PC World

United States v. Muse, No. 07-4483-cr (2d Cir. March 11, 2010)(Walker, Calabresi, Wesley, CJJ) (per curiam)

Two defendants in a large khat prosecution appealed the multi-million dollar forfeiture orders against them, arguing that a defendant in a drug case is not subject to forfeiture where he does not have assets to satisfy the judgment at the time of sentencing. The court joined the First, Third, Seventh and Ninth Circuits in rejecting that argument and holding that 21 U.S.C. § 853 permits imposition of a money judgment on a defendant who has no assets at the time of sentencing. The court noted that this was consistent with the statute’s language and purpose and that a contrary interpretation “could have the undesirable effect of creating an incentive for an individual involved in a criminal enterprise to rid himself of his ill-gotten gains to avoid the forfeiture sanction.”

Glock-In-Trade

United States v. Gardner, No. 08-4793-cr (2d Cir. March 10, 2010)(Feinberg, Katzmann, CJJ, Castel, DJ)

18 U.S.C. § 924(c)(1)(A) makes it a crime to possess a firearm in furtherance of a drug trafficking crime. Here, the defendants challenged the applicability of this section in their case, where they purchased firearms using drugs as payment.

The trial evidence showed that the defendants acquired two firearms and paid for them with drugs, specifically an “onion” - one ounce of crack cocaine. They instructed the gun seller to sell the crack and give them $200 - the difference between the value of the drugs and that of the guns.

In affirming, the circuit began with a bit of history. The pre-1998 § 924(c) did not have an “in furtherance” requirement. It made it a crime only to use or carry a firearm “during and in relation to” a drug trafficking offense. Under that version of the statute, the Supreme Court first held that a defendant who received drugs in exchange for a gun violated § 924(c), then later held that a defendant who received a gun in exchange for drugs did not. A person did not “use” a firearm “simply by receiving it in a barter transaction.”

But the current version of the statute contains a different theory of culpability. A person can now violate § 924(c) if he “possesses a firearm” “in furtherance of” a drug trafficking crime. The Supreme Court has not addressed whether paying for a gun with drugs satisfies this language, and the Second Circuit long ago mentioned it only in dicta, noting that “trading drugs for a gun will probably” violate the statute.

Since then, however, several other circuits have held that trading drugs for weapons constitutes possession in furtherance of a drug trafficking crime, although there is a split, with the Third Circuit seemingly going the other way.

The circuit had little trouble joining the majority. It noted that the defendants possessed the guns and that their doing so furthered a drug trafficking crime - their own sale of the crack cocaine to the gun seller. It is “natural to say that a person who trades drugs for guns ‘possesses’ the guns ‘in furtherance of’ the transaction.” Moreover, the defendants instructed the gun seller to sell the crack to raise the money he owed them. Thus, their possession of the guns promoted “further drug trafficking” as well.

Final Examination

United States v. Culbertson, No. 09-0485-cr (2d Cir. March 10, 2010) (Miner, Cabranes, CJJ, Rakoff, DJ)

Defendant Troy Culbertson, acting pro se, moved in the circuit for poor person’s relief and for appointment of counsel to pursue an interlocutory appeal of the district court's orders (1) denying his speedy trial motion, (2) refusing to appoint him new counsel, and (3) denying his request for a psychiatric evaluation. Noting that the appealability of these last two orders presented questions of first impression in the Second Circuit, the court found that none of the orders was “final” and dismissed the appeal.

By way of background, Culbertson was arrested at the airport, where he met up with a known drug courier. He was detained and within a month went through three appointed attorneys. After his arraignment, he filed a pro se motion to dismiss the indictment on speedy trial grounds, which the court denied. After that, his counsel moved to be relieved and the court appointed a fourth attorney. The district court rejected his effort to fire that attorney, and instead directed Culbertson to go pro se, with his current attorney as standby counsel. Culbertson then moved for dismissal of the indictment under the Speedy Trial Act, appointment of counsel and for a competency evaluation. The district court denied all three.

The court of appeals concluded that none of the district court’s orders was appealable as a final order under 28 U.S.C. § 1291, and none fit within the “collateral order doctrine,” the Supreme Court’s extremely narrow standard for permitting interlocutory appeals in criminal cases.

A Speedy Trial Act denial is not final, since fulfillment of the Act “would be rendered impossible if every pretrial order were appealable.” Moreover the Act does not encompass a “right not to be tried” that needs to be upheld prior to trial, and a violation of the Act is reviewable on appeal from the final judgment.

