Restoration Comedy

United States v. Pescatore, No. 10-0520-cr (2d Cir. February 23, 2011) (Kearse, Winter, Hall, CJJ)

In connection with a plea agreement that covered both a long-running chop-shop operation and an extortion scheme, Michael Pescatore agreed to accept a 132 month sentence, a $2.5 million forfeiture and “no less than $3 million” in restitution. The agreement specified that the prosecutors would recommend that the forfeited assets be transferred to the victims, a process known as “restoration,” but that the ultimate decision lay with the Department of Justice, which would “make its decision in accordance with applicable law.”

At Pescatore’s 2008 sentencing, the court imposed the agreed-upon sentence, including $3 million in restitution, to be paid in full by the end of 2009. The written Judgment reflected this order, but did not contain the names of the victims to whom Pescatore owed restitution or the amounts to which they were entitled. In early 2009, the government wrote to the district court and asked it to correct the Judgment to incorporate the victim-loss tables in the PSR, and the court granted the motion, filing an amended Judgment that incorporated this information.

In April of 2009, the government notified Pescatore that the DOJ had denied the restoration request. Six months later, he moved in the district court for “specific performance” of the restoration portion of the plea agreement, and also sought to be relied from the $3 million in restitution, arguing that the total loss to his victims was less than that amount. The district court held a hearing on these applications in January of 2010 and denied them both. It noted that Pescatore had not made any restitution payments even though the deadline had passed, and gave him thirty days to pay the $3 million. Pescatore then sought a stay of the restitution order from the circuit, which denied it. But he still never paid the money.

On appeal, Pescatore pursued these same claims. The circuit affirmed but, because it was true that the total loss to the victims was less than $3 million, the court remanded the case for further proceedings.

The court first found no merit to Pescatore’s complaint about the government’s decision to retain the forfeited assets instead of restoring them to his victims. The statute, 18 U.S.C. § 981(e), permits the Justice Department to do either based on an exercise of its own discretion. And there was nothing in Pescatore’s plea agreement that placed any constraints on that discretion. The line prosecutors were obligated only to “recommend” restoration, which they did, and the promise that the DOJ would act “in accordance with applicable law” was not a “promise to grant restoration so long as it is not prohibited.” Without deciding whether this type of decision is subject to judicial review, the appellate court noted that the government had put on the record a reason for the refusal - Pescatore “actually does have assets” - and that Pescatore did not contest this.

As for restitution, the circuit agreed that the true amount of the loss to Pescatore’s victims was not $3 million, it was more like $2.56 million, and rejected the government’s claim that the amended Judgment was already in this amount. While the amended Judgment incorporated the PSR’s victim-loss tables, those tables did not contain a total, and the total amount specified in the amended Judgment remained at $3 million.

But, because Pescatore did not object to this amount when he was originally sentenced, the circuit reviewed only for plain error and concluded that he met only three of the four parts of the plain error test. The incorrect restitution amount was an “error,” that was “plain,” and affected Pescatore’s “substantial rights.” But it did not “seriously affect the fairness, integrity or public reputation” of the proceedings because, as far as the circuit was concerned, Pescatore simply “flouted” the restitution order by refusing to comply with it without obtaining a stay.

Even after the circuit denied his application for a stay, he made no effort to expedite the appeal. To the contrary, he missed two filing deadlines that resulted in dismissals and reinstatements. His “election” to “disobey the Judgment” therefore caused him to flunk final prong of the plain error test.

Even so, the court sent the case back for further proceedings. Pescatore must now pay the full $3 million, and will be subject to statutory interest and financial penalties as a result of his tardiness. If the total of the principal, interest and penalties is less than $3 million he will be entitled to a refund of the difference.

Rook and Role

United States v. Skys, No. 09-5204-cr (2d Cir. February 23, 2011) (Jacobs, Kearse, Straub, CJJ)

In August of 2007, Eric Skys approached Citigroup and claimed that his company, Kaiser-Himmel Corp., owned 13.4 million shares of Sprint Nextel Corp. stock, with a market value of approximately $240 million. He told Citigroup that transfer of the shares was restricted for another fourteen months, but that he wanted to raise immediate cash by pledging the shares to Citigroup in exchange for an $83 million dollar loan. Citigroup’s due diligence revealed that Skys’ claims were false and that the documents he had presented were forgeries. Skys approached three other financial institutions with the same scheme, again without success. He ultimately pled guilty to securities, wire and bank fraud.

At sentencing, his presentence report described additional, albeit uncharged, fraudulent conduct. Skys solicited investments in a fake software company and also cheated a Florida dentist out of $300,000, then tried to take him for another $2 million, again claiming he owned 13.4 million shares of Sprint stock.

At sentencing, over objection, the district court included a two-level enhancement for ten or more victims and a four-level enhancement for aggravating role. These contributed to a final range of 235 to 293 months. The district court varied downward, and imposed a below-Guideline prison term of 130 months.

On appeal, Skys raised the same sentencing issues, and the circuit agreed with him to some extent. While it did not hold that the court should not have applied the enhancements, it concluded that the district court’s findings were insufficient. It accordingly vacated the sentence and remanded the case so that the district court could supplement the record and, if necessary, resentence Skys.

