Gender Contender

United States v. Paris, No. 08-5071-cr (2d Cir. September 17, 2010) (Jacobs, Wesley, Chin, CJJ)

This interesting Batson decision deals with gender-based peremptory challenges, a subject that the circuit has not previously discussed.

Background

For about five years, Dennis Paris ran a multi-state prostitution ring centered in the Hartford, Connecticut, area and recruited teenage girls to work for him. He was charged with criminal sex trafficking and conspiracy offenses, and took the case to trial.

Before jury selection, his attorney notified the district court that Paris would exercise peremptory challenges primarily against women, because he believed that male jurors would be “fairer to Mr. Paris than female jurors will be.” Sure enough, after the challenges for cause were resolved, Paris used his first four peremptory challenges against women. When the government registered a Batson objection, defense counsel conceded that gender was “absolutely” one of the reasons for the strikes.

The court held that gender-based strikes violated Batson, but when counsel provided gender-neutral reasons, the court allowed the strikes to stand. Defense counsel persisted, striking two more women, and asking the court to reconsider its ruling. When the court refused, counsel struck one woman and one man on the second-to-last round, and did the same on the last round. For each, however, he indicated that he would have only struck women if the court had permitted him to consider gender.

At the same time, the government used its first four peremptories to strike men, causing the defense to make its own Batson objection. The government offered to give gender-neutral reasons for its challenges, but the district court held that, particularly since the government had not announced any intention to strike men, the defense had not made out a prima facie case of discrimination.

A jury consisting of eight women and four men convicted Paris of all counts. After being sentenced to thirty years’ imprisonment, Paris appealed.

The Appeal

On appeal, Paris argued both that he should have been able to strike prospective jurors based on their gender and that the district court erred in finding that there was no prima facie Batson violation in the government’s using its first four peremptories against men. The circuit affirmed.

1. Defendant’s Gender-Based Strikes

Neither the Supreme Court nor the Second Circuit has decided a case in which a criminal defendant sought to make gender-based peremptory challenges. Here, Paris argued that gender is different from race, relying on language in an O’Connor concurrence that the only the government should be forbidden from gender-based peremptories. He also pointed out that courts scrutinize gender classifications less closely than racial classifications.

The court disagreed, holding that, under the Supreme Court’s Batson cases, “the Constitution bars a defendant in a criminal case from exercising peremptory challenges based on gender.” First, discriminatory jury selection harms both the parties to the case and the prospective jurors. It also affects the entire community by undermining public confidence in the justice system. These principles are true whether the case is civil or criminal and whether the discriminatory strike is exercised by the government or the defendant.

Moreover, the Supreme Court rejected any distinction between race and gender under Batson when it held that gender-based strikes are unconstitutional. As with race-based strikes, the rationale for gender-based strikes is grounded in the very stereotype that the that “the law condemns.”

Finally, the court noted that three other circuits - and the Supreme Court, albeit in dictum - are already in agreement on this point.

2. The Government’s Strikes

With respect to Paris’ claim that the district court erred in not finding a prima facie case of discrimination against the government - “step one” of a trial court’s Batson inquiry - the court first had to settle on a standard of review. There is a split on the question - The First and Ninth Circuits review the issue for clear error, while the Seventh Circuit treats it as a mixed question and reviews it de novo.

Here, the circuit went its own way, holding that “a district court’s determination whether a party has established a prima facie case under Batson” is a “mixed question of law and fact,” but should be reviewed for abuse of discretion. The trial court is “entitled to some deference, as there clearly is an element of fact-finding to the determination,” but it is “not entirely factual, as the question of whether an inference of discrimination can be drawn ... is often more a question of law than fact.” But the court rejected two-step review - clear error for the factual part and de novo for the legal - out of concern that the “inquiries often are not clearly delineated.” The “better course is to apply an abuse of discretion standard of review.”

Applying that standard here, the court found no abuse of discretion. The mere fact that the government’s first four challenges were against men, even though clearly a pattern, was not enough. At the start of jury selection, more than half of the prospective jurors were men, and Paris used seven of his first eight strikes against women. This “increased the percentage of men in the jury pool and the statistical likelihood that the Government would use its peremptory challenges against men.” Moreover, unlike Paris, the government did not announce in advance that it would strike men. Thus, given the district court’s “broad latitude to consider the totality of the circumstances when determining whether a party has raised an inference of discrimination,” there was no abuse of discretion.

PC World

United States v. Ahders, No. 09-4093-cr (2d Cir. September 16, 2010) (Katzmann, Hall, Chin, CJJ) (per curiam)

In this latest per curiam, the court vacated a long sentence imposed for producing child pornography, because the district court did not make adequate findings on a sentencing enhancement.

Steven Ahders pled guilty to a single production count that alleged he victimized a “male minor,” his step-son. Ahders had also abused two of the boy’s friends, however, and at sentencing the court “grouped” the other children into his Guidelines calculations, even though that conduct was not charged. The circuit rejected Ahders’ argument that this was error. The relevant Guideline, § 2G2.1, expressly provides that if the abuse involved more than one minor the court should treat each child as if a separate count of conviction.

However, the court agreed with Ahders that the district court did not adequately explain its application of the four-level enhancement for possessing material depicting “sadistic or masochistic” conduct. The court could only impose the enhancement if it found that either the offense of conviction or its relevant conduct involved sadomasochistic material. The problem here was that, although the record suggested three possible grounds for the enhancement, the district court did not make adequate findings on any of them.

First, while Ahders took pictures of his step-son that would qualify, the district court did not appear to rely on those particular images in applying the enhancement. A second possible ground related to the relevant conduct, but Ahders disputed some of those facts and the district court did not resolve them. A third possible ground for the enhancement - and the one the district court seems to have relied on - involved Ahders’ possession of sadomasochistic images that he did not produce. No circuit has yet resolved the question of when possessing sadomasochistic images is relevant conduct to the production of child pornography, and here the district court made no specific findings on the point. The circuit proposed a long list of possible factors that the district court might look to on remand, and sent the case back so that the district court could clarify its basis for imposing the enhancement.

