revisit our conclusion that the trial evidence was sufficient to prove that he was dealing with khat containing cathinone. We grant the government’s request that we amend the opinion’s description of the elements of a Controlled Substances Act (“CSA”) conspiracy and have deleted that language in Hassan I indicating that there is an overt act requirement for conspiracies charged under the Controlled Substances Act (“CSA”). See United States v. Shabani, 513 U.S. 10, 15 (1994). We also grant the government’s request that we amend the opinion to clarify that “scienter with respect to the type and quantity of controlled substance is not required to convict a defendant under the CSA,” Gov’t Pet. for Reh’g at 5-6, but make only limited amendments as we think our decision read as a whole makes clear that we adhere to that rule. However, we deny the government’s request that we revisit our conclusion that a “conviction based on cathine, rather than cathinone, would have been an impermissible constructive amendment of the indictment.” Hassan I, 542 F.3d at 991. We adhere to that conclusion. See United States v. Abdulle, 564 F.3d 119, 126-27 (2d Cir. 2009) (explaining why conviction based on cathine, rather than cathinone, is constructive amendment rather than variance). We deny the government’s and Hassan’s petitions in all other respects.