Likewise, an order denying appointment of counsel - while perhaps a closer call - is not subject to an interlocutory appeal. It can be reviewed on appeal from the final judgment and, again, does not implicate a right not to be tried. The court distinguished the denial of an attorney’s motion to withdraw, which it has considered on an interlocutory appeal, because the injury to an attorney forced to represent a client against his will “is irreparable” and would be “effectively unreviewable upon final judgment.”

Finally, while the court has permitted the interlocutory appeal of a pretrial order finding the defendant mentally incompetent to stand trial, here it concluded that an order denying a psychiatric examination - in essence a finding that the defendant is competent - is not immediately appealable.

Trailer Trashed

United States v. Navas, No. 09-1144-cr (2d Cir. March 8, 2010) (Leval, Wesley, CJJ, Gleeson, DJ)

In connection with a narcotics investigation, DEA agents watched the defendants unload a tractor-trailer at the Hunts Point Market. The defendants then drove it to a private warehouse, where they parked it, unhitched the cab, and lowered the legs in front of the trailer to stabilize it.

After further surveillance, the agents arrested the defendants, one of whom admitted that drugs were hidden in a rooftop compartment of the trailer. After receiving verbal consent to search the warehouse and its contents, but with no search warrant, the agents ripped open the roof of the trailer and discovered 230 kilograms of cocaine.

The district court suppressed the cocaine. It rejected the argument that the verbal consent to a general search of the warehouse extended to a physically invasive search of the trailer. The court also concluded that the automobile exception did not apply, holding that a stationary trailer stored in a warehouse, detached from its cab with its legs dropped, was not subject to the exception.

On the government's appeal, the circuit reversed. After surveying the rationales underlying the exception - the inherent mobility of and reduced expectation of privacy in an automobile - the court held that the search of the trailer was permissible.

First, as to mobility, it is a vehicle’s inherent mobility, not the probability that it might actually be set in motion, that matters. Thus, the “trailer sans cab” could be treated as inherently mobile in the same way that, decades ago, the Supreme Court held that a “wagon without a horse” could be. The trailer had its own wheels, could have been connected to any cab and driven away, and its legs served only to stabilize it temporarily. Nor was it relevant that the defendants were all detained and the warehouse secured by the time of the search - those facts “had no bearing on the inherent mobility of the trailer itself.”

The circuit also found a reduced expectation of privacy in the trailer - an issue that the district court did not consider at all. The trailer was used for transportation, with no objective indicia of residential use. Moreover, the pervasive state and federal regulation of interstate commercial trucking further supported a reduced expectation of privacy.

Strong Arm Of The Law

United States v. Walker, No. 08-3874-cr (2d Cir. February 18, 2010) (Feinberg, Katzamann, CJJ, Ellis, DJ)

Here, the circuit upheld the use of Walker’s prior conviction for “strong arm robbery” - a South Carolina common law offense - as a “crime of violence” to enhance his offense level under the firearms guideline. The court rejected the argument that only statutory offenses can be used as guideline enhancements, agreeing with the Ninth Circuit that “when a state crime is defined by specific and identifiable common law elements, rather than by a specific statute, the common law definition of a crime serves as a functional equivalent of a statutory definition.” Common law offenses are just as amenable as statutory offenses to the “categorical approach for enhancement determinations.”

The guideline at issue expressly includes “robbery” as a “crime of violence.” Thus, since “strong arm robbery” in South Carolina corresponds in substance to the generic meaning of robbery, it qualifies. The South Carolina Supreme Court has defined the offense as the “felonious or unlawful taking of money, goods, or other personal property of any value from the person of another in his presence by violence or by putting such person in fear.” This definition corresponds “in all material respects” to the generic definition of robbery.

The Liar's Flub

United States v. Savoca, No. 08-4610-cr (2d Cir. February 25, 2010) (Sack, Parker, CJJ, Goldberg, JCIT)

Defendant Savoca and his brother were both charged in an attempted robbery and shooting. Savoca accepted a plea agreement to a Hobbs Act attempt with a 37 to 46 month range and a “discharge” 924(c) with a mandatory 120-month consecutive sentence, for a total range of 157 to 166 months, including a 3-level reduction for acceptance of responsibility.