For the ten-victim enhancement, only victims that suffer an actual loss qualify. Here, the district court did little more than adopt the fact findings in the presentence report, which indicated only that Skys tried to defraud four financial institutions, none of which suffered an actual financial loss. And, while some of the individuals victimized by the uncharged conduct suffered an actual loss, there was no evidence that there were ten or more of them. Thus, the court of appeals concluded that there was no way it could engage in “meaningful review” of the enhancement.

It reached a similar conclusion for the role enhancement. The aggravating role enhancement applies where the defendant was an organizer or leader of a criminal activity that involved five or more participants or was “otherwise extensive.” Here, the district court applied only the “otherwise extensive” theory, concluding that “this was an extensive scheme.” Here, again, the circuit found the findings to be insufficient.

The circuit has interpreted the “otherwise extensive” language to refer primarily to the number of persons involved, either knowing or unknowing, and the extent to which the the unknowing participants were necessary to the success of the scheme. Here, the district court did not identify a single other “participant” - a person with criminal responsibility for the commission of the offense - and gave no “objectively reviewable explanation” for its conclusion that Skys’ criminal activity was “extensive.”

PC World

United States v. Chowdhury, No. 09-3442-cr (2d Cir. February 22, 2011) (Cabranes, Chin, CJJ, Crotty, DJ) (per curiam)

The controlled substance known as BZP, when combined with another chemical, known as TFMPP, which is not a controlled substance, is frequently sold as MDMA (ecstasy) and has a somewhat similar effect on the user. However, there is no Guideline in U.S.S.G. § 2D1.1 for BZP or the BZP/TFMPP combination.

When sentencing for a drug "not specifically referenced" in the Guidelines, application note 5 to § 2D1.1 directs the use of the "most closely related" controlled substance, and gives three criteria for comparison - chemical structure, effect on the central nervous system and potency.

In this opinion, the court affirms the district court's conclusion that BZP/TFMPP is most closely related to ecstasy.

The Youth Won’t Set You Free

United States v. Conca, No. 09-4475-cr (2d Cir. February 15, 2011) (Miner, Straub, Livingston, CJJ)

The Second Circuit has long held that a New York State youthful offender adjudication (a “y.o.”), counts as an adult conviction in the Sentencing Guidelines. In this long opinion, which covers absolutely no new ground, the court says so again.

In New York, first offenders between sixteen and nineteen years old are eligible for treatment as a youthful offender. If granted, the conviction is set aside and replaced with a y.o. adjudication, which carries more lenient penalties, is not treated as a conviction and does not trigger certain civil disabilities. However, unlike a juvenile offender, if sentenced to imprisonment, a youthful offender serves the sentence in an adult facility.

Conca received a long federal sentence for failing to register as a sex offender. Both in the district court and in the court of appeals he complained about three criminal history points assessed for a 1996 y.o., for which he was sentenced to 106 days’ time served, five years’ probation and, ultimately, one to three years’ imprisonment on a probation violation.

The circuit had little trouble concluding that this belonged in Conca’s criminal history score. Indeed, the outcome was dictated both by the Guidelines and by circuit precedent, under which Conca was “convicted as an adult,” even though he was under eighteen, and “received” a sentence of more than one year and one month.

For length of the y.o. sentence, the district court correctly followed the instructions in U.S.S.G. § 4A1.2(k), under which the original sentence and the violation sentence are aggregated to calculate the length of the sentence “received.” Here, that was clearly in excess of thirteen months. The district court also correctly concluded that Conca was “convicted as an adult.” The original y.o. sentence to probation was revoked and Conca served the violation sentence in an adult facility. Accordingly, given the nature of the proceeding, the type of sentence and the place of incarceration, Conca was indeed convicted as an adult.

PC World

United States v. Acoff, No. 10-285-cr (2d Cir. February 10, 2011, amended February 11, 2011) (Calabresi, Lynch, CJJ, Murtha, DJ)

In this case, the defendant was convicted of a crack cocaine offense that, under the old law, carried a five-year mandatory minimum. But the district court refused to impose it. He gave the defendant fifteen months, holding that the 100-to-1 penalty ratio between crack cocaine and powder "does not make any sense at all."

The court held that the below-minimum sentence was illegal and vacated it. It also, as it has in a few other recent opinions, rejected the argument that the 2010 Fair Sentencing Act, under which the sentence would have been lawful, applied retroactively.

Of particular note in this decision, however, are the concurring opinions.

Judge Calabresi, in his, suggested a means for courts to address statutory schemes - such as the old crack cocaine penalties - that, over time, come to raise constitutional concerns: a "dialogue" with the legislature. In his view, it is possible to see the Congress' response to the "dialogue" over the crack penalties as a "response to a suggestion by the courts that the sentencing statutes were heading towards unconstitutionality." Perhaps this would then raise a question as to "whether the traditional presumption against retroactivity should apply." Rather, in a situation like this, it might be appropriate to reverse the ordinary presumptions and presume that the change is retroactive unless Congress expressly says otherwise. However, he concluded by recognizing that this approach has been rejected in the Second Circuit and that he is bound by that precedent.

Judge Lynch, in his concurrence, agreed that there is a "reasonable argument that Congress' recognition that the prior law was unfair should have led to complete retroactivity." He also recognized, however, the practical difficulties of that, given the large number of cases already disposed of under the old law. To him, the fair middle ground would have been for Congress to make the new law retroactive to those cases that were "still pending" when the FSA went into effect, even if the conduct had been completed before that date. "Such defendants still need to be sentenced, and there are few persuasive reasons why they should be sentenced pursuant to an unjust law when Congress has already replaced it with a more just one." Concluding that this was likely the result of "Congressional inattention," he urged Congress to take a second look.

