One Statute, Indivisible

United States v. Beardsley, No. 11-2206-cr (2d Cir. August 27, 2012) (Newman, Straub, Lynch, CJJ)

For purposes of recidivism enhancements, the statutes underlying prior convictions can be categorized into two distinct groups. “Divisible” statutes are those that identify distinct offenses, some of which would trigger the enhancement and some would not.  “Indivisible” statutes, by contrast, identify a single offense but are worded so broadly as to encompass conduct that might or might not fall within the relevant definition.  This important decision holds that for “indivisible” statutes, the traditional “categorical approach” is the only available means of determining whether the enhancement applies. The more expansive “modified categorical approach” can only be used with divisible statutes, in an effort to ascertain which of the possible predicate offenses the defendant was convicted of.

Here, the particular enhancement was that in a child pornography statute, 18 U.S.C. § 2252A. For offenses involving the receipt of child pornography, there is a five-year mandatory minimum. But, if the defendant has a prior state conviction under a law “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor,” the mandatory minimum is fifteen years. § 2252A(b)(1). Beardsley’s prior was a New York conviction for endangering the welfare of a child under N.Y. Penal Law § 260.10. While the charging instrument in that case specified that the conduct involved “sexual contact” with an 18-month-old child, the statute itself does not mention sexual activity. It simply makes it a crime to “knowingly act[] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old.”

The district court employed a modified categorical approach; by looking at the charging instrument, it concluded that Beardsley was subject to the enhanced sentence. On appeal, the circuit agreed with Beardsley that this was error. The state statute is “merely broad, not divisible.” Since it was not, itself, a state law “relating to aggravated sexual abuse,” etc., of a minor, Beardsley was not subject to the fifteen-year mandatory minimum.

The circuit took the lead from the Supreme Court’s precedents, concluding that the categorical approach - a simple examination of the way the statute defines the offense - is the preferred method. The modified categorical approach applies only where the “statute of prior conviction covers multiple subjects,” and is “the exception” to the “general rule.” The modified approach “is available only where a statute of prior conviction is divisible into predicate and non-predicate offenses.” 

The circuit has adhered to this distinction in ACCA and immigration cases “at least in practice,” and has applied the modified categorical approach “only to situations where the statute of prior conviction described qualifying and non-qualifying offenses in distinct subsections or elements of a list.” While not having had occasion to consider the enhancement in § 2252A(b)(1), the court also noted that every circuit save one has “applied the modified categorical approach only where the state statute of conviction was divisible into predicate and non-predicate offenses, and not where the state statute was merely broad.” 

The court accordingly adopted that approach here. The district court “should have limited itself to the categorical approach, because the New York statute of conviction is not divisible into predicate and non-predicate offenses, listed in separate subsections or a disjunctive list.” That the statute was “merely broadly worded, so as to encompass conduct that might match the federal predicate offenses, does not suffice.”

In fact, the language of § 2252A(b)(1) itself strongly suggests “some version of the categorical approach,” since it is predicated on “the laws of any State,” and not on the defendant’s particular actions that led to the conviction. Accordingly, the “statute underlying the prior conviction must itself relate to sexual abuse of minors for the enhancement to apply.”  Since the statute here was not a “law dealing with sexual misconduct, evidence establishing that the defendant violated that statute by a sexual act would demonstrate only how he committed the crime, but not what crime he committed.”

As Seen On TV

United States v. Salim, No. 10-3648-cr (2d Cir. August 24, 2012) (Walker, Lynch, CJJ)

Mamdouh Salim, incarcerated on terrorism charges, stabbed and nearly killed an MCC guard in a misguided attempt to induce the district court to grant him a change of counsel. For that crime, he pled guilty to conspiracy to murder, and the attempt to murder, a federal official. At his sentencing, the court refused to apply the guidelines’ terrorism enhancement - it sentenced him to 32 years’ imprisonment - then declined to resentence him on a  Crosby remand.  In the circuit’s first decision in the case, which was a cross-appeal, the court rejected Salim’s challenges to his sentence, but agreed with the government that it was error not to apply the terrorism enhancement. See “How Not To Seek A Change of Counsel,” posted December 6, 2008.

This opinion concern’s Salim’s appeal after the resentencing, in which the district court sentenced him to life without parole. The circuit affirmed.

Before the resentencing, Salim’s counsel had written to the court and asked that Salim’s presence be waived or, alternatively, that Salim be present by videoconference. The court agreed to this latter proposal, and conducted a brief colloquy over the video feed at which Salim explained that he did not wish to be brought back to the Southern District because the last time that happened prison guards beat him. When the court asked whether he waived his right to be present, he said, “I don’t want to come to the Court. So I’m not going to be subjected to being beaten up ...,” and“[t]herefore, ... I am waiving my right to appear before you.”

The circuit agreed with Salim that this was not a valid waiver. The court began by holding that the constitutional right to be present, codified in Fed.R.Cr.P. 43, requires physical presence and is “not satisfied by participation through video conference.” While the right to presence can be waived, the waiver must be knowing and voluntary. Moreover, although it is possible that an attorney can waive the right on the defendant’s behalf, Salim’s attorney’s letter did not demonstrate a knowing and voluntary waiver. It merely said that counsel had “recently spoken to” Salim and that Salim wished to be allowed to waive his personal presence. Since this letter did not address knowingness and voluntariness, it was not a valid waiver.

Salim’s remarks during his colloquy with the court were no better. His stated desire to avoid coming to court so that he would not be beaten by local prison guards suggested that his waiver was the result of “fears of intimidation and physical abuse,” and not of his own free will. And there was no record evidence to suggest that Salim was lying about his fear or that the fear he expressed was not “reasonably grounded.” The record also suggested that he might have wished to attend in person if his “safety could be reasonably assured.” By analogy to a Faretta colloquy, the circuit held that the district court should have done more to assure that Salim’s waiver was knowing and voluntary.

That said, however, the circuit concluded that this error was subject to plain error review and that Salim could not establish that he was prejudiced. Salim probably satisfied the first two parts of the plain error test - there was an “error” that was “plain.” But he did not satisfy the third and fourth because he did not prove that his presence would have affected the outcome of the proceeding. Here, the district court had issued a written opinion in advance of the sentencing rejecting his arguments for leniency and explaining that its earlier decision to impose a sentence less than life had been infected by legal error.  In addition, Salim’s appearance by video did not prevent him from making “any statement [seeking leniency] he chose” to the court. 

The Thirty Years’ War

United States v. Broxmeyer, No. 10-5283-cr (2d Cir. August 28, 2012) (Jacobs, Winter, Raggi, CJJ)

Former high school athletic coach Todd J. Broxmeyer was originally convicted of five offenses involving child sex abuse and pornography, and received a 40-year sentence. On his first appeal, the circuit found that the evidence was insufficient to support three of the counts, and remanded the case for resentencing. See “Coach Bagged’ posted August 13, 2010.  In this opinion, an unusually bitterly divided panel affirmed the 30-year sentence imposed on the two remaining counts on remand.

The majority began with a long and highly disapproving survey of the totality of the conduct proven at trial - a girls’ field hockey coach, Broxmeyer sexually abused several of his charges over a multi-year period - and Broxmeyer’s sentencing strategy on remand. This included his continuing to dispute all of the allegations against him, disputing the sexual explicitness of some of the photographs he made the girls send him, and shifting blame back to the victims. At the resentencing, at which Broxmeyer failed to pursue or ask for a hearing on his factual objections, the district court sentenced him to concurrent terms of 10 years’ imprisonment on Count Three, , a child pornography charge,  and 30-years imprisonment on the Count Five, an attempted production count. This count had a 15-year mandatory minimum, which is the sentence Broxmeyer had sought.

To the majority, this was an easy case - the sentence was both procedurally and substantively sound. As to procedure, although he pursued on appeal some of his factual quibbles, Broxmeyer had waived them in the district court by not pursuing them there. The court also found no error in the guideline calculations. Most pertinent to this appeal was the “pattern of activity” enhancement in § 4B1.5(b)(1), which applies if the defendant committed prohibited sexual conduct with a minor on at least two separate occasions.  The enhancement applies even if the conduct was neither part of the offense of conviction nor occurred during the same course of conduct. Here, the majority found that the acts underlying one of the counts of conviction qualified, and that other evidence of Broxmeyer’s sex abuse of a 15-year-old girl also qualified, even though that conduct was part of one of the counts the court had previously reversed. It was particularly appropriate to consider it at Broxmeyer’s resentencing, since that count had been reversed only for failure to establish federal jurisdiction, and not for a defect in the trial proof as to whether the act occurred.

