Labor Pains

United States v. Markle, No. 06-1600-cr (2d Cir. December 14, 2010) (Jacobs, Pooler, Parker, CJJ)

In United States v. Enmons, 410 U.S. 396 (1973), the Supreme Court held that extortion liability under the Hobbs Act, 18 U.S.C. § 1951, did not extend to violence in pursuit of “legitimate labor ends” that occurs during a lawful strike that is intended to achieve “legitimate collective-bargaining objectives.”

Defendant Markle was convicted of attempted Hobbs Act extortion after a violent confrontation arising from two unions' turf war over the right to perform “fine sweep work” - the preparation of a floor surface before installing tile - at a construction site in upstate New York. He argued both in the district court and on appeal that Enmons precluded liability.

The circuit disagreed. The Enmons defense is not available if there is no legitimate labor union objective. Courts have generally limited the defense to the context of strikes or collective bargaining negotiations between unions and employers. It does not apply to “violence committed by one union against another for the purpose of ‘establishing the proper allocation of work between’” two different groups of unionized workers. Violence committed “outside the context of a labor-management dispute, by one union against another, does not have a legitimate collective-bargaining objective under the Hobbs Act.”

Plain Terror

United States v. Marcus, No. 07-4005-cr (2d Cir. December 7, 2010) (Calabresi, Straub, Wesley, CJJ)

This is Marcus’ second go-round in the circuit. He won the first time, in August of 2008, (see “Sex Post Facto”, posted August 18, 2008). The government got cert, and the Supreme Court reversed, holding that the first panel had used an incorrect plain error standard. In this decision, on remand from the Supremes, Marcus had only a partial win.

The underlying conduct is particularly disturbing. From October of 1998 through June of 1999, Marcus was in a consensual, albeit kinky, sexual relationship with “Jodi.” This nature of the relationship changed in October 1999 when Jodi refused to recruit her sister to become one of Marcus’ “sex slaves.” In response, Marcus “punished” Jodi severely, and began to terrorize her regularly. With this, the relationship became nonconsensual.

In January of 2000, Marcus directed Jodi to move to New York and forced her to create a website called “Slavespace.” She worked eight or nine hours a day on the site but Marcus received all of the revenues. This was not a voluntary arrangement. Even after she found full time work of her own, Marcus made her continue working on the site, and would brutalize her physically and sexually if he was unhappy with her efforts. The trial evidence described a particularly harrowing “punishment” that occurred in April of 2001.

In March of 2001, Jodi told Marcus that she wanted to end their arrangement. He said he would let her go if she endured one final punishment, but she was so terrorized by the punishment that she did leave. A few months later, the woman with whom she was living told Marcus that she did not want Jodi there any more. Jodi moved out and their contact gradually diminished, ending entirely in 2003.

In 2007, the government charged Marcus with violating the federal forced labor statute, 18 U.S.C. § 1589, and the sex trafficking statute, 18 U.S.C. § 1591(a)(1). Those statutes were enacted on October 28, 2000, but the indictment charged Marcus with violating them from January of 1999 through October of 2001. Marcus did not seek a jury instruction based on the statutes’ enactment date, nor did he raise any issue about retroactive application in his Rule 29 motion.

On his appeal, however, he argued that the statutes were applied to him retroactively in violation of the Ex Post Facto Clause. The panel, reviewing this unpreserved claim, applied binding circuit precedent, under which plain error review required a new trial if there was “any possibility, how matter how unlikely,” that an “uninstructed jury would have convicted the defendant based exclusively on pre-enactment conduct.” It accordingly vacated the conviction on both counts. A concurrence, authored by then-Judge Sotomayor, pointed out that although the panel was bound by the circuit’s existing plain error test, this test was inconsistent with Supreme Court precedent. The concurrence would have vacated only the sex trafficking count and would have affirmed the forced labor count because for that count the was “no plausible argument” that the jury would have differentiated between Marcus’ pre-and post enactment conduct.

On the government’s appeal, the Supreme Court reversed and remanded because the “any possibility however remote” standard was indeed inconsistent with that Court’s plain error review precedents.

In this do-over, the original panel, with Calabresi substituting for Sotomayor, agreed with the original opinion’s concurrence. It found that there could only be plain error under the fourth prong of the plain error test - the error must have “seriously affected the fairness, integrity or public reputation of” the proceedings - if there was a “reasonable probability that the jury would not have convicted him absent the error.”

Here, with respect to the forced labor statute, there was no such “reasonable probability.” The government presented post-enactment evidence sufficient to satisfy the elements of that statute. The forced labor on the “Slavespace” began in January of 2000, before the statute’s October enactment, but continued into at least June of 2001 - the April 2001 punishment episode was itself post-enactment. Thus, the jury would have found that Marcus obtained Jodi’s labor through the threat of serious physical harm and actual physical harm - the statutory standard - after October of 2000. Nor would there have been any “reasoned basis” for a jury to differentiate between Marcus’ pre- and post- enactment conduct. Indeed, if anything Marcus’ use of force against Jodi increased post-enactment.

By contract, however, the court adhered to his original ruling on the sex trafficking conviction. In fact, the government conceded on this point. Marcus transported Jodi to New York in early 2000, before the statute was enacted. From then on, he harbored her there. Thus, the conduct supporting this conviction “differed materially before and after October 2000 such that there is a reasonable probability that the erroneous jury charge affected the outcome of the trial” and the “fairness integrity or public reputation of the proceedings.”

PC World

United States v. Bouknight, No. 09-4085-cr (2d Cir. December 7, 2010) (Katzmann, Livingston, CJJ, Korman, DJ)

This latest per curiam was a summary order that, on the government's motion, the court published. In it, the court holds that a sentence to a conditional discharge in Connecticut state court is a "criminal justice sentence" for purposes of the criminal history enhancement in U.S.S.G. § 4A1.1(d). The court had long ago held that this was true for a New York State conditional discharge. The defense here attempted to distinguish Connecticut from New York by pointing out that in New York a conditional discharge can be revoked, while in Connecticut it can only be modified or enlarged. But, to the circuit, the distinction did not matter. That a Connecticut conditional discharge can be modified is sufficient, because it still means that the sentence has a "supervisory component."

