PC World

United States v. Key, No. 08-3218-cr (2d Cir. April 28, 2010) (Miner, Cabranes, Wesley, CJJ) (per curiam)

This interesting per curiam holds that a defendant's appeal of the denial of his crack resentencing motion under 18 U.S.C. § 3582(c)(2) was rendered moot by his release from prison.

Although Key was still on supervised release, the court found that the possibility that the district court would reduce or terminate his supervised release term - assuming that it could - was "remote and speculative." The district court's findings in denying the § 3582(c)(2) motion caused the circuit to "strongly doubt" that the court would exercise its discretion in that way.

Collateral Damage

United States v. Cerna, No. 09-1170-cr (2d Cir. April 27, 2010) (Katzmann, Hall, CJJ, Rakoff, DJ)

Against the backdrop of the circuit’s ongoing concern over the “exceptionally poor quality of representation often provided by attorneys retained by aliens as they attempt to negotiate the complexities of our immigration law,” here, the circuit reversed the district court’s denial of the defendant’s collateral challenge to the legality of his deportation.

Jose Cerna came to the United States from El Salvador when he was ten. He became a lawful permanent resident but, as a teenager, had several brushes with the law - two drug sale convictions when he was sixteen, a gun possession charge two years later, and another drug sale when he was twenty-one. While serving this last sentence, deportation proceedings were commenced against him.

After a hearing, an immigration judge found Cerna deportable, but also found him to be eligible for 212(c) relief. Cerna was represented by counsel and the attorney had forty-five days to file the application but never did so. After the 212(c) deadline passed, the judge issued a deportation order. That order, along with an advice of the right to appeal to the BIA was sent to Cerna’s counsel with a “cc” to Cerna at a New York State correctional facility. Cerna’s attorney took no further action on the case and about one year later Cerna was deported to El Salvador.

Cerna was found back in the United Sates in late 2000, charged with illegal reentry in 2004, and arrested on that charge in 2007. He then moved to dismiss under 8 U.S.C. § 1326(d), which authorizes a collateral challenge to the deportation underlying an illegal reentry charge.

This section requires that the defendant (1) exhaust his administrative remedies in connection with the deportation, (2) establish that the proceedings improperly deprived him of the opportunity for judicial review and that (3) the deportation was fundamentally unfair. As to the first two prongs, Cerna argued that his attorney’s failure either to file the 212(c) application or to tell him that he had not was ineffective assistance of counsel that both excused his failure to exhaust and deprived him of judicial review. Cerna’s motion included a declaration explaining that he had no reason to believe that his attorney would not apply for 212(c) relief, did not learn that the attorney had not done so until he was deported, and never received the written notice of the right to appeal.

Despite these assertions, the district court denied the motion. It held that Cerna “knowingly and intelligently waived his right to any administrative remedies” by taking no action to contest the deportation during the period between the order and his actual removal from the country. The court also held that the deportation was not fundamentally unfair because Cerna’s criminal record made it unlikely that he would have been granted 212(c) relief in any event.

On appeal, the circuit first concluded that the district court’s finding that Cerna knowingly and voluntarily waived his administrative remedies was clear error. The basic problem was the district court’s failure to resolve the factual contradiction before it: the notice of the right to appeal the deportation was apparently “cc”’d to Cerna, but he asserted that he never received it. Perhaps the court discredited the assertion, but it “offered no explicit statement to that effect and no explanation of why it did not find Cerna to be credible.” Nor could the mere passage of time serve as the basis for a finding of a valid waiver since, during this period, Cerna believed that his attorney was fighting the deportation. “We decline to hold that an incarcerated alien whose lawyer has stated that he would file an application for relief from deportation has an obligation to check up on the lawyer to confirm that the application has been filed or risk waiving his right to appeal.” The court thus agreed with Cerna that his counsel’s ineffectiveness excused his failure to exhaust his administrative remedies.

As for the judicial review prong, the court merely applied existing precedent holding that ineffective assistance of immigration counsel can result in the deprivation of judicial review of a deportation.

Finally, the court agreed that the district court’s conclusion that Cerna was unlikely to have received 212(c) relief was unsound. The question was “whether Cerna had a reasonable probability of receiving” it and the circuit’s prior decisions have found that probability in cases no worse than Cerna’s.

Summary Summary

There hasn’t been much action in the circuit in the past couple of weeks. This smattering of noteworthy summary orders will have to keep us occupied for the time being.

In United States v. Givens, No. 09-0765-cr, and United States v. Blue, No. 09-0219-cr (2d Cir. April 26, 2010), related cases, the circuit vacated two defendants’ sentences because the district court misinterpreted an ambiguous Regalado remand order and did not conduct a full resentencing.

United States v. Young, No. 09-1853-cr (2d Cir. April 22, 2010), is surely the tersest and most cryptic summary order yet. It provides, in its entirety, “On the basis of the record before us, including what we have learned at oral argument, we discern no error and therefore AFFIRM the judgment of the District Court.”

In United States v. Lorenzo, No. 08-3626-cr (2d Cir. April 12, 2010), the court held that the defendant was not eligible for a crack resentencing because his offense level was capped at thirty due to a mitigating role adjustment, and thus was not affected by the amended crack guideline.

Summary Summary

The circuit seemingly never tires of issuing summary orders of interest. Here are three more:

In United States v. Grant, No. 09-1760-cr (2d Cir. April 8, 2010), the court ordered a Jacobson remand so that the district court could clarify an ambiguity in its decision on a motion to suppress that was material to the circuit's consideration of whether police officers had the defendant's implied consent to enter his apartment.

In United States v. Orozco, No. 08-4043-cr (2d Cir. April 1, 2010), the defendant appealed a condition of supervised release requiring him to notify the probation department of any "significant romantic relationship" to which he did not did not object at the time, but that was was rendered illegal under a later-decided case. The circuit ducked the plain error questions, and remanded instead under Rule 31.2(c) which gives district courts the "power to modify conditions of supervised release at any time to eliminate ambiguity and to adjust them to changed conditions."

In United States v. Ayers, No. 08-6286-cr (2d Cir. March 30, 2010), the court found that a sex offender's challenge to polygraph and voice stress testing as a condition of his supervised release was ripe, even though his claim related only to the use of that information in a future civil commitment hearing, which would only occur if, for some reason, he was reordered to custody.

The Heavy Burdens

United States v. Burden, No. 03-1727-cr (2d Cir. March 31, 2010) (Hall, Livingston, Gibson, CJJ)

From 1997 to 2001, Kelvin Burden, ran a crack cocaine ring in Norwalk, Connecticut, with the help of several of his brothers, two of whom were named David, and a few of his friends. The gang’s activities grew increasingly violent. Throughout 1998 and 1999 there were fatal encounters with members of a rival gang, the Hill Crew; also, in 1999, Burden gang members shot at two of their own, killing one and leaving the other a paraplegic.

The defendants were convicted of racketeering, drug charges and multiple VCAR counts, and received sentences ranging from eighty-eight months to life.

Their principal arguments on appeal were that the evidence was insufficient to establish that the Burden gang was an “enterprise” and that its activities constituted a “pattern.” The circuit affirmed.