The majority also approved of the district court’s consideration of Broxmeyer's “extensive history of sexually abusing children” in imposing sentence, and did not see this comment as constituting an error in applying the pattern enhancement. This was part of the district court's general explanation for the sentence and properly included more than sexual assaults; Broxmeyer had a long history of encouraging minors to engage with him in sexually suggestive communications and to send him pornographic images of themselves and others. 

The majority also found the 30-year sentence to be substantively reasonable. Broxmeyer argued that a proper assessment of the totality of the circumstances should have produced a 15-year sentence.  Fifteen years is the legal minimum and was not an abuse of discretion for the sentencing court to assign weight to the aggravating factors in going above that minimum.  Here, the additional count of conviction alone provided a basis for imposing a sentence above the mandatory minimum. Similarly, the guidelines recommended a sentence above that, and it would be “unwarranted” to give no weight at all to that recommendation.  

The majority identified were “at least four” statutory aggravating factors: Broxmeyer’s pervasive abuse of the trust that the girls, their parents and the community had placed in him; the repetitiveness of the conduct; the abuse was “part of a larger pattern of sexual abuse”; and Broxmeyer’s “disturbing lack of remorse,” a circumstance warranting particular attention to the needs for specific deterrence and to protect the public.

Finally, the majority discounted Broxmeyer’s mitigation arguments. He argued primarily that since, some of the girls were 17, and could consent to sexual acts with him in under New York law, it was unreasonable to use their age to enhance his sentence for having them send him sexually explicit photographs, which was illegal under federal law because the girls were under 18. The majority speculated that the fact that a child pornography victim had passed the age of sexual consent might be a mitigating factor on some set of facts, but it was not an abuse of discretion for the sentencing judge, who saw and heard them, to conclude otherwise. Nor was the majority impressed with Broxmeyer’s citation to a study about the prevalence of “sexting” between and among teenagers themselves; as their coach, Broxmeyer was supposed to help them “develop good judgment.” That he instead encouraged this behavior hardly made him less culpable.

In dissent, Chief Judge Jacobs saw the case quite differently.  He first noted that it was an “arresting irony” that, while Broxmeyer and the 17-year-old victim of Count Five would be treated as consenting adults in New York, the “only thing forbidden between [them] was photography.” He also found it ironic that the sentence was increased for “distribution” - the girl took a picture of herself to send to Broxmeyer. Thus, the offense of convicton was “a single act of attempted sexting.” 

To him, the majority’s opinion was “crude caricature of my views.” As he put it: “My objection is this: the offense of federal conviction has become just a peg on which to hang a comprehensive moral accounting. But in imposing a sentence that can be  upheld as reasonable, a court should not lose sight of the offense of conviction.” 

In very brief, the Chief Judge saw the sentence as extending so far beyond the bounds of the offense of conviction as to be unreasonable, particularly since much of the activity was for conduct that could not be charged in federal court. He also worried that much of the majority’s view of the case had been premised on findings that might not have been “actually made by the district court” at all.

He carefully catalogs five separate reasons for finding the 30-year sentence to be error. Those are: (1) the statutory range form 15 to 30 years calls for a calibration according to severity of the offense; (2) the ehnancements to base offense level do not bear the weight assigned to them; (3) the pattern ehnancement is unsustainable a a matter of law, (4) the sentence is substantively unreasonable, and (v) the sentence is not supported by the statutory factors.

You Can Resist

United States v. Davis, No. 10-4104-cr (2d Cir. August 24, 2012) (Walker, Lynch, Droney, CJJ) 

Hoping to evade a drug arrest, Deitron Davis ran from an agent; during the chase the agent frequently caught up to him and struck him with a baton, but Davis - a very big guy - kept running. Eventually, other agents joined in. They caught Davis and pinned him to the ground, stomach down. He struggled and resisted being handcuffed, to no avail, but did not threaten or strike any of the agents. A jury convicted him both of the drug offense and of misdemeanor resisting arrest, in violation of 18 U.S.C. § 111(a). On appeal, however, the circuit agreed that the evidence was legally insufficient to make out this offense.  

The wording of § 111(a) is notoriously vexing: where the defendant “forcibly assaults resists, opposes, impedes, intimates, or interferes with” a federal officer in connection with his official duties, he is guilty of a Class A misdemeanor “where the acts ... constitute only simple assault.” There are also enhancements that, where present, render the conduct a felony.

The circuit had previously rejected a vagueness challenge to the “simple assault” provision, citing  the “settled principle of statutory construction” that, “absent contrary indications, Congress intends to adopt the common law definition of statutory terms.” The earlier case thus held that “simple assault,” as used in § 111(a) means “a crime, not involving touching, committed by either a willful attempt to inflict injury upon the person of other which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” It follows that, for a defendant to be guilty of the misdemeanor of resisting arrest under this section, he must necessarily have committed common law simple assault.

The circuit noted that some circuits have taken a different approach, concluding that to use only the common law definition of “simple assault” would be contrary to the statutory text, which enumerates a number of other criminal acts that would not by themselves be simple assaults. But the circuit decided to continue to apply only the common-law meaning, noting that the phrase “simple assault” has an “established” common law meaning and no contrary meaning “in the vernacular, the U.S. Code or elsewhere.”

The rest was easily resolved in a single paragraph. To the circuit, Davis’ conduct did not constitute common law simple assault. Although he resisted arrest, he did not strike blows - he resisted passively without punching or attacking any one. He merely “us[ed] his muscles to avoid [being] cuffed.” Absent evidence that Davis “engaged in any conduct ... that demonstrated a desire to injure an agent or would cause an agent to apprehend immediate injury,” the evidence was insufficient.

The Tipping Point

United States v. Contorinis, No. 11-3-cr (2d Cir. August 17, 2012) (Winter, Hall, Chin, CJJ)

In this appeal from an insider trading conviction, the defendant unsuccessfully challenged the jury instructions in which the district court defined “material, nonpublic information.”

Contorinis was a portfolio manager at a hedge fund, who befriended an investment banker at UBS. From late 2005 to January of 2006, the banker was providing information to several of his friends, Contorinis included, about the potential sale of the Alberstons grocery chain.  Contorinis bought and sold large blocks of Albertsons stock for his fund based on this information. The Albertsons deal had lots of false starts, but when it was finally publicly announced as a go, Contorinis sold all of the fund’s Albertsons stock making a net profit of $3 million.

Contorinis’ defense at trial was that, although he and the banker spoke often, the banker never gave him any information about the deals he was working on. The banker, a government witness, had testified otherwise.  Contorinis also objected to the court’s jury charge on “material, nonpublic information.” He claimed that it was incomplete because it did not contain language instructing, in substance, that “general confirmation of an event that is ‘fairly obvious’ to knowledgeable investors is not material, nonpublic information,” and that it erroneously instructed that the “confirmation by an insider of unconfirmed facts or rumors - even if reported in a newspaper - may itself be inside information.”

The circuit found no error. The charge “conveyed to the jury that material, nonpublic information is information that either is not publicly available or is sufficiently more detailed and/or reliable than publicly available information to be deemed significant, in and of itself, by reasoanble investors.”

The circuit did find error, however, in the forfeiture order, because it included profits that Contorinis "never received or possessed.” The proceeds included in the forfeiture order here were acquired by the hedge fund itself, not by Contorinis. Even though a forfeiture order may include proceeds received by actors in concert, it it may not include proceeds that “go directly to an innocent third party and are never possessed by the defendant.”

The Cartridge Family

United States v. Graham, No. 09-2819-cr (2d Cir. August 15, 2012) (Cabranes, Livingston, Carney, CJJ)

Title 18, U.S.C. § 844(h) makes it a separate offense to use “an explosive” to commit a federal felony. During an attempted extortion of one of his fellow-gang members - a dispute over some robbery proceeds - defendant Graham fired a cartridge from his 9-millimeter semi-automatic into the ground. A jury convicted defendant Graham under this section, amongst other offenses; his 50-year sentence included the ten-year mandatory consecutive sentence that the statute requires.

On appeal, however, the circuit agreed that the single cartridge in his semi-automatic handgun did not constitute an “explosive.” It reversed the conviction on the § 844(h) count and remanded the case for resentencing.

Superficially, it would seem like firing a bullet might well trigger the statute (bad pun, I know). Section 844(j) defines “explosive” for purposes of § 844(h) as, inter alia, “gunpowders, powders used for blasting, ... and any chemical compounds [and similar mechanical mixtures or devices] that fire, by friction, by concussion, by percussion, or by detonation of the compound [etc.]” and “may cause an explosion.”  And, at Graham’s trial, an ATF described the mechanics of firing a semi-automatic pistol as a “mini-explosion”: the gun’s hammer falls, causing the firing pin to strike the ammunition and ignite the “very volatile” primer, which lights a propellant that burns “very rapidly,” creating a lot of gas and heat. The gas, looking for an area to escape, causes the bullet to “exit the firearm down the barrel.”

