PC World

In the current crop of per curiams the court follows the Supreme Court's lead on two sentencing issues.

United States v. Pickett, No. 09-0683-cr (2d Cir. July 20, 2010) (Winter, Cabranes, Wesley, CJJ) (per curiam), follows Dolan v. United States, 2010 Wl 2346548 (June 14, 2010). Pickett was sentenced to 168 months’ imprisonment after a fraud trial. The court did not impose restitution immediately, holding it open for a more complete accounting of the victims’ losses. It entered a restitution order ninety-eight days later. Under Dolan, a sentencing court that misses the ninety-day statutory deadline for imposing restitution can still do so where it “made clear prior to the deadline’s expiration that it would,” leaving open “only the amount.” Since that is what happened here, the restitution order was proper.

United States v. Mock, No. 09-4154-cr (2d Cir. July 19, 2010) (Wesley, Hall, CJJ, Goldberg, JCIT) (per curiam) applied Dillon v. United States, 2010 WL 2400109 (June 17, 2010), in rejecting a claim, raised on the defendant’s appeal of the denial of a crack resentencing, that the district court made an error in the original sentencing. Under Dillon, a crack resentencing is a “limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Thus, neither the district court nor the circuit was free to consider the defendant’s argument regarding procedural errors made at the original sentencing.

Summary Summary

It’s been a while, but here is the latest set of summary orders of interest.

In United States v. Romeo, No. 09-3106-cr (2d Cir. July 19, 2010), the court found plain error in the sentencing court’s fact-finding as to the number of victims, and ordered a Jacobson remand.

In United States v. Timewell, No. 09-2777-cr (2d Cir. July 15, 2010), the court found error in a post-Crosby remand sentence. The district court ruled in the case before the mandate issued, thus it lacked jurisdiction. It also erred in ruling before giving the parties an opportunity to be heard, and misapprehended the terms of the mandate.

In United Sates v. Most, No. 09-6292-cr (2d Cir. June 8, 2010), the court upheld the imposition of the statutory maximum sentence for a supervised release violation. The district court’s reasons - the defendant’s criminal history, repeated violations of supervision and the fact that he received a significant downward departure in the underlying case - supported the sentence.

In United States v. Cotto-Lopez, No. 08-5337-cr (2d Cir. June 1, 2010), the court remanded for resentencing because the district court “made no explicit finding that Cotto-Lopez was or was not a minor or minimal participant,” despite his “substantial argument for such a finding,” thus frustrating the appellate court’s ability to review the sentence.The court’s adoption of the PSR was not enough, because the PSR’s finding as to the defendant’s role was a “bare conclusion without analysis or explanation.”

Second Time Aground

United States v. Castello, No. 09-2784-cr (2d Cir. July 7, 2010) (Jacobs, Winter, McLaughlin, CJJ)

Joseph Castello was convicted of failing to file CTRs in connection with his check cashing business. When last we heard from him, see Cashed and Burned, posted 2/6/2009, the circuit vacated a 12 million dollar-plus forfeiture order and remanded for more complete findings under United States v. Bajakajian, 524 U.S. 321, 337-39 (1998), and its Eighth Amendment-derived excessive fines test. On remand, the district court made findings on the four factors set out in Bajakajian, and reduced the amount of the forfeiture to zero. On this, the government’s appeal, the circuit vacated the zero and ordered reimposition of the original forfeiture amount.

Reviewing the district court’s findings de novo, the circuit found fault with all of them. The first Bajakajian factor requires consideration of “the essence of the crime of the defendant and its relation to other criminal activity.” Here, while Castello was convicted only of failing to file CTRs and nothing else, his conduct was still very serious because it conduct permitted thousands of his check-cashing customers to commit fraud.

The second Bajakajian factor considers “whether the defendant fit[s] into the class of persons for whom the statute was principally designed.” The circuit concluded that this factor weighed in favor of full forfeiture. While Castello himself was not a money launder, drug trafficker or tax evader, the main targets of the statute of conviction, his conduct facilitated such conduct "in just the way the statute was designed to frustrate."

Third, Bajakajian considers “the maximum sentence and fine that could have been imposed.” For this factor, the court concluded that the Guidelines are a “more indicative” measure of offense severity than the statutory maximum penalties. Castello received the statutory maximum sentence - five years’ imprisonment and a $250,000 fine. But the Guideline range based on his actual conduct was far greater than five years, even though the court could not impose it because of the statutory maximum. Accordingly, this factor weighed in favor of full forfeiture.

Finally, Bajakajian invites an analysis of “the nature of the harm caused by” the offense conduct. Castello cashed thousands of checks in excess of $10,000, totaling over $200 million, without filing the required CTRs, and he did so knowingly and willfully. This helped his customers evade taxes, cash fictitious checks, and commit securities fraud. The victims included private parties as well as the federal government. Accordingly, this final factor also weighed in favor of full forfeiture.

Le Platt Du Jour

United States v. Woltmann, No. 10-413 (2d Cir. July 6, 2010) (Jacobs, Winter, Walker, CJJ)

Once again, Judge Platt’s unconventional way of doing business has resulted in a sentencing remand to a different judge. Here, the issue was his treating the guideline range in a plea agreement as binding, while ignoring a 5K1.1 letter and § 3553(a). This prompted the circuit to hold that the plea agreement’s appellate waiver was unenforceable and vacate the sentence.

Background

Pursuant to a cooperation agreement, Gary Woltmann pled guilty to tax fraud, then provided substantial assistance to the government in the successful prosecution of another tax case. The government duly filed at 5K1.1 letter that expressly asked for a sentence below the 18 to 24 month guideline range. But Judge Platt refused to consider the letter, viewing it as an effort to repudiate the plea agreement, in which Woltmann had agreed not to appeal a sentence of 27 months’ imprisonment or less. To the judge, that provision trumped both the 5K1.1 letter and the remaining § 3553(a) factors. He sentenced Woltmann to 18 months’ imprisonment, the bottom of the range.

The Circuit’s Ruling

After Woltmann filed a notice of appeal, the government moved to dismiss based on the plea agreement’s appeal waiver. Construing the plea agreement under “ordinary contract principles” but with “special due process concerns for fairness,” the court found the waiver unenforceable.

Appeals waivers are ordinarily enforceable without much controversy. But the circuit will not enforce one if the sentence was “reached in a manner that the plea agreement did not anticipate” or where the sentencing court “failed to enunciate any rationale for the defendant’s sentence, thus amounting to an abdication of judicial responsibility.” Both of these circumstances were present here.