First, the defendants asserted that the evidence showed only that the Burdens and their friends sold drugs, but not that the group had the structure required of an enterprise. While the circuit noted the “limitations of the evidence in this case,” it found that the evidence was sufficient. The Burden organization had “multiple members who joined in the shared purpose of selling drugs and promoting such sales.” They had a meeting place from which they could sell in secret, store guns and plan. And their activities were “orderly because there was a hierarchical structure in place.” Nor did it matter that there were “other styles of organization between the narcotics business and the violent acts.”

As for the pattern requirement, the statute requires “criminal acts that have the same or similar purposes, results, participants, victims or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated events.” There must be at least two acts that are related and that amount to or pose a threat of continued criminal activity. “Horizontal” relatedness requires that the predicate acts be related to each other, but this can be indirect - a common relationship of each act to the enterprise is enough. “Vertical” relatedness means that each act is related to the enterprise. Both types of relatedness must be proven, but each is satisfied by “linking each predicate act to the enterprise.” The pattern element was satisfied here, even though the violent acts here were “the type of conduct that the defendants could have committed absent a connection to the enterprise.” The court agreed that the fact that the violent acts were discussed at the same location where the narcotics activity took place was not enough to establish vertical relatedness. But the violence between the Burdens and rival gang members had its genesis in a drug debt to a Burden member, and that was sufficient.

One defendant also raised an interesting Crawford issue, claiming that an informant’s statements on a wire were “testimonial” because the cooperator consented to be wired and knew that what he said could be used against others at a future criminal trial. The defendant relied on United States v. Saget, 377 F.3d 223, 228 (2d Cir. 2004), where the circuit wrote: “Crawford at least suggests that the determinative factor in whether a declarant bears testimony is the declarant’s awareness or expectation that his or her statements may later be used at trial.”

The court here noted that this language is dictum and was limited in a later case. Instead, the court held that a declarant’s awareness that his words may be used at a later trial is only “part of the equation,” and “it is the law of this circuit that it is not the sole touchstone.” Looking at the particulars of the statements here, the court found that they were not testimonial. Nothing that the informant said “was spoken for the purpose of accusing. Rather, his comments were made to elicit inculpating statements by others present.” Thus, the “declarant’s purpose in speaking matters,” and a statement “the purpose of which is 'non-accusatory' is not testimonial.”

All five defendants won Regalado remands, however, so that the district court could revisit their crack sentences.

An Appeal To Reason

Ramchair v. Conway, No. 08-2004-pr (2d Cir. April 2, 2010)(Winter, Calabresi, Sack, CJJ)

It seems as if most Second Circuit habeas decisions deal only with the procedural hurdles faced by state prisoners. So it is indeed remarkable that the court has decided two cases less than one week apart in which it got through the procedural thicket and actually resolved the substantive issue presented in the case. This decision, in which the court agrees that the petitioner’s state court appellate counsel was constitutionally ineffective, is accordingly blog-worthy.

The case has a long history. Ramchair was charged with a 1995 robbery after he was identified in a fairly suspect lineup, at which his counsel was present. He moved to suppress the identification and, after a hearing, the trial court denied the motion. He then had two trials that ended in mistrials, but at which the issue of counsel’s presence at the lineup never arose. At his third trial, his attorney - the same one who attended the lineup - disputed the fairness of the lineup. Over objection, the prosecutor permitted a detective to testify that Ramchair’s attorney had been present at, and did not object to, the lineup.

The attorney asked permission to testify to rebut the detective, but the trial judge denied the request. Accordingly, after the detective's testimony, counsel moved for a mistrial, which the trial judge denied. Ramchair was convicted and sentenced to an indeterminate term of ten to twenty years’ imprisonment.

Ramchair appealed. It took five years for his appellate counsel to perfect the appeal. When appellate counsel finally got around to filing a brief, with respect to the lineup, counsel argued only that the trial court’s ruling prohibiting his counsel from testifying violated Ramchair’s constitutional right to present a defense. The Appellate Division affirmed, noting that trial counsel was ethically prohibited from acting as a witness. Appellate counsel did not raise on appeal “the issue of the trial court’s refusal to grant a mistrial upon Ramchair’s counsel’s motion seeking one.”

Ramchair then filed a habeas petition in the district court raising the same claims he had raised on his direct appeal. The district court concluded that those claims did not warrant relief, but that a claim that Ramchair’s appellate counsel was ineffective might have merit. The court held the petition in abeyance pending exhaustion of that claim in the state courts. Once the claim was exhausted, in 2009, the district court granted the petition. It held that appellate counsel had correctly identified the unfairness in the prosecutor’s surprise tactic that made trial counsel an essential witness to the central factual dispute in the case, but that counsel sought the wrong relief. A claim that defense counsel should have been allowed to testify had minimal support in the law, but a claim that the trial court erred in not granting a mistrial would likely have been accepted on appeal.

On the state’s appeal, the circuit remanded, instructing the district court to conduct an evidentiary hearing to determine whether there appellate counsel had a strategic reason for not raising the mistrial claim. At the hearing, appellate counsel explained that she was under the impression that the mistrial motion only preserved the claim that trial counsel should have been allowed to testify. She did not think that the mistrial motion preserved the claim that the mistrial itself should have been granted.

The district court granted the petition a second time, again holding that appellate counsel’s mistake constituted constitutional ineffectiveness. The court also granted Ramchair a new trial, rather than a new appeal, noting that Ramchair had been in custody for more than twelve years.

The circuit affirmed both holdings. It began by noting that Ramchair’s trial was indeed fundamentally unfair. The lineup was the only evidence that he had committed the robbery he was charged with, and Ramchair was denied an opportunity to present a crucial witness as to its fairness.

The circuit then agreed that appellate counsel was constitutionally ineffective. She pursued a strategy that had a “minimal chance of success,” since it “ran directly contrary to the advocate-witness rule.” Appellate counsel should have instead argued that Ramchair’s right to present a defense could only have been vindicated by a mistrial, which the trial court “erred as a matter of law in not granting.”

The error was also prejudicial since there is a “reasonable probability that the [appellate courts] would have been swayed by the mistrial claim, because that claim was sound.”

Finally, the district court did not abuse its discretion in granting a new trial. District courts have “broad discretion” in fashioning habeas relief, and there was no error in the court's consideration of the long delays in this case, some of which were “unreasonable” and “none of them apparently of [Ramchair’s] doing.”

Payment Plan Available

United States v. Kyles, No. 06-4196-cr (2d Cir. April 2, 2010) (Miner, Katzmann, Raggi, CJJ)

In 1993, defendant Kyles received a long bank robbery sentence, along with a $4,133 restitution order. The court did not set a payment schedule, and instead (illegally) delegated that task to the Probation Department, which never acted. In 1998, the district court amended the restitution order by directing that Kyles pay $2 per month while incarcerated. Kyles did not appeal that order.