After he pled, but before his sentencing, Savoca testified at his brother’s trial and unsuccessfully tried to exonerate him. After the brother's conviction, when Savoca was sentenced, the district court found that he committed perjury at the trial. It accordingly added 2 levels for obstruction of justice and denied him the 3-level reduction for acceptance of responsibility. With a new range of 183-198 months, the court sentenced Savoca to 190 months, and noted that it would have imposed the same sentence even if the range were lower.

A year later, Savoca filled a § 2255 motion alleging that his appellate counsel was ineffective in failing to follow Savoca’s instruction to file a timely notice of appeal. After a hearing, the district court granted the motion and scheduled a resentencing hearing. The parties agreed that the court could either simply enter an amended judgment from which a notice of appeal could be taken, or conduct a full resentencing. The district court chose not to conduct a new sentencing, noting that Savoca should not benefit from his appellate counsel’s ineffectiveness, there was no change in the law that might affect the sentence, and that, given the offense and Savoca’s history, there was nor reason to revise the original sentence. It therefore entered an amended judgment with the same sentence.

This time, Savoca filed a notice of appeal. But the circuit affirmed. It first found that the district court properly took into account his testimony at his brother’s trial. This was consistent with the obstruction guideline and the district court’s findings on the issue were adequate. The denial of the acceptance of responsibility adjustment was likewise correct. It avoided the “incongruous” finding that Savoca both accepted responsibility and perjured himself as to the same events.

Finally, the court held that a full resentencing was not necessary. On granting the 2255, the district court had the discretion to decide whether any useful purpose would be served in reconsidering the sentence. Given the reasons it cited, the court did not abuse that discretion.

A Main Event

United States v. Green, No. 08-5426-cr (2d Cir. February 17, 2010) (Kearse, Winter, Pooler, CJJ)

In this case, the Court holds that a crack sentence that was the product of an imperfectly amended Rule 11(c)(1)(C) plea agreement could not be reduced under 18 U.S.C. § 3582(c)(2).

Last year, in United States v. Main, 579 F.3d 200, 203 (2d Cir. 2009), the court held that a defendant sentenced under an 11(c)(1)(C) agreement was ineligible for a § 3582(c)(2) sentence reduction. See “Out Of Range,” posted August 30, 2009. Here, the 11(c)(1)(C) agreement specified a 168-month sentence, to run concurrent with Green’s undischarged state sentence. However, by the time Green was to be sentenced, he had completed the other sentence. His attorney wrote to the government and proposed that instead the sentence be 145 months. The government agreed, although not in writing, and at sentencing, the judge agreed as well and imposed the 145-month term. Years later, but before Main was decided, when Green moved for a § 3582(c)(2) sentence reduction, the court denied the motion on the ground that the 145-month sentence was already “effectively” in the lower range.

On Green’s appeal, the circuit held that Main applied, even though the sentence was different from that specified in the written 11(c)(1)(C) agreement, rejecting Green’s argument that the sentence was not imposed pursuant to Rule 11(c)(1)(C). The court found that the parties’ agreement on a 145-month sentence, although not reduced to writing, was still a Rule 11(c)(1)(C) sentence, and hence was covered by Main.

The court thus affirmed even though, in one respect, the district court did not comply with Rule 11(c)(1)(C). The rule requires that the agreement be disclosed when the plea is offered, and here the amended agreement was not. In order to accomplish this, the district court would have had to let Green withdraw his plea and reenter it. The Rule 11 error was harmless, however, since the amended agreement was disclosed in open court, and the record was clear Green understood the new terms.

Summary Summary

As noted below, the circuit has been a bit slow this month. But here are three more summary orders of interest.

In United States v. Valentin, No. 07-5278-cr (2d Cir. February 9, 2010), the court ordered a Jacobson remand for the district court to clarify whether it would have imposed a shorter sentence if it understood it was permitted to do so under the Williams/Whitley decisions.

In United States v. Drayer, No. 07-1521-cr (2d Cir. February 9, 2010), the district court at sentencing accepted the government's representation as to the loss amount, but then at a later restitution hearing came up with a loss figure that was seven million dollars lower, rendering the loss figure used at sentencing clearly erroneous. The circuit also found plain error in the district court's inclusion of an enhancement for more than fifty victims, since the only victims the district court included in the loss calculation were the four financial institutions affected by the scheme. Finally, the court remanded for reconsideration of the restitution order since it was unclear whether the district court took into consideration funds that some of the victims received from a civil settlement.