Nevertheless, the circuit examining the statute’s plain meaning “by looking to the statutory scheme as a whole and placing the particular provision within the context of that statute,” held that the cartridge was not an “explosive.” 

First, the court, while noting that the gun here expelled bullets by the combustion of gunpowder, also noted that § 844(j) did not list single cartridges or ammunition generally as a form of “explosive.”  Instead, it used the phrase “gunpowders, powders use for blasting, al forms of high explosive,” and other more extreme terms. Since “words ... are known by their companions,” the circuit “deem[ed] it significant” that the word “gunpowders” was accompanied by other materials used in “detonation, a particularly fierce and explosive chemical reaction” that produces a “vigorous evolution of heat and spakrs or flame” moving through the material detonated. To the circuit, this meant things more like dynamite or TNT. And, even though, in quantity, gunpowder can also be a “powerful explosive” like those, the court concluded that “a person carrying a single unspent pistol cartridge in his pocket” is not, in “ordinary usage” thought to be “armed with gunpowder or an explosive,” even if the cartridge contains a small amount of gunpowder.

The circuit also rejected the argument that the cartridge was “device” containing ingredients “such that ignition could cause an explosion.”  The circuit was concerned that this would expand the statute beyond its intended reach, for example, to the unarmed getaway driver in a bank robbery, since the internal combustion engine of his car relies on a “mini-explosion” to run. 

Finally, the court noted that discharging a firearm in connection with a crime of violence, under 18 U.S.C. § 924(c), is a separate offense with a separate penalty. The circuit viewed § 844(h) as a “counterpart” to this - to cover cases not covered by § 924(c) - and did not see any congressional intent to heighten the penalty for the firearms offense merely because the gun  “happened to contain at least one cartridge.” 

Family Plot

United States v. Antico, 10-5026-cr (2d Cir. August 14, 2012) (Pooler, Livingston, Lohier, CJJ)

Mario Gulinello won $1.6 million at a horse race.  Defendant Antico was convicted of conspiring with members of the Genovese crime family to rob him of that money, one of the predicates of a racketeering conviction. On appeal, Antico argued that the evidence was legally insufficient. A divided circuit affirmed.

As is usual in sufficiency cases, this decision is very fact specific, but the facts here are kind of unusual. About four years after Gulinello won the money, two members of the Genovese family took him for a drive. They pulled up next to Antico’s car, and said “Hey, Tico, say hello to my friend Mario.” The entire encounter lasted only a few seconds. Gulinello had been told that Antico was a “good guy,” who had recently been released from jail.  This was Gulinello's only contact with the putative robbers.

Nevertheless, the circuit majority found sufficient evidence of a robbery conspiracy in wiretap evidence obtained around this same time that revealed Antico’s “increasing financial difficulties,” “familiarity with Gulinello’s wealth” and “eagerness to rob Gulinello with the help of accomplices.” For example in a July 2008 call Antico and one of the Genovese guys discussed a “house robbery.” Two days later they seemingly made reference to the plan as that “thing over there,” and the day after that they discussed recruiting one “Paulie” to “help us with something” involving Gulinello, whom they knew had won a lot of money at the track. To the majority, several subsequent calls among Antico and his associates seemed to firm up the plan. 

The specific racketeering predicate alleged a conspiracy to violate N.Y. Penal Law § 160.10(1), which makes it a crime to “forcibly steal[] property” “aided by another person actually present.” Under new York law, the threat of force “may be implicit.” According particular deference to the jury’s verdict in “reviewing a conviction for conspiracy,” the recorded telephone conversations were sufficient circumstantial evidence that there was a plan to rob Gulinello with accomplices and with “at least an implicit threat of force.”

Judge Pooler, in dissent, disagreed. To her, the evidence established only that Antico and his guys conspired to commit “a crime” against Gulinello, but not that the contemplated crime was necessarily robbery as defined in New York law. To her, what was missing was specific evidence that the plan included using or threatening the immediate use of physical force. Even though the plotters sometimes used the word “rob” in their discussions, they never discussed the use of force, and the word “rob” standing alone could include “any ... of the sorts of other ways that a person can be divested of his or her money without the use or threat of force.”

“The Truth” Didn’t Set Him Free

United States v. Williams, No. 11-676-cr (2d Cir. July 16, 2012, amended August 15, 2012) (Sack, Livingston, Lynch, CJJ)

At Malik Williams’ gun trial, the prosecutor, in rebuttal summation, said, “this is not a search for reasonable doubt, this is a search for truth.”  The circuit noted, and indeed the government conceded, that this statement “was improper and should not have been made.” A statement like that “has the potential to distract the jury from the bedrock principles that even if the jury strongly suspects that the government’s version of events is true, it cannot vote to convict unless it finds that the government has actually proved each element of the charged crime beyond a reasonable doubt” and that under the presumption of innocence the jury must acquit even if it cannot “independently find the truth.”   

Nevertheless, this “unwise and erroneous” remark was not plain error.  The remark came at the very end of rebuttal summation, and was largely cured by the jury charge, which had an “extensive discussion of the presumption of innocence and the requirement that the government prove guilty beyond a reasonable doubt” in several places. In addition, “in the context of the entire trial,” Williams was not prejudiced. He did not “receive[] anything other than a fair trial.”

A Bronx Tale

United States v. Davis, No. 10-3424-cr (2d Cir. August 8, 2012) (Leval, Raggi, Chin, CJJ)

Appellant Davis attempted to rob a drug dealer in Elmont, Queens. Once inside the dealer’s house, he shot and killed the dealer’s girlfriend, and shot at (but missed) the dealer’s mother. He was tried, convicted and sentenced on this - along with other offenses not challenged on appeal - in the Southern District

On appeal, he argued that there was no Southern District venue for the Elmont attempted robbery and associated weapons offenses. The circuit affirmed.

The opinion begins with a long and interesting discussion of venue, culminating with the circuit’s rule that for venue to lie there must be more than “some activity in the situs district” - there must be “substantial contacts.” Whether these exist depends on “the site of the defendant’s acts, the elements and nature of the crime, the locus of the effect of the criminal conduct, and the suitability of each district for accurate factfinding.”  To support venue, “what is begun and continued in a district must be a part of the actual charged crime, not merely steps preparatory” to it,” and the venue must have been “freely chosen” by the defendant, in the sense that the acts’ occurrence in the district of venue were, at least, “reasonably foreseeable to the defendant.”

Here, there was Southern District venue. First, Davis was charged under the Hobbs Act, which makes it a crime to obstruct commerce. In Hobbs Act cases, venue is proper in any district where commerce is (or would be, in the case of a conspiracy or attempt) affected or where the acts took place. Davis’ acts would have affected commerce in the Southern District because the target of the robbery was a large-scale drug dealer who acquired drugs from out of state and sold them to customers in the Bronx. Davis had previously robbed persons dealing drugs in the Bronx, and the Queens home of the victim here was close to the Bronx. At a minimum, the effect on commerce in the Bronx was reasonably foreseeable to Davis.

In addition, Davis purposefully took steps in the Southern District to advance the robbery, and those steps were not merely preparatory. When Davis arrived in Elmont to commit the robbery, he unexpectedly found that the other members of his crew were not there. This prompted him to call an associate in the Bronx and ask her to come to Queens o  find backup. That associate then called others in the Bronx in an effort to help him, acts that are “fairly chargeable to Davis” for purposes of venue.

Finding that "Relevant" Conduct is not "Relevant Conduct," the Circuit Remands

United States v. Wernick, No. 10-2974-cr (2d Cir. August 8, 2012) (McLaughlin, Sack, Lynch, CJJ)

Defendant Wernick was convicted after trial of, inter alia, one count of child enticement - he persuaded two teenagers to meet with him. At his sentencing, the court factored in three other acts involving the abuse or attempted sex abuse of young children as “relevant conduct.”  The circuit concluded that the acts involving the young children, although clearly “relevant” to Wernick’s sentencing, were not “relevant conduct” under the sentencing guidelines.

The guideline under which Wenick was sentenced, § 2G1.1, has a specific offense characteristic involving the sex abuse of individuals other than those in the count of conviction:  if the “relevant conduct” to the offense of conviction includes “prohibited sexual conduct in respect to more than one victim,” regardless of whether that victim is specified in the count of conviction, each such victim should be “treated as if contained in a separate count of conviction.” Thus, a separate calculation under that guideline is undertaken for each victim - those in the count of conviction and those in the “relevant conduct ”- then each is treated as a separate “group” under the Chapter 3 "grouping" rules. Here, the acts involving the young children added four levels to Wernick’s already very high offense level.