In 2006, the district court amended the order again, this time raising the monthly payments from $2 to $25. After much back-and-forth over whether the district court had authority to order this and Kyles’ ability to pay, the court amended the order again, this time specifying that Kyles’ payments should be “increased in accordance with the guidelines of the Inmate Financial Responsibility Program.”

Kyles appealed, arguing that the district court lacked the authority to modify his restitution schedule in this way. The court disagreed. Although a district court’s ability to alter an imposed sentence is quite limited, here the court found that an order modifying the payment schedule, but not the amount of the restitution itself, did not alter the sentence.

Kyles also made a double jeopardy argument. The Double Jeopardy Clause protects the “finality of criminal judgments” and hence prohibits “alternations to sentences carrying a legitimate expectation of finality.” But here since the order altered only the payment schedule, Kyles had no “legitimate expectation of finality.”

Third, Kyles argued that the district court lacked the statutory authority to change the payment schedule while he was incarcerated. The circuit disagreed, finding an inherent power to do so in the statutory provision that gives district courts the “equitable authority” to order payments over time instead of immediate payment of the whole amount. “Inherent in equitable authority is the power to adjust orders when the circumstances informing them change.”

Finally, the court agreed with Kyles that delegating to the Bureau of Prisons the power to set the amount of restitution payments was illegal. The court remanded the case for a imposition of restitution order that specifies the amount Kyles must pay each month and makes clear that prison officials cannot depart from that order.

The Persistents of Apprendi

Besser v. Walsh, No. 05-4375-pr (2d Cir. March 31, 2010) (Winter, Sack, CJJ, Murtha, DJ)

While the blog does not usually cover habeas cases, this one is important, as it invalidates New York State’s discretionary felony persistent offender sentencing scheme. The decision involves five separate cases heard “in tandem,” which is what the circuit calls cases that present the same legal issue that are heard together but not formally consolidated.

In New York, a first-time felon usually faces an indeterminate sentencing range based on the grade of the offense of conviction. If the court finds that a defendant sustained a qualifying predicate felony, he faces an enhanced sentence as a second felon. A defendant with two prior felonies is a “persistent felony offender,” a designation that in many instances requires a minimum sentence that is greater than the maximum sentence authorized for a second felony offender convicted of the same offense.

Unlike second-felony treatment, which requires merely a finding that the predicate felony exists, persistent felon treatment requires a two findings. First the judge finds that the defendant has at least two prior felonies. This makes the defendant eligible for the enhanced sentence. But in order to impose the enhanced sentence, the court must also find that the “history and character of the defendant and the nature and circumstances of his criminal conduct” are such that it is in the public interest for the defendant to be subject to the longer term.

The New York Court of Appeals repeatedly rejected Apprendi challenges to this scheme even though it would seem fairly clear that it violates Apprendi. After all, Apprendi holds that, other than the fact of a prior conviction, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” Under this scheme, the maximum is increased by fact-findings that are far more extensive than the mere existence of the prior conviction.

It is somewhat surprising to learn, then, the circuit did not find an Apprendi violation, per se. Rather, it found that the scheme violated Apprendi only as interpreted by Blakely. The reason derives from the habeas corpus standard of review, which constrains federal courts to look only at whether the state court’s interpretation of federal law - in this instance Apprendi - was “reasonable.” In fact, the circuit had twice upheld New York’s persistent felon scheme on Apprendi-based habeas challenges, holding that, despite Apprendi’s use of the phrase “any fact,” it was reasonable to read Apprendi to mean that “certain kinds of judicial fact-finding did not violate Apprendi even if it resulted in a sentence beyond the statutory maximum.”

In other words, according to the circuit, it was "reasonable" to read the word “any” to mean “some.” This is why we do not blog habeas cases.

According to the circuit, Apprendi’s “any” did not really stop meaning “some” until Blakely, which made it “unambiguously clear” that “any” meant “any,” and not “some.” So, in this decision the court at last holds that the New York persistent felony offender scheme violates not Apprendi, but Apprendi as interpreted by Blakely. That Apprendi alone was not enough to secure this result was bad news for one defendant, whose case, although otherwise identical to the other four, became final before Blakely was decided. This is another reason why we do not blog habeas cases.

Finally, instead of simply granting the petitions and ordering new sentencings for four post-Blakely defendants, the court remanded the case to the district court to address whether the application of the unconstitutional sentencing statute was harmless error.

High Sierra

United States v. Sierra, No,. 08-2761-cr (2d Cir. March 29, 2010) (Jacobs, Miner, Livingston, CJJ)

Gustavo Sierra pled guilty to one count of drug trafficking and one count of money laundering. The drug count involved 21 kilograms of heroin, while the money laundering count involved the proceeds of the sale of between 2 and 3.5 kilograms. Sierra’s presentence report calculated the base offense level for the money laundering count by using the total amount of the drugs involved in the drug trafficking count. With adjustments, this produced a sentencing range of 135-168 months.

Sierra objected, arguing that the guideline range for the money laundering count should be based only on the drug quantity alleged in that count, which would produce a lower offense level. The district court disagreed, used the higher range, and sentenced him to 135 months’ imprisonment.

On appeal, the circuit affirmed. It characterized Sierra as a “direct money launderer,” which means that he both laundered the money and committed the offense that produced it. And the guideline for direct money launderers, § 2S1.1(a)(1), clearly specifies that the base offense level should be the offense level “for the underlying offense from which the laundered funds were derived” if the defendant either committed the underlying offense or would be accountable for it under the usual relevant conduct principles. Here, the “underlying offense” was indisputably the 21-kilogram heroin conspiracy. Thus, under this instruction, the offense level for that conspiracy became the base offense level for the money laundering count.

The court also rejected Sierra’s novel argument that the guideline’s reference to relevant conduct principles should mitigate his sentence, rather than increase it, because he in fact laundered only the proceeds of 2 to 3.5 kilograms and not the full 21. Under the relevant conduct guideline, a defendant is accountable for “all quantities of contraband with which he was directly involved”; thus, that a defendant “laundered a lesser amount of funds than the value of his entire drug operation” is “immaterial.” Sierra’s argument would also have the effect of “underminin[g] the express purpose of” the money laundering guideline, which is to punish direct money launderers “one to four levels greater than the Chapter Two offense level for the underlying offense.” Finally, the argument is precluded by the language of the guideline itself which, for direct money launderers, does not refer to the value of the laundered funds in any way. Accordingly, Sierra’s guidelines were correctly calculated.

Sierra also argued, for the first time on appeal, that his sentence created an unwarranted disparity with his co-defendants. But the court disagreed, calling the disparities warranted. His co-defendants either had plea agreements, pled guilty only to one of the counts, were “exceptionally honest in admitting to the crimes," or had unique personal circumstances, such as serious illness, that reduced their risk of recidivism.

Summary Summary

This has been a busy week in the circuit, and not just for published opinions. There are also three summary orders of interest.

United States v. Harrington, No. 09-1160-cr (2d Cir. March 23, 2010), has two noteworthy features. First, at this gun possession trial, the district court allowed the defense to present evidence of, and charged the jury on, "innocent possession," in light of the defendant's claim that he possessed the gun only to turn it in to the city's "Toys for Guns" program. Second, the circuit noted that it was error, albeit harmless, to admit, under Rule 404(b), evidence of a prior robbery conviction to rebut this defense, where the certificate of conviction did not indicate that a firearm was used in the robbery.