What You Don’t Know Can Hurt You

United States v. Andino, No. 09-4694-cr (2d Cir. December 3, 2010) (Kearse, Calabresi, Wesley, CJJ)

In 2008, customs officials intercepted a package containing cocaine addressed to “Andino Jose” at an address in the Bronx. After a controlled delivery to that address, the recipient called defendant Andino, who picked up the package and brought it to an adjacent building, where he left it unopened.

Customs agents then placed him under arrest, and Andino admitted that he had been paid to pick up the package and transport it. He said that he knew the package contained drugs, but believed it contained marijuana, not cocaine.

At Andino’s trial, the government sought a jury instruction stating that the government would need to prove only that Andino knew the package contained a controlled substance - any controlled substance - and not specifically cocaine. Andino, on his part, wanted a charge requiring the government to prove knowledge of both drug type and quantity. Before the court could resolve the charge issue, the question came up again in Andino’s Rule 29 motion. Ultimately, the court charged the jury that the government had to prove, first, the existence of a conspiracy to violate those “laws which make it illegal to distribute or possess with intent to distribute a controlled substance, namely cocaine,” and, second, that Andino was a member of the conspiracy.

The jury convicted him of conspiring to distribute or possess with intent to distribute cocaine, but found that the conspiracy involved less than 500 grams.

Andino pursued on appeal the same issue he raised in the district court: that the government was required to prove a cocaine-specific scienter. The court disagreed and held that “in order to satisfy the scienter element, the government was required to prove only that Andino agreed to traffic in a controlled substance.” It affirmed Andino's conviction.

Title 21 U.S.C. § 841(a) makes it a crime to traffic in “a controlled substance.” Section 841(b) prescribes maximum and minimum penalties depending on the type and quantity of the controlled substance involved in the offense. Thus, under § 841(a), the “government does not have to prove that the defendant knew the specific nature and amount of the controlled substance.” Section "841's scienter requirement is not type-specific.”

But, Andino was convicted of a narcotics conspiracy, not the substantive offense. The conspiracy statute, 21 U.S.C. § 846 subjects drug conspirators to the “same penalties as those prescribed” for the offense that is the object of the conspiracy. This case thus poses the question whether this “statutory framework" requires the government to prove that a conspiracy defendant had specific knowledge of the type and quantity of the drugs involved in the conspiracy.

To the parties, the circuit’s precedents on the issue have been confusing: as they characterized them, some have held that the statute required only proof of intent to distribute any controlled substance, while others have held that the government must at least prove that a particular type and quantity were reasonably foreseeable to the defendant. But here, the circuit wiped this all away, holding that, “in context, there are no inconsistencies in the prior holdings.”

The court then announced a new way of looking at these cases: Rather, “all of our cases accord with the rule that the government need not prove scienter as to drug type or quantity when a defendant personally and directly participates in a drug transaction underlying a conspiracy charge.” And that is the rule that applies here: “In cases like the present one, where the defendant personally and directly participated in the drug transaction underlying the conspiracy charge, the government need not prove that the defendant had knowledge of either drug type or quantity.”

Alternatively, Andino argued that the government committed itself to proving cocaine-specific knowledge by indicting him on cocaine-specific charges and insisting in its statements to the district court that it wanted a cocaine specific conviction. But all the law requires is that the government actually prove that the drug in the indictment was the one involved in the conspiracy. It does not also require proof of a type-specific scienter. Here, neither the indictment nor the government’s statements at trial committed itself to proving that Andino intended to distribute cocaine.

Comment

All this decision really does it replace one confusing legal standard with another. Now there is a new, and apparently unprecedented, distinction between drug conspiracy defendants who “personally and directly participated” in the transaction and those whose participation was “peripheral.” For the first group, there is no type-specific scienter requirement, but for the second group there is.

Huh? Who is going decide whether a defendant is “peripheral” and who is not - the judge or the jury - because it sounds like there might be an Apprendi issue on that fact. And what are the relevant standards? Worse still, how is the jury going to understand the court’s instructions when the “peripheral” defendant is on trial with the “personal and direct” participants, and the jury is told that defendants in the same conspiracy are subject to different scienter requirements? What a mess!

One can surmise that the court thinks that it has helpfully closed the door to scienter litigation in future drug conspiracy cases. It should have remembered that when one door closes another door opens. Now the courts are going to have to sift through endless iterations of “I was merely peripheral, not a personal and direct participant” claims, and all of the attendant legal desiderata that will ensue. This should keep us all entertained for the next few years, though.

Two Steps Forward

United States v. Capers, No 07-1830-cr (2d Cir. December 1, 2010) (Pooler, Hall CJJ, Trager, DJ)

This decision, which was sub judice for nearly two and one-half years, attempts to sort out the confusion left by the Supreme Court’s decision in Missouri v. Seibert, 542 U.S. 600 (2004).

Seibert involved a two-step interrogation strategy that was calculated to circumvent Miranda. The Missouri officers there had been trained to withhold Miranda warnings and question a suspect until he confessed. They would then Mirandize him, secure a waiver, and elicit a second confession. A four-justice plurality held that this two-step procedure violated Miranda because a suspect “hearing warnings only in the aftermath of interrogation and just after making a confession” would “hardly think he had a genuine right to remain silent.” The plurality identified five factors to be weighed in analyzing the effectiveness of post-interrogation Miranda warnings.

Justice Kennedy concurred in the judgment but believed that the five-factor test was too broad because it would cover “both intentional and unintentional two-stage interrogations.” His approach was to ask whether the officer had used a “deliberate two-step strategy” in a “calculated way” to undermine Miranda and “obscure” the “significance” of the warnings when given. If not, then, the only question would be whether the second statement was voluntary. But if so, then a court would have to consider whether any curative measures had been taken to ensure that a “reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning” and waiver.

Here, the defendant, a postal worker suspected of stealing money orders from Express Mail envelopes, was apprehended after he and a co-worker took a test letter containing money orders into a trailer and an alarm indicating that the package had been opened went off. Postal inspectors arrested Capers, handcuffed him, and brought him to a supervisor’s office. An inspector, named Hoti, questioned him for five minutes without Miranda warnings and he confessed.

Two other inspectors then transported Capers to another postal facility, where they handcuffed him to a chair in an interview room. About ninety minutes after the initial un-Mirandized interrogation, Hoti read Capers his rights and Capers signed a written waiver and confessed again. After a hearing, the district court suppressed this confession and, on the government’s appeal, a divided Second Circuit panel affirmed.