The circuit concluded that the acts involving the young children were not “relevant conduct” in Wernick’s case and that including them in the offense level was plain error. Section 1B1.3 requires the sentencing court to determine the “relevant conduct” for purposes of applying an offense guideline's specific offense characteristics. “Relevant conduct,” includes “acts ... committed ... by the defendant” that occurred “during the commission of the offense, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.” 

If these criteria are met, under § 2G1.1 conduct against victims other than those covered by the conviction can be “relevant conduct.” But here, the acts against the young children did were not covered by § 1B1.3 because they did not occur "during” the offenses against the teenagers, even though there was a “temporal overlap” between the conduct with the young children and that with the teenagers. “One criminal act does not become ‘relevant’ to a second act under the Guidelines by the bare fact of the temporal overlap.” The acts have to be connected in the same course of conduct - the example the circuit gives is a bank robber who assaults a guard during the robbery - otherwise “the second event is literally a coincidence.” The guidelines “do not define ‘relevant’ as ‘during’ in a purely temporal sense.”

Here, the government did not offer any evidence that Wernick, “for example, simultaneously engaged in sexual activities with teenagers and young children, or that he was able to use the fact of his pursuit of sex with children to persuade the teenagers to have sex with him.” The acts against the young children, as bad as they were, were not “relevant conduct” to the acts against the teenagers “in the sense contemplated by the” guidelines.

Nor was it enough that these acts could have been covered by the language of the charging instrument. That the government could have proven the conduct against the children at trial but did not did not make it relevant conduct. 

The guideline error here constituted plain error. There was an “error,” that was “plain.” It also affected Wernick’s substantial rights and called into question the fairness or integrity of the proceedings because of the serious effect it had on Wernick’s sentence: the district court used a range of 324 to 405 months’ imprisonment - it sentenced Wernick to 360 months - but absent the error the range would have been 210 to 262 . 

The court noted that a remand for resentencing, “while not costless, does not invoke the same difficulties as a reamnd for retrial.” Here, given the magnitude of the impact on the guideline calculation and the “relavitly low cost of correcting the miscalculation,” the court remanded for resentencing.

The court closed by recognizing that this decision “has an air of the academic and technical” and might be seen by some as slighting the “seriousness and obvious materiality of Wernick’s persistent pattern of abuse of minors.” But this is the “nature of guideline sentencing,” and such “technical analysis” is only part of the sentencing process. On remand, the district court “remains entitled to exercise its discretion” and “may make its own evaluation of the characteristics of the defendant” and the other § 3553(a) factors.

Brady Violation Allows Defendants to "Squawk" Away

United Statesv v. Mahaffy, No. 09-5349-cr (2d Cir. August 2, 2012) (McLaughlin, Parker, Wesley, CJJ) 

This, the court’s most recent Brady decision, presents a truly shocking instance of prosecutorial misconduct.

Factual Background

The Brady violation was here was  straightforward: the defendants were employees of brokerage houses and a day trading firm called A.B. Watley, accused of securities fraud by running a “frontrunning” scheme. Here’s how it worked: the brokerage houses had “squawk boxes” which, during the day, would transmit internal communications about, amongst other things, client trading orders. The squawks would allow the firms’ traders to find a client to take the other side of the trade. In the scheme, the brokerage defendants would place phone receivers over their squawk boxes and transmit the squawks directly to Watley employees, who would then place trades in the squawked securities before the brokerage houses could execute the customer orders. Watley hoped to buy or sell at a more favorable price than would be available once the squawked orders were executed. The payback would be “wash trades” - Watley traders would simultaneously buy or sell the same securities at the same price and place the orders through the brokerage house that provided the squawk. These trades had no economic upside or risk, but generated commissions for the defendants in the brokerage houses. 

The defendants were first tried on a variety of securities-fraud related offenses and were acquitted of all but one of them; the jury hung on a single count of conspiracy to commit securities fraud. The government retried the defendants on this single count, which was predicated on two theories - property fraud, because the brokerage defendants allegedly deprived their employers of confidential information, and honest services fraud.

Most of the trial action centered on whether the squawks were indeed confidential information. Principals from each brokerage firm testified that the firms regarded the client order information contained in the squawks as confidential information that the brokers should not have disseminated to Watley.  After another near-deadlock, the jury convicted.

The Brady Violation

Before the first trial, during a parallel SEC investigation, high-level members of the brokerage houses testified in depositions that the information in the squawks was not confidential, was not treated as confidential, and that there were good business reasons for this. The government clearly knew about these depositions: the primary SEC attorney who conducted them was a “Special AUSA” who sat at counsel table during the first trial. He even emailed his colleagues on the trial team about the need to disclose the transcripts to the defense as Brady material, but the trial prosecutors decided not to.  A different trial team conducted the retrial; it too knew of the transcripts but deferred to the first trial team’s decision not to disclose them.

The government finally disclosed the transcripts after the defendants had been sentenced. This prompted the defendants to move for a new trial under Rule 33, which the district court denied. 

The Circuit’s Decision

The circuit clearly saw the importance the withheld exculpatory material and, in a strongly worded opinion, vacated the convictions and remanded. The court also suggested that it would not be wise to retry these defendants a third time.

The opinion has a long and detailed explanation of how and why the withheld material was material to the defense - here are a few highlights, although the opinion details many more:

- A Merrill Lynch employee had testified at trial that Merrill did not allow direct feeds from its squawk boxes to individuals outside the firm. But his supervisor testified in his SEC deposition that squawked information would be “spread or be out in the marketplace or broader” and was then “no longer confidential.” Two other Merrill supervisors told the SEC that there was no difference between holding a phone up to the squawk box and repeating the information in the squawk “word for word” and that there was no rule “that said you could not broadcast that information.”

- A Smith Barney employee testified that the firm’s squawks were “sensitive, not confidential,” since at some point someone would have to act on the order. 

- A Lehman supervisor did not view squawks as confidential, either. Their purpose was to facilitate the communication of information,  including to “our customer base.”

In trying to defend itself, the government, as it usually does in such cases, trotted out every pathetic Brady excuse it could cobble together. The circuit shot them all down:

1. The government: the withheld information was not really exculpatory.  The circuit: It does not matter that some potions of the transcripts might have been inculpatory. Since the exculpatory part “harmonized with the theory of the defense case,” there was a Brady violation.

2. The government: the witnesses whose testimony helped the defense were "mistaken." The circuit: even if mistaken on some points, the testimony was still material. The witnesses clearly testified that there was “no policy against directly transmitting squawks.”  This particular excuse, by the way, is a variant on the classic "we did not believe the testimony, so we did not have to disclose it." The circuit has debunked that so many times that it is truly a wonder that the government still bothers with it.

3. The government: the testimony was “irrelevant hearsay” that would have “confused the jury and wasted time.” The circuit: it does not matter that some of the specific evidence that the government withheld might have been inadmissible, as long it could have led to admissible evidence. If necessary, the defense could have called the witnesses themselves.

4. The government: for one of the depositions, the defense already knew that the witness had had the conversation that turned out to be exculpatory. The circuit: that does not matter. It is not enough that the defense know a potential witness’ identity - the potentially exculpatory testimony is still deemed suppressed if a defendant did not know “the essential facts permitting him to take advantage of any exculpatory evidence.” Here, the defendants did not know what that witness said to the SEC under oath. If they had, they might have called the witness himself. 

5. The government: for another one of the witnesses, the withheld deposition was immaterial because it related to that witness’ conversation with one of the defendants, who ought to have known the substance of their conversation.  The circuit: again, it does not matter, because the defendant could not have known what the witness told the SEC under oath. 

6. The government: the Smith Barney witness simply avoided the word “confidential” in favor of the word “sensitive,” because he was trying to avoid misusing a legal term. The circuit: that witness’ testimony went beyond his avoiding the use of the term legal “confidential.” His factual testimony about how the firm treated the information suggested that the firm did not treat the information in the squawks as confidential, and was thus material to the defense. 

In sum, since the withheld testimony “strongly suggests that the brokerage firms did not treat squawked ... information as confidential and that senor employees and management at the respective firms did not bar the transmission of squawks or take steps to maintain exclusive control of pending block order information,” it should have been disclosed. And the court had “little confidence” that the result of the trial “would have been the same had the government complied with its Brady obligations.”

Finally, an interesting footnote on forfeiture.  The district court ordered forfeiture of the gross commissions that Watley paid to each brokerage defendant’s employer. But the defendants only kept about thirty per cent of those payments. Accordingly, the district court erred in ordering forfeiture of the full amount. The proper amount to be forfeited should have been only each defendant’s “net, not gross, gain.”