First, the judge insisted on relying on the guideline range in the agreement - calling the agreement, amongst other things, “the controlling instrument” - notwithstanding “our law that such reliance is misplaced.” By misreading the plea agreement Judge Platt imposed a sentence “inconsistent with the parties’ expectations,” since the agreement, by its unambiguous terms, contemplated that the sentence would be imposed only after consideration of the 5K1.1 letter and § 3553(a). It was accordingly improper for the judge to reject the 5K1.1 letter because he felt it "repudiated" the agreement. In short, the judge “refused to consider the 5K1.1 motion and the § 3553(a) factors on the ground that the appeal waiver and the sentencing range in the [a]greement obviated anything else.” This rendered the appeal waiver unenforceable.

Judge Platt’s belief that the plea agreement constituted an “enforceable concession by Woltmann that any sentence at or below 27 months was appropriate” was likewise error. It amounted to an abdication of judicial responsibility - a second reason to deem the appeal waiver unenforceable.

Finally, the circuit ordered that the case be remanded to a different judge for resentencing, citing (1) the “scorn with which Judge Platt approached the matters pertaining to sentencing” (2) his “pattern of error regarding 5K1.1 letters” and (3) the fact that reassignment would not waste resources because all that the court need do on remand is what “courts do as a matter of routine.”

Kaiser on a Roll

United States v. Kaiser, No. 07-2365-cr (2d Cir. July 1, 2010) (Jacobs, Calabresi, Pooler, CJJ)

Mark Kaiser was convicted after a jury trial of securities fraud-related offenses in connection with an accounting fraud scheme at USF, a large food product distributor. The circuit, finding error in the conscious avoidance instruction and in an evidentiary ruling, vacated the judgment and remanded the case for a new trial.

Background

From 1994 until 2001, Kaiser helped run USF’s Purchasing Department, and negotiated rebates from its vendors called promotional allowances (“PA”s”). Kaiser was charged with developing a scheme to fraudulently inflate the PA income for certain years and with committing other fraudulent acts, including making false statements, to hide the inflated numbers from USF’s outside auditors. The government’s case was built largely around the testimony of three cooperating witnesses, who testified that Kaiser was the mastermind. Kaiser’s defense was that the cooperators had cooked up the scheme, kept him in the dark about it, then collectively decided to make him the scapegoat once it all unraveled.

The Charge Error

First, the court found plain error in the district court’s conscious avoidance instruction. A conscious avoidance charge must communicate two points: that a jury may infer knowledge of the existence of a fact only if it finds that the defendant was aware of high probability of its existence, and second, that there can be no conscious avoidance of a fact that the defendant actually believed did not exist. So important are these concepts that a 1988 decision on the issue directed that the opinion be circulated to all AUSAs in the circuit. Remarkably, then, the charge at Kaiser’s trial omitted both of these key concepts.

The court agreed with Kaiser that the omission “might well have confused the jury” - the particular language used by the district court, which merely indicated that “there are times that a person can consciously avoid looking at facts that are available and that, in the law, is the equivalent of knowledge” - created “some risk” that the jury would convict if it found that Kaiser “was merely negligent.” Also troubling was the omission of the instruction that an actual belief in the nonexistence of the relevant information would absolve Kaiser entirely.

Lastly, the court found - on review for plain error - that Kaiser established that the erroneous charge affected his substantial rights. The documentary evidence in the case was consistent with his defense that he was unaware of the fraud. While the testimony of the cooperating witnesses tipped the balance, there was “ample reason for the jury to question” their credibility.

The Evidentiary Ruling

The court also found error in the admission of testimony from one of the cooperators, Lee, who reported that USF’s general counsel, Abramson, had learned of an accounting decision that Kaiser had made in connection with a particular PA payment and was “very upset and wanted to go to the SEC to expose” it. The circuit rejected the government’s argument that the statement was not admitted for its own truth. To the contrary, the government in summation used the supposed truth of the hearsay to rebut Kaiser’s assertion that his conduct had been approved by lawyer.

The court also rejected the government’s claim that the testimony was not hearsay because it was an assertion of the Abramson’s “then existing state of mind.” Here, the “obvious premise” of the statement was the Kaiser was doing something illegal. It was this assertion, not Abramson’s intent to report Kaiser to the SEC that “constitutes inadmissible hearsay.”

Moreover, and in any event, the court held that the statement should have been excluded under Rule 403. The mere identification of a non-hearsay use of a statement is insufficient to justify its admission if the jury is likely to consider it for its truth “with significant resultant prejudice.” Here, there could be “no doubt” that Abramson’s statement that he wanted to report Kaiser to the SEC was “highly prejudicial.” It went to the “important disputed issue” of whether Kaiser acted knowingly, and the jury would likely have concluded that Abramson, who, unlike the witness who reported the statement, had never been charged with a crime, was both knowledgeable and trustworthy. The prejudice was compounded by the district court’s refusal to give a limiting instruction. For hese same reasons, the court found that the error was not harmless.

Penalty Phase Two

United States v. Wilson, No. 07-1320-cr (2d Cir. June 30, 2010) (Jacobs, Miner, Livingston, CJJ)

An Eastern District jury convicted Ronell Wilson of capital crimes for the murder of two NYPD detectives during a botched undercover gun buy; it also unanimously voted to sentence him to death. On appeal, a divided panel vacated the death sentence and remanded the case to the district court for a new penalty phase.

The majority identified two errors that occurred during the penalty phase, both relating to Wilson’s statement of remorse, which he was permitted to read to the jury without being subject to cross-examination.

First, the prosecutor argued that Wilson had not until “last week” accepted responsibility for his offense; while he had “an absolute right to go to trial,” he could not “have it both ways” - go to trial and then “say I’m sorry only after you prove I did it.” The majority held that this comment improperly held out Wilson’s “constitutionally protected decision to go to trial” as a reason to sentence him to death, which “unconstitutionally burdened Wilson’s Sixth Amendment right to trial.”

The majority also identified a Fifth Amendment error. Again discussing on the remorse allocution, the prosecutor commented unfavorably on Wilson’s decision to read a statement rather than take the witness stand, noting that “[t]he path for that witness stand has never been blocked for Mr. Wilson.” The majority held that “an unsworn, uncrossed allocution constitutes a limited Fifth Amendment waiver that allows the prosecution to argue for an adverse inference from a defendant’s failure to testify as to what which he has allocuted.” (emphasis in original). But here, the prosecutor went beyond this waiver by noting that Wilson’s path to the witness stand “has never been blocked.” A juror might have thought that “never” extended “back to the guilt phase of the trial ... as well [as] to the full penalty phase rather than just to the reading of the allocution.”