Summary Summary

As summer draws to a close, here are two more summary orders of interest.

In United States v. Reap, No. 06-5793-cr (2d Cir. August 30, 2010), the court notes that it is an open question in the circuit whether 18 U.S.C. § 922(g)(1) requires proof that the defendant knew that he had a prior felony conviction.

In United States v. Goodwin, No. 09-2019-cr (2d Cir. September 9, 2010), the district court erroneously applied the four-level enhancement for possessing a firearm "in connection with" another felony offense by relying on a "fact not supported by record evidence." The court rejected the defendant's request for a remand with instructions not to impose the enhancement, instead opting for an "open ended" remand because "the facts relating to whether the enhancement might apply are unclear."

PC World

United States v. Epstein, No. 09-4025-cr (2d Cir. September 3, 2010) (Miner, Cabranes, Straub, CJJ) (per curiam)

In United States v. Merced - argued and won by our favorite blogger - the circuit held that prior terms of imprisonment for supervised release violations counted toward, and limited, the statutory maximums contained in 18 U.S.C. § 3583(e)(3). Congress “fixed” Merced in 2003's PROTECT Act. This per curiam holds that the amended statute applies where the underlying offense occurred after the enactment of the new legislation.

Defendant Epstein received a twenty-four month violation sentence, but argued that the district court was obligated to credit him for a prior twelve-month violation sentence. This would have been required under the old statute, per Merced. But the amended statute “eliminate[s] the credit for terms of imprisonment resulting from prior revocations.” This outcome is clearly dictated by the change to the statute, which now indicates that the prescribed statutory maximum sentences apply “on any such revocation.”

While the PROTECT Act legislation as a whole would seem to apply only to sex offenders, there is nothing in the amendment to § 3583(e)(3) that limits the amendment in this way. Similarly, while Epstein made a strong policy argument against what Merced called “an endless cycle of consecutive terms of imprisonment and supervised release based on a single underlying offense,” the clear language of the statute left the court with no choice.

Max Facto

United States v. Ortiz, No. 08-2648-cr (2d Cir. September 1, 2010) (Newman, Pooler, CJJ, Rakoff, DJ)

Closing a an open question, the here court holds that the use of a more onerous guideline that is promulgated after the date of the offense can violate the Ex Post Facto Clause. But it also concludes that in this particular case there was no ex post facto violation.

At Ortiz’ sentencing for firearms and narcotics offenses, the district court used the amended guideline for an obliterated serial number - the Sentencing Commission had increased the enhancement from two to four levels - even though that amendment was adopted after the date of his offense. On appeal, for the first time, he argued that this violated the Ex Post Facto Clause.

The circuit noted that there is a circuit split on whether the retrospective application of a harsher, but non-mandatory, guideline implicates the Ex Post Facto Clause. It then adopted the D.C. Circuit’s standard, under which there can be an ex post facto violation if the defendant can show that using the amended guideline “created a substantial risk that” the sentence would be more severe. The court found this standard to be “faithful to Supreme Court jurisprudence explaining that the Clause protects against a post-offense change that ‘creates a significant risk' of increasing the punishment.” But this standard does not “invalidate every sentence imposed after a Guidelines range has been increased after the date of the offense”; it merely recognizes that there may be circumstances “where an amended Guidelines can influence a sentence that violates the Ex Post Facto Clause.”

Here, the “substantial risk” standard does not benefit Ortiz. He received a sentence well below the bottom of the sentencing range, thus there was “no risk at all” that the sentencing judge would have imposed an even lower sentence had she applied the unamended guideline.

Southern Discomfort

United States v. Barrie, No. 09-3035-cr (2d Cir. August 31, 2010) (Katzmann, Hall, Chin, CJJ)

Alalim Barrie was convicted of bank fraud and aggravated identity theft in connection with a scheme in which he and his confederates obtained money from banks using counterfeit checks and stolen credit card accounts. Southern District venue was clearly proper with respect to the bank fraud, since Barrie transferred stolen money into banks located in the Bronx. But he argued that there was no Southern District venue for the associated identity theft, since all of the actions that constituted aggravated identity theft occurred outside the district.

While the circuit agreed with Barrie’s view of the facts, it nevertheless affirmed. In a prosecution under 18 U.S.C. § 1028A, venue is proper in “any district where the predicate felony offense was committed, even if the means of identification of another person was not transferred, possessed, or used in that district.”

This result is dictated by the language of § 1028A itself, which makes it a crime to commit identity theft “during and in relation to any” enumerated felony offense. Indeed, the Supreme Court has held that the nearly identical language of 18 U.S.C. § 924(c)(1), which makes it a crime to use or carry a firearm “during and in relation to any crime of violence,” allows venue to lie in any district in which venue is appropriate for the underlying crime of violence.

The same outcome is required here. The underlying bank fraud was “committed in all of the places that any part of it took place. Thus, for venue purposes it does not matter that" Barrie only committed identity theft in other districts. He did so “during and in relation to” a bank fraud that took place in the Southern District, and that was sufficient.

PC World

United States v. Pfaff, No. 09-1702-cr (2d Cir. August 27, 2010)(Jacobs, Winter, McLaughlin, CJJ) (per curiam)

Apprendi rears its head once again in this latest per curiam, this time with respect to a fine.

A jury convicted John Larson, one of the defendants in the KPMG tax shelter case, of twelve counts of tax evasion under 26 U.S.C. 7201, but did not make a finding as to the pecuniary loss Larson caused or the gain he derived from the conduct. At sentencing, the district judge found a “gross pecuniary loss” of more than $100 million. Since 18 U.S.C. § 3571(d) authorizes a fine of up to twice the loss, the judge determined that the statutory maximum fine would be more than $200 million. The court ultimately imposed a $6 million fine.