The court’s analysis began with its major post-Seibert decision, United States v. Carter, 489 F.3d 528 (2d Cir. 2007), which held that Seibert applies where law enforcement officers use a “deliberate two-step strategy” to obtain a post-warning confession. Capers' case, then, turned on the meaning of “deliberate.”

The majority began by observing that since, in Seibert, the police officers admitted that they had been trained to use a Miranda-avoiding technique, “Justice Kennedy had no reason to explore how a court should determine when a two-step interrogation strategy had been executed deliberately.” A Ninth Circuit decision, Williams, identifying this same problem, looks to whether “objective” and “available subjective evidence” support “an inference that the two-step interrogation procedure was used to undermine” Miranda. Similarly, an Eleventh circuit case, Street, looks to the “totality of the circumstances,” including the “timing, setting and completeness of the pre-warning interrogation, the continuity of police personnel and the overlapping content of” the two confessions.”

Here, the court “join[ed] our sister circuits in concluding that a court should review the totality of the objective and subjective evidence surrounding the interrogations in order to determine deliberateness, with a recognition that in most instances the inquiry will rely heavily, if not entirely, upon objective evidence.” On the “unsettled question of which party bears the burden of proving deliberateness or absence thereof,” the court held that the burden rests on the prosecution to disprove deliberateness, but only by a preponderance of the evidence.

Here, the government did not meet that burden. Hoti's proffered reasons for not Mirandizing Capers before the first interview were that he (1) wanted to make sure he recovered the stolen money orders and (2) wanted to quickly determine whether Caper’s co-worker was involved so that, if he was not, he could release him. However, “[n]either of these reasons ... justifies delaying a Miranda warning once it is obvious that a suspect is in custody.” There is no Miranda exception for evanescent evidence; the “only legitimate reason to delay intentionally a Miranda warning until after a custodial interrogation has begun is to protect the safety of the arresting officers of the public.”

While “inexperience” or a “rookie mistake” may save a case under Seibert, here there was no evidence that Hoti was inexperienced and significant evidence that he did not make a mistake. He had been a New York City police officer for three years before he was a postal inspector, and had been trained to give Miranda warnings. He was also clearly in a position to Mirandize Capers - since the sting was planned, he “had time to think through what procedural steps he would need to take following arrest in order to build his case for prosecution.”

Ultimately, and quite significantly, since the circuit does not usually do this, the majority found Hoti's reasons for not reading Capers his rights “to lack not only legitimacy, but also credibility.” It was doubtful that Hoti, who had witnessed the co-worker assist Capers, would have let the co-worker go if Capers had exonerated him. Nor was the evidence truly evanescent; Capers was arrested immediately after the test package alarm went off and never left the the area where he was caught.

The majority also cited objective evidence in support of its conclusion. The initial confession was almost entirely complete, and there was “considerable overlap” in the content of the two statements. The “circumstances surrounding” the two sessions of the interrogation - their timing, and the continuity of the cast of interrogating officers - were all “indicative of a deliberate two-step interrogation.”

Finally, no “curative measures intervened” to restore Capers' opportunity to voluntarily exercise his Miranda rights.” So far, only two such measures have been identified. A “substantial break in time and circumstances” or “an additional warning” explaining that the first statement was inadmissible. Neither of those circumstances was present here.

Judge Trager dissented, finding that the majority’s approach “undermines Justice Kennedy’s controlling opinion” and “replaces it with” the test proposed by the “non-controlling” plurality opinion. His view was that a “more faithful application of Justice Kennedy’s Seibert concurrence requires a conclusion that Capers’ post-warning statements are admissible” because the inspector “did not deliberately utilize a two -step interrogation technique."

No Gain, Yes Pain

United States v. Woolf Turk, No 09-5091-cr (2d Cir. November 30, 2010) (Katzmann, Hall CJJ, Jones, DJ)

Ivy Woolf Turk was a principal in a real estate development company. Between 2003 and 2007 she and her partner persuaded investors to lend them $27 million, primarily to renovate apartment buildings in upper Manhattan. They induced the loans by promising that the investors would hold recorded first mortgages on the buildings as collateral. This was a lie - they never recorded the mortgages, so the investors were merely unsecured creditors. At the same time, the developers obtained loans from banks, and those liens were recorded.

Eventually Woolf Turk began defaulting on the victims’ loans. The victims became suspicious and discovered that, despite Woolf Turks’ representations, their mortgages had never been recorded. In May of 2007, the investors sued; only then did they learn that, not only were their mortgages unrecorded, but that the bank loans were recorded, and thus that their interests in the properties, if any, were secondary to the banks’.

Eventually, the development company went bankrupt and its assets were liquidated. Most went to the banks - the secured creditors - and the rest to pay various court and regulatory fees. The bankruptcy trustee was only able to distribute half a million dollars to the victims, who thus lost nearly all of the $27 million they lent to Woolf Turk.

Woolf Turk pled guilty to conspiracy to commit mail and wire fraud. At sentencing, the district court agreed with the government that the loss calculation for Guidelines purposes was more than $20 million, and calculated the Guidelines accordingly. With a resulting range of 121 to 151 months, the court sentenced Woolf Turk to 60 months’ imprisonment.

On appeal, Woolf Turk disputed the district court’s loss calculation, pursuing the same argument she made in the district court - that the victims’ loss was caused by the housing-market crash and not by Woolf Turks’ fraud. The circuit disagreed that “the loss amount should have been treated as zero because the properties in which her victims thought they were investing arguably had some market value at the time her fraud was discovered.”

This argument was based on the faulty premise that the loss was measured by the decline in value of what was promised as collateral. Rather, the victims’ loss “is the principal value of the loans they made to Woolf Turk which were never repaid and which the buildings were supposed to have collateralized but never did.”

Here, the buildings were “arguably” not collateral at all because the victims’ mortgages were never recorded, and under New York law, an unrecorded mortgage is void as against a lien on the same property recorded in good faith. It did not matter that, had the value of the properties had gone up, instead of down, the victims might have recovered all or part of their losses. Here, the purported collateral had no meaningful value at the time of sentencing.