United States v. Townsend, No. 09-1283-cr (2d Cir. March 25, 2010), considered whether evidence used against the defendant at a supervised release violation hearing was obtained in violation of the Fourth Amendment, thus implicitly agreeing that the Fourth Amendment applied at revocation hearings.

And, in United States v. Hughes, No. 09-0770-cr (2d Cir. March 26, 2010), the court left open the possibility that some crack cases where there was a Rule 11(c)(1)(C) plea agreement might nevertheless be amenable to a § 3283(c)(2) motion. The court also did not enforce the plea agreement's § 3582(c)(2) waiver because the government did not raise waiver as a a defense.

What A Difference A Day Makes

United States v. Janvier, No. 08-5978-cr (2d Cir. March 26, 2010)(Jacobs, Lynch, CJJ, Restani JCIT)

On July 21, 2008, the last day of Janvier’s three-year supervised release term, the probation department submitted a petition to the district court alleging that Janvier had violated the conditions of his supervised release. That same day, the court checked the box on the probation form ordering the “[i]ssuance of a [w]arrant.” The warrant did not actually issue, however, until July 23, 2008. When Janvier appeared in court on the petition he argued that the court lacked jurisdiction to revoke his release because his supervised release term had already expired. The district court disagreed and, after he admitted violating his supervised release, sentenced him to five months’ imprisonment to be followed by thirty-one additional months of supervised release.

On appeal, the circuit reversed based on the “plain language of the governing statute” which only extends the court's jurisdiction beyond the expiration of supervision if a warrant issues before the supervision period ends.

Courts have long asserted jurisdiction over violation proceedings beyond the expiration of the term, even before there was statutory authorization for it. Generally, courts identified either the filing of the revocation petition or a similar notification to the releasee as the event that would trigger an extension of jurisdiction. As long as the triggering event occurred during the term of release, a court would retain jurisdiction over the matter for the time necessary to adjudicate it.

In 1994, Congress made this authority explicit by enacting 18 U.S.C. § 3583(i) for supervised release and § 3565(c) for probation. The supervised release statute provides that a court’s power to adjudicate a violation petition extends beyond the expiration of the supervision term if, “before its expiration a warrant or summons has been issued” on the basis of a violation charge. This section plainly “identifies the issuance of a warrant or summons during the term of supervised release as the condition for extension of the court’s power to adjudicate a violation charge” and by its very terms applied in Janvier’s case.

The circuit rejected the government’s arguments to the contrary. First, the government argued that the statute is “not exclusive”; it identifies “one particular set of circumstances” but does not preclude retention of jurisdiction under other, analogous circumstances.” While it is true that Congress could have made the exclusivity of the condition for extension of jurisdiction “even clearer” by using a phrase like “if and only if,” the language it chose is “more than clear enough.” Where “a power is granted upon a condition, it can hardly be argued that the power also exists when the condition is unmet.”

The government also argued that § 3583(i) “did not modify” the pre-enactment state of the law. The circuit again disagreed. The predominant view before the enactment of the statute was that the triggering event for extension of jurisdiction was the filing of the violation petition, not the issuance of the warrant. That Congress chose a different event “reads more as a rejection than as an endorsement of that aspect of the prior case law.”

Finally, the government argued that the appellate court should deem ordering the issuance of a warrant to be the same as the issuance of the warrant, and thus find the statute satisfied here. From a “policy standpoint” it might have made more sense to make the judicial officer’s finding of probable cause the triggering point and not the “purely ministerial action of the clerk of the court in actually issuing the warrant.” But the appellate court was “unwilling to rewrite the statute to say something that it does not.” The statute provides that the extension of jurisdiction occurs when a warrant or summons “has been issued.” Here, in contrast, the court merely “directed” the issuance of the warrant. That order did not “issue” the warrant - it directed someone else to issue one - and was not carried out until two days later, after Janvier’s supervision had expired.

Nor does this reading of the statute lead to “absurd or impracticable results.” Compliance with the literal terms of § 3583(i), even for a violation that occurs on the very last day of the release term is a “simple matter.” If the probation officer here had “simply taken the trouble to walk the signed form from the judge to the clerk’s office” there would have been nothing to prevent the warrant from being issued on the same day the petition was presented. Alternatively, “there is no reason why the judge could not be presented with a form warrant or summons ready for signature” along with the petition. “Given the ease with which the statute can be satisfied, there is no reason to contemplate strained readings that would blur the bright line provided by Congress.”

Comment

All ended well for Janvier. Except that he served his entire prison sentence - and a big chunk of the new supervised release term - before he won his appeal. According to the district court docket sheet, the judge denied his application for bail pending appeal noting that “[t]he proposed appeal does not raise a substantial question of law or fact likely to result in a recusal [sic] or a sentence reduction.” And there is no indication in the appellate docket sheet that he moved for bail in the circuit.

The Boss From Hell

United States v. Sabhnani, No. 08-3720-cr (2d Cir. March 25, 2010) (Wesley, Livingston, CJJ, Restani, JCIT)

The defendants, husband and wife, were convicted of forced labor, harboring aliens, peonage and document servitude, both substantive and conspiracy. The wife received an eleven-year sentence, while the husband was sentenced to forty months. The court also imposed fines and restitution and ordered the forfeiture of their home. The defendants raised several issues on appeal, not all of which are summarized here, but won relief only on a restitution issue.

Background

The facts of this case are quite disturbing. The defendants lived very comfortably, along with their children, in a large house on Long Island from which the husband ran a successful export business. Beginning in 2002, with the help of the wife’s mother, the defendants brought two women to the United States from Indonesia to serve as household servants. Their treatment of the women was truly horrific. The wife would regularly abuse them physically - by, inter alia, depriving them of sleep, beating, starving and mutilating them - and psychologically - by insulting and threatening them and their families back in Indonesia. The husband’s role was more passive - he would report the women's supposed violations of the house rules to his wife, then let her do the dirty work.

The situation lasted until 2007, when one of the women finally mustered the courage to escape and summon help. A search of the home revealed substantial physical evidence, including blood and physical instruments that were used to beat the women.

The Appeal

The circuit affirmed the convictions and sentences, but remanded for recalculation of the restitution.

1. The Restitution Issue

In peonage or forced labor cases, 18 U.S.C. § 1593 provides for mandatory restitution of the full amount of the victim’s losses, which it defines as “the value of the victim’s labor as guaranteed under the minimum wage and overtime guarantees of the Fair Labor Standards Act” (the “FLSA”). Here, the district court concluded that the two women worked twenty-four hours a day when the defendants were at home and eight when they were on vacation. It determined a minimum wage amount, then multiplied that by a statutorily determined factor to calculate overtime pay. After subtracting the amount that had been actually sent to the victims’ families, the court doubled the total under a FLSA provision providing for “liquidated damages” for minimum wage violations.