While no Larson made no Apprendi objection, the circuit found plain error and vacated the fine. Section 3571(b) establishes a maximum fine of $250,000 per felony count of conviction. Section 3571(d), however, allows an alternative fine of up to twice the gain or loss resulting from the offense. But this alternative provision implicates Apprendi, since “any fact that increases the penalty ... beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The “statutory maximum” for Apprendi purposes is the maximum sentence that a judge can impose based solely on the facts reflected in the jury verdict or admitted by the defendant.

Accordingly, absent a jury finding as to loss or gain, Larson’s statutory maximum fine was $250,000 for each of the twelve counts, or $3 million. By fining him more than that based on its own loss finding, the district court violated Apprendi.

Nor is a different outcome required by the cases holding that Apprendi does not apply to restitution or forfeiture calculations. Unlike those financial penalties, criminal fines are subject to statutory maximums. Thus, when a jury does not make a finding as to pecuniary gain or loss, the statute’s default maximums “cap the amount a district court may fine the defendant.”

You See Davis

United States v. Bonilla, No. 09-1799-cr (2d Cir. August 13, 2010) (Miner, Cabranes, Wesley, CJJ)

Five months ago, in United States v. Davis, a Second Circuit panel denied the government’s motion for summary affirmance in a criminal case. Davis held that summary affirmance is a “rare exception” that should only be granted where the issues raised by the appellant are truly frivolous. It also noted that summary affirmance in criminal cases is “particularly perilous.” See, An Exercise in Frivolity, posted March 20, 2010.

Here, with Davis’ ink barely dry, a different panel granted a motion for summary affirmance in a criminal case.

Background

Angel Bonilla pled guilty to illegal reentry, and had a past conviction for felony assault, which triggered the 16-level enhancement in U.S.S.G. § 2L1.2(b)(1)(A)(ii). At offense level 21 and criminal history category IV, he faced a Guideline sentencing range of 57 to 71 months.

At sentencing, he raised a host of Apprendi issues with respect to the assault conviction and challenged the 16-level enhancement on the grounds that it overstated his potential for dangerousness and resulted in a sentence greater than necessary. He also made a Kimbrough claim, arguing that the Sentencing Commission did not engage in any deliberation or empirical study for enacting the 16-level enhancement, rendering it “arbitrary.”

The district court indicated that it had “reviewed and considered” everything before it - the parties’ memoranda, the PSR, the statutory factors and the Sentencing Guidelines - and sentenced Bonilla to 57 months’ imprisonment. The court also gave an explanation for the sentence, noting that: the 16-level increase did not “overstate the seriousness of the defendant’s prior conviction” given the conduct that underlay it - this was his fourth conviction and his third reentry and he had absconded for several months. Thus, the “people who drafted these sentencing statutes had in mind a person such as this.”

The Circuit’s Decision

On appeal, Bonilla raised two issues. First, he pursued his Apprendi claim, arguing that since his prior felony conviction was neither alleged in the indictment, pled to or proven beyond a reasonable doubt, his statutory maximum was two years, not 10. He also argued that the sentence was procedurally unreasonable because the district court did not adequately consider or respond to his arguments about the 16-level enhancement.

The government moved for summary affirmance, contending that the prior conviction was not an element of the offense and that the district court properly considered and responded to all of Bonilla’s arguments.

The circuit granted the motion, despite acknowledging Davis’ “particularly perilous” language and the circuit’s extremely restrictive definition of “frivolous” - an appeal is frivolous only where it is “totally lacking in merit, framed with no relevant supporting law, conclusory in nature, and utterly unsupported by the evidence.” The court noted that it granted 160 summary affirmance motions associated with Anders briefs in 2009, a statistic that showed that “a fair number of frivolous appeals are filed in this Court.”

In analyzing Bonilla’s claims, even though not raised in an Anders brief, the court found them to be frivolous. The Apprendi claim was easy - Bonilla acknowledged that it was precluded under existing law and that he had raised it only to preserve it for Supreme Court review.

As for the procedural claim, Bonilla’s argument was not that the district court did not adequately explain its sentence; it was that it did not address his Kimbrough argument with respect to the 16-level enhancement with sufficient specificity. But the circuit disagreed. It noted that “it might be said” that the district court’s response was sufficiently specific, but that in the end it did not matter because “we never have required a District Court to make specific responses to points argued by counsel in connection with sentencing.” Here, the court “considered all arguments of counsel and fully stated the reasons for the sentence imposed, and that was all that was required.”

Finally, the court also relied on the “plain-error rule” because Bonilla “did not ask the District Court for a specific response to [the] 16-level enhancement argument” or the argument that the enhancement “was made without the benefit of empirical study.”

Comment

This is a very disturbing opinion. Bonilla’s arguments were weak, to be sure, but it is hard to see how they were “totally lacking in merit, framed with no relevant supporting law, conclusory in nature, and utterly unsupported by the evidence.” It might well be that the tension between this case and Davis is going to cause difficulty in future cases for defense attorneys struggling with the question whether to file an Anders brief or a merits brief. This case just is not different enough from Davis for a clear line to emerge.

PC World

United States v. Green, No. 08-5548-cr (2d Cir. August 13, 2010) (per curiam)

An unconstitutionally vague condition of supervised release is the theme of this most recent per curiam opinion.

Defendant Green, while serving a long prison sentence for crack cocaine trafficking, was convicted of possessing a weapon and marijuana in prison. As part of his sentence, the judge imposed a condition of supervised release prohibiting him from associating with the Bloods or any other criminal street gang and from "the wearing of colors, insignia, or obtaining tattoos or burn makes relative to" such a gang.

The circuit, upholding the associational prohibition, struck the rest of the condition. The "color prohibition" did not provide Green with "sufficient notice of the prohibited conduct. The range of possible gang colors is vast and indeterminate." One police department manual's list of gang colors includes white, blue, black or combination of the two, with red, green, brown and purple. "Eliminating such a broad swatch of clothing colors would make [Green's] daily choice of dress fraught with potential illegality. People of ordinary intelligence would be unable to confidently comply with this condition."