The Guideline holds defendants accountable for any “reasonably foreseeable pecuniary harm,” which it defines as harm that the defendant knew or should have known could result from the offense. The potential for loss that Woolf Turk’s victims faced by not having recorded mortgages met this standard. Thus, the loss amount was the full principal of the loans that Woolf Turk fraudulently obtained. And it is irrelevant that some value might have remained in the collateral at the time the fraud was discovered, because the victims had no interest in the collateral, obtained no value from its sale, and no value remained at the time of sentencing.

Fuller Brush-Off

United States v. Fuller, No. 09-1437-cr (2d Cir. November 30, 2010) (McLaughlin, Straug, Raggi, CJJ)

In 2004, Ross Fuller pled guilty to a sex offense in Missouri and became a registered sex offender. He complied with the applicable registration requirements until June of 2006, when he moved to New York, and failed to register either in Missouri or New York State. Federal authorities arrested Fuller in New York in October of 2007, and he pled guilty to violating the Sex Offender Registration Notification Act (“SORNA”), 42 U.S.C. § 16901, et seq., which makes it a crime to travel in interstate commerce and knowingly fail to register or update a sex offender registration.

On appeal, he made two arguments, both unsuccessful.

First, when Congress enacted SORNA in 2006, it included a provision, § 16913(d), granting the Attorney General the authority to “specify the applicability of” SORNA to sex offenders convicted before SORNA’s enactment. On February 28, 2007, the Attorney General issued an Interim Ruling providing that SORNA applied to pre-SORNA sex offenders.

SORNA does not apply when the interstate travel occurred before the statute was enacted. This does not help Fuller, so he argued instead that SORNA did not apply to him because his interstate travel occurred between SORNA’s enactment and the Interim Ruling. Joining an existing circuit split, here the court of appeals disagreed.

The court rejected Fuller’s argument that § 16913(d) meant that the decision whether to apply SORNA to pre-SORNA sex offenders rested solely with the Attorney General. Rather, the court concluded that Congress itself already decided that SORNA would apply to all sex offenders regardless of when convicted, and merely “delegated to the Attorney General authority to work out the specific manner in which that legislative determination would be enforced with respect to pre-SORNA sex offenders.” In other words, § 16913(d) gives the A.G. the power to “specify how - not whether - SORNA’s registration requirements apply” to pre-SORNA sex offenders.

Judge Raggi wrote a separate concurrence on this issue, explaining that, in her view, the doctrine of constitutional avoidance foreclosed Fuller’s argument interpretation of § 16913(d) because it would “raise concerns about the delegation of legislative authority to the executive branch.”

Fuller’s second argument was that SORNA was a specific intent crime, not a general intent crime. While a question of first impression in this circuit, every other court to consider it has concluded that SORNA is a general intent statute, and the Second Circuit agreed. The statute uses the word “knowingly,” which typically means that the statute “only requires a finding of general intent for conviction.” That requirement was satisfied here. Fuller clearly knew that he had to register as a sex offender, and his failure to do so in either Missouri or New York when he moved was a “knowing act.”

Summary Summary

Well, it's been a while since the court gave us any interesting summary orders, but here are two that are worth noting.

In United States v. Crawford-Bey, No. 09-3309-cr (2d Cir. December 1, 2010), the defendant challenged on appeal the U.S.S.G. § 2D1.1(b)(1) gun possession enhancement. He had given away four guns, in pairs, to other people - conduct that was vaguely related to his drug dealing. But the district court's finding was quite sparse; it noted only that Crawford-Bey gave away the guns "while he was certainly dealing the drugs." While the requirements of the enhancement are "not especially difficult to meet," the court must "be able to specify the basis for its holding." Here the circuit found the record too thin, and remanded to the district court for "specific findings" on the enhancement.

In United States v. Gomez, No. 09-4412-cr (2d Cir. November 23, 2010), the district court committed plain error in imposing an aggravating role enhancement. It neither adopted the factual findings in the presentence report nor made any specific factual findings of its own. The circuit remanded the case with instructions to either make "specific findings to support the leadership enhancement" or sentence the defendant without it.

Payoff Games

United States v. Kalish, No. 08-3374-cr (2d Cir. November 24, 2010) (Newman, Winter, Lynch, CJJ)

Defendant Kalish was convicted of mail and wire fraud in connection with an advance loan fee scheme. The district court ordered him to pay $ 1.2 million in restitution, and also ordered a $ 3.9 million forfeiture.

On appeal, Kalish claimed that the district court should have reduced the forfeiture amount by the amount of the restitution order. The circuit affirmed, finding that the claim was premature. There is no error in imposing both a forfeiture order and a restitution order, since each is authorized by a separate statute.

However, once “some payment has been made by way of restitution, a defendant would be in a position to argue that such a payment should be a credit against any then remaining forfeiture amount.” Since the forfeiture amount represents “ill-gotten gains,” it is “at least arguable” that any money returned to a victim has reduced the amount of “ill-gotten gains” remaining in the defendant’s possession. But Kalish did not claim that he had made any restitution payments, so the court did not need to “decide whether such an argument would prevail.”

Blame Canada

United States v. Miller, No. 08-1152-cr (2d Cir. November 23, 2010) (Straub, Parker, Livingston, CJJ)

In 1994, Michelle Miller had a son, Robbie, with her former high school boyfriend; they later married. Shortly thereafter, the marriage dissolved. A Vermont family court awarded Miller legal custody of Robbie, and gave the father visitation rights. The following year, Miller, then living in Massachusetts, obtained an ex parte temporary abuse prevention order, which also gave her, temporary full custody of Robbie pending a hearing. Eventually, the Massachusetts court gave the father limited visitation rights in the form of six supervised visits. After the first visit, however, Miller began moving Robbie around to keep him away from the father. In 2001, she took Robbie to Canada knowing that under the Massachusetts court order the father was entitled to at least five more supervised visits.

Miller obtained permanent residency in Canada and, in a Quebec court, sought custody of Robbie. The Canadian courts eventually gave her permanent custody. In the meantime, however, the father had begun parallel proceedings in the United States to try to regain custody of Robbie. In 2002, a Vermont court awarded full custody to the father.

In December of 2002, the United States Attorney’s Office for the District of Vermont charged Miller with international parental kidnapping, in violation of 18 U.S.C. § 1204(a). Miller returned to Vermont in 2006 and was arrested. While in custody, she moved in a Vermont state court for recognition of the Canadian custody order in her favor. The court denied that request, and Miller appealed to the Vermont Supreme Court. While that appeal was pending, the criminal case went to trial. Miller moved to introduce evidence of the pendency of her appeal, but the district court concluded that the evidence was irrelevant, and denied the application.