Abbott Hole

United States v. Tejada, No. 07-5289-cr (2d Cir. February 9, 2011) (Leval, Raggi, CJJ, Gleeson, CJ)

The defendant here received a 120-month drug sentence and a consecutive 60-month § 924(c) sentence. On appeal, he argued that this was illegal under the court's decisions in Williams and Whitley. And indeed it was. However, as this decision recognizes, those cases were abrogated by the Supreme Court in Abbot v. United States, 131 S.Ct. 18 (2010).

At issue is an inscrutable phrase in § 924(c): "Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law," a person convicted of violating § 924(c) must receive a specified mandatory minimum sentence and that sentence must be consecutive to any other term of imprisonment. Whitley held that this language meant that the § 924(c) sentence did not apply if the defendant received a higher mandatory minimum sentence for gun possession - in that case a 15-year Armed Career Criminal Act sentence. Williams held that the § 924(c) sentence did not apply if the defendant, as here, received a higher mandatory minimum sentence for drug trafficking.

But Abbott held that the "except" clause in § 924(c) related only to "the conduct § 924(c) itself proscribes, i.e., possessing a firearm in connection with a predicate crime." Under Abbott, the exemption from the § 924(c) sentence only applies where the defendant is subject to an "even greater mandatory minimum" under § 924(c). Since that was not the case for the defendant here, the circuit affirmed.

Attempting Offer

United States v. Sabir, No. 07-1968-cr (2d Cir. February 4, 2011) (Winter, Raggi, CJJ, Dearie, DJ)

Rafiq Sabir, an American doctor, was convicted of conspiring to and attempting to provide material support - in the form of his own medical services - to al Qaeda. Sabir raised a multitude of issues on appeal, including a challenge to the constitutionality of the material support statute and complaints about the racial composition of the jury, the trial court’s evidentiary rulings, and the government’s rebuttal summation.

But of particular interest are the opinion’s discussion of sufficiency of his conviction for attempt, an issue that the court does not not often consider in depth, and the diverging views of the two opinions on the issue.

The case against Sabir arose from a terrorism investigation of Sabir’s longtime friend, Tarik Shah, that began in 2001. An FBI CI “Saeed,” cultivated a relationship with Shah, in which Shah spoke about his commitment to jihad and identified Sabir as his “partner.” Saeed eventually introduced Shah to an undercover FBI agent, Ali Soufan, who posed as a recruiter for al Qaeda. Shah told Soufan about Sabir, describing him as a doctor who was committed to the same cause.

In 2005, Sabir met with Saeed and Agent Soufan at Shah’s apartment. Sabir, who had been in Saudi Arabia, said he would soon be returning there and agreed to provide emergency medical care to wounded mujahideen. Sabir gave Soufan his personal and work telephone numbers so that those needing medical assistance would be able to contact him directly. He and Shah then swore an oath of allegiance to al Qaeda and its leaders.

On appeal, Sabir argued that his offer to provide medical assistance, even coupled with his giving Soufan his telephone numbers, was legally insufficient to constitute an attempt to provide material support. A bitterly divided panel affirmed.

The majority began by reviewing the law of attempt. Federal criminal law requires only a “substantial step” in furtherance of the intended crime. This concept derives from the Model Penal Code, which introduced the formulation in order to expand attempt liability. The Second Circuit adopted it in 1976, noting that it was satisfied by conduct, even if not proximate to the completion of the crime, that was “strongly corroborative of the firmness of the defendant’s criminal intent.” Thus, while a substantial step must be more than “mere preparation,” it may be less than the “last act necessary” before the commission of the crime.

These standards, however, do not always provide “bright lines for application,” since the identification of a “substantial step” is necessarily a matter of degree. For an offense such as attempt to provide material support, the focus is on the defendant’s “efforts to supply.” For this offense, the underlying conduct is the provision of support, even benign support, for a terrorist organization, and need not be planned to culminate in terrorist harm.

Accordingly, the majority concluded that the evidence was sufficient to show that Sabir attempted to provide material support in the form of personnel - “specifically, himself” - to work for al Qaeda as a doctor on-call to treat wounded jihadists in Saudi Arabia. Sabir met with what he thought was an al Qaeda member, swore an oath of allegiance to the organization, promised to be on call, and gave his contact numbers so that al Qaeda members could reach him in Saudi Arabia when they needed treatment. This conduct “planned to culminate in his supplying al Qaeda with personnel, thereby satisfying he substantial step requirement.”

Judge Dearie vigorously dissented. In his view, “the substantive crime was so remote in time, place and objective that one is left only to speculate as to what, if anything, would have happened had Sabir in fact been in a position to pursue the conspiratorial goal.” In his view, the majority’s conclusion that merely “pledg[ing] to work under the direction of the organization” could constitute an attempt to provide material support was “without precedent and hinges upon ... a seriously flawed interpretation of the material support statutes.”

Judge Dearie took particular issue with the majority’s conclusion that Sabir committed the crime of attempt “simply by agreeing to commit the crime and providing a phone numbers.” The giving of the phone numbers, was of little significant since it did not occur at or near an actual jihadist camp or battleground. Sabir was 7,000 miles away, and no preparations to be “on call” had been made or even discussed. This left the “actual provision of material support entirely a matter of speculation and surmise.”