While the court held out the possibility that a sufficiently clear prohibition would pass constitutional muster, for example if it had a "limiting list of the colors or insignia" typically associated with "any particular gangs to guide Greene in his clothing choices," this condition lacked the necessary clarity.

Summary Summary

Here are two more summary orders of interest. Probably the last of this Term.

In United States v. Johnson, No. 06-2206-cr (2d Cir. July 28, 2010), the court ordered a resentencing because the district court did not comply correctly with a prior order vacating the sentence. The original order required a de novo resentencing, but the district court did not conduct one. It simply issued a new sentencing opinion imposing the same sentence. The circuit also remanded to different judge because "the number of errors that have attended defendant's repeated sentencing proceedings could lead a reasonable observer to question the court's impartiality."

In United States v. Bonczek, No. 09-3865-cr (2d Cir. August 19, 2010), the court noted that there is a circuit split on the question whether a judge issuing a search warrant in a child pornography case needs to view the images in order to find probable cause. The court did not reach the question itself, because it found that the officers acted on the warrant in good faith.

Sorry, Right Number

United States v. Kumar, No. 06-5482-cr (2d Cir. August 12, 2010) (Walker, Sacks, Livingston, CJJ)

Sanjay Kumar and Stephen Richards, officers as a company called Computer Associates, engineered a huge accounting fraud that ended in October of 2000. Had that been the end of the story, their sentence would have been calculated under the November 1998 Guideline Manual (for obscure political reasons there is no November 1999 Manual), and their offense level would have been 30. However, the defendants engaged in additional criminal conduct associated with the government’s investigation of the accounting fraud - obstruction of justice, mainly - between 2002 and 2004.

Eventually, they pled guilty to everything and, in 2006, were sentenced under the November 2005 Guideline manual, which was in effect at the time, and under which the offense level for the fraud offenses had increased dramatically - from 30 to 50.

In this opinion, a divided circuit panel held that the district court’s use of the 2005 manual - correct under the so-called “one-book rule” - did not violate the Ex Post Facto clause.

The Majority's Opinion

The one-book rule, a longstanding Chapter One instruction, provides that if the defendant is convicted of two offenses, one committed before and one committed after the effective date of a revised edition of the Guideline Manual, the revised edition is to be applied to both offenses.

An ex post facto violation occurs where a later law is retrospectively applied to a defendant’s disadvantage. Here, the application of the 2005 Manual clearly disadvantaged the defendants by subjecting them to a higher range than that recommended by the 1998 edition. But the majority held that the application of the 2005 Manual was not “‘retrospective’ within the meaning of the Ex Post Facto clause.” The major policy concern animating the ex post facto prohibition - a “lack of fair notice and government restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated” - was not implicated here. The core right is to “fair notice,” and not to “less punishment.”

Since the one-book rule was adopted before the defendants committed the obstruction offenses, they were on notice of the consequences of committing that second offense, which included “the application of the post-amendment Guidelines to all offenses considered at the defendants’ sentencing.” The defendants could have “altered their conduct so as to avoid any heightened punishment imposed on the basis of the one-book rule by choosing not to obstruct the government’s investigation into their prior fraud.”

The majority also likened the one-book rule to a recidivist statute or “three strikes” law, which do not violate the Ex Post Facto clause. The situations are analogous even though the impetus for recidivism statutes is to “reflect the greater culpability associated with” the later offenses and the impetus for the one-book rule is to avoid “‘piecemeal’ sentencing.” This distinction “makes neither a practical nor a logical difference for purposes of an analysis under the Ex Post Facto clause.” Either way, “prior conduct becomes the basis for imposing a heightened sentence only upon conviction for a later criminal act.”

Since the “actual crime” triggering the one-book rule was the obstruction of justice, and since the defendants had prior notice of its consequences, the application of the one-book rule was proper.

The Dissent

Judge Sack dissented. In his view, since the defendants did not have “fair notice” of the severity of the penalties to which they might be subjected under the later Guidelines at the time they committed the fraud offenses, the application of the one-book rule constituted an ex post facto violation. To him, the notice that the defendants received was for the “wrong crime: not as to the fraud ... for which punishment was revised markedly upward, but the subsequent obstruction offenses for which the Guidelines have not changed. This notice was inconsequential because the defendants were not subjected to an increased sentence for obstruction; they were subjected to an increased sentence for already completed frauds.” Moreover, while the defendants had notice of the fraud enhancement before they committed the obstruction offenses, they did not have that notice before they committed the original fraud.

Comment

This is an extremely interesting issue, one on which the circuits are divided. But it also implicates a more fundamental ex post facto question that has not yet been resolved: does the clause apply at all to the Sentencing Guidelines now that they are advisory? The circuits are split on the question, and the Second Circuit has not yet ruled on it.

Here, the government took the position in the district court that Booker eliminated any ex post facto concerns with respect to the Sentencing Guidelines, and the district court’s ruling was based in large part on that. But, on appeal, the government abandoned that position, which permitted the panel to assume without deciding - and both the majority and the dissent did - that the Ex Post Facto clause still forbids the retrospective application of a more severe Guideline Manual.

Given the circuit split on the issue presented here, the defendants might well seek certiorari in this case. But it seems likely that the broader question ex post facto will have to be resolved by the Supreme Court before the question presented here can be addressed.

We Can Recall

United States v. Rojas, No. 09-3007-cr (2d Cir. August 12, 2010) (Jacobs, Wesley, Chin, CJJ)

Nicholas Rojas was convicted of participating in crack conspiracy. On the written verdict form, the jury found that he was involved with five grams or more of a mixture or substance containing “cocaine base.” However, when the courtroom deputy polled the jury, he misread the verdict form, describing the drug as “cocaine,” not “cocaine base.”