In United States v. Shuster, No. 08-1182-cr (2d Cir. January 19, 2010), the government conceded that it had mistakenly persuaded the district judge to consider a separate fraud case as both relevant conduct and as a "prior sentence" in the defendant's criminal history score. The circuit vacated the sentence.

PC World

It's been more than a month since the court issued a signed opinion in a criminal case. But here is its latest Per Curiam.

In Re Grand Jury Subpoena Issued June 18, 2009, No. 09-3561-cv (2d Cir. February 1, 2010) (per curiam). In this case, the court rejected a challenge to a subpoena for corporate records where the corporate entities had a sole shareholder, officer and employee, Douglas Rennick. The companies argued that they could resist the subpoena on Fifth Amendment grounds since Rennick was the only person capable of producing the records and his act of production would be testimonial and potentially self-incriminating.

The court noted that the "collective entity rule" prevented the corporations from invoking a Fifth Amendment privilege and that the custodian of corporate records, acting as a representative of the corporation, cannot refuse to produce them on Fifth Amendment grounds. The circuit has long
held that there was no exception to this for corporations that were essentially "one-man" operations, but here the corporations pointed out a more recent Supreme Court case, Braswell, that held that the custodian of a one-man corporation's records could not resist a subpoena, but that if the custodian were to stand trial, the government could not introduce evidence that the custodian himself produced the records, since he had acted in his representative capacity, not personally. Braswell left open the question whether a custodian could resist a subpoena if he could establish that the jury would "inevitably conclude that he produced the records."

Despite this language, the circuit held to the rule that there "simply is no situation" in which a corporation can avail itself of the Fifth Amendment privilege, calling it "sensible" because it (1) prevents the erosion of the collective entity rule, (2) recognizes that the decision to incorporate is freely made and generates both benefits and burdens, and (3) avoids creating a category of organizations "effectively immune form regulation" by being outside of the government's subpoena power.

PC World

The court's latest Per Curiam opinion, United States v. Rossi, No. 08-6108 (Kearse, Cabranes, Straub, CJJ) (2d Cir. January 28, 2010) (per curiam), holds that the district court had jurisdiction under the pre-1996 restitution statute, 18 U.S.C. § 3663, to amend a restitution order after the defendant had completed her sentence and her term of supervised release. The circuit had previously remanded the case for reconsideration of the restitution order, and this remand restored jurisdiction to the district court, which therefore had the power to impose restitution even though the statute only permits the imposition of restitution "when sentencing a defendant."

Summary Summary

Here are two recent summary orders of interest:

In United States v. Prescott, No. 08-2886-cr (2d Cir. January 12, 2010), the government waived its objection to the defendant's untimely notice of appeal, and the court considered the appeal as if the notice were timely.

In United States v. Oliveras, No. 08-4884-cr (2d Cir. January 8, 2010), the court vacated the sentence, finding that the district court made multiple errors in the defendant's favor. Among other things, the trial court disregarded a mandatory minimum, made clearly erroneous fact findings in determining the guidelines, and might have erred in downwardly departing on criminal history grounds, although the record needed clarifying on this issue.

Moving Violations

United States v. Guzman; United States v. Hall, Nos. 08-5561-cr; 08-6004-cr (2d Cir. January 7, 2010) (Miner, Straub, Wesley, CJJ)

Defendants Guzman and Hall were both registered sex offenders in New York. Each moved to another state without updating his registration, and was charged with violating 18 U.S.C. § 2250(a), which makes it a crime for a person required to register as a sex offender to travel in interstate commerce and knowingly fail to keep his registration information current. Each defendant moved to dismiss his indictment on several grounds; the district court rejected all but the Commerce Clause challenges. Finding that the statutory scheme (“SORNA”) exceeded Congress’s authority to legislate pursuant to the Commerce Clause, the district court dismissed the indictment in both cases. On these consolidated government appeals, the circuit reversed.

The court first noted that § 2250(a) itself is a proper exercise of the power to regulate commerce, since it only criminalizes a knowing failure to register if the offender travels in interstate or foreign commerce. Interstate travel inherently involves the use of the channels of interstate commerce and is properly subject to congressional regulation under the Commerce Clause.

The district court’s decision had rested on its assessment of the underlying registration requirement, set out in 42 U.S.C. § 16913, which simply requires that the offender keep his registration current. In the district court’s view, this section lacked an interstate travel jurisdictional element and did not regulate activity that substantially affected commerce. Since a conviction under § 2250 would necessarily rely on an unconstitutional registration requirement, the court dismissed the indictments.