Truman/False Man

United States v. Truman, Sr., No. 11-784-cr (2d Cir. 2012) (Livingston, Lohier, CJJ, Rakoff, DJ)

Jeffrey Truman, Sr., recruited his son, Jeffrey Truman, Jr., to burn down a building that Truman Sr. owned in Oneida, New York.  The was in dire financial straits and the property had a very large insurance policy.

Truman Sr.’s odyssey through the legal system began in state court, where he was tried on arson and fraud charges. That case was dismissed because the state court could not corroborate Jr.’s testimony, as required under state law.

The feds then took up the case, which went to trial after Jr. signed a cooperation agreement. At trial, however, Jr. balked. While he described his own role in setting the fire, he steadfastly refused to implicate his father.  This prompted the government to introduce, over objection, portions of Jr.’s testimony from Sr.’s state court trial, in which Jr. confirmed that his father had asked him to start the fire.

Other evidence against Sr. included evidence that suggested that Sr. had tried to cover up the crime in various ways, and evidence of his financial problems and the degree to which the property was insured.

The defense case included some evidence that Jr. had recanted his testimony against Sr., including an assertion by a lawyer involved in a civil case between Sr. and the insurance company that Jr. had told him that his previous statements “blaming his father” were untrue. 

Sr. testified in his own defense and denied any role in the arson or the insurance fraud. For some reason, the AUSA’s approach to cross-examination was to repeatedly ask him whether other witnesses’ statements at the trial, including those by a police officer, were true or untrue.

Sr. was convicted, but persuaded the district judge to grant his Rule 29 motion, and a conditional new trial under Rule 33(a). The court concluded that Jr.’s testimony was incredible as a matter of law and that the remaining circumstantial evidence was insufficient.  The conditional new trial was based on the court’s conclusions that: (1) that Jr.’s “patently incredible” testimony was an exceptional circumstances that warranted a new trial; (2) it had erred in introducing Jr.’s state court testimony and; (3) the government engaged in prosecutorial misconduct.

On this, the government’s appeal, the circuit reversed. The factors identified by the district court in discrediting Jr. “surely impaired” his credibility but did not render his testimony incredible as a matter of law for the purposes of Rule 29. Morever, the remaining evidence, even absent Jr.’s testimony, was itself legally sufficient.

Nor was there a basis for a new trial. For the same reasons identified above, Jr.’s suspect credibility did not warrant a new trial. In addition, there was no error in admitting Jr.’s state court testimony, which was clearly covered by Fed.R.Evid. 801(d)(1)(A), under which a reluctant trial witness can be impeached with a prior inconsistent statement. Finally, the prosecutorial misconduct -did not warrant a new trial. While it was improper for the government to cross-examine Sr. about whether other witnesses were “liars,” this not prejudicial. The questions were irrelevant to the central issue of Sr.’s own credibility and to the “other compelling evidence of guilt admitted at trial.”

Let's Get Metaphysical

United States v. Cassesse, No. 10-2210-cr (2d Cir. July 11, 2012, amended July 25, 2012) (Newman, Katzmann, Parker, CJJ)

This case untangles a mathematic quandary left by some unclear statutes: how can a life term of supervised release, imposed on a supervised release violation, be reduced by the number of months of the prison term imposed for that same violation?  Here the district court simply sentenced the defendant to twelve months in prison on the violation to be followed by another life term of supervised release.  Describing the issue as “almost metaphysical,” the circuit affirmed.

Cassesse was originally convicted under a drug statute that carries a maximum possible supervised release term of life, and was sentenced to that, to follow an eighty-seven month term of imprisonment.

After his release to supervision, Cassesse pled guilty in a new federal case - this one involving racketeering - and received a ninety-month sentence. For the supervised release violation, which the same district judge heard at the same time, the court sentenced him to a consecutive twelve-month prison term and imposed, over objection, a new term of lifetime supervised release.

The circuit rejected Cassesse’s argument that the new life term of supervised release was illegally long

The supervised release statutes provide that when supervised release is revoked and the defendant is sentenced to prison, the court may impose an additional term of supervised release, the length of which “shall not exceed” the maximum term of supervised release authorized by statute for the underlying offense “less any term of imprisonment” imposed on the revocation. 

Since, in this case, since the authorized maximum term of supervised release for the underlying drug offense was life, the “intriguing question” was “whether and how the prison term reduction concept” should apply. To the government, there was no problem at all, since twelve months in prison plus lifetime supervised release “equal[led] the original lifetime term” of supervision “but did not exceed it.”  

Cassesse, on his part, insisted that the twelve months should be subtracted from his lifetime term of supervised release, either by (1) requiring instead the imposition of a fix term of years of supervision in cases like his, (2) using the guidelines’ Sentencing Table (start with offense level 43 and then deduct) and then converting back to years, or (3) using his life expectancy at the time of sentencing and  subtracting one year from that. 

The circuit had a more practical approach. It simply decided that the prison subtraction provision did not apply at all. The "more appropriate course is simply to recognize that this is one of those rare situations where Congress did not expect the literal terms of its handiwork to be applied to a lifetime term of supervised release.” To the circuit, it was “highly unlikely” that Congress intended this, and thus that there was no error. The court also rejected the idea of using the defendant’s life expectancy - this would “introduce a variable bearing little, if any, relation to the penological purposes for defendants who outline their life expectancy and would introduce reverse age discrimination.”

Grand Slam

United States v. Gonzalez, No. 11-1490-cr (2d Cir. July 19, 2012) (Jacobs, Kearse, McLaughlin, CJJ)

Omar Gonzalez was originally charged with a narcotics conspiracy in a superseding indictment that alleged his involvement with “mixtures and substances containing a detectable amount of cocaine.” The indictment did not allege a drug quantity, and cited 21 U.S.C. §§ 846 and 841(b)(1)(C), a penalty section that carries no mandatory minimum. Before trial, the government superseded again. The second superseding indictment was identical to the first except it replaced the citation to § 841(b)(1)(C) with a citation to § 841(b)(1)(B), a penalty provision that, in cases involving 500 grams or more of cocaine, has a five-year mandatory minimum; in 500+ gram cases like Mr. Gonzalez’, where the government files a prior felony information, it specifies a ten-year minimum.

During trial, the defense, after seeing the government’s proposed jury instructions, objected, noting that trafficking in 500 grams or more of cocaine was not actually alleged in the indictment, and that drug quantity is an element that must be pled. Counsel questioned how the court could be sure that the grand jury actually found that the case involved 500 grams or more of cocaine. The district court disagreed that the indictment was insufficient, on the ground that § 841(b)(1)(B) was mentioned in the text of the indictment, not merely the parenthetical at the end, and thus that Gonzalez could be convicted, which he was, and sentenced, which he was, under that section. Believing itself bound by a  ten-year mandatory minimum - the statutory five doubled - the court sentenced Mr. Gonzalez to 120 months’ imprisonment.

On appeal, the circuit remanded the case for resentencing under § 841(b)(1)(C) because sentencing Gonzalez under § (b)(1)(B) violated his rights under the Grand Jury Clause. 

But to get there, the court had to harmonize some seemingly conflicting precedents. In one case, Berlin, the indictment did not include a factual allegation that the defendant knew of the falsity of a statement he made in order to obtained mortgage insurance, even though that was an element of the offense charged, a violation of 18 U.S.C. § 1010.  There, the circuit held that the deficiency was “not cured by the fact that each count cited the statute that [he] was alleged to have violated.” After all, “stating that an act is ‘in violation of’” a particular statute “adds no factual information as to the act itself.” In another, Doe, the court found an indictment defective where, although it alleged a statutory violation that contained a drug quantity, the indictment itself had no language referring to any particular quantity; only a “parenthetical string citation” suggested the quantity of drugs involved in the offense. Thus, it was unclear whether the grand jury actually made findings on the drug quantity involved.

But, by contrast, in Hernandez, an indictment was sufficient; although it failed to allege in its text that a drug possession conspiracy involved the intent to distribute, the indictment had “both explicit and implicit” references to the “neglected element.” That indictment did more than merely cite a statutory section: the element was in the caption of the indictment and the indictment alleged a large enough quantity of heroin that an intent to distribute could be inferred. In addition, the statutory citation containing the missing element appeared in the text of the indictment, and not just, as in Doe, in a parenthetical after the factual allegations.

The district court had viewed this case as more like Hernandez due to the placement of the citation, but the circuit made clear that that was “not the only difference” between Doe and Hernandez. Doe could be distinguished from Hernandez because there was other language in the Hernandez indictment that sufficiently indicated that the grand jury hade made a finding on the element. 

Gonzalez’ case was accordingly governed by Doe, not Hernandez, irrespective of the placement of the statutory citation.  The circuit also rejected the government’s argument that the indictment should be “construed liberally in favor of sufficiency,” since it contained “no helpful language to construe.”   Thus, it is now clear that a citation to a statutory section is not, by itself, sufficient to cure a defective indictment that fails to allege all the elements of an offense, and it does not matter whether the statutory citation is located in the text of the indictment or in a parenthetical following the text.