The error was discovered only after the poll was completed and the jury had been “discharged” and returned to the deliberation room to “await the thanks of the court for its service.” Although the defense did not consent to having the jury returned to the courtroom to be re-polled, the judge nevertheless recalled the jury. He explained to the recalled jurors what had happened, had the deputy the verdict again, re-polled them, and discharged them again.

On Rojas’ appeal, the circuit, closing an open question, held that a district court can recall a jury that has been declared “discharged,” but that has not dispersed, to correct a technical error in the reading of the verdict.

Rojas had relied on Fed.R.Crim.Proc 31(d), which provides that the court must poll the jury “[a]fter a verdict is returned but before the jury is discharged.” But if the jury has not dispersed, this rule does not prevent the court from recalling it to correct an error in reciting the written verdict, at least not in cases where there is no prejudice to the defendant and no risk that the court’s or public’s confidence in the verdict will be undermined. In Rojas’ case, there was no uncertainty about what the verdict actually was or whether the jury’s verdict was unanimous.

In fact, a 1926 Fourth Circuit case went the same way, noting that a jury “may remain undischarged and retain its function” even if “discharge” has been “spoken by the court,” if it remains “undispersed” and within the “control of the court with no opportunity to mingle with or discuss the case with others.”

A Bad Call

United States v. Gomez, No. 08-3829-cr (2d Cir. August 4, 2010) (Leval, Pooler, Parker, CJJ)

Here, the improper admission of indirect hearsay resulted in a new trial.

Background

Fred Rivas and a confederate sold 5,000 Ecstacy pills to a confidential informant. They were arrested, and Rivas agreed to cooperate. A New York City detective, Michael Ryan, was permitted to testify about the nature of Rivas’ cooperation; specifically, Ryan testified that he asked Rivas to “call the person who had given him that 5,000 pills,” and that Ryan then dialed Gomez' number from Rivas’ phone and recorded their conversation. The district court denied Gomez’ hearsay objection to this testimony, and the government ended up using it in summation to directly implicate Gomez as the supplier.

The Circuit’s Decision

The court found that Ryan’s testimony constituted prejudicial hearsay, and rejected with unusually strong language the government’s claim that it admitted the testimony for a non-hearsay purpose - as “background” evidence.

Here, there was simply no non-inculpatory alternative to explain why Ryan chose Gomez’ number after he instructed Rivas to call his supplier. Indeed, that testimony “provide[d] background that would aid the jury in understanding why Gomez was called only if we assume that Rivas told Ryan that Gomez was his supplier, which we cannot do.” And, if the jury “inexplicably” missed this “obvious point,” the AUSA “drove it home with her ... summation.”

The testimony was also “completely unnecessary” as background. Ryan testified that Rivas was arrested and agreed to make recorded phone calls. That was “sufficient background” for the calls themselves.

In a footnote, the court remarked that, while Ryan’s instruction to Rivas to call his supplier did not include hearsay (one might quibble with this conclusion since, although Ryan was subject to cross-examination, he gave the instruction when he was not, and it was offered, at least in part, for its truth) the instruction’s connection to Rivas’ call to Gomez nevertheless communicated the hearsay message that Rivas identified Gomez as his supplier. The court directed that, on retrial, the district court “should exclude the officer’s instruction.”

The court also found that the admission of the hearsay was not harmless. While the evidence was legally sufficient, it was “hardly overwhelming as to” Gomez’ involvement in that particular transaction. Although Rivas’ recorded conversation with him likely related to a drug deal, a “reasonable juror” would “not have been compelled to conclude that Gomez was the supplier for the earlier sale” because the call did “not clearly indicate that Gomez supplied the 5,000 pills.” It should be noted that this particular analysis would be easier to follow if the court had quoted at least some of the recorded conversation. But, alas, it did not.

Moreover, while the district court gave a limiting instruction, that did not render the hearsay error harmless. The court will not presume that a jury has followed a limiting instruction where “there is an overwhelming probability” that the jury would be unable to and “the evidence is devastating to the defense.” Both were true here. Gomez’ jury was “confronted with an instruction that they should not consider Ryan’s testimony as proof that Gomez was Rivas’ supplier despite the fact that there was no apparent reason for the testimony other than to show that Ryan dialed Gomez’ number” because Rivas had identified Gomez as the supplier. Moreover, the limiting instruction did not cover the most damaging portion of the testimony - that Ryan called Gomez’ number only after instructing Rivas to call his supplier. It covered only Ryan’s instructions to Rivas and Rivas’ actions in response.

Finally, while the court did not rule on Gomez’ Confrontation Clause argument, it noted that “the very concerns embedded in the Confrontation Clause are part and parcel of our harmless error analysis.” Specifically, it considered the “importance of the wrongly admitted testimony,” and found Rivas’ untested accusation to be “significant.”

PC World

United States v. Shyne, No. 08-0865-cr (2d Cir. August 5, 2010) (Kearse, Sack, Hall, CJJ) (per curiam)

An unusual discovery issue is the theme of this per curiam opinion.

Three defendants went to trial on bank fraud and money laundering charges. Before trial, the government provided notice that it would offer statements of five other individuals as co-conspirators' declarations under Fed.R.Evid.801(d)(2)(E), although it was not planning to call them as witnesses. The government also provided Giglio material as to these declarants. In response, the defendants demanded the declarants' 3500 material - specifically their proffer notes - even though they would not be testifying at trial. The district court denied the application and, here, the circuit affirmed.