The circuit disagreed. It noted that the purpose of the statutory scheme was to make sure sex offenders could not avoid all registration requirements just by moving to another state. Section 16913 was accordingly constitutional under the Necessary and Proper Clause, since Congress has the power to regulate purely intrastate activities where necessary to make a regulation of interstate commerce effective. This section is a “perfectly logical way to help ensure that state will more effectively track sex offenders when they do cross state lines” and, even though it regulates solely intrastate activity, it is reasonably connected to a legitimate commerce power goal.

The court also rejected the defendants’ alternative grounds for affirming the dismissal. The provision that delegates to the Attorney General the authority to specify the legislation’s applicability to sex offenders convicted before the statute was enacted is not an improper congressional grant of legislative authority to the executive branch. And the fact that none of the relevant states had SORNA-compliant registries in place at the time was irrelevant under the court’s recent decision in United States v. Hester (blogged below as SORNA Doom). Nor does SORNA violate the Tenth Amendment since it does not commandeer state officials into administering federal law.

Circuit to Probation: Three's a Crowd

United States v. Reeves, No. 08-2966-cr (2d Cir. January 7, 2010) (Leval, Pooler, Parker, CJJ)

Lamont Reeves pled guilty to possessing child pornography. As a condition of his supervised release the district court required that he “notify the Probation Department when he establishes a significant romantic relationship and ... inform the other party of his prior criminal history concerning his sex offenses.” It also required that Reeves provide his probation officer with his “significant other’s” contact information.

The court of appeals vacated the condition. First, it agreed that the condition was too vague to be enforceable. “What makes a relationship ‘romantic,’ let alone “significant” in its romantic depth, can be the subject of endless debate that varies across generations, regions and genders.” The condition had “no objective baseline” that would give anyone guidance as to what might constitute a “significant romantic relationship” and Reeves’ continued freedom during supervised release should not hinge on “the accuracy of his prediction of whether [someone else] would conclude that a relationship was significant or romantic.”

In addition, the condition was not reasonably related to the statutory objectives of supervised release: to further Reeves’ rehabilitation and protect the public. There was nothing in Reeves’ history that would suggest he posed a risk to those with whom he might have a “significant romantic relationship.” Nor would the notification promote his rehabilitation. Rather, since it would likely result in the premature end to any relationship he might develop, it was likely to place him at risk of social isolation. This would impair, rather than enhance, his rehabilitation.

Finally, the court found that the condition constituted an unnecessary deprivation of Reeves’ liberty. The court noted that the right to maintain intimate personal relationships is well established, and can only be interfered with by a supervision condition that is “narrowly tailored to serve a compelling government interest.” The only interest identified by the government here was to protect a romantic partner’s children. The court agreed that this could be a compelling interest, but the condition here makes no mention of children. It covers any significant romantic relationship, even those that would not bring Reeves into contact with children.

PC World

We close out 2009 with two interesting per curiam opinions.

In United States v. MacPherson, No. 08-1829-cr (2d Cir. December 30, 2009) (Newman, Calabresi, Katzmann, CJJ) (per curiam), the defendant argued that the government violated a Pimentel-like non-binding plea agreement by advocating for a sentence higher than the estimate contained in the agreement. In the majority opinion, the court simply held that its precedents on this issue are in conflict, and that, given this, MacPherson, who did not argue in the district court that the government breached the plea agreement, could not establish plain error. Judge Newman concurred. In his view, not only was there no plain error, there was no error at all. He then made an inconclusive effort to harmonize the conflicting precedents, in the end noting that he would "uphold all plea agreements with Pimentel estimates, regardless of whether the Government at sentencing advocates a higher Guidelines range (even one based on previously known facts), as long as the agreement makes clear that the Government is not bound by the estimate and the district judge ascertains at the plea colloquy that (1) the defendant understands that the estimate is not binding and (2) if the estimate is wrong, the defendant will not be permitted to withdraw his plea."