Miller’s trial took place in July of 2007, and focused on two court orders that were in effect during the period covered by the indictment - the Massachusetts Family Court order awarding limited visitation rights to the father and the later Vermont order granting him full custody. The jury convicted her but, more than one year later, the Vermont Supreme Court held that, while the family court had jurisdiction when it granted the father full custody, it should have deferred instead to the Canadian courts.

Miller pursued this same claim on appeal, but a divided panel affirmed.

The majority, applying the extremely deferential standard of review of evidentiary rulings - abuse of discretion and “manifest error” - held the district court did not err. Miller’s appeal of the Vermont family court order giving the father full custody of Robbie “was not relevant because it was not of consequence to the determination of any material fact or issue in dispute at trial.”

The fact at issue was Miller’s intent. The government had to prove that she took Robbie from the United States with the intent to obstruct the lawful exercise of Miller’s parental rights. Miller argued that evidence of the pending appeal would have allowed her to raise a doubt as to whether the father even possessed lawful parental rights at the time she took Robbie to Canada. But the majority disagreed.

First, when Miller went to Canada the order that was the subject of the pending appeal did not even exist, thus the appeal “would not possibly be probative” of the father’s rights at the time she went to Canada. Nor was it probative of the father’s rights during the time period charged in the indictment. At that time, those rights stemmed in part from the Massachusetts Family Court order granting him supervised visits. The appeal of the Vermont order in the father’s favor had no affect at all on the rights created by the Massachusetts order.

The appeal only affected the order that the father obtained in Vermont granting him full custody. But even as to that order the pending appeal was irrelevant. The rights that order granted the father came into existence when the order was issued. The mother never sought a stay of that order, thus once it was issued the mother was required to surrender the child to the father, which sh did not do. And that Miller was appealing the order was not, and could not be, evidence to the contrary since the “pendency of the appeal could not itself negate the existence of [the father’s] parental rights while the order was still in effect, which it was during the period of the indictment.”

Evidence of the pending appeal showed, at most, Miller’s disagreement with the father’s rights, but this was “neither relevant to their existence during the period of the indictment nor a legal defense to the crime charged.

Finally, any error here would have been harmless. There was “no serious claim that the district court’s evidentiary ruling had any likelihood of affecting the outcome of the case.” The evidence against Miller was “overwhelming,” and the prosecution was able to “conclusively establish” Miller’s guilt solely based on the Massachusetts order that was not affected by the Vermont appeal.

Judge Straub dissented. In his view, the evidence “tended to show that [Miller] lacked the specific intent required by the” statute and thus it was error to preclude it. Relevancy is determined under a “very low standard” - evidence is admissible if it has any tendency to make any fact in issue more or less probable than it would be without the evidence, regardless of the length of the chain of inferences necessary to get there.

Unlike the majority, which focused on whether the father had valid parental rights, the dissent focused on the mother’s intent. “Evidence of the pending Vermont appeal was relevant to [her] defense because it tend[ed] to show that [she] took Robbie to Canada with intent of vindicating her own parental rights, rather than with intent of obstructing” the father’s.

Here is the chain of inferences cited by the dissent: First, the appeal was from a Vermont lower court order denying the mother’s motion for recognition of the Canadian order that gave her custody. The existence of the appeal of this order suggests that Miller attempted to use the Canadian proceedings to vindicate her own parental rights in Vermont. That attempt, along with the evidence of the Canadian court proceedings made it more likely that she originally brought Robbie to Canada and kept him there with the intent of obtaining custody in Canada and the using the Canadian proceedings to vindicate her own parental rights in the United States. These facts made it less likely that she took the child to Canada with the intent of obstructing the father’s parental rights. Thus, the Vermont appeal had some tendency to make a fact in issue less probable.

PC World

United States v. Douglas, No. 09-4955-cr (2d Cir. November 23, 2010) (Miner, Katzmann, Hall, CJJ) (per curiam)

Defendant Douglas was trolling a fetish Internet chatroom, and struck up an acquaintanceship with a Vermont police officer posing as “Liz,” a thirty-eight-year-old divorced nurse with a thirteen-year-old daughter, “Anna.” Douglas tried to persuade Liz to bring Anna to him in Alabama so that he could “train” her to be a “sex slave.” There was a lot of back-and-forth, which included Douglas’ offering to help pay for the trip and find Liz a job near where he lived.

Douglas was convicted, after a jury trial, of violating 18 U.S.C. § 2422(b) by using an interstate facility to entice a minor to engage in criminal sexual activity. On appeal, he argued that the statute did not apply to him because he communicated only with a person he believed to be an adult. The circuit rejected this argument and affirmed.

The court noted that the statute prohibits the attempt to entice or the intent to entice, and not an intent to perform a sexual act following the persuasion. And the enticement efforts need not be “directed to a minor in all cases” in order for the enticement to occur. Persuading a minor’s adult guardian to lead the child to participate in sexual activity also violates § 2422(b).

It’s Not In The Timing

United States v. Davis, No. 09-3636-cr (2d Cir. November 5, 2010) (Newman, Raggi, CJJ, Rakoff, DJ)

Williams Davis was convicted, after a jury trial, of inter alia, producing child pornography, and was sentenced to 120 years’ imprisonment. This opinion address the novel issue of whether the defendant must know that the pornography will be transmitted in interstate commerce at the time he produced it.

This was an unusually ugly case. Davis, who had been convicted in 1991 of sexually assaulting his daughter and niece, and in 2007 of kidnapping and raping a twelve-year-old girl, also sexually abused his step-daughter in 2006, and apparently photographed some of the activity. When his wife found out about the abuse she evicted him from their apartment, but Davis left behind a safe. Eventually, the wife gave the safe to police officers, who opened it and found CD’s containing the child pornography.

Davis was convicted of violating 18 U.S.C. § 1951(a) which makes it a crime to induce a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of the conduct, if the defendant knows or has reason to know that the visual depiction will be transported or transmitted in interstate or foreign commerce or mailed.