For harmlessness, the majority considered the two errors in combination and concluded that the prosecution could not prove beyond a reasonable doubt that they did not contribute to the verdict. The prosecutor cited two of Wilson’s constitutional elections - to go to trial and not to testify - as reasons to reject two of Wilson’s proffered mitigating factors - acceptance of responsibility and remorse. The government then cited lack of remorse as evidence of future dangerousness. To the majority, the focus on Wilson’s decision to go to trial had an “uncontrollable resonance for the jury” - not one juror found either that Wilson had accepted responsibility or shown remorse, and it unanimously agreed that Wilson presented a risk of future dangerousness. “On these facts, it is hard to see how the government can prove that these errors were harmless.” In addition, the absence of a limiting instruction on the Fifth Amendment issue clearly contributed to the harm.

Judge Livingston dissented. In her view, there was no Sixth Amendment violation at all, and the Fifth Amendment error, if there was one, was so trivial as to be harmless.

A Study In Contradictions

United States v. Ramirez, No. 07-2912-cr (Calabresi, Cabranes, Parker, CJJ) (2d Cir. June 29, 2010)

In this case, the circuit found that the district court erred in applying the “impeachment by contradiction” doctrine. But since the error was harmless, it affirmed.

Background

At his drug conspiracy trial, defendant Jose Luis Rodriguez testified that he was not knowingly involved in the drug trafficking of which he was accused. He claimed that he was merely the driver for Jose Adames, the group’s ringleader, and never saw or knew of any cocaine on their trips. Rodriguez testified that he served as Adames’ chauffeur until late 2004, when he received a warning that Adames was involved with drugs, at which time he stopped driving for him.

To rebut this, the government called a police officer who testified that he saw Rodriguez handle cocaine during an unrelated traffic stop after the charged conspiracy had ended. Specifically, the officer saw Rodriguez outside a car putting plastic bags containing cocaine into a box. Rodriguez was arrested, but was not prosecuted in that case.

The Appeal

The circuit held that the admission of the account of the drug arrest was error. The officer's testimony was extrinsic evidence of Rodriguez’ past conduct, which is prohibited by Fed.R.Evid. 608(b). And the court rejected the government’s effort to shoehorn the testimony into the “impeachment by contradiction” doctrine, which provides that where a defendant testifies on direct about a specific fact, the prosecution is entitled to prove that he lied as to that fact.

Here, the rebuttal testimony did not in fact contract Rodriguez. Rodriguez did not testify that he had never seen or handled drugs. Rather, he testified that he did not see or handle drugs during the time he worked for Adames, while the impeachment testimony concerned a later event. Since the government could not identify any point in the record where Rodriguez “forswore, as a universal matter, ever having seen drugs of any kind,” the testimony should have been precluded under Rule 608(b).

However, despite its concerns over the prejudicial impact of evidence of an unrelated drug arrest - which “can prove extremely damaging to a defendant at trial” because it “functions essentially as evidence of criminal propensity” - the court found the error to be harmless. The remainder of the government’s evidence was “sufficiently conclusive and its case [was] sufficiently robust.” In addition to Rodriguez’ confession, a string of co-conspirators took the stand and described Rodriguez’ knowing involvement in Adames’ operation.

Lost In Translation

United States v. Malki, No. 08-4417-cr (2d Cir. June 29, 2010) (Newman, Raggi, Hall, CJJ)

In this rare choice-of-guideline appeal, the circuit vacated the sentence and remanded for resentencing under a different guideline.

Background

Defendant Malki entered the United States illegally in 1978. He eventually obtained political asylum, permanent residence status and United States citizenship, but all under a false identity. In 2003, still using this false identity, he took a job as a translator for a military contractor in Iraq and gave false background information to obtain a security clearance. In connection with this work, Malki had access to classified information, but was not permitted to possess it. Eventually, in connection with a security review, classified documents were found in his apartment, and Malki, when confronted, admitted his false identity.

He ended up pleading guilty to making false statements and naturalization fraud, as well as to four counts of having “knowingly and willfully retained” documents relating to the national defense, in violation of 18 U.S.C. § 793(e). For these counts, the district court, over objection, applied U.S.S.G. § 2M3.2, which covers “Gathering National Defense Information,” and sentenced Malki to 121 months’ imprisonment, the bottom of the range under that Guideline.

The Appeal

On appeal, the circuit agreed that the district court should have sentenced Malki under U.S.S.G. § 2M3.3, which covers, inter alia, “Unauthorized Receipt of Classified Information.” Malki’s indictment did not charge him with “gathering” the classified information, it charged him with “retaining” it. And, since the conduct of “retaining” is similar to “unauthorized receipt” and significantly different from “gathering,” § 2M3.3 is the right guideline in Malki’s case. While it is true that Malki’s relevant conduct included actively gathering the classified material, only the charged conduct, and not the relevant conduct, can be the basis for choosing the offense conduct guideline.

The court also rejected the argument that the error was harmless because the district judge expressly stated that the 121-month sentence was “a reasonable one” and “anything less would be inappropriate.” The judge made that comment in the context of explaining his decision to impose sentence within the guideline range; the circuit could not “be confident that he would have imposed the same sentence had he understood that the bottom of the correct guideline was 58 months less than the bottom of the guideline he thought was applicable.”

Ordinary People

United States v. Heras, No.09-3150-cr (2d Cir. June 18, 2010) (Raggi, Lynch, Wallace, CJJ)

On this government appeal, the circuit vacated a district court order granting a Rule 29 motion that misconstrued the “ordinary consequences” rule and remanded the case for reinstatement of the verdict.

Background

Defendant Heras was arrested in the parking lot of a Queens hotel, after dropping off the target of a controlled cocaine delivery. When the agents told him what was going on, he said that “[w]hatever happened” in the hotel “has to do with [the target]. That has nothing to do with me.” He first told the agents that he had taken the target there to meet a woman, but then admitted that he knew the target was a drug dealer who had gone to the hotel to pick up drugs. He also admitted that he expected the target to compensate him, as he had done in the past, by connecting Heras with suppliers for his own marijuana operation.

After the jury convicted Heras, the district court granted his Rule 29 motion, holding that the evidence was insufficient to establish that Heras had the specific intent to distribute the drugs.

The Appeal

The circuit disagreed. Here, a “jury could reasonably infer Heras’s intent to distribute from evidence indicating that he knew that the object of the charged drug possession was [the target’s] distribution of the contraband and that, with that knowledge, he agreed to facilitate the crime.”