The Chose Tattoo

United States v. Greer, No. 09-4362-cr (2d Cir. February 4, 2011) (Walker, Cabranes, CJJ, Koeltl, DJ)

Michael Greer was convicted of possessing a gun and its ammunition. The gun was recovered in a trash can along with the keys to a Hyundai Sonata, while the ammunition was found in the car itself. The Sonata had been rented by someone named Tangela Hudson, and a police officer testified that Greer had a tattoo on his left arm that said “Tangela.” On appeal, he argued that using the tattoo to connect him to the car violated his Fifth Amendment right against self-incrimination.

The circuit agreed that the tattoo was “testimonial.” The mere exhibition of a physical trait is not testimonial because it is not a communication that contains an assertion of fact or belief. But here, the tattoo was “used to a very different end” - not to identify Greer, but rather its content - the name “Tangela” - was used to prove that Greer had a relationship with a person of that name, and thus as circumstantial evidence that he had constructive possession of the ammunition in a car rented by Tangela Hudson. It was accordingly both testimonial and incriminating.

But there was nevertheless no Fifth Amendment violation because the tattoo was “not compelled by the government,” even if force or compulsion might have been used by the police to reveal it. The court likened the use of the tattoo to the IRS’ ability to compel production of voluntarily prepared papers. The “voluntary tattooing of an incriminating word to Greer’s arm was, like the voluntary preparation of [tax] documents, not the product of government compulsion.”

Swept Away

United States v. Hassock, No. 09-5193-cr (2d Cir. January 28, 2011) (Miner, Parker, Raggi, CJJ)

In November of 2009, the district court granted Hassock’s motion to suppress the gun that he was charged with possessin, finding that it was the fruit of an unreasonable search of his bedroom. On the government’s appeal, the circuit agreed that the search could not be justified under the “protective sweep” doctrine and affirmed.

Background

In late 2008, an informant told an ICE agent named Christopher Quinn that someone known as “Basil” - in reality, Hassock - had a gun in his basement apartment in the Bronx. Quinn and other members of an inter-agency task force were unable to identify “Basil,” so on November 25, 2008, they went to the location specified by the informant. Their purpose was to conduct a “knock and talk” - that is, to interview the residents, try to confirm the information they had, and conduct any necessary follow-up, including arresting “Basil” if they could.

At first Quinn and the others conducted surveillance from their vehicle. Seeing nothing, they simultaneously knocked on the front and rear doors of the apartment, which was located in the basement. Eventually, a woman opened the back door. She told them that she had just woken up and did not know if anyone else was in the apartment. When they asked if they could “look around,” the woman “said yes.”

Conducting what the government claimed was a "protective sweep," Quinn and a task-force detective went directly to what they believed was Basil’s bedroom. Quinn looked under the bed and found the gun.

After an evidentiary hearing, the district court suppressed the gun. It found that the search of Hassock’s bedroom was unreasonable and could not be justified by the protective sweep doctrine, because the doctrine did not apply. The officers were not in the apartment to "execute a warrant, enforce an order of protection, or pursuant to exigent circumstances."

The Circuit’s Ruling

The court of appeals affirmed. It began with Maryland v. Buie, 494 U.S. 325 (1990), in which the Supreme Court held that police officers executing an arrest warrant could conduct a “quick and limited search of [the] premises” to protect their safety, but that such a search must be “narrowly confined to a cursory visual inspection of those places in which a person may be hiding.” A Buie protective sweep is analogous to a Terry patdown - it is permissible when the “searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.”

The Second Circuit has extended Buie to police activity other than the execution of an arrest warrant, authorizing protective sweeps when the entry was pursuant to “lawful process,” such as a protective order. But the requirement of a “specific facts as to the presence of a lurking danger” remains. While there is an open question - and a potential circuit split - over whether a consent entry alone can justify a protective sweep, here the circuit found that it did not need to resolve the question.

The officers here had “no legal process,” although they went with a “legitimate purpose” - the questioning and possible arrest of Hassock. But since Hassock did not answer the door, that “purpose could not be pursued until Hassock was found.” On these facts, “the sweep cannot be viewed as a reasonable security measure incident to Hassock’s interrogation or arrest.” Rather, the sweep itself “became the purpose for the agents’ continued presence on the premises insofar as they thereby searched the location for Hassock.”

At the time they conducted the sweep, the agents had no information that the woman who admitted them had the authority to consent to a full search of the premises. They had “no authority of any kind to enter Hassock’s bedroom.” Thus, the “original purpose of the ‘knock and talk’ thereupon became an illegitimate search for Hassock incident to no other lawful police conduct.” This “cannot be characterized as a protective sweep.”

PC World

This week’s per curiam opinions both deal with sentencing matters.

First is United States v. Johnson, No. 08-4093-cr (2d Cir. January 28, 2011) (Kearse, Winter, Hall, CJJ) (per curiam).

Here, three defendants challenged the district court’s denial of their crack resentencing motions under 18 U.S.C. § 3583(c)(2). After a trial, the district court found that each defendant was personally responsible for their organization’s total sales, approximately 88 kilograms. The district court sentenced two defendants to life in prison; for the third, the court downwardly departed to fifteen years. The circuit held that the district court properly denied the § 3583(c)(2) motions, because the ameliorating amendment did not change the base offense level for offenses involving 4.5 kilograms or more of crack.