During deliberations, an extremely astute and diligent jury, “identifying an issue that had escaped the attention of trial counsel” - neither side had requested a jury instruction on this issue - “and that apparently has not been adjudicated in any other court,” asked whether § 2251(a) requires the defendant to know that the visual depiction will be transported in interstate commerce “at the moment the picture is produced or whether" that knowledge can come about later.

The district judge replied that the defendant “did not have to know or have reason to know” that fact “at the moment that the visual depiction was produced.” All that was required, the judge went on, was proof beyond a reasonable doubt “that the defendant knew or had reason to know that the visual depiction at issue would be transported in interstate or foreign commerce or mailed at any time prior to ... the date on which the visual depiction was recovered” by the police.

On appeal, the circuit, which seemed to be striving mightily to affirm, did so.

First, while the court agreed that the “words of the statute do not yield a clear answer” because the statute “neither explicitly requires knowledge of future interstate transmission to exist at the time the visual depiction is produced nor explicitly contemplates that the knowledge might be” acquired later, it refused to apply the rule of lenity because, according to the court, the “simple existence of some statutory ambiguity” is “not sufficient [its] warrant application.”

Thus while there was no legislative history on this point, the circuit concluded that not requiring contemporaneous knowledge was consistent with a general congressional purpose to “reach those who produce child pornography and thereafter affect interstate commerce,” even though this finding was made when Congress amended other parts of § 2251(a).

The court also supported its holding by looking closely at the statute itself. It pointed out that the statute has three clauses. The first is the one at issue here. The second covers production of child pornography using materials previously shipped in interstate commerce, and the third covers visual depictions that have themselves been transmitted after their creation. The court pointed out that both the second and third clauses “specify events that need not be contemporaneous” with the production of the images. The second clause covers interstate shipments that occurred before the images were made, while the third obviously covers interstate shipments after the depiction is made. Thus, under the “whole act” rule, the court decided that the “first clause ... best fits with the second and third clauses if a contemporaneous knowledge element is not read into the statute.”

Comment

It is often remarked that bad facts make bad law. And here, while it is difficult to muster much sympathy for Davis, the reasoning supporting this opinion is unusually thin.

First, the court’s explanation of why the rule of lenity should not apply seems just wrong. In remarking that a “simple ambiguity” is not enough, the court relied on a Supreme Court case, Muscarello v. United Sates, 524 U.S. 125, 138 (1998). But the language that the court relies on is, at best, incomplete. Muscarello construed the word “carry” in 18 U.S.C. § 924(c) to include carrying a firearm in a vehicle, instead of limiting it to carrying a firearm on one’s person. And, while it is true that the Court rejected the rule of lenity there, Muscarello is nothing at all like this case. First, there the statute actually contained language that covered the question at issue - the word “carry.” The statute here, by contrast, says nothing at all about the question at issue. Moreover, the Court in Muscarello settled on what it called the “generally accepted contemporary meaning of the word carry,” which would suggest that the Court did not even truly view the statute as ambiguous at all, and that its discussion of the rule of lenity was just a response to the dissent, and hence dicta. That is another important distinction; here, the circuit began by agreeing that the statute was ambiguous. Finally, the Muscarello Court suggested that the rule of lenity would apply if all the court can do is “guess as to what Congress intended.” This case comes pretty close to that: the statute is completely silent on the issue, and only the legislative history contains only general language about Congress’ disdain for sex offenders in a finding made after the relevant portion of the statute was enacted. If the rule of lenity does not apply when the statute is silent and there is no direct legislative history, when does it ever apply?

The circuit’s analysis of the statue is equally unconvincing. If clause two covers interstate commerce before the depiction is made, and clause three covers interstate commerce after the depiction is made, it would seem perfectly consistent with this scheme to construe clause one as interstate commerce during the creation of the depiction: before, during and after makes more sense than before, after and after. The court's unelaborated mention of the so-called "whole act" rule hardly supports its contrary reading. That rule simply requires that statutes be read to give effect to every provision, rendering none superfluous, and that each section be read in the context of the whole statute, not in isolation. But that rule gives no real substantive guidance here; under it, the alternative reading of the statute described above is just as convincing as the court's.

Dread Herring

United States v. Rosa, No. 09-0636-cr (2d Cir. October 27, 2010) (Walker, Livingston, CJJ, Kaplan, DJ)

Back in June, in a case called Julius, after finding a Fourth Amendment violation, the circuit remanded the case so that the district court could perform a cost-benefit analysis in deciding whether to apply the exclusionary rule. See Julius’ Seizure, posted June 19, 2010. According to Julius, such an analysis is now required under the Supreme Court’s decision in Herring v. United States, 129 S. Ct. 695 (2009). Here, the court took Julius one step further, performing its own Herring analysis and concluding that the exclusionary rule should not apply.

Background

Defendant Rosa was suspected by upstate police officers of molesting local children. Before arresting him, the officers obtained a search warrant for his apartment. While the materials supporting the warrant specified the kinds of offenses of which Rosa was suspected and the particular items sought, the warrant itself did not contain those details and did not incorporate the supporting materials.

Rosa was ultimately charged in federal court with producing child pornography, based on materials recovered from the search. He moved to suppress based, inter alia, on a claim that the search warrant lacked particularity. After the district court denied the motion, he pled guilty pursuant to a conditional plea agreement, and was sentenced to 120 years’ imprisonment.

The Circuit’s Opinion

1. The Warranted Was Invalid

The search warranted here did indeed violate the Fourth Amendment’s particularity requirement. It “lacked the requisite specificity to allow for a tailored search of [Rosa's] electronic media” because it “failed to link the items to be searched and seized to the suspected criminal activity.” As a result, the “warrant directed officers to seize and search certain electronic devices, but provided them with no guidance as to the type of evidence sought.” Nor did it matter that the warrant application was sufficiently particular; the warrant itself was facially invalid - “unincorporated, unattached supporting documents” do not “cure an otherwise defective search warrant.”

2. The Exclusionary Rule Does Not Apply

Nevertheless, however, the circuit affirmed, after performing a Herring cost-benefit analysis. First, the court concluded that a “reasonably well trained officer” would not be “chargeable with knowledge that this search was illegal” under the circumstances present here. Moreover, the unincorporated, unattached supporting documents indicated that the officers acted in good faith. Those materials were put together during a short time period, and make clear the purpose of the search. The affiant officer also helped execute the search and was therefore “intimately familiar with the contemplated limits of the search.” Finally, there was no evidence that the officers searched for or seized any items that were unrelated to the crimes for which probable cause had been shown, or that the affiant “somehow misled the town justice regarding the facts of the investigation and intended scope of the search.” Thus, applying the exclusionary rule would “serve little deterrent purpose in this case.”