The Jencks Act, 18 U.S.C. § 3500, by its very terms applies only to a "witness" who has "testified on direct examination," and is not "trumped" by Fed.R.Evid 806, which provides that the credibility of a Rule 801(d)(2)(E) declarant may be "attacked ... by any evidence which would be admissible for those purposes if" he had testified. That a non-testifying declarant's statement comes into evidence against a defendant does not "convert that declarant into the equivalent of a witness who has appeared and testified under oath." Rule 806 does not have its origin in the Jencks Act; rather, it is a codification of the due process considerations articulated in Brady and Giglio. Thus, "[a]lthough for impeachment purposes, Rule 806 treats a declarant speaking in furtherance of the conspiracy as if he were a witness who gave live testimony as if he were a witness, we do not believe that also means that a declarant whose statement is being repeated and a witness who gives live testimony are equal under the Jencks Act." To hold otherwise would contravene the express language of § 3500, which states that no disclosure is authorized until the witness "has testified on direct examination in the trial of the case."

Nor does the constitution require otherwise. The Jencks Act is a statutory requirement, not a constitutional one, thus an analogy between "non-testifying declarants and testifying witnesses does not work."

Coach Bagged

United States v. Broxmeyer, No. 09-1457-cr (2d Cir. August 3, 2010) (Jacobs, Miner, Wesley, CJJ)

Todd Broxmeyer, was a field hockey coach for teenage girls in upstate New York and elsewhere. For many years he engaged in sexual relationships with some of them , relationships that sometimes also involved the exchange of photographs. Eventually the axe fell, and he was tried and convicted of five count s- four relating to child pornography and one of aiding and abetting the transportation of a minor across state lines with the intent to engage in sexual activity. On appeal, he successfully challenged the legal sufficiency of the evidence as to three of the counts of conviction. The court reversed those counts and remanded the case for resentencing on the other two.

A. Production of Child Pornography

In 2007, Broxmeyer began a sexual relationship with A.W., who was then seventeen years old. The relationship was legal, because it occurred in in New York, where the age of consent is seventeen. Part of the relationship involved “sexting” - the exchange of sexually explicit pictures via cell phone. Counts One and Two of the indictment related to two specific photographs that A.W. took of herself and texted to Broxmeyer. Based on those photographs, Broxmeyer was convicted of violating 18 U.S.C. § 2251(a) which criminalizes the production of child pornography.

But the appellate panel unanimously agreed that the government introduced no evidence that Broxmeyer “persuaded, induced or enticed” A.W. to take the subject photos, as required by the statute. The statutory terms are “words of causation; the statue punishes the cause when it brings about the effect.” Thus, Broxmeyer must have induced, etc., A.W.'s taking of the photos before she took them. Here, the trial record showed only that A.W. turned seventeen in January of 2007; she took the photos when she was 17 and she began a sexual relationship with Broxmeyer in the spring of 2007. The only evidence tying Broxmeyer to the photos was that “he received them when she transmitted them.” There was simply no evidence that Broxmeyer “inspired” the “production” of the photos.

Since the government never asked A.W. when the photos were taken or whether that occurred before or after Broxmeyer asked her to send him pictures of herself, the jury was “left to speculate or guess,” which is improper. No inference that A.W. took the particular photos at Broxmeyer’s urging was available, because the government “presented no evidence bearing on” the question. Nor was it relevant that there was evidence that Broxmeyer induced A.W. to send sexually explicit pictures of herself. Section 2251(a) covers production, not distribution.

B. Interstate Transportation of a Minor

Another of Broxmeyers’ players was K.M. She lived in Pennsylvania, but would sometimes go with a friend to his practices in Binghamton, New York. She planned to attend a New York practice on Saturday, December 8, 2007. Her father, L.M., was to drive her to the practice; she would spend the night at the home of a friend, J.B., who would also attend the practice, then L.M. would return to pick her up on Sunday afternoon. Eventually, the plan changed and J.B.’s parents offered to drive K.M. halfway home, where L.M. would meet them and pick up K.M.

When Broxmeyer learned that K.M. was coming to New York, he offered to drive her back to Pennsylvania on Sunday morning, on his way to another practice in New Jersey. L.M. and K.M. consented, and the trip went forward as planned, with one hitch. One the way back to PA on Sunday morning, Broxmeyer made a stop at a sports facility in New York to pick up some equipment. K.M. went with him and, once inside, Broxmeyer “caused [her] to perform oral sex on him.” He then drove her the rest of the way home. Because K.M. was only fifteen, the sex act was illegal, regardless of her consent.

Broxmeyer was convicted of aiding and abetting a violation of 18 U.S.C. § 2423(a), which makes it a crime to transport a minor across state lines to engage in illegal sexual activity. The panel majority held that neither trip - the one from PA to NY or the one back - violated this statute.

The PA to NY trip was easy: As the majority viewed the evidence, Broxmeyer did not bring about K.M.’s attendance at the December 8 practice, and her attendance was not contingent on Broxmeyer’s offer to driver her home the next day.

The NY to PA trip was likewise insufficient. The majority held that a conviction under § 2423(a) cannot lie where the unlawful sexual act occurs before the crossing of state lines, absent proof of some intent to commit a sexual act when state lines are crossed. The “plain wording of the statute requires that the mens rea of intent coincide with the actus reus of crossing state lines.”

Judge Wesley dissented on this count, focusing only on the PA to NY trip. As he framed the issue, the only question was whether there was sufficient evidence to support the jury’s finding that Broxmeyer caused L.M. to transport K.M. across state lines by promising to bring her home the next day. After a very detailed discussion of L.M.’s testimony, Judge Wesley found that it sufficiently supported this inference.

Court Reads the Riot Act

United States v. Johnson, No. 08-5245-cr (2d Cir. August 2, 2010) (Cabranes, Parker, CJJ, Amon, DJ)

In this split decision, the majority held that a conviction for the Connecticut offense of “Rioting at a Correctional Institution” is a “violent felony” under the “otherwise involves” clause of the Armed Career Criminal Act (“ACCA”).

In getting there, the majority looked beyond the statute’s title - which “suggests an obvious answer ” - to examine the conduct that the statute actually proscribes. The Connecticut statute provides that a person is “guilty of rioting at a correctional institution when he incites, instigates, organizes, connives at, causes, aides, abets, assists or takes part in any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of such institution.” Connecticut courts have “clarified” the meaning of the statute, holding that it is “specifically directed” at those who lead or plan prison disturbances and those who “follow in the proscribed activity.”