The court also noted that the law is generally willing to let a jury infer that a defendant intends the ordinary consequences of his actions. The district court had held that, under a footnote in United States v. Nelson, 277 F.3d 164 (2d Cir. 2002), in the face of “exculpatory evidence” - Heras’ claim that the target’s activities had “nothing to do with me” - more than a presumption of ordinary consequences was necessary to demonstrate Heras’ intent.

But the district court misconstrued the Nelson footnote. That footnote amplified a text sentence holding about this inference by noting that “where a jury infers intent by deciding that a given defendant meant to bring about the consequences of his actions, that defendant cannot (without pointing to countervailing evidence that the jury ignored) unseat this finding by challenging the sufficiency of the evidence.” This statement indicates only that “no sufficiency challenge to a finding of intent based on an ordinary consequences presumption can be mounted in the absence of countervailing evidence.” It does not hold that “any proffer of countervailing evidence renders an ordinary consequences presumption insufficient as a matter of law” on the question of intent.

Wholly Terror

United States v. Awan, No. 07-4315-cr (2d Cir. June 14, 2010) (Pooler, Raggi, Livingston, CJJ)

On this government appeal, the circuit remanded for resentencing in light of the district court’s refusal to apply the terrorism enhancement, U.S.S.G. § 3A1.4.

Awan was convicted after a jury trial of various offenses in connection with his efforts to assist the Khalistan Commando Force (the “KCF”), a Sikh terrorist organization based in India, the ultimate aim of which is to compel the Indian government to create a separate Sikh state in the Punjab region. From 1998 to 2001 Awan served as a conduit for funds from U.S. supporters of the KCF to its leader. Later, while incarcerated at the MDC on credit card fraud charges, Awan tried to recruit an associate to go to Pakistan and receive explosives training at a KCF camp.

The terrorism enhancement applies if the defendant was convicted of a felony offense that “involved” or was “intended to promote” a federal crime of terrorism. But the district court declined to apply this section to any of the counts of conviction. It did not consider the “intended to promote” prong at all, and concluded that the evidence did not support the required “motivational element” - that the conduct was “calculated to influence or affect the conduct of government” - under the “involved” prong. Application of the enhancement would have yielded a sentence of 45 years' imprisonment, the statutory maximum. Instead, however, the district court sentenced Awan principally to 168 months.

On appeal, the circuit vacated and remanded for reconsideration because the district court erred in its consideration of both prongs of the enhancement.

A defendant’s offense “involves” a federal crime of terrorism when either his offense or its relevant conduct includes one of the federal crimes of terrorism enumerated in 18 U.S.C. § 2332b(g)(5)(B) and the conduct was “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” Here, the district court held that there was insufficient evidence that Awan’s conduct was so “calculated.” Rather, it found that Awan was motivated by “private purposes” - he enjoyed associating with terrorists and the prestige or potential influence it gave him.

To the circuit, however, this holding “addresse[d] the wrong question.” The section does not require proof of a defendant’s particular motive. “Calculation” is “concerned with the object that the actor seeks to accomplish"; it may “often serve motive, but they are not in fact identical.” A person can commit an offense calculated to influence or retaliate against government even if that is not his personal motivation. For example, he might murder a head of state knowing this will affect the conduct of government, even if his specific motive is to impress other terrorists. This conduct would still qualify under the “involved” prong of the terrorism enhancement. Thus, here, whatever Awan’s motive might have been, the terrorism enhancement would apply if he also had the intent specified by the Guideline. Because the district court misconstrued this aspect of the enhancement a remand was necessary.

The “intended to promote prong” is intended to cover situations different from the “involved” prong - cases where the defendant’s offense or relevant conduct does not include one of the enumerated federal crimes of terrorism. An offense is “intended to promote” a federal crime of terrorism when the offense is “intended to help bring about, encourage, or contribute to a federal crime of terrorism” listed in the statute, even if the defendant did not commit a listed offense and the offense was not itself “calculated” to achieve the goals identified in the “involved” prong. All that is required is that “the defendant has as one purpose of his substantive count of conviction or his relevant conduct the intent to promote a federal crime of terrorism.”

Here, the district court declined to consider this prong at all, concluding that since Awan was convicted of a listed offense there was no need to determine whether his conviction of a non-listed offense - money laundering - was intended to promote a federal crime of terrorism. This was error. The government “should have been permitted” to prove that, even if the crimes of conviction and their relevant conduct did not satisfy the calculation requirement under the “involved” prong, they were nevertheless “intended to promote a federal crime of terrorism committed or to be committed by other individuals.” Accordingly, for this reason as well the circuit remanded the case for resentencing.

Julius’ Seizure

United States v. Julius, No. 08-4267-cr (2d Cir. June 11, 2010) (Pooler, Hall, CJJ, Sweet, DJ)

Here, the district court granted the defendant’s motion to suppress a gun seized during Julius’ arrest on a parole violation. on the government's appeal, the circuit remanded for reconsideration in light of Herring v. United States, 129 S.Ct. 695 (2009).

In 2007, Julius violated the conditions of a term of special parole imposed after a state court conviction in Connecticut. He had failed to attend court-mandated counseling sessions and had changed his residence but refused to disclose his new address to his parole officer.

The officer finally found Julius at his girlfriend’s house, where the officer, accompanied by another parole officer and a deputy marshal found him lying on a bed in a back bedroom. They arrested him without incident. As an officer removed him from the room, in handcuffs, the marshal searched the bed to see if Julius had discarded any contraband. He partially lifted the mattress and found a gun. With that, the officers contacted the local police department for assistance. Local police arrived and secured consent to search the entire apartment; returning to the same mattress, they lifted it completely and found ammunition.

The district court held that the ammunition was properly obtained as the product of a consent search, but that the gun was improperly seized - the marshal's the initial search under the mattress was not an incident search because Julius was already handcuffed and the mattress was plainly beyond his control. It also held that Julius’ status as a parolee did not legitimize the search because the marshal lacked even reasonable suspicion.

On appeal, the circuit began by surveying the current state of the law with respect to the Fourth Amendment rights of parolees and identifying the central area of dispute here: Julius’ expectation of privacy as a parole absconder.

Having identified the issue, however, the court declined to resolve it. Instead, it remanded the case for reconsideration under Herring. In Herring, the defendant was erroneously arrested after “negligent bookkeeping” by the police department resulted in an officer’s erroneous belief that there was an outstanding warrant for his arrest. The Supreme Court held that this violated the Fourth Amendment, but that the exclusionary rule should not apply because it would not serve the purpose of “deterring Fourth Amendment violations in the future.” According to the circuit, Herring requires a district court to conduct a “cost/benefit analysis” in deciding whether “the deterrent effect of applying the exclusionary rule outweighs the cost of the rule’s application.” This balance should consider “whether the degree of police culpability in this case rose beyond mere administrative negligence such that application of the rule is necessary to compel respect for the Fourth Amendment’s guarantees.”