Up In Smoke

United States v. Morrison, No. 10-1926(L) (2d Cir. July 16, 2012) (Calabresi, Chin, Carney, CJJ)

After a jury convicted Morrison of violating the Contraband Cigarette Trafficking Act (here, “the Act”), Morrison persuaded the district court to vacate the conviction and dismiss the charges.  On this, the government’s appeal, the circuit reversed.

Background

Morrison managed a tobacco shop on the Unkechauge Indian Nation’s reservation on Long Island. Mostly, the shop sold untaxed cigarettes,  both in small over-the-counter sales and large wholesale transactions to “Big Customers,” whom Morrison knew were reselling the smokes off reservation.  The government ultimately charged him racketeering offenses predicated on his sale of contraband cigarettes. Morrison filed multiple motions for judgments of acquittal and dismissal, and ultimately persuaded the district court that Section 471 of New York’s Tax Law, which served as the legal predicate for the claimed violation of the Act, was void for vagueness as applied to him. The court agreed and vacated Morrison's RICO conviction. 

The Convoluted Statutory Background 

The Act functions by incorporating the tax law of the state in which the contraband cigarettes are found, making it unlawful to traffic in contraband cigarettes that “bear no evidence of the payment of applicable State cigarette taxes” if the state requires some indication, such as a stamp, on the cigarette packages to show that the taxes have been paid.  N.Y. Tax Law § 471(1) contains such a requirement: a tax “shall be paid” on “all cigarettes possessed in the state by any person” who sells them, except in circumstances where the New York is “without power to impose such tax.”  All cigarettes that New York has the power to tax are supposed to be stamped.

Section 471 has been the subject of decades of political and legal controversy since at least 1988, when the state tax authorities discovered that non-Native Americans were buying large quantities of cigarettes from on-reservation stores, and promulgated regulations to collect taxes on those sales.   The retailers’ objection to this ended up in the Supreme Court which, in 1994, in a case known as Mithelm Attea, upheld the tax.

Even after this, however, the state had a “forbearance” policy, in which it did not enforce its regulations governing on-reservation sales to non-Native Americans. In 1996, Governor Pataki said he would start enforcing the regulations, but a year later he changed his mind. In 1998, the regulations were repealed and, although Pataki supported legislation that would permit on-reservation retailers to sell untaxed cigarettes, it never passed, and § 471 remained in effect.

A 2005 amendment to § 471-e provided that cigarettes sold on “an Indian reservation to non-members of the nation or tribe or to non-Indians shall be taxed” and affixed with a tax stamp. The law was to take effect in 2006 pending the promulgation of regulations, but those regs never emerged. Instead, the state decided that, pursuant to its “forbearance policy,” it would not enforce § 471-e. A 2008 Fourth Department decision then held that this section was “not presently in effect.” A year later, that same court held that given this, there was “no statutory basis for the imposition of a cigarette tax on a qualified reservation,” and thus that “possession or sales of untaxed cigarettes on qualified reservations” could not “subject the seller or possessor to criminal prosecution.” 

Around the same time, litigation in federal court went the other way. In a case called Golden Feather, the Eastern District concluded that the New York Court of Appeals would likely reject the reasoning of the Fourth Department and conclude that § 471 “imposes a tax on reservation sales of cigarettes to non-Tribe members.” Under Golden Feather, criminal prosecutions against Native American retailers who sold untaxed cigarettes on-reservation to non-tribe members could proceed. The Golden Feather case went to the Second Circuit, which instead of deciding it, certified two questions to the New York Court of Appeals, which was at that time hearing the appeal in the Fourth Department case.

In 2010, the New York Court of Appeals held that there was “no question” that § 471 imposes a sales tax on cigarettes sold in New York but that § 471-e was not “in effect,” so that there was no method for New York to adapt its tax scheme to “the unique context of qualified reservation sales.”  Even so, however, large-scale cigarette bootleggers could still be prosecuted in New York, if the prosecutions were undertaken under § 471 only. The court noted that the kind of conduct involved in Golden Feather and here would qualify for such prosecutions.  After this, the Second Circuit recalled as moot the questions it certified in Golden Feather. 

The Circuit’s Decision

1. Vagueness

The district court had held primarily that the circuit’s certification of questions to the New York Court of Appeals in Golden Feather rendered § 471 vague in that it “did not give constitutionally sufficient notice to potential criminal defendants.” And, since Morrison’s conviction under the Act required a violation of § 471, his conviction could not stand.

But the circuit held that this was an “erroneous interpretation” of Golden Feather. Golden Feather’s decision to certify questions to the New York Court of Appeals was prudential, and did not “raise the specter of vagueness with respect to Section 471.” Rather, the court merely recognized that the New York Court of Appeals had not “spoken directly” on the question, and that it was not “strictly bound” by the Fourth Department’s views, even though the Fourth Department case presented the same issues. Moreover, Golden Feather also predicted - “correctly, as it turns out” - that the New York Court of Appeals would decide the case differently from the Fourth Department, a prediction that “substantially undercut Morrison’s contention” that the decision to certify “reflected concerns about the statute’s vagueness.” Conflicts between courts over the interpretation of a criminal statute do not “in and of themselves render that statute unconstitutionally vague.”

Golden Feather also noted that the complicated political history of § 471 within New York State put the New York Court of Appeals in a “far better position” to resolve the conflict. Thus, the circuit’s deferring to the state court did not suggest that the questions were vague or hard to resolve, only that the state’s highest court was the “optimal body to settle state law questions.”  

2. Forbearance

Morrison continued to press his claim that he could not be prosecuted under the Act because that statute criminalizes the the sale of cigarettes lacking a tax stamp in states that “require” such indications.  New York was refraining from enforcing taxes on on-reservation sales at the time of Morrison’s conduct; to him that “forbearance” policy was, by definition, the absence of the mandated “requirement.”

The circuit disagreed. “Requires” has its normal meaning - “what is mandated by the state statute (Section 471), and not what is enforced by the state executive.” Morrison’s conduct was clearly unlawful under the terms of New York’s tax law; New York’s decision, at that time, to refrain from enforcing § 471 for “political and practical reasons” did not grant him “leave to sell massive quantities of untaxed cigarettes to non-Native Americans.”

Moreover, even if the forbearance policy might have created some ambiguity over the scope of Native American cigarette retailers’ tax liability, Morrison's actions went “far beyond the sort of conduct that might be in” any gray area. He had a substantial wholesale business that sold $138 million in untaxed cigarettes in a five-year period, encouraged those sales by distributing fliers in New York City, and knew that at least some of his “Big Customers” were re-selling the cigarettes off-reservation.

Trust Fun

United States v. Zaleski, No. 11-660-cr (2d Cir. July 13, 2012) (Newman, Lohier, Droney, CJJ)

This fascinating opinion considers whether the defendant, Alan Zaleski, from whom a large quantity of  legally possessed firearms and ammunition were seized, should be permitted get them back from the government and sell them through a third party trustee, even though as a convicted felon, he is no longer permitted to possess them himself, even constructively.  While the district court denied his motion for a return of the property under Fed.R.Cr.P 41(g), the circuit remanded to give Zaleski a second bite at the apple.

The Facts

Among the weapons seized from Zaleski’s home were several illegal items.  He ultimately pled guilty to possessing (1) machine guns (2) a gun with an obliterated serial number and (3) a variety of unregistered devices. Until then, he was not a felon. 

The remaining items seized, which he estimated to be worth $100,000, were lawfully possessed at the time, although Zaleski cannot have them back, since he is now a prohibited person. The litigation over the seized materials began when the government moved under the All Writs Act, 28 U.S.C. § 1651(a) - at last we know what that section is for! - for an order authorizing it to retain and detroy this material.  Zaleski countered with his Rule 41(g) motion seeking an order permitting their transfer to a federally licensed gun dealer in trust, who would sell the materials on Zaleski’s behalf, after taking twenty per cent off the top.

The district court denied both motions. It held that the government did not need an order authorizing it to destroy the seized items and that Zaleski’s arrangement with the third-party dealer would violate § 922(g)(1) because Zaleski was now a felon.

The Circuit's View

On appeal, the circuit agreed with Zaleski’s argument that there was a way he could manage his proposal without violating § 922(g)(1). The district court had held that the transfer of the materials to the trustee on Zaleski’s behalf would violate § 922(g)(1) because Zaleski would still be in constructive possession of them. Other circuits have split on whether a third-party’s possession in trust of firearms on behalf of a convicted felon constitutes constructive possession. The Second Circuit went with the Seventh Circuit, which has held that “a convicted felony may devise an arrangement in which he recovers the value of the seized firearms without contravening Section 922(g)(1).”