In Begay, the Supreme Court held that the “otherwise involves” clause applies only to offenses that are similar “in kind” as well as “in degree of risk posed” to the offenses that are listed in ACCA - burglary, arson, extortion, and the use of explosives.

First, for “in kind” similarity, the test is whether the conduct proscribed by the statute “typically involves purposeful, violent and aggressive behavior.” The court held that the rioting statute satisfies this test, rejecting the defendant’s argument that the statute could cover “many forms of passive and nonviolent conduct.” The court found that it was not a strict liability statute, but rather required proof of “general intent,” which satisfied the “purposeful conduct” requirement of Begay. The court also had “little doubt” that rioting at a correctional institution “typically involves” violent and aggressive conduct. In every reported decision under the statute, the conduct involved either use of a weapon or injury to another person, or both.

To the majority, it did not matter that some arguably nonviolent conduct - such as a hunger strike - might violate the statute, or that some unreported cases might have involved nonviolent conduct. Under the majority’s reading of the statute, each of the acts proscribed by the statute “typically involves violent and aggressive behavior.” To find that the Connecticut statute was not categorically violent would require a realistic probability, not a theoretical possibility, that the state would apply the statute to nonviolent conduct. But the majority found no evidence that Connecticut “regularly” applies the statute to nonviolent conduct.

The majority had an even easier time on the “degree of risk” analysis. The statute “in the ordinary case” presents a serious potential risk of injury to another because prisons are “inherently dangerous institutions” and the conduct proscribed by the rioting statute “renders confrontation with guards or other law enforcement authorities a virtual certainty.”

Judge Parker dissented. In his view, the majority incorrectly concluded that each of the acts proscribed by the Connecticut statute is violent. In fact, the statute “sweeps broadly,” punishing such nonviolent infractions as “disregarding an order to move, engaging in a work stoppage, or counseling another inmate to disobedience.” Judge Parker would have applied the “modified categorical approach” and required the government to “show what part of the statute Johnson actually violated.” To him, unless the underlying conviction had been for “actually rioting,” it is “far from obvious that such an offense” is an ACCA predicate.

Our Blips Aren't Sealed

United States v. Amanuel, No. 06-1103-cr (2d Cir. July 29, 2010) (Cabranes, Katzmann, Hall, CJJ)

After a nearly eight-year journey through both the state and federal courts without being tried, the defendants here will finally have to face the music. In this decision, the circuit vacated most of the district court’s order suppressing the evidence against them.

The State Court Proceedings

In 2002, New York state police officers obtained a warrant to intercept a digital pager used by the defendants, who were suspected of drug trafficking. The officers were supposed to record the intercepted communications electronically, but did not do so. Instead, they visually monitored a clone pager and entered the intercepted information in a handwritten log. When the warrant expired, they gave 84 pages of this material to a state judge for sealing. Based on the contents of the logs, state prosecutors then obtained a warrant to monitor and record the defendants’ cell phones; information from those wiretaps provided probable cause for the issuance of search warrants, through which physical evidence was obtained.

Once the defendants were charged in state court, however, they successfully moved to suppress the evidence against them. Under state law, all electronic interceptions are supposed to be recorded electronically. Since the pager intercepts were not, the state court suppressed all evidence that derived both directly and indirectly from the pager interception warrant. Since that was all of the evidence against the defendants, the court dismissed the indictment.

The District Court Proceedings

The feds took up the case in 2005, and charged the defendants with a cocaine conspiracy. The defendants again moved to suppress, and the district court granted the motion. Like the state court, it suppressed all of the evidence. Although the court held that federal law, not state law, governed, it concluded that the handwritten logs were not “sealed” as required by the applicable wiretap statute, 18 U.S.C. § 2518(8)(a). Finding that this was a Fourth Amendment violation, the district court suppressed all the evidence - the pager intercepts as well as the wiretap and physical evidence that derived from them.

On this, the government’s appeal, the circuit held that only the pager intercepts should have been suppressed. It accordingly vacated the remainder of the suppression ruling.

The Circuit’s Rationale

The circuit began by agreeing with the district court that federal law, not state law governs, even though the eavesdropping warrant was issued by a state judge.

The court also agreed that the police had not complied with the relevant federal statute. Section 2518(8)(a) requires that intercepted electronic communications “shall, if possible,” be recorded electronically and in “such a way” that will protect the recordings from “editing or other alterations.” Immediately after expiration of the warrant authorization, the recordings are to be provided to the judge who issued the warrant and “sealed.”

The circuit held that the recording method here - handwritten transcription - did not satisfy § 2518(8)(a). The statute requires mechanical recording that “minimize[s] human involvement and limit[s] the opportunity for intentional alteration and human error.” The court also held that it would have been possible for the state police to record the intercepts properly. A recording device was available, and the state offered no explanation for why it was not used.

Next, the circuit agreed that the sealing requirement of the statute was not met. The state investigators did promptly give the handwritten log to the state judge for sealing. But the sealing requirement flows directly from the electronic recording requirement; records “that do not comply with the recording requirements ... are not susceptible to sealing.” Accordingly, the “sealing contemplated by the statue simply was not possible” here. The sealing is supposed to protect the integrity of the recordings; since the handwritten logs already were of suspect integrity, their sealing would be “of little purpose.”

But the circuit disagreed with the district court’s remedy. The statute expressly provides that its own remedies are the only ones available for non-constitutional violations, and the district court erred in finding a constitutional violation. The sealing and recording requirements of § 2518(8)(a) are “evidentiary in nature” and were “enacted to ensure that the communications are admissible under the rules of evidence,” not to safeguard a constitutionally protected privacy right. While the failure to properly record and seal might in some cases “implicate a privacy right,” by itself it does not. And here, since there was a warrant and the defendants made no other privacy claim, there was no constitutional violation.