PC World

United States v. Vallejo, No. 09-1673-cr (2d Cir. June 11, 2010) (Winter, Cabranes, Raggi, CJJ) (per curiam)

This latest per curiam opinion looks at the petty offense exception to the Sentencing Guidelines’ criminal history rules, set out in U.S.S.G. § 4A1.2(c)(1). That provision excludes from the criminal history score prior sentences for certain petty offenses and “offenses similar to them.” On appeal, Vallejo argued that his two prior convictions for unauthorized use of a vehicle in New York State were for an offense “similar to” the listed offense of careless or reckless driving.

But the circuit held that Vallejo had waived the claim. For one of them, a 2001 conviction, after a sentencing hearing he “expressly acknowledged” that the conduct underlying the conviction - stripping parts from a stolen car - warranted the assessment of a criminal history point. For the other, the underlying conduct was identical, so he waived his objection to that one too.

The court then went on - apparently in dicta - to agree with the district court that the criminal history points were warranted. Unauthorized use is higher level misdemeanor than reckless driving and requires a “higher degree of moral culpability” - proof that the defendant knew that he lacked the vehicle owner’s consent. It is also a trespassory offense, and thus poses a high risk that the owner or someone else might end up in a confrontation with the defendant.

PC World

In its two latest per curiam opinions, the court discusses a traffic stop and the district court’s obligation to sua sponte ensure that the defendant is competent.

In United States v. Harrison, No. 09-2907-cr (2d Cir. May 26, 2010)(Jacobs, Miner, Wesley, CJJ)(per curiam), the court rejected a claim that the police unreasonably prolonged an otherwise lawful traffic stop by questioning the defendant and his passengers about matters unrelated to the basis for the stop. The total time elapsed was only “five to six minutes.”

In United States v. Arenburg, 08-5090-cr (2d Cir. May 25, 2010) (Miner, Cabranes, Wesley, CJJ) (per curiam), a magistrate judge found the defendant competent to go to trial and proceed pro se a few months before trial. But at trial, the defendant behaved quite erratically, blaming MGM studios for conducting illegal drug trafficking in his name, and questioning witnesses about “radio waives” and “microwave channels.” His summation was equally bizarre. Despite this, the district court never revisited the question of the defendant’s competency. Finding this to be error, the court remanded for further findings on the defendant’s competency. Whenever there is reasonable cause to question a defendant’s competency, the district court must conduct a hearing, even if the parties have not raised the matter themselves.

Interestingly, court noted that the defendant had fully served his sentence and was no longer in the country, but did not consider the issue to be moot.

Summary Summary

Here are the three latest summary orders of interest.

In United States v. Cabrera, No. 09-2553-cr (2d Cir. May 26, 2010), the defendant argued that claims based on his pretrial motions should not be deemed waived by his guilty plea because the district court did not advise him of this during the allocution. The circuit disagreed: "We have never required that defendants be informed that by pleading guilty they waive the right to appeal defects in the prior proceedings."

In United States v. Waithe, No. 07-2234-cr (2d Cir. May 19, 2010), the court bounced an Anders brief, then held that defendant's prior escape conviction under 18 U.S.C. § 751 was not a crime of violence for the purposes of the illegal reentry guideline.

In United States v. Barris, No. 08-4247-cr (2d Cir. May 17, 2010), the court continued to apply the Williams rule precluding mandatory 924(c) sentences when the defendant is sentenced to a longer mandatory minimum on another count, even though the issue is now before the United States Supreme Court.

Something Barrow-ed

United States v. Oluwanisola, No. 08-4442-cr (2d Cir. May 21, 2010)(Leval, Pooler, Parker, CJJ)

Taking a case to trial after the client has proffered is a difficult thing to do. Most proffer agreements have a clause permitting the government to introduce the defendant’s proffer statements to rebut evidence offered or elicited, or factual assertions made by, the defense. In United States v. Barrow, 400 F.3d 109 (2d Cir. 2005), the court held that such rebuttal clauses apply to all factual assertions, including those made in counsel’s arguments and cross-examination, but are not triggered by arguments that challenge the sufficiency of the evidence. Here, having found that the district court misapplied Barrow at Oluwanisola’s heroin trafficking trial, the court vacated the judgment and remanded the case for a new trial.

The appellate court identified several problems with the district judge’s approach. First, the judge ruled that arguing that specific elements of the crime had not been proven would trigger the rebuttal clause. The circuit noted that Barrow did not make this distinction and there is “no rationale that would compel such a result.” Interpreting the rebuttal clause in this way “would leave the defendant, for all practical purposes, defenseless.” Here, the ruling improperly compelled defense counsel to limit his opening statements to “generalized statements” about the burden of proof, but prohibited him from arguing that the government would be unable to sustain its burden with respect to any particular elements of the offense.

The trial judge also made erroneous rulings with respect to cross-examination. First, defense counsel was not permitted to cross-examine one witness about whether he had made a written report about an event that he testified he observed. The circuit held that this did not contradict - directly or indirectly - proffered facts. “The defendant’s admission in his proffer statement of the facts the witness testifies to having observed is not an admission that the witness observed those facts.” In addition, the judge based a second cross-examination ruling on a clearly erroneous fact. He prohibited counsel from cross-examining an agent about a matter that Oluwanisola mentioned in a post-arrest statement, not in his proffer.

Collectively, these rulings violated Oluwanisola’s Sixth Amendment right to counsel, and the error was not harmless. While the evidence was legally sufficient, defense counsel's ability to challenge evidence on drug quantity and Oluwanisola’s knowledge of what was in the packages he was involved with was severely hampered. The appellate court could not “conclude with fair assurance” that the errors “did not substantially influence the jury.”

Reefer Gladness

United States v. Needham, No. 06-5652-cr (2d Cir. May 14, 2010) (Cabranes, Katzmann, Parker, CJJ)

The three defendants here were part of a larger group that was in the business of robbing drug dealers of drugs and drug proceeds. They were all convicted of a Hobbs Act conspiracy, which included robberies of cocaine and heroin dealers, and each was also convicted of one substantive count involving the robbery of a marijuana dealer. Consistent with circuit law at the time, the district court instructed the jury that “all illegal drug activity, even if it is purely local in nature,” affects interstate commerce. While the defendants’ appeal was pending, the circuit held that this instruction was wrong: proof of drug trafficking does not automatically prove an affect on interstate commerce. Instead, “even in drug cases, the jury must find such an effect as part of its verdict.” Finding plain error in the interstate commerce jury charge here, a divided panel court reversed the defendants’ substantive, marijuana-related robbery convictions, but affirmed on the conspiracy count.