United States v. Frankel, No. 06-1752-cr (2d Cir. December 14, 2009) (Newman, Winter, Cabranes, CJJ) (per curiam) attempts to sort out the mess created when the court, in a series of 2008 orders, first vacated the appointment of Frankel's third court-appointed counsel - due to Frankel's serious misconduct - then dismissed the appeal when he failed to file a timely pro se brief. On remand from the Supreme Court, the circuit did not conclusively rule on whether the right to counsel must be affirmatively waived, and can never be forfeited by misconduct. But the court agreed that the order vacating the appointment of counsel was a sanction, and should therefore have been preceded by notice to Frankel and an opportunity to respond, and that the order dismissing the appeal was tainted by the improper order vacating the appointment of counsel. Accordingly, the court reappointed counsel, directed her to obtain any needed transcripts and file a brief. The court also cautioned Frankel that if he does not want this attorney, he will be required to proceed pro se, and that further misconduct could lead to the imposition of sanctions, which might include dismissal of his appeal.

Summary Summary

United States v. Doe, No. 08-4064-cr (2d Cir. December 14, 2009), looks the First Amendment implications of a defendant's request to seal his case. At sentencing, Doe had asked for the total and permanent sealing of his sentencing transcript. The court denied the request, and Doe appealed. After the government agreed that the decision should be reversed, the court appointed amicus counsel to defend the district court's ruling. The appellate court noted that there were no serious First Amendment concerns, since the order concerned the denial of a sealing request. Moreover, the district court's analysis of the issue correctly treated the public's right of access to sentencing proceedings as qualified, and not absolute. The lower court also correctly recognized that the right of public access to criminal proceedings is presumptive, and that the party seeking to overcome the presumption bears a heavy burden, one that increases the more extensive the closure sought. Since Doe sought the total and permanent sealing of the record, his burden was "heavy indeed" and his reasons for seeking it were insufficient to support a permanent and total denial of public access. Accordingly, the court affirmed the order denying the request for a total and permanent sealing of the record, and remanded to give him an opportunity to apply for a partial and/or non-permanent sealing.

SORNA Doom

United States v. Hester, No. 08-4665-cr (2d Cir. December 16, 2009) (Winter, Cabranes, Hall CJJ) (per curiam)

After pleading guilty to two sex offenses in New York State, Hester was required to register as a sex offender. He completed his initial registration - which included explicit instructions that Hester update if he moved or changed jobs - and four change of address forms. Then, in April of 2007, he disappeared. Three months later, Hester was arrested on unrelated charges in Florida. He had neither registered as a sex offender there nor updated his New York registration.

Hester pled guilty to violating the Sex Offender Registration Act, “SORNA,” 18 U.S.C. § 2250(a), and was sentenced to 37 months’ imprisonment. On appeal, he raised three unsuccessful challenges to the statute: a due process claim that he had unsuccessfully litigated below and Commerce Clause and vagueness challenges that he had not.

The due process argument had two prongs. First, Hester claimed that he lacked sufficient notice of SORNA’s requirements. But, since Hester was clearly aware of the state-law requirements that he update his New York registration and register in Florida when moved there, there was no due process violation in his not being specifically notified of SORNA. Hester also argued that it was impossible for him to comply with SORNA because neither New York nor Florida had SORNA-compliant registration systems in place. But both jurisdictions had sex offender registries and Hester could have complied with them. That those states had not yet met SORNA’s administrative requirements did not excuse Hester’s failure to register.

Hester’s Commerce Clause and vagueness arguments were waived by his plea agreement, in which he waived his right to appeal his conviction and any sentence of 51 months or less. The waiver had a carve-out for the district court’s decision denying his motion to dismiss, but Hester did not raise those arguments in the motion to dismiss.

Role Away

United States v. Labbe, No. 08-0673-cr (2d Cir. December 4, 2009) (Newman, Pooler, Katzmann, CJJ)

About a week before Labbe’s sentencing, the district court issued a written Sentencing Opinion describing the sentence it was likely to impose. The Opinion included a 4-level role reduction for Labbe’s “minimal” participation and announced that “Labbe is hereby sentenced to ... 57 months.” The Opinion noted, however, that this was “subject to modification at the sentencing hearing.”

Before sentencing, the government sent a letter to the court objecting to the role reduction, but at the sentencing hearing itself the defense focused its arguments primarily on the loss calculations, apparently assuming that the judge had decided to keep the role reduction. The judge asked the government a few questions about the relative participation levels of Labbe and his co-conspirators, then announced that the “government’s argument and its reading of the guidelines with respect to the minor and minimal participants is right.” He imposed a sentence 30 months longer than that contained in the Sentencing Opinion.