On appeal, the defendants tried to persuade the circuit that they were not actually responsible for that quantity. But the circuit found no error in the district court’s drug quantity determinations.

Next is United States v. Cossey, No. 09-5170-cr (2d Cir. January 28, 2011) (Kearse, Walker, Pooler, CJJ) (per curiam).

In this case, the defendant pled guilty to possessing child pornography, and the district court sentenced him to seventy-eight months in prison and a life term of supervised release. In selecting this sentence, the district court concluded that the defendant was “genetically predisposed to view child pornography,” and rejected two separate psychological evaluations finding that the defendant was at a “low to moderate risk to re-offend.” The district court predicted that “fifty years from now” the offense would be discovered to be “caused by a gene you were both with” that “you can[not] get rid of.”

The circuit found the district court’s fixation on this as-of-yet undiscovered gene to be plain error. “Where a district court relies on its own scientific theories of human nature to sentence a defendant, as it [did] here, a finding of plain error is warranted.” The court also remanded to a different judge because the "extent of the discussion concerning Cossey’s genetic predisposition to re-offend has raised serious concerns over the objectivity of the judge."

You Can't Go Home ... Again

United States v. English, No. 10-3258-cr (2d Cir. January 18, 2011) (Kearse, Winter, Hall, CJJ).

The defendants in this case, charged with narcotics and firearms offenses, sought bail from a magistrate and two district judges. Each time they were ordered detained. This opinion is the result of their effort to get the circuit to release them. The circuit affirmed.

The defendants were arrested in April of 2010. They faced a twenty-plus kilogram cocaine conspiracy charge and two firearms offenses. They first sought bail from a magistrate judge. At the hearing, the AUSA cited several factors indicating that the defendants were a danger, including characterizing a gun recovered from the defendants’ stash house as appearing to be a machine gun. The magistrate ordered the defendants detained finding that they had not overcome the presumption that they posed a danger to the community.

The defendants then appealed to the Part I judge, Judge McKenna. At that hearing, the AUSA confirmed that the gun was indeed a machine gun. Judge McKenna found that the defendants overcame the presumption of being a flight risk but, based on the government's description of the gun, found that the defendants posed a danger. He ordered them detained. A few days later, the government sent the defendants a letter indicating that the gun was not a machine gun. It was a “pistol” that was “not operable.” Since the nature of the gun was the basis for the detention order, the defendants asked Judge McKenna to reconsider. In the interim, however, the defendants were indicted and their case was assigned to Judge McMahon. Judge McKenna referred the bail matter to her.

Before Judge McMahon, the AUSA described the case as involving 27 kilograms of cocaine, which prompted the judge to say that “in a 27-kilo case I don’t think I’ve ever let anybody out.” Nevertheless, the defendants persisted, and each had a bail hearing. Judge McMahon told them that she would not review Judge McKenna’s findings and that they were “starting over” with her. She also said that she was going to “ignore” the gun. For defendant Anderson she found both a risk of flight and a danger to the community, based on the nature of the charges, the penalty he faced and the weight of the evidence against him. She also detained defendant English, again finding him to pose both a risk of flight and a danger, citing essentially the same factors.

On appeal, the defendants complained that Judge McMahon erred in reviewing the case de novo and that she was improperly “predisposed” against them. The circuit affirmed.

It found first that Judge McMahon was not bound by Judge McKenna’s findings that the defendants did not pose a flight risk. A district judge considering bail should consider all of the statutory factors and make all of the findings required. Judge McMahon correctly concluded that she was not supposed to review Judge McKenna’s findings as an appellate court might. “As both Judge McMahon and Judge McKenna are judges of the court having original jurisdiction over defendants’ offenses, neither is authorized to review a detention order issued by the other.”

The court also rejected the claim that Judge McMahon’s remark that she had never granted bail in a case like this demonstrated some sort of judicial bias. Reviewing the comment in the context of the “record as a whole,” the court found no bias. She granted each defendant a prompt hearing, agreed not to consider evidence of the gun, and carefully considered and responded to each argument for bail that the defendants proffered. She “simply concluded, as she was entitled to do,” that the bail packages the defendants proposed did not overcome the statutory presumption against them. “Her reasons were explicitly tied to the facts before the court and were fully explained on the record.”

Finally, the court, reviewing the merits, agreed that the defendants should be detained. Judge McMahon’s findings on flight risk and danger were “amply supported by the evidence” and the detention orders were “proper.”

Belgian Awful

United States v. Weingarten, No. 09-1043-cr (2d Cir. January 18, 2011) (Cabranes, Wesley, Livingston, CJJ)

Defendant Weingarten, who sexually abused one of his daughters for years, successfully challenged the applicability of 18 U.S.C. § 2423(b), which makes it a crime to travel in "foreign commerce" with the intent to engage in sexual activity that would be illegal in the United States, to one of the counts of conviction.

Background

Weingarten, a United States citizen, moved his family to Antwerp, Belgium, in 1984. Starting in about 1991, he began sexually abusing his oldest daughter, who was then nine or ten. The abuse went on for years - the daughter moved for England for a time - but when she returned to Belgium it resumed. In 1997, Weingarten moved the family to Israel, but the abuse continued. He also brought her to Brooklyn, to visit his father, and abused her there, too.