The Majority’s View

Under current circuit law, the interstate effect cannot be “presumed” when the object of a robbery is to obtain illegal drugs or drug proceeds. This element, like any other, must be found by jury beyond a reasonable doubt.

Accordingly, the court treated the error here as a charge error, because the charge withheld an element from the jury’s consideration. But, since this was a plain error case, rather than assessing the record to determine whether the error was harmless, the court considered whether the error “affected substantial rights”; that is, “whether the error was prejudicial.” To make this decision, the majority “closely examine[d] the record to determine whether the jury, had it been properly instructed, would have found the jurisdictional element satisfied, or whether the government failed to prove this element beyond a reasonable doubt.”

The entire panel found the interstate element satisfied for the defendants’ conspiracy conviction. A conspiracy that “targets cocaine and heroin, and the proceeds from their sale, undoubtedly meets” the relevant legal standard - the “possibility or potential of an effect on interstate commerce, not an actual effect” - because those drugs “cannot be produced in New York, and thus necessarily travel in interstate commerce.” Thus, even though the government introduced no evidence to support this proposition, the jury was “capable of concluding, based on its lay knowledge, that cocaine is imported into the United States.” This, according to the court, satisfied the jurisdictional element “beyond a reasonable doubt.”

But two judges had a different view of the substantive convictions involving robberies of marijuana dealers. Apart from the large amounts of money involved in those robberies, the government “offered no evidence to support an interstate nexus,” such as proof that the marijuana originated out of state, was sold to out-of-state-customers, or that the victims crossed state lines in conducting their business or would have purchased goods in interstate commerce with the proceeds.

And, according to the majority, “marijuana may be grown, processed, and sold entirely within New York.” Thus, “reviewing for prejudice,” the majority found that the erroneous jury charge “may very well have affected the outcome of the district court proceedings.” The proof was “simply too bare to establish, without more, the required interstate nexus,” even though that nexus need be only “subtle or slight.” The majority refused to find that effect based solely on the amount of money involved in the robberies: “the sheer amount of money, standing alone, does not demonstrate an interstate effect.”

The Dissent

Judge Cabranes had a different view. He agreed that the jury instruction was erroneous. But he had “no trouble concluding beyond a reasonable doubt that the jury would have returned the guilty verdict even absent the instruction that was given.” He found no possibility that “the jury in this case could have concluded that the robberies at issue involved marijuana that was grown, processed, and sold entirely within New York” and was “confident” that the jurors would have found that at least some of the drugs or proceeds derived from interstate or foreign commerce “based on their lay knowledge and common sense.”

Moreover, Judge Cabranes was also “confident that a properly instructed jury would have found the required effect on commerce even if the jury had assumed that the marijuana in question was grown, processed, and sold entirely within New York.” To him, Congress actually has Commerce Clause power to prohibit the local cultivation and use of marijuana, thus, the robbery of the proceeds of even homegrown marijuana is covered by the Hobbs Act.

Comment

This decision prompts a couple of issues that require some further thought.

First, this decision reveals a serious problem with current Second Circuit interstate commerce jurisprudence. According to the court, the government need not introduce any evidence at all of interstate commerce for robberies involving heroin, cocaine or their proceeds, even though this is an element of the offense. There is dangerous and a slippery slope here. Many federal crimes have an interstate commerce element as the jurisdictional hook, and there is a real danger that this “we don’t need any evidence, just the jurors’ common sense” approach could be extended to other criminal statutes. Could jurors use their “common sense” to conclude that, say, stolen property from other states so commonly ends up in New York that the government need not introduce evidence on this element? A better rule would be to require the government actually introduce evidence on interstate commerce in every case where it is an element, and not just some of them. This would hardly be a burden - any law enforcement officer who knows anything about drugs could be an “expert” on the question.

The second weird thing about this decision is the relief granted. Although the majority found a prejudicial charge error on the substantive counts, it did not vacate those counts and remand for a new trial, as it typically does when there is a charge error, even one that dilutes or eliminates an element. Instead, the court reversed the convictions on the marijuana-based counts, which is typically the relief granted only where the court has found the evidence insufficient. Why would the majority secretly treat this as a sufficiency case, and not say what it is doing?

Deconstruction Project

United States v. Dorvee, No. 09-0648 (2d Cir. May 11, 2010) (Cabranes, Parker, CJJ, Underhill, DJ)

In this first-of-a-kind opinion, the court (1) held that a within Guideline - albeit statutory maximum - sentence was substantively unreasonable and (2) found that an offense Guideline other than the crack Guideline was not the product of the Commission’s traditional empirical role and hence, under Kimbrough, was not entitled to deference.

Background

While chatting online with undercover officers posing as teenage boys, Justin Dorvee sent them computer files containing child pornography. He was arrested when set out to meet one of the boys. A search of his home revealed several thousand still images and more than 100 videos containing child pornography. He ultimately pled guilty to one count of distribution of child pornography.

Under a correct application of U.S.S.G. § 2G2.2, which prescribed a base offense level of 22 plus enhancements for such things as the number and content of the images, he faced a sentencing range of 262 to 327 months’ imprisonment. However, since the statutory maximum sentence was 240 months, 240 months became his Guideline range.

At sentencing, Dorvee introduced medical evidence intended to mitigate that sentence, including evidence that he was a compulsive collector and had serious personality disorders, but was “not a predator” and would respond well to treatment. The court expressed sympathy for him, but still concluded that he was a “pedophile” who would have sex with a younger boy if he could, even if he would not initiate the behavior. After reviewing the statutory factors, the court sentenced Dorvee to 240 months, less six months and fourteen days of uncredited time he had served in state court, for a total sentence of 233 months and sixteen days.

The Appeal

The circuit vacated the sentence, finding it to be both procedurally and substantively unreasonable.

1. Procedural Error

The procedural error was the district court’s apparent view that the Guideline range was still 262 to 327, and not, per U.S.S.G. 5G1.1(a), 240 months, along with its erroneous corollary conclusion that the higher range was the benchmark for any variance.

This error was not harmless - it “carried serious consequences” for Dorvee. If the district court intended to impose a sentence “relatively far below the guideline,” as it said it did, Dorvee “did not receive the benefit of such an intention.” Where “the district court miscalculates the typical sentence at the outset, it cannot properly account for atypical factors and we, in turn, cannot be sure that the court has adequately considered the § 3553(a) factors. That is what appears to have happened here, and constitutes procedural error.”