The defendants first argued that the victims were not entitled to overtime pay under the FLSA, and thus that the restitution amount was incorrect. The circuit agreed. The FLSA provides for overtime for employees who work more than forty hours per week, and this guarantee covers domestic workers. But the overtime provision does not apply to domestic employees who reside in the household. Reading the plain language of the statute, the court easily concluded that the victims here “resided” in the defendants’ house. The trial evidence showed that they lived in the house and did so as permanent residents for a considerable time. Moreover, the ordinary meaning of the term "residence" applies even, when the “residence” is involuntary, such as when a person “resides” in prison. Accordingly, since the victims were not statutorily entitled to overtime pay, the circuit remanded the case for recalculation of the restitution amount. It noted, however, that the residence exception does not excuse the employer from paying a live-in worker for all hours worked. Thus, on remand the district court need not deviate from its decision to award the victims pay for working twenty-four hours per day.

The defendants also contested the district court’s award of liquidated damages, arguing that the relevant FLSA provision, § 216(b) did not apply to restitution awards under 18 U.S.C. § 1593. The circuit disagreed. The restitution provision fixes the amount owed as the greater of the value to the defendant of the victim’s services or the value of the labor as guaranteed under the “minimum wage and overtime guarantees” of the FLSA. The circuit held that the FLSA’s provision for liquidated damages counted as part of the “value of the victim’s labor.” First, the restitution provision’s reference to the FLSA does not limit the value calculation to the FLSA's provisions under which wages and overtime are calculated. Moreover, § 216(b)’s double damages provision is triggered automatically by a violation of the FLSA's wage and overtime provisions. Third, § 216(b) is “explicitly and exclusively tied to violations of the minimum wage and overtime rules.” Thus, under § 1593, the value of the victim’s labor as guaranteed under the minimum wage and overtime guarantees of FLSA includes the liquidated damages under § 216(b).

This is so even though the liquidated damages provision can be dispensed with if the employer’s FLSA violation was undertaken in good faith. This carve-out does not mean that the liquidated damages is not part of the value of the victim’s labor that the FLSA guarantees. “The possibility that a judge may in narrow circumstances relieve an employer of its obligations to pay [does not alter] Section 216's general command that liquidated damages be paid."

2. Other Sentencing Issues

A. The court rejected the wife’s contention that enhancements for both “serious bodily injury” and the use of a “dangerous weapon” constituted impermissible double counting.

B. Both defendants contested the “vulnerable victim” enhancement, arguing that because Congress took into account a victim’s vulnerability in enacting the criminal statutes under which they were convicted, the guideline under which they were sentenced, § 2H4.1, implicitly incorporated that vulnerability, and thus the victims here were not “unusually vulnerable.” They were, rather, the “prototypical victims Congress aimed to protect.”

The circuit disagreed, even though it agreed that the congressional findings behind the statutes included findings that persons with some of the same characteristics as these victims were more likely to be victims of the crimes of forced labor, peonage and document servitude. But neither the offense guideline nor the vulnerable victim guideline supported the defendants’ argument. The offense guideline itself specifies no victim-related factor that, under the commentary to the vulnerable victim guideline, would preclude application of the enhancement.

3. Trial Issues

A. The appellate court rejected, inter alia, the defendants’ claim that the district court should have granted their motion for a change of venue due to prejudicial pretrial publicity. The publicity was driven largely by coverage of court proceedings. Thus, the prosecution's reported comments, some of which were inflammatory, were proper given the litigation context in which they were made. Moreover, the press also reported on comments of the defendants’ attorneys. Nor was the press coverage “so pervasive and prejudicial as to have created a reasonable likelihood that a fair trial could not be conducted.” Finally, there was a searching voir dire of prospective jurors that the defendants did not object to as inadequate.

B. The husband challenged the district court’s jury instruction on aiding and abetting which, in one place, indicated that liability might attach for a “failure to act.” This was, arguably, error, since none of the charges on which he was convicted was predicated on a failure to act, and he had no common law duty to act. Omissions may serve as the basis for criminal liability only if there is an affirmative duty to act, and this is equally true for aiding and abetting. But here, the complained of language was
“not inaccurate” - it was “simply extraneous to this case.” And the “charge as a whole” repeatedly made clear that the jury had to find that the husband “by some act” sought to make his wife’s crimes succeed.

A Pattern Emerges

United States v. Basciano, NO. 09-0281-cr (2d Cir. March 23, 2010) (Walker, McLaughlin, Raggi, CJJ)

On this interlocutory appeal, the circuit found that an indictment charging Basciano, who had previously been convicted of racketeering in conducting the affairs of the Bonanno crime family, with a successive racketeering count violated the Double Jeopardy Clause, because both counts alleged the same pattern of racketeering.

Background

1. The 2003 Indictment

Basciano and several co-defendants were originally charged in a 2003 Indictment with racketeering conspiracy and several other counts. The jury convicted Basciano of the racketeering conspiracy, but was unable to reach a verdict on some of the other counts. In preparing to retry him on the 2003 Indictment, the government superseded and added a substantive racketeering count. That count alleged that, from January 1979 through November 2004, Basciano conducted and participated in the conduct of the affairs of the Family through a pattern of racketeering activity. It described the structure and purpose of the Family and Basciano’s role - he started as an associate and rose to acting boss. The 2003 Indictment alleged six predicates - three homicide-related offenses, a marijuana distribution conspiracy, an illegal lottery, and an illegal sports betting ring.

In 2007, a jury convicted Basciano of all counts and found that all of the predicates had been proved. The judge sentenced him to life imprisonment.

2. The 2005 Indictment

In the meantime, after Basciano’s 2004 arrest, another Family member told the government that Basciano was continuing his criminal activity from prison. He had ordered the murder of one person, and was actively soliciting the murder of an AUSA. While Basciano was awaiting retrial on the 2003 Indictment, the government filed the 2005 Indictment, which it then superseded several times. In the version at issue here, it charged Basciano with substantive racketeering on behalf of the Bonanno Family between February 1997 and June 2005. It described the Family as a racketeering enterprise and repeated the 2003 Indictment’s allegations about Basciano’s role, although it gave more detail.

The pattern it alleged included eleven racketeering acts, although Basciano was named in only five of them. The 2005 Indictment also alleged, inter alia, two counts of conspiracy to murder in aid of racketeering (the “Murder Counts”).

3. The Motion to Dismiss

Basciano moved to dismiss the substantive racketeering count and the Murder Counts of the 2005 Indictment on double jeopardy grounds. The district court denied the motion.

The Appeal

On appeal, Basciano partially succeeded. The court found that the substantive racketeering count of the 2005 Indictment violated the Double Jeopardy Clause, but that the Murder Counts did not.

1. The Legal Standard

The Double Jeopardy Clause protects against successive prosecutions for offenses that are “the same in fact and in law.” Basciano’s first claim was that the Murder Counts violated double jeopardy with respect to the 2003 Indictment's racketeering conspiracy count. As to this claim, since the statutes were different, the question turned on whether the crimes were “the same in the legal sense, as defined by Congress" under the “same-elements test” of Blockburger/Dixon. For the substantive racketeering claim, since the 2003 Indictment and the 2005 Indictment alleged violations of the same statute, the issue turned on whether the crimes “are the same in fact,” that is, whether a “reasonable person familiar with the totality of the facts and circumstances would construe the substantive racketeering” pled in the 2003 Indictment “to include the substantive racketeering” pled in the 2005 Indictment.