Weingarten was charged years later, when the abuse came to the attention of the FBI. Four counts charged him with traveling in or transporting the daughter in foreign commerce with the intent to engage in unlawful sexual activity. These related to the trips between Brooklyn and Belgium. But one count charged him with a traveling in foreign commerce with respect to his travel between Belgium and Israel when he moved his family in 1997.

The Circuit’s Ruling

The court agreed with Weingarten the phrase “travel[] in foreign commerce” in § 2423(b) did not apply to travel between two foreign countries when the conduct did not involve any territorial nexus with the United States. It accordingly reversed Weingarten's conviction - and the associated ten-year consecutive sentence - on that count.

The court first held that § 2423(b) can apply to conduct occurring outside the territorial jurisdiction of the United States. Although there is a presumption against extraterritoriality, this section “manifestly expresses Congress’ concern with conduct that occurs overseas.” The law prohibits traveling with the intent to engage in sexual activity that would be illegal if it occurred in the United States regardless of whether the planned activity is to take place outside the United States.

Nevertheless, however, the statute does not cover travel between foreign nations when the conduct involves no territorial nexus to the United States. The statute’s language - “travel[] in foreign commerce” - is ambiguous. The statute that defines the phrase “foreign commerce,” 18 U.S.C. § 10 merely says that it “includes commerce with a foreign country.” While this definition might include something more than commerce between the United States and a foreign country, the circuit concluded that it did not. The current § 10 was a recodification of a prior law that specifically limited the definition to transportation between the United States and a foreign country, and there was insufficient evidence that the recodification was “meant to effectuate a substantive change.”

Moreover, the phrase has not been extended to activity exclusively occurring between foreign countries in other statutes that use it, such as the kidnapping statute, 18 U.S.C. § 1201. It would be “anomalous” to construe it differently in § 2423(b).

The court also noted that the government could point to “any precedent suggesting” a different outcome. Even the relevant pattern jury instructions limited the definition of “foreign commerce” to commerce involving “some nexus to the United States.”

Finally, the court recognized that construing the statute in this manner would “avoid[] the necessity of addressing whether such an exercise of Congressional power would comport with the Constitution.”

PC World

United States v. Brown, No. 09-4991 (2d Cir. January 5, 2011) (Calabresi, Sack, Katzmann, CJJ) (per curiam)

The court's latest per curiam holds that assaulting a correction officer, in violation of Conn. Gen. Stat. § 53a-167c(a), satisfies the "catch-all" definition of "violent felony" in the Armed Career Criminal Act. Under Circuit law, an offense qualifies under the catch-all if it is both similar "in kind" and in "degree of risk posed" to the listed offenses of burglary, arson, extortion and the use of explosives.

The Connecticut offense is similar "in kind" because it requires the offender to intentionally prevent an officer from performing his duties, primarily in a prison setting, where "the act of injuring an employee for the purpose of preventing her from performing her official duties tends to entail especially violent consequences."

As for the degree of risk posed, the court noted that the statute only applies where the officer has suffered physical injury. This "certainty" of "injury to another" clearly meets the statutory definition.

Be Careful What You Fish For

United States v. Bengis, No. 07-4895-cr (2d Cir. January 4, 2011) (Feinberg, Cabranes, Hall, CJJ)

Three defendants pled guilty to various offenses arising from their South African lobster fishing businesses; they illegally harvested large numbers of rock lobsters from South African waters for export to the United States, conduct that violated both South African and United States law. This opinion addresses the government’s appeal of the district court’s legal conclusion that South Africa was not entitled to restitution. The Circuit reversed.

The district court had first held that South Africa did not have a property interest in the illegally harvested lobsters. The appellate court disagreed. Under South African law, lobsters caught illegally are not the property of those who caught them. They are subject to seizure by the government, which can then sell them and keep the proceeds. Thus, the defendants’ conduct, which included evading the seizure of overharvested lobsters, deprived South Africa of that income stream.

The district court also held that South Africa was not a “victim” under the restitution statues because it failed to show that it suffered any loss caused by the defendants’ conduct. The Circuit again disagreed, even though the defendants pled guilty only to importing the lobsters into the United States. By smuggling the lobsters out of South Africa knowing that they had been unlawfully harvested, the defendants still deprived South Africa of the potential income from any seized, overfished lobsters.

Finally, the district court had concluded that calculating a restitution award would overly complicate and prolong the proceedings. But the Circuit noted that experts in the district court had already calculated likely loss amounts using two different methodologies. The Circuit selected the higher of the two and held that it “seems to us a sufficient loss calculation methodology under the circumstances presented by this case.” Unfortunately for the defendants, that methodology produced a loss in excess of $61 million.

Over-VI’ed

United States v. Preacely, No. 09-2580-cr (2d Cir. December 21, 2010) (Raggi, Lynch, Wallace, CJJ)

In this unusual, three-opinion decision the majority remanded for resentencing, finding that the record was ambiguous as to whether the district judge understood his departure authority.

Background

Jamar Preacely pled guilty to a five-year-mando crack conspiracy pursuant to a cooperation agreement. Twenty-seven years old when he was arrested, he had sustained several drug convictions when he was younger, and was categorized by the Sentencing Guidelines as a “career offender.”

He spent about two years in custody on the federal case, then was released on bail. For the next three years, it seems, Preacely turned his life around. He entered and excelled at several rehabilitation programs, stopped using drugs, and actively cooperated in several criminal investigations.