PC World

United States v. Drachenberg, No. 09-3114-cr (2d Cir. October 2, 2010) (Kearse, Pooler, Hall, CJJ) (per curiam)

The court’s latest per curiam puts to rest several recurring tax-protester argumenst. Representing himself pro se, Drachenberg argued that federal courts had no jurisdiction over him because “New York is not subject to the legislative or territorial jurisdiction of the United States” and thus that as a “native-born” New Yorker he was under no obligation to pay income taxes “unless and until the United States has conquered or subsumed New York.”

The circuit called this argument “as frivolous as it is hackneyed.” Congress had authority to enact the statute of conviction, and the constitution clearly authorizes Congress to collect taxes. “In sum, the United States was not in want of jurisdiction."

The court also summarily rejected Drachenberg’s arguments that he was not a “person” subject to income tax - he obviously is - and that the government was required to first obtain an administrative determination of a tax deficiency before initiating a tax-evasion prosecution. The deficiency arises by operation of law on the date a tax return is due but not filed. Finally, Drachenberg’s arrest warrant was valid even though it did not itself contain a written oath or affirmation in support of probable cause. These requirements are satisfied by a grand jury indictment.

Deal Or No Deal?

United States v. Marks, No. 08-1207-cr (2d Cir. October 19, 2010) (Leval, Hall, Livingston, CJJ)

Defendant Chad Marks was convicted after a jury trial of drug trafficking offenses and two § 924(c) counts, and was sentenced to the resulting 40-year mandatory minimum. The trial came after months of plea negotiations, including an offer by the government to resolve the case with a 20-year sentence.

Before trial, Marks had filed a motion with the district court seeking to compel the government to follow up on a different plea offer that, apparently, was in the nature of a cooperation agreement. The court denied the motion and the case proceeded to trial.

But after trial, Marks’ counsel renewed that motion and, this time, the government’s opposition indicated that the government had extended a 20-year offer before trial. Before sentencing, Marks filed a pro se habeas corpus petition under 18 U.S.C. § 2241 claiming that (1) his counsel had never told him about the 20-year offer and (2) that Marks would have accepted the offer had he known about it. His specific allegation was that counsel had been ineffective.

The district court refused to hear the petition before sentencing, concluding that the argument should instead be raised in a § 2255 motion afterwards. Marks filed an interlocutory appeal, which the circuit dismissed without prejudice to any direct appeal or subsequent 2255. The district court then imposed sentence.

On this, Marks’ direct appeal, the circuit held that it was error for the district court to consider sentencing as a prerequisite to reviewing Marks’ claim of ineffectiveness. Here, there was no reason to wait, since the district court was “in a position to take evidence, if required, and to decide the issue pre-judgment.” Thus, the court held, “when a claim of ineffective assistance of counsel is first raised in the district court prior to the judgment of conviction, the district court may, and at times should, consider the claim at that point in the proceeding.”

The factors for a district court to consider in deciding whether to adjudicate such a claim include the potential disruption to the proceedings and whether a new attorney would need to be appointed. But here, the district court “should have considered” the claim prior to sentencing. It had already relieved the attorney alleged to be ineffective and thus had “no good reason to postpone inquiry” into the merits of Marks’ claim. Moreover, the claim was “facial[ly] plausibl[e].” The AUSA confirmed that he had extended the 20-year offer before trial; when asked, defense counsel “equivocated” as to whether he had communicated the offer to Marks; there was a “significant ... disparity” between the sentence to which Marks was exposed and that contemplated by the offer; and Marks had consistently indicated that he would have accepted the offer had he known about it and was “persistent in his efforts” to secure a plea deal before trial.

On these facts, the district court erred in concluding that it was required to defer consideration of Marks’ claim to a post-judgment § 2255 motion and remanded the case for further proceedings on the issue.

The court also discussed the remedy. If the district court were to find that Marks’ counsel did not extend the 20-year offer and that Marks would have accepted it, the district court “would be required to place [him] in the position he would occupy had counsel been effective,” which means giving him “the opportunity to accept the never-communicated plea offer.”

Finally, in a footnote, the circuit agreed with the district court that a § 2241 petition is the incorrect vehicle for raising a pre-judgment ineffectiveness claim. The proper procedural avenue is a motion for a new trial under Fed.R.Cr.P. 33. But, since Marks was acting pro se, the court “should have denominated Marks’ § 2241 petition a Rule 33 motion, and it should have, at least in these circumstances, proceeded to reach the substance of the claim.”

No Angry Men

Portolatin v. Graham, No. 07-1599-pr (2d Cir. October 18, 2010) (en banc)

Earlier this year, a Second Circuit panel held that New York’s persistent felony offender (PFO) statute violated the right to a jury trial under Apprendi. See The Persistents of Apprendi, posted April 9, 2010. In this en banc opinion, authored by Judge Wesley, the full court changed course and held that the PFO scheme does not, in fact, violate Apprendi. The members of the original panel, along with Judge Pooler, dissented.

The PFO scheme provides for dramatic sentencing enhancements for certain recidivists, and those that are deemed PFO’s can be subject to a sentence far greater than statutory maximum they would otherwise face. Application of the PFO statute is a two-step process. The first step requires the prosecution to prove that the defendant has two or more qualifying prior felonies. Once this is established, the second step is for the sentencing judge to assess whether a PFO sentence is warranted, taking into account the defendant’s “history and character” and the “nature and circumstances of his criminal conduct.” The original panel concluded that step two violated Apprendi, which “prohibits ... judicial factfinding” beyond the fact of a prior conviction that “result[s] in enhanced sentences.” But the en banc court disagreed.

Or, perhaps more accurately, the en banc court concluded that the New York courts’ conclusion that the PFO scheme did not violate Apprendi - because sentencing courts can impose a PFO sentence based on step one alone - was not an unreasonable application of federal law. Since the New York Court of Appeals “has interpreted step two of the PFO sentencing scheme as a procedural requirement that informs only the sentencing court’s discretion, the New York courts were not unreasonable to conclude that this consideration is unlike the factfinding[s]” that are impermissible under Apprendi and its progeny.