It is possible to structure such an arrangement in a way that the felon will not have constructive possession - “the power and intention to exercise dominion and control over an object” - of materials sold by a trustee for his benefit. A trustee may exercise “exclusive control” over the disposition of the trust, and thus, “[s]ole possession and exclusive control of the firearms by a thirty party may extinguish the felon’s possessory interest.”  Thus, the district court on remand will have to carefully examine Zaleki’s arrangement with the dealer to see if it will constitute prohibited constructive possession.

And the possibility that Zaleski might benefit financially does not by itself mean that he constructively possesses the materials, as long as the proposed transfer to the trustee would “in fact strip Zaleski of any power to exercise dominion and control” over them and the dealer is a “suitable custodian” who is “not subject to Zaleski’s control.”  The district court may implement “appropriate safeguards,” such as a deadline for the sale, establishing accounting procedures, and instructing the dealer that he may not return the items to Zaleski or honor his instructions concerning them.

Upstairs, Downstairs

United States v. Voustianiouk, No. 10-4420-cr (2d Cir. July 12, 2012) (McLaughlin, Pooler, Parker, CJJ)

In 2009, federal agents armed with a search warrant for the first-floor apartment of an apartment building in the Bronx, instead searched the second-floor apartment. The circuit agreed with the defendant that this search violated the Fourth Amendment’s warrant requirement.  It vacated his conviction and sentence.

Background

This case began as an investigation by I.C.E. agents who learned of an IP address associated with a file-sharing network implicated in child pornography. Ultimately, the IP addressed was traced to Voustianiouk; the internet service provider indicated that his address was “2424 Cambreleng Avenue, Apartment 1,” in the Bronx. An agent, Raab, confirmed that Voustianiouk lived at that address, although he could not confirm which apartment. He eventually obtained a warranted to search “Apt. 1” in that building, which the warrant described as “a ground floor apartment inside a two-story white shingled house.”  None of the materials associated with the warrant identified Voutianiouk by name; the government deliberately withheld that from the magistrate who approved the warrant, later explaining that if often happens that many people live in a home and that the person named by the internet provider might not even the target. Consequently, there was “no indication that the magistrate judge who issued the search warrant was aware that the government even considered Voustianiouk a suspect, or know what evidence the government had to support its suspicions” of him.

When Raab and other agents executed the warrant, they rang both buzzers and alight went on in the second-floor window. Voustianiouk came to the front door, identified himself, and when the agents showed him their warrant, led them upstairs to the second floor, where he lived. The agents did not tell them that their warrant was for the first floor. The search revealed thousands of files containing child pornography on multiple devices. He was charged with receipt and possession of child pornography and, after his motion to suppress was denied, was convicted after a bench trial and sentenced to five years in prison. 

The Circuit’s Ruling 

The court had little trouble finding that the search was illegal. Its analysis began with  the Fourth Amendment’s particularity requirement.  This limitation curtails the discretion of the officers executing the warrant so that “the safeguard of having a magistrate determine the scope of the search is not lost.” The operative question is the place “that the magistrate judge who issued the warrant intended to be searched, not the place that the police intended to search when they applied for the warrant.” The police are not permitted to search a place other than the one intended by the magistrate.

But that is precisely what happened here. The magistrate did not intend for the search to cover any apartment in the building other than the one on the first floor. The warrant and accompanying papers explicitly authorized only the search of the first-floor apartment, made no mention of the second-floor apartment, and did not mention Voustianiouk’s name.  The affidavit in support of the application for the warrant “would not have provided probable cause to search Voustianiouk’s apartment on the second floor, because the information in the affidavit, by omitting any mention of Voustianiouk, does not provide any basis for concluding that he may have been involved in a crime.”

Irrespective of the warrant's particularity, however, her the circuit concluded that the search was conducted without the authorization of a warrant at all. This was not a case of a warrant that was simply inaccurate or incomplete; the warrant was “quite clear and specific” - the agents just chose to search a different place.  Nor did it matter that the agents might have had solid evidence linking Voustianiouk to a crime. “The mere fact that officials were in possession of evidence that would have provided probable cause for the search that they ultimately conducted is irrelevant.”

Having found a Fourth Amendment violation, the circuit closed with what is becoming a regular component of this type of legal analysis: an independent look at whether, under Herring v. United States, 555 U.S. 135 (2009), the exclusionary rule should apply. That rule is designed to deter police misconduct, and objectively reasonable reliance on a defective search warrant is not typically considered misconduct.

But here, the circuit could not conclude that the officers “reasonably relied on the warrant,” since it on its face authorized the search of the first-floor apartment, and they searched the second-floor apartment. “Indeed, there can be no doubt that a search warrant for one apartment in a building does not permit the police to enter apartments other than the one specified.” Here, the agents “did not stumble into the second floor apartment by accident.” They “knowingly ventured beyond the clear confines” of the warrant. This, coupled with the deliberate withholding of Vousianiouk’s name from the magistrate, in case he turned out not to be the person using the computer they wanted to search, constituted conduct that was “sufficiently deliberate that exclusion can meaningfully deter it.” 

Penalty Blocks

United States v. Jacques, No. 11-2142-cr (2d Cir. July 9, 2012) (Winter, Chin, Droney, CJJ)

In this capital case, the district court entered an order excluding some evidence that the government intended to offer at the penalty phase. On this, the government’s interlocutory appeal, the circuit reversed in part and affirmed in part.

Background

Michael Jacques was charged with the kidnaping, rape and murder of a young girl. In the death notice, the government included aggravating factors that it would seek to prove at the penalty phase: allegations of prior rapes, and an attempt to obstruct justice by influencing the testimony of a victim/witness. The district court permitted evidence of two of the prior rapes - one of a juvenile and one of an adult - but struck three of the prior rape allegations, all of which involved juveniles (J2, J3 and J4), finding that the conduct was unadjudicated and more than twenty years old. The court also suppressed the evidence of the obstruction attempt, finding it was obtained in violation of the Sixth Amendment.  

The circuit affirmed the exclusion of two of the three rapes, remanded for further findings on the third, and reversed the Sixth Amendment Ruling.

The Rape Allegations

J2 was a younger relative of Jacques. In 1985, J2 became pregnant and told the authorities that Jacques, who was then 18, had raped her. Jacques ultimately admitted that he “experimented” with J2; he was arrested but never prosecuted. He was accused of raping J3 around the same time; she was a young girl who spent the night at Jacques’ home with a younger sibling.  The rape of J4, a friend of one of Jacques’ siblings, occurred in 1987. Jacques pled guilty to “lewd and lascivious conduct” and received a three-year deferred sentence.

The circuit could not find much to fault in the district court’ decision to exclude this evidence. The admissibility of evidence at the penalty phase of a capital trial is governed by 18 U.S.C. § 3559(c), not by the Federal Rules of Evidence. That section provides that information is admissible at a penalty trial regardless of its admissibility under the rules of evidence, but “information may be excluded if its probative value is outweighed by the danger of ... creating unfair prejudice.” The circuit observed that the standard for exclusion under this section is “broader” than that contained in Rule 403. Evidence can be excluded under Rule 403 only if its probative value is “substantially” outweighed by its potential for prejudice.

The circuit noted next that all three of the rapes were alleged to have occurred about twenty-five years ago and that this “remoteness reduces the reliability” of the evidence. The remoteness also reduced the probative value of the evidence with respect to Jacques’ character, because he was “a youth himself at the time.” In addition, in the J2 and J3 cases the reliability was further undermined by the lack of a “relatively contemporaneous adjudication,” and for J4, while there was an adjudication, it was not for rape.  There was also “murkiness as to each with regard to” the degree of coercion.

The circuit panel concluded that “although we might well have ruled otherwise were we in the district court’s position,” the court acted within its discretion. That said, however, since the district court ruled as if the J4 rape was unadjudicated, which was not true, the circuit remanded for reconsideration as to that allegation. It cautioned, however, that the district court would still be within its discretion to exclude the evidence.

The Obstruction of Justice Allegation

The court’s discussion of  this issue begins with the bizarre conduct underlying Jacques’ case, which began as a scheme, in 2003, to sexually abuse J1, who was nine years old. He did so by making her believe that a fictitious organization called “Breckenridge” would kill her and her family if she did not follow the group’s instructions. Some of those instructions induced J1 into believing that she had to submit to Jacques as her “sexual trainer.”  This continued until 2008, when she was 14. Also, in 2008, Jacques persuaded J1 that she had to help him abduct and kill a young girl named Brooke. With J1’s coerced assistance, Brooke was brought to a convenience store near Jacques’ home; he is charged with drugging, raping and murdering her.