2. No Double Jeopardy Violation For The Murder Counts

The court rejected Basciano’s argument that the Murder Counts were barred because those crimes were “legally subsumed” in the 2003 Indictment’s racketeering conspiracy, which charged him with conspiring to conduct the affairs of the Bonanno Family through a pattern of racketeering that included murders.

Basciano argued that the court should apply a“same-conduct” test, and not the traditional Blockburger/Dixon same-elements test. He noted that, in one post-Dixon case, the circuit had left open the possibility in dicta that in situations “where one of the statutes covers a broad range of conduct,” examination of “the allegations of the indictment rather than only the terms of the statutes” would be appropriate to a double jeopardy assessment. Here, the court declined this invitation, noting that it has consistently construed Dixon to preclude fact-based assessments of double jeopardy claims based on successive prosecutions under different statutes.

Here, under Blockburger/Dixon, the result was easy. The racketeering conspiracy statute charged in the 2003 Indictment has different elements from the murder-in-aid-of-racketeering statutes charged in the Murder Counts. They were thus “legally distinct offenses no implicating double jeopardy concerns.”

3. Double Jeopardy Barred The Substantive Racketeering Count of the 2005 Indictment

Finding that the substantive racketeering count in the 2005 Indictment charged Basciano with conducting the affairs of the same enterprise through the same pattern of racketeering as the substantive racketeering count in the 2003 Indictment, the court reversed and remanded for dismissal of that count.

For successive substantive racketeering prosecutions to place a defendant twice in jeopardy for the same offense, both the enterprise and the pattern of racketeering activity must be the same. Here, the government conceded that the enterprise in the 2003 Indictment was the same as that in the 2005 Indictment - the Bonanno Family. The circuit concluded, however, that the patterns were also the same.

The court first noted that Basciano had made a strong preliminary showing that the two Indictments alleged the same pattern. They used “identical language to describe” the Family’s criminal methods and the means by which its affairs were conducted. Moreover, the Indictments relied on common predicates and the government had proved some of the predicates alleged in the 2005 Indictment to “complete the story” of the racketeering charge at the trial on the 2003 Indictment. The circuit noted that the “story” being “completed” was that of the broad pattern of racketeering engaged in by the Bonanno Family.

Thus, the government failed to establish that the pattern in the 2003 Indictment was different from that alleged in the 2005 Indictment. The court rejected the government’s claim that the pattern in the 2005 Indictment was narrower than, and distinct from, that in the 2003 Indictment, because the later pattern was defined by a limited time and purpose - defending the family after it was threatened by a series of 2004 arrests, including Basciano’s own.

Here, the pattern alleged in the 2003 Indictment was described at the “highest level of generality” - the predicates were alleged simply to be related to the activities of the Bonanno Family. Although it would have been possible to plead a narrower pattern by defining it with other unifying principles, such as time or purpose, the government did not do so.

When the government first prosecutes a defendant for conducting the affairs of an enterprise through the broadest possible pattern of racketeering, which gives the government the greatest latitude to rely on a wide rage of crimes to make it case, the government’s choice has consequences. Such a pattern provides the “broadest shield against a successive racketeering prosecution based on other criminal activities fitting within that pattern.”

Given this, the court did not agree that the language of the 2005 Indictment alleged a distinct, narrow pattern. First, that count alleged a pattern of activity from February 1997 to June 2005; it hardly supported “a preponderance finding that the charged pattern is defined by the limited goal of defending the Family ... in the wake of [Basciano’s] arrest,” which occurred in 2004. Similarly, while the 2005 Indictment alleged that Basciano continued to participate in the Family’s affairs after his arrest, it “nowhere asserts that the pattern through which he conducted the Family’s affairs after his arrest is distinct from, as opposed to a mere continuation of, the pattern through which he conducted the Family’s affairs before his arrest.” While it might have been possible to plead a distinct pattern of conduct based on Basciano’s post-arrest activity, the 2005 Indictment “as it stands does not support a conclusion that the alleged pattern more likely than not is distinct from that charged" in the 2003 Indictment.

To get around this problem, the government argued that the pattern alleged as to Basciano in the 2005 Indictment should be defined only by the predicate acts ascribed to him, since he was not placed “in jeopardy” by the predicates attributed to others, an argument that the Court dismissed as an effort to “rewrite the indictment.” First, a racketeering indictment does not put a defendant in jeopardy for any predicate acts; it puts him in jeopardy only for conducting an enterprise though a pattern of activity that is defined by its related predicates. Thus, the pattern charged against Basciano cannot be limited to the predicates attributed to him on the theory that he is not being put in jeopardy for acts attributed to others. Moreover, in a single-count racketeering case, a court cannot identify the charged pattern by reference only to those predicates attributed to a particular defendant. This would risk the identification of multiple racketeering patterns rather than the single, common pattern alleged by the grand jury. Only the grand jury can decide whether an individual defendant should be charged with a pattern different from his co-defendants. Finally, the government’s argument ignores those cases holding that evidence beyond a defendant’s own predicate acts is relevant to establishing the charged pattern of racketeering.

Having found that Basciano satisfied his initial burden, the court turned to the multi-factor Russotti test for determining whether, under the totality of the circumstances, the “reasonable person” test was met. This test considers: (1) the time of the various activities charged as parts of separate patterns; (2) the identity of the persons involved in the activities under each charge; (3) the statutory offenses charged as racketeering activities in each charge; (4) the nature and scope of the activity the government seeks to punish under each charge; and (5) the places where the corrupt activity took place under each charge.

Here, (1) as to timing, there was a partial overlap of nearly eight years. Although this “did not necessarily signal identical patterns,” the court noted that all of the predicates charged in the 2003 Indictment occurred during the time period of the 2005 Indictment. Thus the timing of the predicates did not “permit a preponderance finding” that the 2005 Indictment pattern was narrower than and distinct from that in the 2003 Indictment. (2) In terms of participants, the 2003 Indictment named Basciano and “unnamed others," while the 2005 Indictment charged Basciano and two named co-defendants. But, warning against exalting form over substance, the court noted that in viewing the two counts together, “a number of overlapping participants” could be discerned. (3) The similarity of the statutory offenses charged in the two Indictments supported the same conclusion. “Where racketeering activity consists of similar offenses, distinct patterns are not foreclosed, but their likelihood diminishes.” (4) The court’s discussion of the “nature and scope” prong was its most detailed. It first found similar motives in the two patterns. Both the 2005 Indictment and the 2003 Indictment included murders committed with the specific objective of exerting and preserving Bonanno authority whenever its leadership fell vulnerable to law enforcement. The court thus concluded that the totality of the predicates established that the two patterns were not distinct. Finally, (5) as to location, there was no real dispute that both Indictment alleged activities that took place in the metropolitan area.