2. Substantive Error

The court also deviated from its usual practice of refraining from reviewing for substance until the procedural errors have been corrected, and instead “reach[ed] both the procedural and substantive reasonableness of the sentence [since it found] both types of error.”

Here, even accepting the need for punishment and the requirement that it defer substantially to the district court’s judgment, the court found the sentence to be substantively unreasonable.

First, the district court placed unreasonable weight on its assumption - unsupported by the record evidence - that Dorvee was likely to actually sexually assault a child. The district court’s explanation of the need for deterrence also “ignored the parsimony clause,” offering no “clear reason” why the maximum sentence, instead of some lower sentence, was required to deter an offender like Dorvee.

Next, the circuit took issue with the child pornography Guideline itself, calling it “fundamentally different from most” and noting that “unless applied with great care, [it] can lead to unreasonable sentences that are inconsistent with what § 3553 requires.” With this introduction, the court then systematically deconstructed U.S.S.G. § 2G2.2.

It began by noting that the Sentencing Commission “did not use [an] empirical approach in formulating the Guidelines for child pornography.” Rather, it systematically increased the penalties based directions from Congress, even as it “openly opposed these Congressionally directed changes.”

The court went on to agree that the enhancements included in § 2G2.2 “cobbled together through this process routinely result in Guidelines projections near or exceeding the statutory maximum, even in run-of-the-mill cases” because the base offense level has been increased from 13 to 22 and the enhancements “apply in nearly all cases.” As a result, “adherence to the Guidelines results in virtually no distinction between the sentences for defendants like Dorvee, and the sentences for the most dangerous offenders who, for example, distribute child pornography for pecuniary gain and who fall in higher criminal history categories.”

Under Kimbrough, a court “may vary from the Guidelines range based solely on a policy disagreement with the Guidelines, even where that disagreement applies to” many offenders or offenses. “That analysis applies with full force to § 2G2.2.”

The opinion ends with a message to district judges, encouraging them to “take seriously the broad discretion they possess in fashioning sentences under § 2G2.2 ... bearing in mind that they are dealing with an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results.”

Package Deal

United States v. Torres, No. 09-1771-cr (2d Cir. May 5, 2010)(Kearse, Hall, CJJ, Rakoff, DJ)

Every once in a while, when the judge and jury refuse to acquit an innocent defendant, the circuit steps in and sets things right. This is such a case. Finding that the evidence was insufficient to establish that Torres knew that there were drugs in some UPS packages that he went to great lengths to pick up, the court reversed the conviction and remanded for entry of a judgment of acquittal.

Background

On April 30, 2008, a UPS deliveryman attempted to deliver two large “high value” packages to “Jose Torrez” at an address in Yonkers. Two men intercepted the driver near that address and asked for the packages. The driver asked for identification, but because it showed an address in Brooklyn, he would not release the packages.

The men were persistent. They followed the truck to its next destination and tried again. The driver checked with his supervisor, who told him not to release the packages. The driver later turned the packages over to a loss prevention specialist, who brought them to a UPS facility in Mount Vernon, where a security specialist opened them. The packages contained kitchen cabinets with secret compartments that contained about ten kilograms of cocaine, worth as much as $ 1 million.

Working with law enforcement, UPS arranged a controlled delivery. They called the addressee’s telephone number and spoke with “Jose Torrez” who, after expressing frustration about the earlier refusal to deliver the packages, agreed to pick them up at a UPS store in a Yonkers strip mall. An hour later, defendant Torres rode up to the sore in a van driven by someone else and went in to pick up the packages. He showed a New York State ID card in the name “Torres, Jose, A” with a Brooklyn address, and began to load the packages onto a hand truck, rebuffing all offers of assistance.

In the meantime, after noticing police nearby, the driver of the minivan fled. Torres, now with both packages loaded, looked in vain for his ride. For ten or fifteen minutes he explored the parking lot, returning frequently to the packages. He finally went into the store to call a cab, all the while looking over his shoulder. After he made the call, officers arrested him. Post-arrest, Torres said that “this is what happens when you do favors for somebody,” and that a “man in a Yonkers bodega had paid him to pick up the packages.” He later said that he worked at the bodega and was homeless.

The trial evidence also included various UPS documents, and phone records showing numerous calls between the addressee’s telephone number and telephone numbers in Puerto Rico.

The jury convicted Torres of a drug trafficking conspiracy, but acquitted him of a substantive count. Asked whether five kilograms or more of cocaine could be attributed to him, the jury answered, “No.” Judge Gardephe, after denying Torres’ Rule 29 motion, sentenced him to 78 months’ imprisonment.

The Circuit Reverses

In a conspiracy case based on circumstantial evidence, there must be “circumstantial evidence of knowledge and specific intent” and to be “sufficient to sustain a conviction [it] must include some indicia of the specific elements of the underlying crime.” The jury’s inferences must be “reasonably based on evidence presented at trial, not on speculation.”

Here, the evidence was sufficient for the jury to conclude that there was, in fact, a conspiracy to distribute cocaine. It also established that Torres had a connection with the packages containing the drugs and, given his highly suspicious behavior, that he “was most likely aware that the [p]ackages contained contraband of some kind.”

What the court “d[id] not see in the record, however, [was] any evidence that Torres knew that the [p]ackages contained narcotics.” After all, there was no cooperating witness testimony, no evidence of any drug records implicating him, and no proof of any narcotics-related conversation to which Torres was a party. Moreover, the cocaine “was well concealed and not visible.”

Nor was it true that the addressee’s telephone number was proven to be associated with Torres. It was registered in a different name and was used after Torres was in custody. Moreover, that numerous calls were made from that phone to numbers in Puerto Rico did not matter. There was no evidence that Torres was a party to or from any of those calls.

Finally, the court rejected the government's argument that Torres must have known what was in the packages because otherwise the conspirators would not have trusted him to receive $1 million worth of cocaine. There was no evidence of “the nature of Torres’ associations with the persons who shipped the cocaine or with the persons who expected to distribute it.” Nor was evidence that Torres received a payment commensurate with the value of the drugs, or of evidence of “any conduct by Torres other than his efforts to gain possession of” the packages, which “did not show that he had knowledge of” their contents. Moreover, the evidence showed that Torres was not placed in a position of trust. The packages were addressed to a location that he did not control, and he was always accompanied by at least one other person when he tried to pick them up. The only time he was alone with the packages was when the driver of the van spotted the police and fled.