On appeal, Labbe argued that the district court’s change of heart was not supported by adequate findings. The court of appeals agreed. It held that the Sentencing Opinion had given Labbe an “expectation” that he would be sentenced to 57 months. Under the advisory Guidelines, a court need not give notice of its intention to impose a non-Guideline sentence. But here, the Sentencing Opinion created an “expectancy” that was more like that created by the mandatory Guidelines and “gave rise to the need for notice that a significant change was likely” so that Labbe would have a chance to oppose the contemplated change.

The court did not rule on the merits because it concluded that the district court’s findings on the issue were insufficient for appellate review. The appellate court was uncertain whether the judge changed his mind because he (1) attributed more misconduct to Labbe than he had originally found, (2) was interpreting the guideline differently than before, or (3) had simply reassessed the significance of the facts under the same legal standard that he had used in the Sentencing Opinion.

The court accordingly remanded the case for a de novo sentencing, at which the defense - now alerted to the judge’s inclinations - would have a “full opportunity to argue for the adjustment.”

Summary Summary

It's been a while but at last the court has issued enough summary orders of interest for another post. Here they are:

In United States v. Madarikan, No. 08-5589-cr (2d Cir. December 16, 2009), the court found a Confrontation Clause violation in the admission into evidence of a Certificate of Nonexistence of Record at an illegal reentry trial. Here, however, the error was harmless because there was other evidence that the defendant kacjed the requisite advance permission - her own testimony conceded the point.

In United States v. Venkataram, No. 08-3637-cr (2d Cir. December 16, 2009), the district court erroneously imposed five-year terms of supervised release on Class C and D felony convictions. The court modified the Judgment by reducing the terms to three years.

In United States v. Ramos-Soto, No. 08-2381-cr (2d Cir. December 1, 2009), the court remanded for clarification, where the sentencing record was ambiguous as to whether the district court believed that it lacked the authority to impose a non-Guideline sentence in an illegal reentry case based on the disparity with “fast-track” districts.

Money Disorder

United States v. Garcia, No. 08-1621-cr (2d Cir. December 1, 2009) (Jacobs, Sack, Lynch, CJJ)

In Cuellar v. United States, 128 S.Ct. 1994 (2008), the Court held that, for the crime of transportation money laundering under 18 U.S.C. § 1956(a)(2)(B)(i), the government most prove more than that the money was hidden during its transportation. Rather, it must prove that the “purpose,” not merely the effect, of the transportation was to conceal or disguise the nature, location, source, ownership or control of the money. Thus, the government must prove not just how the money was moved, but why it was moved. The Second Circuit has held that this holding applies equally to “transaction” money laundering under 18 U.S.C. § 956(a)(1)(B)(i), which makes it a crime to engage in certain financial transactions, including the transfer or delivery of cash, for those same purposes.

Here, the court held that, in light of these principles, Garcia’s guilty plea to transaction money laundering lacked a factual basis.

During his allocution, Garcia admitted that he “went to get some money” that he believed was dirty. But when the judge asked whether he understood that his picking up cash “was in fact part of a larger scheme to conceal or disguise the source or ownership of the funds,” he replied “no.” His counsel then proffered that Garcia agreed to pick up the money and deliver it to someone else knowing that the funds were the proceeds of illegal activity and would not be declared as income. He also proffered that Garcia concealed the funds in a cargo truck that was also carrying legitimate cargo. After confirming that Garcia knew that the packages of money were wrapped so as to conceal their contents, the district judge accepted his plea.

Although Garcia challenged the sufficiency of his plea for the first time on appeal, the circuit vacated the plea. The court first noted that Garcia's acknowledgment of his understanding of the nature of the charge was not enough. The particular charge was “[]complicated and [not] readily understandable by the average layman.” Moreover, Garcia’s allocution “demonstrated actual confusion about the critical concealment element of the offense.” Nothing in his colloquy showed his understanding “that the transaction [had to] be designed to conceal a listed attribute of the funds - or [contained] an admission that Garcia had such a purpose.”

Having found error, the court had no trouble finding plain error here: “the additional elements necessary for Rule 52(b) relief flow naturally under the present circumstances.” Although Cuellar was not decided until after the plea, whether an error is “plain” is “determined by reference to the law as of the time of the appeal,” by which time it was clearly plain. And the error affected Garcia’s substantial rights. The record presented a “reasonable probability that, had Garcia fully understood the nature of the crime he was charged with, he would not have pled guilty.”