PC World

United States v. Bari, No. 09-1074-cr (2d Cir. March 22, 2010) (Cabranes, Parker, CJJ, Underhill, DJ)(per curiam)

The court’s most recent per curiam addresses a district court’s use of the results of an Internet search, in part, to find that the defendant violated his supervised release.

On release from a long bank robbery sentence, Bari faced a supervised release violation for robbing another bank. The district court found him guilty after a two-day hearing. In finding against him, the court cited: a bank employee’s identification of Bari’s voice; the similarity between Bari’s height, weight and posture to those described by witnesses to the robbery; Bari’s suspicious conduct at or near the bank around the time of the robbery; the similarity between Bari’s car and one seen near the bank just after the robbery, and; the similarity between the yellow rain hat worn by the robber - as depicted in a surveillance video - and one found in Bari’s landlord’s garage. As to this last point, the district judge noted that there were lots of different kinds of yellow rain hats - a fact he confirmed with a Google search - and that the similarity helped persuade him that Bari was the bank robber.

On appeal, Bari argued that the Internet search violated Evidence Rule 605, which prevents a judge from testifying as a witness, and Rule 201, which deals with judicial notice. The circuit affirmed. It first considered whether the Federal Rules of Evidence apply at a supervised release revocation hearing at all. Noting that it had already resolved this question for probation revocations, the court held that the rules of evidence, except those governing privileges, do not apply “with their normal force in supervised release revocation hearings.” They do, however, provide “some useful guidelines” that will help ensure that the district court’s findings are based on “verified facts” and “accurate knowledge.” The evidentiary constraints at such hearings “should be loosened, although not altogether absent.”

In a footnote, the court disposed of the Rule 605 claim, noting that the rule does not apply in the context of judicial notice. If a judge improperly testified whenever he took judicial notice of a fact, “it would be effectively impermissible to take judicial notice of any fact.”

Moreover, the district court did not err in conducting an independent Internet search “to confirm its intuition that there are many types of yellow rain hats for sale.” Rule 201 permits a judge to take judicial notice of a fact that is “not subject to reasonable dispute” that is either “generally known” or “capable of accurate and ready determination” through accurate sources. Here, the fact at issue was indeed one of “common knowledge,” since common sense would lead one to suppose that there are many types of yellow rain hats. The Google search here served only to confirm this.

The court closed by noting the utility of the Internet in answering this type of question. Instead of going to a department store to survey the rain hats for sale, a judge need take only a few moments to “confirm his intuition by conducting a basic Internet search.” And, “[a]s the cost of confirming one’s intuition decreases, we would expect to see more judges doing just that.” Thus, at a revocation hearing, where only a “relaxed form” of Rule 201 applies, a judge is free to use a search engine to confirm his intuition on a matter of common knowledge.

Summary Summary

Here are two more interesting summary orders.

In United States v. Spivack, No. 08-6091-cr (2d Cir. March 18, 2010), the prosecutor allowed a government witness to testify falsely that the defendant was a pedophile. The court characterized this as “outrageous” and as “severe misconduct.” But here, in light of the measures adopted to cure the misconduct and the certainty of conviction in the absence of the misconduct, Spivack was not prejudiced. The court also noted that some of the prosecutor’s comments about the nature of the child pornography in the case were “troubling” given their relationship to the false testimony, but did not rise to the level of misconduct, and that the prosecutor’s closing references to Lolita were “more problematic” - they had no purpose “other than to inflame the jury” - but did not amount to a due process violation.

In United States v. Gjidija, No. 07-3546-cr (2d Cir. March 15, 2010), the court modified a restitution order by deducting $5,000 that was “unattributable to any victim.” It also noted that the defendant could file a 2255 motion arguing that his counsel was ineffective even though he had already successfully filed one arguing that his appellate counsel was ineffective for failing to perfect his appeal. Since the first 2255 merely caused the district court to vacate the sentence and enter a new judgment from which Gjidiaj could appeal, he had not yet collaterally attacked the final judgment.

Sex Offender Goes South, As Does His Defense

United States v. Van Buren, No. 08-6262-cr (2d Cir. March 17, 2010) (Walker, Straub, Livingston, CJJ)

A jury convicted Van Buren of failing to comply with the registration requirements of SORNA after he moved from his hotel in Binghamton, New York, to his mother’s house in North Carolina without updating his New York registration or registering in North Carolina.

On appeal, he first raised a host of constitutional challenges, all of which were foreclosed by United States v. Guzman, an intervening decision. See Moving Violations, posted January 7, 2010.

He also claimed that the district court erred in its jury instructions about the scope of SORNA's registration requirements. The statutory scheme requires a convicted sex offender to register, and keep the registration current - including providing the address of his residence - in each jurisdiction where he resides, is employed or is a student. In addition, within three business days after each “change” of residence, the offender must appear in person at an “appropriate office” and inform it of all changes in his information.

In the district court, Van Buren claimed that his termination of his hotel residence in New York was not a “change” in residence because he did not establish a new residence elsewhere. The government countered that leaving the hotel was by itself a sufficient “change” to trigger SORNA. The district court agreed that terminating a residence with no intention of returning requires a sex offender to update his information, and instructed the jury accordingly.

Van Buren pursued this claim on appeal, without success. The circuit held that Van Buren’s terminating his residence in New York to travel to North Carolina with no intention of returning qualified as a “change” in residence under any definition of the word “change.” It was a “change” in the sense of going from “something to nothing” and it was also a change in the sense of “going from something to something else.”

Moreover, regardless of the semantics, the circuit held that it was clear that SORNA covered Van Buren’s conduct. Indeed, its legislative history specifically notes that sex offenders’ moving from one state to another presents the “most significant enforcement issue in the sex offender program.” The statute is therefore not ambiguous such that the rule of lenity would apply.

An Unwelcome Edition

United States v. Gilmore, No. 07-0349-cr (2d Cir. March 17, 2010)
(Leval, Katzmann, Livingston, CJJ)

In 2005, Gilmore pled guilty to producing child pornography. He faced a fifteen-year mandatory minimum and a thirty-year maximum sentence. His plea agreement included a non-binding estimate that indicated that his guideline sentence was life imprisonment but that, since this exceeded the statutory maximum, the applicable guideline sentence would be thirty years. This estimate was based on the 2004 Edition of the guideline manual, the version in effect at the time of Gilmore’s sentencing, but the government later realized that this was erroneous because it resulted in a harsher sentence than the 2003 Edition, which was in effect at the time of the offense.

Gilmore’s PSR used the 2003 Edition, under which the guideline range was ninety-seven to 121 months’ imprisonment. Since this was less than the mandatory minimum, the PSR concluded that the guideline sentence was fifteen years.

At sentencing, however, the district court upwardly departed to thirty years due to the nature of the conduct. On Gilmore’s first appeal, the circuit vacated the sentence on the ground that the district court did not give Gilmore notice of its intent to impose an above-guideline sentence.