At sentencing, as a career offender, he faced an offense level of 31 and was automatically placed in criminal history category VI, with a sentencing range of 188 to 235 months. Despite a very strong government § 5K1.1 motion and the vigorous arguments of his counsel, the district court sentenced him to 94 months’ imprisonment.

Judge Wallace’s Opinion

A two-judge majority vacated the sentence. For his part, Judge Wallace found that the record was unclear whether the sentencing judge understood that he had the authority to depart “horizontally” from Category VI, even though the record made clear that the judge understood that he could downward depart in other ways.

What concerned Judge Wallace was that the judge repeatedly harped on the fact that Preacely was in category VI, and made it seem as if he did not understand that career offender treatment was not mandatory. For example, after hearing a summary of Preacely’s extraordinary rehabilitation, the judge answered: “I am dealing with a Category VI career offender, regardless of all of what you said.”

The Circuit remanded so that the district court could expressly consider departing from career offender treatment based on “an individualized consideration” of Preacely’s case.

Judge Lynch’s Opinion

Judge Lynch concurred, citing the same ambiguity in the record. The sentencing court was required to consider both Preacely’s evidence of rehabilitation and his designation as a “category VI” offender, not merely the latter. Judge Lynch also added some interesting language about the severity of career offender treatment, calling the resulting sentence here “distinctly inflated”: “[E]ven for a man with a history of multiple (if mostly minor) criminal convictions (almost exclusively tied to the possession and sale of narcotics), a sentence of nearly sixteen years in prison for the possession of a few thousand dollars worth of cocaine seems remarkably severe.”

Judge Raggi’s Opinion

Judge Raggi dissented because she did not see the any ambiguity in the record. The district court “frequently - and correctly - ... put Preacely in Category VI because he qualified as a career offender.” Moreover, the district court “manifested an understanding of its complete discretion to sentence outside the Guidelines.” Even if there were an ambiguity, however, Judge Raggi would have remanded for “clarification,” not for resentencing.

Waiving Bye-Bye

United States v. Arevalo, No. 09-0576-cr (2d Cir. December 21, 2010) (Jacobs, Kearse, Straub, CJJ)

Defendant Manuel Vigil pled guilty to conspiracy to commit murder in aid of racketeering and using a firearm in connection with a crime of violence. He did so pursuant to a plea agreement that contained an appeal waiver - he promised not to “file an appeal or otherwise challenge” his conviction or sentence if the district court imposed a sentence of 195 months’ imprisonment or less.

When he was sentenced, although Vigil disputed certain facts in the presentence report, the district court did not resolve any of the disputes. It ultimately sentenced him to 157 months’ imprisonment.

Despite the waiver, Vigil filed a pro se notice of appeal. His attorney then filed an Anders brief, but the circuit bounced it. After counsel repeatedly ignored the court’s orders to cure the Anders brief, the court appointed new appellate counsel, who argued that the district court violated Rule 32(i)(3) by not resolving the factual disputes, and that this was not covered by the appellate waiver.

That Rule requires the district court to either “rule on” or deem immaterial “any” dispute relating to the presentence report. The Second Circuit had not previously decided whether an appellate waiver covered Rule 32 errors. Here, however, it held that the waiver applied. The language of the waiver that Vigil agreed to “plainly includes a waiver of his right to claim errors arising out of the ... crafting of Vigil’s sentence.”

Nor did the Rule 32 error void the appellate waiver, even though a defendant’s interest in the accuracy of the presentence report continues after sentence is imposed. The harm associated with potential errors in the report - primarily relating to decisions made by the Bureau of Prisons based on the report’s contents - does not amount to a due process violation, unlike, say, a district court’s reliance on such erroneous information.

PATRIOT Games

United States v. Abu-Jihaad, No. 09-1375-cr (2d Cir. December 20, 2010) (Raggi, Hall, Chin, CJJ)

Defendant Hassan Abu-Jihaad, whose birth name was Paul R. Hall, was convicted of communicating national defense information about the movement of a Navy battlegroup to unauthorized persons. On appeal, his primary challenge was to the use of evidence that the government obtained pursuant to the Foreign Intelligence Surveillance Act (“FISA”). The circuit affirmed.

Background

Despite changing his last name from “Hall” to “Abu-Jihaad,” which, according to the court, means “Father of Jihad,” the defendant enlisted in the Navy in January of 1998 without any trouble. For the next four years he was cleared to receive classified national defense information. But a chain of circumstantial evidence revealed that, in 2001, he passed classified information about the movement of Navy ships headed for the Persian Gulf to other jihad supporters.

The investigation of Abu-Jihaad began after the 2003 search of the bedroom of one Babar Ahmad, a London-based individual with ties to Azzam publications, an organization that in 2001 maintained several pro-jihad websites. Authorities found a computer disc containing a file with a three-page document describing the anticipated spring 2001 deployment of ten Navy ships carrying about 15,000 people from the Pacific coast to the Persian Gulf.

The evidence proving that Abu-Jihaad had been the source of this information was strong, even if circumstantial. First, he had access to the information - out of hundreds of potential individuals, he was one of only forty with access to the relevant transit plan. Second, he had communicated with Azzam via email during the relevant period, and in those communications had revealed his personal support for jihad, even against the United States. Third, in 2006, he made statements in wiretapped telephone conversations in which he all but admitted what he had done.