In sum, the court concluded, “viewed as a whole and taken in the light most favorable to the government,” the evidence was “insufficient to permit the jury to find beyond a reasonable doubt that Torres knew that the packages addressed to him contained narcotics, and hence was insufficient to establish that he had knowledge of the purposes of the conspiracy of which he was accused.”

American Idle

United States v. Hernandez, No. 09-1421-cr (2d Cir. May 5, 2010) (Jacobs, Kearse, Calabresi, CJJ)

Here, the circuit found that the defendant’s sentence was procedurally unreasonable because it took the district court fifteen years to get around to imposing it.

Background

In 1991, Hernandez was convicted after a jury trial of drug trafficking and associated crimes of violence. Judge Platt sentenced him to 405 months’ imprisonment and a large fine. The sentence included an aggravating role enhancement. On Hernandez’ first appeal, decided in 1993, the court vacated the sentence because the judge had imposed the enhancement over objection but had made “no finding” with respect to Hernandez’ role.

Judge Platt did not act on the remand. In 1997, at the government’s request, he appointed counsel for Hernandez, but still did not resentence him. Finally, in 2008, fifteen years after the remand was ordered, Hernandez’ mother wrote the judge a letter “expressing bewilderment.” This, finally, prompted the him to act. Sort of. He held a conference, attended only by the government, in which he indicated that there was no need for further findings on Hernandez’ role because “[Judge Kearse] did it right there in her own opinion, answered the question she said I didn’t answer.”

In December of 2008, Hernandez filed a sentencing memorandum urging the court to impose a lower sentence, which included substantial evidence of his rehabilitation. Judge Platt finally conducted the resentencing in March of 2009. Sort of. The proceeding consisted of his handing out a written memorandum that addressed the role enhancement, but “did not discuss evidence of Hernandez’s rehabilitation.” After hearing from the parties, he imposed the same sentence, without ever “expressly react[ing] to evidence of Hernandez’ rehabilitation or other proposed mitigating factors.” The Judgment included a Statement of Reasons that indicated that the judge had “considered all the ... factors in 18:3553(a),” even though he was “not required to [conduct] a full re-sentence outside of the Court of Appeals Mandate.”

The Court of Appeals’ Decision

The court vacated the sentence, holding that the failure to “consider how intervening developments - in particular Hernandez’s rehabilitation - affected the Section 3553(a) analysis” was error. That evidence, if credited, “could affect the weight given to considerations that were discounted in 1991 by the gravity of Hernandez’ crime” such as his youth and the fact that he was a drug addict when the crime occurred.

What is unusual about this case is that the court second-guessed Judge Platt’s rote incantations that he had considered all of the statutory factors. The court held that this was a case where “record evidence suggest[ed] otherwise.”

First, the judge “misconstrued the scope of re-sentencing.” He thought, at least at first, that he did not need to make factual findings in support of the role enhancement at all. Moreover, his written sentencing order focused only on those findings, apparently based on his belief that he was not required to conduct a full resentencing. This caused him to “perfunctorily den[y] those arguments it deemed outside the limited scope of resentencing.”

This was procedural error “in a resentencing so long delayed.” While there was a presumption that the resentencing would be limited, not de novo, here there were compelling reasons for that presumption to be overcome. During the fifteen year hiatus, the law of sentencing had changed substantially and Hernandez might have undergone a substantial rehabilitation.

Given this, that Judge Platt focused only on the seriousness of the offense was an indication that he “failed to consider the Section 3553(a) factors.” This procedural error required that the sentence again be vacated.

The court also ordered that the resentencing take place before a different judge. Since Judge Platt imposed the same sentence twice without making the required findings, he may “reasonably be expected to have substantial difficulty ignoring his previous views during a third sentencing.” Also, while there was no evidence of actual bias against Hernandez, an objective observer might question the judge’s impartiality. Finally, reassignment will not waste judicial resources, since no judge has yet done what needs to be done in this case.

The Concurrence

Judge Calabresi concurred, writing separately to set out his view that the fifteen-year delay by itself warranted reassignment to a different judge, since “the circumstances surrounding that gap may lead an objective observer to conclude that it was caused in part by the behavior of the sentencing judge.”

Any resentencing outcome in such a situation might reasonably be called into question. If the judge imposes a lower sentence after the delay, an observer might think he did it to compensate for his own dilatory behavior or to punish the government for its neglect. If the judge imposes the same sentence, an observer might think that he was just trying to “sweep the matter under the rug” by suggesting that the delay was immaterial to the outcome. Finally, if the judge imposes a higher sentence, an observer might wonder if the judge improperly blamed the delay on the defendant.

Comment

This is the second time in less than one year that the court has confronted a case where Judge Platt let a resentencing languish for an unacceptably long time. In August, the court decided United States v. Ray, in which it held that Judge Platt’s unexplained and prejudicial delay in resentencing the defendant - as here, the delay was fifteen years - amounted to a due process violation. See Delay Gratification, posted August 31, 2009.

The two cases offer an interesting contrast in appellate litigation strategy. Ray pitched the issue as constitutional one, arguing, unsuccessfully, under the Sixth Amendment right to a speedy trial and, successfully, under the due process clause. Although she prevailed, to some degree, she did not win a full resentencing. And she had to show “substantial and demonstrable” prejudice to get even the limited relief she got.

Hernandez, on the other hand, chose to make a 3553(a) argument. He seems to have had an easier time, since he did not have to make such a strong showing of prejudice. In fact, here, it does not seem that the case really turned on prejudice at all. While, at least in theory, any defendant making a § 3553(a) procedural claim should argue that the error was not harmless, the Hernandez opinion never gets to that question. There is nothing in the opinion to indicate that the court thought that there either should or would be a lower sentence on remand.

Summary Summary

Here are two recent summary orders of interest and one from March that we missed at the time:

In United States v. Pender, No. 08-5474-cr (2d Cir. May 6, 2010), there was a factual dispute as to whether the defendant was on parole when he committed the federal offense. Although the district court had concluded that he was, the court remanded the case for reconsideration. Notably, this issue was raised in the defendant's pro se brief, not his counseled brief.

In United States v. Oruche, No. 09-0665-cr, (2d Cir. April 26, 2010), the court vacated one defendant's sentence because he was erroneously classified as a career offender. One of his two prior drug convictions was for simple possession, not trafficking. The court also vacated a co-defendant's sentence because the district court had used the erroneous career offender sentence as a point of reference.

Finally, in United States v. Harper, No. 09-0622-cr (March 31, 2010), the court vacated a statutory maximum supervised release violation sentence because the district court's comments at sentencing suggested that it misunderstood the applicable law and failed to consider the need to avoid unwarranted sentencing disparities.