On remand, the district court imposed the same sentence. It gave several reasons for the sentence, including its recognition that the guideline manual in effect at the time of sentencing recommended a life sentence. While the district court found no ex post facto problem in looking to the 2004 Edition, it made clear that the guideline range it was using came from the 2003 Edition and that the sentence it selected was a non-guideline sentence under § 3553(a). The court noted that the fact that the 2004 Edition would have recommended a life sentence “support[ed] the reasonableness” of the thirty-year term.

On this, Gilmore’s second appeal, the circuit affirmed. Even though the government joined in the request for a remand on this point, the circuit found no violation of the Ex Post Facto Clause in the district court’s reference to the 2004 Edition for guidance. The court ducked the thornier issue of whether the Ex Post Facto Clause even applies to the guidelines in the wake of Booker, and instead agreed with the district court that there was no violation in looking to a later edition of the guideline manual to evaluate the seriousness of Gilmore’s offense and the reasonableness of the sentence imposed. Here, the district court “explicitly recognized” that the 2003 Edition applied and its reference to the 2004 Edition “was not a part of its analysis of” Gilmore’s guideline range. Since the 2004 Edition was not applied here, merely consulted, there was no ex post facto problem.

An Exercise in Frivolity

United States v. Davis, No. 08-3240-cr (2d Cir. March 15, 2010)
(Winter, Sack, CJJ, Cogan, DJ)

Davis pled guilty to a two-count child pornography indictment. He faced a 60-month mandatory minimum and a guideline range of 97 to 121 months’ imprisonment. At sentencing, he argued forcefully for a 60-month sentence, focusing on his age and health problems as well as his conduct - he had no contact with a child, and did not distribute the images. The court sentenced him at the bottom of the range, noting “I see no reason to deviate form the ranges that are set forth in the Sentencing Guidelines.”

On appeal, he argued that the sentence was procedurally unreasonable because the district court treated the guidelines as presumptively reasonable, and that it was substantively unreasonable for largely the same reasons he cited in the district court. The government, in response, did not file an opposition brief. Instead, it moved for summary affirmance. The circuit denied the motion and issued this opinion to explain its reasons.

The court began by noting that summary affirmance, as opposed to full merits briefing, is discretionary on the part of the appellate court and should be treated as “a rare exception to the completion of the appeal process.” It is a “short-cut” and, given the stakes involved, is only available if an appeal is truly “frivolous.” In criminal appeals, in particular, the decision to characterize a case as frivolous is “particularly perilous.”

Next, the court defined “frivolous” - an appeal is frivolous when it “lacks an arguable basis either in law or in fact.” That a “correct resolution of [the] appeal seems obvious” is not enough. Rather, a case is frivolous only where the legal conclusions are “inarguable” or the factual allegations are “fanciful.”

Here, the panel did not think that Davis’ appeal was frivolous. His procedural claim rested on a “close reading of the language used by the district court.” He argued that the court’s statement that it found “no reason” to give a non-Guideline sentence suggested that it was operating from the presumption that a guideline sentence would be reasonable. While the panel did not rule on whether this interpretation of the district court’s statement was correct, it concluded that it was neither “inarguable nor totally devoid of support.”
Thus, while the panel did not need to reach Davis’ arguments on substantive reasonableness, it observed nonetheless that those arguments were also non-frivolous. His claim t that the district court’s sentencing decision reflected an insufficient consideration of some of the statutory factors was “not so completely baseless as to be frivolous.”

The court accordingly denied the motion for summary affirmance and directed the clerk to set a briefing schedule.

Comment

This decision, while procedurally anomalous, is nevertheless quite important because of its impact on Anders briefs. It sets a very high bar for frivolousness, and should cause all counsel who are considering filing an Anders brief to think very carefully about whether there might be some view of the record, no matter how weak, that would lend itself to a merits brief instead.

Summary Summary

Summary orders of interest have literally been piling up on my desk. Here's the latest crop:

In United States v. Muse, No. 07-4482-cr (2d Cir. March 11, 2010), the court vacated the sentence where the district court erroneously believed that jury’ finding on a special interrogatory indicated that the defendants had been convicted only of a misdemeanor.

In United States v. Nazario, No. 09-0953-cr (2d Cir. March 11, 2010), the court noted, but did not resolve, the looming tension between Samson v. California, 547 U.S. 24 843, 857 (2006), which held that for a California parolee the Fourth Amendment does not prohibit suspicionless searches, and the court’s own precedents on the reasonableness of parole searches.

In United States v. Gardner, No. 08-4793-cr (2d Cir. March 10, 2010), the court remanded for resentencing where, under Williams, the defendant was not eligible for the mandatory consecutive § 924(c) sentence that he received. However, the court noted that the issue is now before the Supreme Court and thus that it “would likely be an efficient use of judicial resources to await the Supreme Court’s resolution of this issue before resentencing.”

In United States v. Barrios, No. 08-4354-cr (2d Cir. March 9, 2010), the court noted a circuit split on the question whether a vehicle impoundment under the police community caretaking function must be made under standardized procedures, like inventory searches, but did not resolve the issue because the defendant did not raise in the district court. But the court found plain error in the imposition of consecutive terms of supervised release - 18 U.S.C. § 3624(e) requires that they be concurrent.

In United States v. Jones, No. 09-1009-cr (2d Cir. March 9, 2010), the court found no error when, at a supervised release violation, the district court sentenced the defendant in criminal history category VI, even though at his original sentencing the court had departed down to category V. The guidelines for supervised release violations permit, but do not require, a similar departure when calculating the violation sentence.

In United States v. Kelly, No.08-2247-cr, (2d Cir. March 3, 2010), the court found no constructive amendment where the indictment charged that the defendant escaped from a halfway house, but proof at trial showed that he never reported there at all.

Checking References

United States v.Deandrade, No. 08-4815-cr (2d Cir. March 12, 201(Jacobs, Hall, CJJ, Murtha, DJ)

At Deandrade’s trial, two cooperating witnesses mentioned that he was incarcerated during his trial. The district court denied his mistrial motions, and on appeal, the circuit affirmed.

Deandrade argued that those references improperly impaired the presumption of innocence under Estelle v. Williams, 425 U.S. 501 (1976). The circuit disagreed, noting that in situations like this, several other courts have held that under Estelle “brief and fleeting references are generally allowed, but extended comment is impermissible.” The circuit agreed, holding that “a brief and fleeting comment on the defendant’s incarceration during trial, without more, does not impair the presumption of innocence to such an extent that a mistrial is required.”

There was accordingly no error here. The remarks were isolated, “apparently unintentional on the part of the prosecution,” incidental to legitimate questioning and the government did not refer to them again.

Deandrade also raised an interesting sentencing issue. He argued that his prior juvenile delinquency adjudication could not serve as a “prior conviction” to enhance his mandatory minimum under 21 U.S.C. §§ 841(b) & 851. The court did not decide the issue,however, since Deandrade’s sentence was higher than the mandatory minimum and it was clear from the record that the prior conviction did not affect the sentence in any way. But in a footnote, the court noted, “without comment” that the Third Circuit has held that a prior delinquency adjudication is not a "conviction" under these statutes.