After a jury trial, Abu-Jihaad was convicted and sentenced to the statutory maximum of ten years’ imprisonment.

The Appeal

On appeal, Abu-Jihad challenged the use of evidence obtained through court orders issued under FISA. He argued primarily that the statute, 50 U.S.C. 1801, et seq., as amended by the PATRIOT Act, was unconstitutional on its face.

FISA permits a special FISA court to authorize electronic surveillance “for the purpose of obtaining foreign intelligence information.” As originally enacted in 1978, FISA required a high-ranking executive branch official to certify that this was “the purpose” of the warrant. Courts, including the Second Circuit, noted that FISA intended for the gathering of foreign intelligence information to be the “primary” objective of the surveillance. But the 2001 PATRIOT Act changed this standard. Under the PATRIOT Act’s amendments to FISA, foreign intelligence gathering need no longer be the “primary” purpose of the requested surveillance; it need only be “a significant purpose.”

Abu-Jihad argued the “primary purpose” requirement was essential to the constitutionality of FISA surveillance under the Fourth Amendment, but the circuit disagreed. All the Fourth Amendment’s warrant requirement demands is a “showing of probable cause reasonable to the purpose being pursued.” But if multiple purposes are being pursued - such as both foreign intelligence gathering and a criminal investigation - the Fourth Amendment “does not require the government to identify a primary purpose or limit its ability to secure a warrant to satisfaction of the standards for that purpose.” Rather, the government may “secure a warrant under the probable cause standards applicable to any purpose that it pursues in good faith.”

The PATRIOT Act did not modify the standards underlying FISA’s warrant requirement. It only changed the degree to which foreign intelligence gathering must be the purpose of the surveillance. The change from certifying foreign intelligence gathering as a “significant” rather than a “primary” purpose of the surveillance is not unreasonable under the Fourth Amendment. Indeed, when the circuit first identified the “primary purpose” standard it was identifying Congress’ intent in enacting FISA, not creating a constitutional mandate.

But, in any event, there is no constitutional problem with the “significant purpose” requirement, because it sufficiently protects against the possibility that the government will be able to obtain surveillance warrants for criminal investigations without demonstrating probable cause. The Fourth Amendment does not require the government to segregate foreign intelligence gathering from law enforcement efforts. As long as foreign intelligence gathering is a “bona fide” purpose of the surveillance the Fourth Amendment is satisfied.

Equal Rejection

United States v. Thomas, No. 09-4335-cr (2d Cir. December 16, 2010) (Jacobs, Kearse, Straub, CJJ)

The circuit has twice upheld strict liability nature of the “stolen gun” enhancement, currently codified as U.S.S.G. § 2K2.1(b)(4)(A). Here, the defendant raised the issue again, arguing that Apprendi and its progeny have undermined the circuit precedent on this point, and also made an equal protection claim.

The circuit affirmed. Apprendi does not apply because the enhancement does not alter the statutory maximum penalty, and the Booker line does not affect the analysis, because those cases “concern the advisory nature of the Guidelines" and not "the validity of any particular guideline.”

Thomas also argued that “emerging data” indicated that many firearms are erroneously reported stolen and that this should cause the court to revisit the issue. The court disagreed, finding that this data “actually reinforce[d]” the existing rule. Guns that are falsely reported as stolen after being sold to ineligible persons or straw purchasers are “more likely to end up in the hand of a criminal.”

Thomas' equal protection argument pointed out that an the guideline covering explosives only enhances the sentence if the defendant “knew or had reason to believe” that the explosives were stolen. But the circuit found “rational basis” for the distinction. Even though explosives are more dangerous than firearms on an “individualized basis,” stolen firearms are more readily obtainable by felons and “therefore more deadly than stolen explosives in the aggregate.” Thus, because there is a “reasonably conceivable state of facts” to support the distinction between stolen firearms and stolen explosives, the equal protection challenge fails.

PC World

United States v. Diaz, No. 10-317 (2d Cir. December 15, 2010) (Cabranes, Pooler, Wesley, CJJ) (per curiam)

In October, the court issued a non-precedential summary order holding that the Fair Sentencing Act (the "FSA") is not retroactive. See "Summary Summary" posted October 27, 2010. This per curiam is a published opinion to the same effect, at least where the defendant was "convicted and sentenced before the FSA was enacted."

Nominally, at least, the door is still open for FSA retroactivity arguments for defendants whose conduct occurred before the FSA, but whose conviction and sentences took place afterwards.

Summary Summary

Here are the two latest summary orders of interest.

In United States v. Spitsyn, No. 09-4698-cr (2d Cir. December 16, 2010), the court agreed with the parties that the district court relied on clearly erroneous findings of fact in a bank fraud case to support ts finding that all of the checks the defendants cashed were relevant conduct. However, the court rejected the defendant's request that the court order that the resentencing occur on the existing record. Instead, the district court will have the discretion to reopen the record if it sees fit.

In United States v. Roseboro, No. 09-5002-cr (2d Cir. December 8, 2010), although the court agreed that the district court erred in attributing criminal history points to a conviction that fell outside the applicable time periods set out in U.S.S.G. § 4A1.2(e) and (k)(2), it found that the error was harmless. The sentence the district court selected was a within-Guideline sentence even in the lower criminal history category, and the district judge made clear that he would have imposed the same sentence regardless of the defendant's criminal history category.