And, while there might be an argument that step two requires a court to consider subsidiary facts about a defendant’s criminal history that stray beyond the boundaries of Apprendi’s fact-of-conviction rule, federal courts have not been uniform in applying that rule. Absent a clear Supreme Court holding on the question, in a habeas case, such an argument goes nowhere. “[I]f our Court cannot divine a clear answer from the [Supreme] Court’s existing holdings, AEDPA prevents us from faulting a state court for selecting one reasonable conclusion over another.”

Summary Summary

This is hot off the presses - today, in a summary order, the court held that the Fair Sentencing Act is not retroactive, since it "contains no express statement that it is intended to have retroactive effect nor can we infer such intent from its language." The case is United States v. Baldwin, No. 09-1725-cr (2d Cir. October 27, 2010) (summary order).

Summary Summary

Well, it's been a while, but the court has finally issued a couple of summary orders of interest.

In United States v. De La Cruz, No. 09-4641-cr (2d Cir. October 21, 2010), the district court, in imposing sentence, remarked that a "Guideline sentence by definition really can't create unwarranted sentencing disparity." The circuit agreed with the defendant's argument that this was incorrect; under Kimbrough "a Guidelines sentence can create an unwarranted disparity." But here, since the sentencing decision did not depend in any way on an improper view that a Guideline sentence was by definition reasonable, there was no error.

In United States v. Faison, No. 09-1519-cr (2d Cir. September 14, 2010), the court remanded for recalculation of defendant's criminal history. The district court used the Guidelines in effect at the time of the offense, but those in effect at the time of sentencing would likely have produced in a lower score.

PC World

United States v. Folkes, No. 09-3389-cr (2d Cir. September 29, 2010) (Newman, Hall, CJJ, Restani, JCIT) (per curiam)

A conceded plain error in applying the definition of “crime of violence” in the illegal reentry Guideline is the subject of the court’s most recent per curiam.

Before he was deported, Walford Folkes had been convicted in New York State of criminal possession of a weapon in the third degree and burglary in the third degree. When sentenced for his illegal reentry, received a sixteen-level enhancement for having reentered after sustaining a conviction for a crime of violence.

On appeal, the circuit vacated the sentence, holding that the enhancement did not apply. The illegal reentry guideline’s definition of “crime of violence” is unique. While it covers more or less the same enumerated categories of offenses as other such definitions - such as that in the career offender Guideline and the Armed Career Criminal Act - unlike those, it lacks a broad residual clause, along the lines of “any other offense that otherwise involves conduct that presents a serious risk of physical injury to another.” Rather, the Guideline’s catch-all only covers offenses that have “as an element” the use of force - or its attempt or threat - against another.

Thus, Folkes’ prior convictions are not for crimes of violence. First, burglary in the third degree in New York is not categorically a “crime of violence,” because the Guideline definition covers only the burglary of a dwelling, but the New York statute covers burglary of a “building,” including, obviously, non-dwelling buildings. And the offense is not covered by the Guideline’s catch-all, because third-degree burglary does not have a force element. Criminal possession of weapon in the third degree is likewise not a crime of violence because the state statute covers only simple possession.

Unlicensed Striver

United States v. Mazza-Alaluf, No. 09-3940-cr (2d Cir. September 22, 2010) (Sack, Raggi, Lynch, CJJ)

Mazza-Alaluf operated an unlicensed money-transfer business that, while based in Chile, sent millions of dollars through New York, Illinois and Michigan, without acquiring the appropriate state licenses. After a bench trial, the district court convicted him of violating 18 U.S.C. § 1960(a) and (b)(1)(A), which make it a crime to conduct an “unlicensed money transmitting business.” The statue defines this phrase as any such business that affects interstate or foreign commerce and “is operated without an appropriate money transmitting license in a State where such operation is [a crime] whether or not the defendant knew [that a license was required].”

On appeal, Mazza-Alaluf argued that the evidence was legally insufficient because the government failed to prove that his company was a “money transmitting business,” as referenced in 31 U.S.C. § 5313, which relates to “domestic financial institution[s].” But the circuit disagreed that this language applied to § 1960(b)(1)(A) prosecutions at all. The actual definition of “money transmitting business” is contained in 31 U.S.C. § 5330(d)(1)(B), but that section expressly provides that its definitions apply only for “purposes of this section.” And the court “declined to apply a definition from one statutory provision to another under such circumstances.”

Accordingly, the trial evidence supported Mazza-Alaluf’s conviction “without respect to whether” his business was a “domestic financial institution” operating as a “money transmitting business.” In any event, even if the statute of conviction applied only to “domestic financial institutions,” the district court’s finding that the business’ “substantial activities in the United States” made it a “domestic financial institution” was correct.

Mazza-Alaluf also argued, in the alternative, that he was not subject to the licensing requirements in New York, Illinois and Michigan because his business was “Chilean to its core.” The court disagreed. His firm conducted substantial money transmitting business those states, thus it had to be licensed in each.

First, New York: Mazza-Alaluf brought cash from Chile to the United States, deposited it into domestic bank accounts and transmitted it in New York. The relevant New York criminal statute clearly required a license for this. Illinois also has a statute requiring a license to “engage ... in the business of ... transmitting money.” Mazza-Alaluf deposited more than $200 million into an Illinois bank and transferred it out. Since the statute covers persons both located in and “doing business in” Illinois, the trial evidence supported the district court’s finding that he operated a money transmitting business there without an appropriate license. Finally, Michigan also requires anyone who “provide[s] money transmission services” there to obtain a license. Mazza-Alaluf ran about $42 million through a Michigan bank account, and it did not matter that the transactions were directed from Chile.

Mazza-Alaluf also challenged his forty-two month, below-Guideline sentence. Although he had completed the sentence and was awaiting removal, the court concluded that the challenge was not moot: Mazza-Alaluf was still in the country, might on some theory be able to reenter, and the district court could “presumably” shorten his term of supervised release on remand.

That said, however, the court affirmed the sentence. Mazza-Alaluf’s primary argument had to do with unwarranted sentencing disparities: he claimed that (1) a defendant in an unrelated, but arguably similar case received a sentence of one year of probation, and (2) that he would not have faced any federal criminal sanction at all if he had operated in different states. Here, however, the district court expressly noted that it had considered § 3553(a)(6) and its findings were not erroneous.