Thus, the district court erred in suppressing both the intercepted communications and all evidence derived from them. The defendants were entitled only to the statute’s more limited exclusionary remedy: the statute provides only that, absent a seal or a “satisfactory explanation,” the contents of the intercept cannot be used or disclosed in the ways prescribed by 18 U.S.C. § 2517(3). But that subsection discusses only the testimonial use and disclosure of the material. Subsections (1) and (2) are the ones that permit the disclosure use of intercepted communications for investigative purposes, and they are not covered by the remedial language. Accordingly, the exclusionary remedy here only applies to the unsealed pager intercepts themselves - the government cannot offer testimony regarding their contents. But the government is not precluded from offering evidence obtained through the warrants that were based on the pager interceptions.

Cops Out

United States v. Caracappa, No. 09-1177-cr (2d Cir. July 23, 2010) (Kearse, Sack, Wesley, CJJ)

When last we heard from Stephen Caracappa and Louis Eppolito, two corrupt NYPD detectives who also did hits for the mob, the circuit had vacated a district court order tossing their RICO conspiracy conviction and granting them a new trial on the remaining counts. See Enterprise Rent-A-Cop, posted September 27, 2008. On remand, the district court sentenced Caracappa to life plus 80 and Eppolito to life plus 100. This opinion disposes of the defendants’ appeal. The circuit affirmed.

The opinion treads little new ground, with the exception of one interesting evidentiary issue. An important cooperating witness was Burton Kaplan, who in his day had been a trusted member of the Lucchese Family and the main intermediary between Caracappa/Eppolito and Anthony Cassso, the Lucchese underboss. During his trial testimony Kaplan explained that he would relay law enforcement information from Caracappa/Eppolito to Casso and instructions and money from Casso back to them. After the defense vigorously cross-examined him, the judge permitted the government to call Kaplan’s former attorney, who confirmed that, in 1994, Kaplan admitted to him that he was the conduit between Caracappa/Eppolito and Casso.

The circuit upheld this as a prior consistent statement under Fed. R. Evid. 801(d)(1)(B). First, it noted that such a statement need not be offered through the declarant; anyone with first-hand knowledge can report a prior consistent statement. The defendants’ main contention was that they had argued that Kaplan's motive to fabricate predated the statement, which would take it out of the rule. The circuit disagreed, finding that their real argument was that Kaplan - who cooperated only after receiving a long prison sentence of his own - only developed the motive to fabricate so that he could get out of prison. Since he made the statement to his attorney two years before he was arrested, he did so before he had a motive to fabricate.

The circuit also rejected the defendants’ argument that they were deprived of an opportunity to cross-examine Kaplan about the statement. The district court told them that they could re-call Kaplan if they wished, and, in any event, they knew about the statement when Kaplan himself testified because it was mentioned in his 3500 material.

PC World

United States v. DeSilva, No. 09-2988-cr (2d Cir. July 28, 2010) (per curiam)

In this child pornography case, the sentencing court made a clearly erroneous finding of fact in the defendant’s favor. On the government’s appeal, the circuit vacated and remanded.

DeSilva was charged only child pornography offenses, but in the course of the investigation admitted to law enforcement officers that he had sexually abused a friend’s child for more than two years. As part of his bail application, which was unsuccessful, he submitted a psychologist’s report that indicated that if DeSilva were released to his parents and tightly supervised there was little chance that he would abuse another child.

DeSilva ultimately pled guilty to distributing child pornography. His sentencing range was 235 to 240 months’ imprisonment, and he faced a 60-month mandatory minimum. The district court imposed a below-Guideline sentence of 132 months, citing several factors, including the psychologist’s “opinion” that DeSilva was “not a danger to the community.”

The circuit agreed that the district court’s reliance on the bail report to find that DeSilva was not a danger to the community was clear error. The report's findings were conditioned on the premise that DeSilva would be released to his parents. What was relevant for sentencing was whether DeSilva would pose a large danger to society on release from prison; the psychologist’s opinion thus had “only minimal relevance” to whether DeSilva would be likely to molest another child in the future.

Land of Enhancement

United States v. Tutty, No. 09-2705-cr (2d Cir. July 16, 2010) (Calabresi, Pooler, Chin, CJJ)

In United States v. Dorvee, 604 F.3d 84 (2d Cir. 2010), the court held that the child pornography Guidelines are entitled to less deference because they are not the product of an “empirical approach,” and because they “provide for a series of enhancements that apply in virtually every case,” resulting in enormous sentences “even in run-of-the-mill cases.” See Deconstruction Project, posted May 23, 2010. Here, following on the heels of Dorvee, the court found procedural error in the district court’s refusal to consider a broad-based policy challenge to those Guidelines.

Background

Defendant Jason E. Tutty pled guilty to possessing digital images of child pornography that he had received and distributed over the Internet using a file sharing program. He had no criminal history and no know history of sexual contact with a child. At sentencing, in the face of a 168 to 210-month range, he argued both that his personal history and characteristics warranted a lesser sentence, and that, on policy grounds, the court should not follow the Guidelines. The court indicated that it lacked the authority to deviate from the Guidelines solely on policy grounds, and sentenced him to 168 months.

The Court’s Decision

Tutty challenged only the substantive reasonableness of the sentence. Interestingly, however, the court, considering the case “nostra sponte in the interest of justice,” vacated the sentence on procedural grounds and remanded for sentencing. It held that the district court “committed procedural error when it concluded that it could not consider a broad, policy-based challenge to the child pornography Guidelines.”

The court did not rule on substantive reasonableness, but noted that, on remand, the district court would “now have the benefit of our decision in Dorvee.” The circuit directed that the district court “take note of the[] policy considerations” identified in Dorvee and “bear in mind that the ‘eccentric’ child pornography Guidelines ... ‘can easily generate unreasonable results’ if they are not ‘carefully applied.’”