Fare is Foul

United States v. Rodriguez, No. 08-2805-cr (2d Cir. November 30, 2009) (Newman, Calabresi, Katzmann, CJJ)

This interesting opinion concludes that a dispute over a taxi fare did not violate the Hostage Taking Act, 18 U.S.C. § 1203.

Background

In 2005, Azucena Gonzalez Mendez was smuggled into the United States from Mexico. She was driven from Arizona to Las Vegas, then flew to Long Island, where her husband, Julio Perez, who lived in New Jersey, was to meet her and drive her home. When she arrived at the airport, however, Mendez, could not find her husband.

Defendant Rodriguez saw Mendez and told her that it was not safe for her to wait in the airport, because there were immigration officers present. Rodriguez pretended to call Mendez’ husband, telling her that there was no answer, then offered to give her a ride. He brought her to a van, which was driven by co-defendant Reynoso. While Mendez was waiting in the van, she saw her husband arrive at the airport, but Rodriguez told her not to get out because immigration officers were following them.

She then reluctantly agreed to let them drive her home. Reynoso drove off with Mendez, and Rodriguez met up with them later at a convenience store. In the meantime, he called Mendez’ family and said that he would bring Mendez home. The family told him not to, but Rodriguez insisted. Rodriguez then spoke directly to Perez, telling him that he was a Customs Service employee who had directed Mendez to car for her own safety. Rodriguez later told Perez that she was on her way to New Brunswick, New Jersey.

After several more conversations with Perez, Rodriguez told Perez to make a financial arrangement with the person driving Mendez, and they agreed to meet at a service area on the Garden State Parkway. Rodriguez, Reynoso and Mendez were the first to arrive there, and waited in an employee parking lot. Just after 9:00 p.m., Perez arrived. Mendez tried to leave the van, but Rodriguez would not let her, telling her that first the driver had to speak with her husband. Perez demanded that they let Mendez out, but they said they would not release her until Perez paid $475 for the ride.

When Perez said that he would not pay anything, Rodriguez threatened to call the police. Perez said that he would call the police himself, and did so, at 9:17. Ten minutes later, New Jersey state troopers arrived, released Mendez and arrested Rodriguez and Reynoso. At total of fifteen minutes elapsed between the demand for the $475 and Mendez’ release; during most of that time, they were all waiting for the police to arrive.

After a jury trial, the defendants were convicted of transporting an illegal alien, not challenged on appeal, and one count of violating the Hostage Taking Act.

The Circuit’s Ruling

On appeal, the defendants challenged both the applicability of the Hostage Taking Act to their conduct and the sufficiency of the evidence. The court agreed that the evidence was insufficient.

First, after a long discussion, the court concluded that § 1203 can be applied in cases that are not linked to international terrorism, even though the treaty that inspired the legislation was specifically direct to acts of terrorism. But the court went on to note that the statute’s original purpose should “serve as a frame of reference to caution against stretching the coverage of the Act.”

In concluding that the evidence was insufficient, the court noted that the statute required the government to prove that Rodriguez and Reynoso “detained” Mendez and continued to do so to compel her husband to pay the taxi fare. Moreover, the case law requires that the confinement be “for an appreciable period of time.” Here, the relevant period of time should not be measured from the moment that Mendez was first confined at the airport. While this is when the alien transportation offenses of which the defendants were convicted started, it was not the starting point of the hostage taking.

Here, the defendants did not try to compel Perez to pay money for his wife’s release until he arrived at the service area, and the confinement following the demand for payment “lasted at most fifteen minutes.” Rodriguez’ earlier efforts to get Perez to “make an arrangement” with Reynoso could not reasonably be deemed a demand for payment for Mendez’ release. Accordingly, the detention of Mendez for the purpose of compelling Perez to pay for the ride did not begin until the demand for payment was made at the service area.

The fifteen post-demand minutes that Mendez was confined in the taxi at the service area, without any injury or threat of injury, was not an “appreciable period of time,” and hence was “not sufficient to establish a Hostage Act violation.” This is particularly true since, for most of that time, Mendez, the defendants and her husband were all waiting for the police to arrive. In short, “confinement incident to a taxi fare dispute” was not “the confinement of a hostage proscribed by” § 1203.

The court accordingly reversed the defendants’ Hostage Act convictions and remanded the case for resentencing on the alien transportation convictions.