Jacques was eventually arrested and charged with the kidnaping. While in custody, he reached out to a friend, Michael Garcia, asking for help. Amongst other things, he asked Garcia to pose as his civil attorney so that they could speak on an unmonitored phone line. Garcia went to the authorities, and eventually he made recorded calls to Jacques on the supposedly unmonitored attorney line. In those calls, Jacques tried to persuade Garcia to pose as a member of Breckenridge, reach out to J1 and induce her to inform the authorities and the media that Jacques was innocent. Garcia eventually met with Jacques in prison wearing a wire, and Jacques continued to give him instructions about his plans for J1. Garcia, throughout, was instructed by the FBI not to ask Jacques about the charged crimes. He mostly followed those instructions, although he at one point asked a few clarifying questions and, contrary to the instructions, also asked a question about some of Jacques’ past criminal conduct.

The district court concluded that the evidence of Jacques’ attempt to obstruct justice was obtained through a knowing circumvention of Jacques’ right to counsel, in violation of the Sixth Amendment, and suppressed it.

The circuit, however, reversed because Jacques did not show that Garcia “took actions amounting to an ‘indirect and surreptitious interrogation’ ... with regard to the kidnaping/rape/murder offenses.”  Jacques’ conversations with Garcia occurred at Jacques’ own insistence, and Garcia was “entirely passive” when Jacques explained how Garcia could help him. The few questions that Garcia asked were not of a “probing nature” with respect to the underlying charges and did not alter the fundamental nature of the exchange, which was Jacques’ enlisting Garcia’s help. Since Jacques “shared information on his own initiative and on his own terms,” Garcia was nothing more than the classic “listening post.”

Cache Landing

United States v. Ramos, No. 10-4802-cr (2d Cir. July 2, 2012) (Winter, Raggi, Chin, CJJ)

This long opinion in a child pornography (“cp”) case tackles two interesting issues.

Background

James Ramos was on New York State parole for a sex offense; to secure his release, he agreed to a search condition, to “promptly, fully and truthfully” reply to his PO’s questions, and to “fully” comply with the PO’s instructions.  He also, obviously, had to agree to stay away from “pornographic materials.” After five years, the PO told Ramos that two new conditions, polygraph testing and GPS monitoring, were being added to his supervision. Ramos protested at first, but eventually gave in.

Before his first polygraph examination, Ramos told the examiner that he had viewed forbidden materials, including cp, on his computer several times since his release. He took the test, which was inconclusive, then signed a form admitting what he had told the examiner. After that, he was forbidden from owning or using a computer or accessing the internet.  The PO also told ICE agents about Ramos, and the agents went to his home to follow up. Ramos admitted to the agents that he had viewed cp on his computer and that the agents would probably find some cp images on the computer.  Eventually, Ramos waived his Miranda rights and consented to a search.  The computer revealed that he had visited cp internet sites and viewed images of cp: the hard drive had deleted “cookie” files from suspect websites, and there were deleted web pages that bore the names “Lolita Photos” and “9-12yr Pics,” although the images themselves were not recoverable.  Ramos had seemingly deleted his browser history, but there had been 140 cp images from temporary internet files in the deleted space.

A few months later, after Ramos was indicted, ICE agents and parole officers went to his home to arrest him. A search that day revealed a laptop; PO’s opened it, clicked on an icon and found more child pornography, although those images appeared to be morphs. The hard drive had a software program that permitted a user to alter images and that software had been used to modify pictures of two young girls to make it appear as if they were engaged in sex acts.The laptop was made in Korea and its hard drive was made in Thailand.

In the district court, Ramos moved to suppress his statements and the evidence recovered from the two searches. When that motion was denied, he went to trial and was convicted of three counts of receiving and possessing cp. He received the mandatory minimum for a recidivist - 180 months’ imprisonment.

The Fifth Amendment Issue

Ramos’ first claim on appeal was that the statements he made during the polygraph examination were compelled, in violation of the Fifth Amendment.  While generally the Fifth Amendment privilege must be invoked before an individual can seek its protection, there is an exception for “penalty cases” - those where the government compels waiver of the Fifth Amendment privilege by "threatening some sort of sanction capable of forcing self-incrimination.” Thus, if a probation or parole officer tells a supervisee, “explicitly or implicitly, that invocation of the privilege would lead to revocation of supervision, the supervisee is deemed to have been compelled to speak and his failure to assert the privilege would be excused.” This compulsion occurs where the supervisee is required to “choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent,” but it does not occur “merely because the terms of [release] require [the releasee] to appear before his probation officer and tell the truth ‘in all matters.’” Whether a case is a “penalty case” turns on a examination of the “totality of the circumstances.”

Here, Ramos claimed Fifth Amendment protection for the incriminating statements he made during the course of the polygraph examination. The circuit held that those statement were not compelled. First, Ramos was not told that he would lose his freedom if he invoked the Fifth Amendment. Rather, the consent forms provided only that he could face revocation of his parole if he failed to truthfully answer his PO’s questions.  Moreover, there was no evidence that Ramos “subjectively felt compelled to answer incriminating questions.” Ramos testified that he felt he had to sign consent forms or be sent back to prison, but did not say he felt the same way about answering incriminating questions. Third, Ramos could not have “reasonably believed” that his parole would be revoked if he exercised his Fifth Amendment rights, because that is illegal under New York law.

The Sufficiency of the Evidence

Ramos raised two sufficiency issues on appeal, both unsuccessfully.

His first argument was that viewing images in temporary internet files does not constitute the receipt or possession of child pornography. Here, the trial evidence showed only that Ramos viewed images in temporary internet “cache” files without saving them. He argued that the mere viewing of child pornography stored in temporary cache was insufficient to sustain a conviction under the then-applicable statute, which made it a crime to knowingly receive or knowingly possess material containing an image of cp (the statute has since been amended to include knowingly accessing cp with intent to view it).

The Second Circuit gives the terms receipt and possession their ordinary meaning, but until now it was an open question whether viewing images stored in temporary cache files sufficiently established a knowing receipt or possession of cp. Other circuits have split on the question, although the majority have found that it is, and the circuit went with the majority, at least on the facts here. Even if Ramos “viewed the images in question only in temporary internet files and did not save them into his hard drive,” he still was guilty of knowingly receiving and possessing child pornography.

He “clearly ‘received’ and ‘possessed’ the images, even though they were only" in cache files.  The trial evidence showed Ramos had “some control” over the images, “even without saving them”: he could view them on his screen, leave them on his screen for as long as the computer was on,  copy and attach them to an email, print them and move them from a cache file to other files and view or manipulate them off-line.  Thus, “an individual who views images on the internet accepts them onto his computer, and he can still exercise dominion and control over them, even though they are in cache files.”

Here, in addition, there was “ample evidence” that Ramos intentionally searched for images of cp, found them, and knowingly accepted them onto his computer, albeit temporarily.  This was supported by his browsing history, which showed that he viewed 140 images of cp, his knowledge that the images would likely be found on his computer, and his deletion of his temporary internet files and browsing history.

Ramo’s second sufficiency claim related to interstate or foreign commerce.  One of his computers contained morphed images. He argued both that the government failed to establish that the original “source” images came through the internet or in commerce and that the government failed to show that he produced the images using materials that had traveled in commerce.

The circuit rejected the first argument out of hand. The government does not have to show that the cp itself has crossed state lines. Even cp “created entirely intrastate” had a “significant impact on interstate commerce because” of its effect on the interstate market.

The court also held that the interstate commerce element is established by a defendant’s use of a foreign manufactured computer to produce cp. The morphed images here were found on Ramos’ laptop; both the computer and its hard drive were made in foreign countries, and were thus both materials that had been “shipped or transported in interstate or foreign commerce.” And there was sufficient evidence that Ramos himself used the computer equipment to create the morphs himself. 

Caveat Loquens

United States v. Stewart, No. 10-3185 (2d Cir. June 28, 2012) (Winter, Calabresi, Sack, CJJ)

This opinion appears to shut the door on the long-running series of appeals in the Lynne Stewart case. Stewart was convicted after trial of conspiracy to defraud the United States, providing material support to the killing or kidnapping of persons in a foreign country and making false statements. Underlying these convictions were her efforts to smuggle messages to and from her client, Sheikh Omar Ahman Ali Abdel Rahman, who was then serving a terrorism-related life sentence. 

Stewart was originally sentenced to 28 months’ imprisonment. The government appealed, and the circuit vacated the sentence with instructions to the district court to: determine whether Stewart had committed perjury in her trial testimony;  consider applying the abuse-of-trust enhancement; clarify whether it had applied the terrorism enhancement (having found that it “plainly” applied in Stewart’s case) and; and “further consider the overall question” of the severity of her sentence, given “the magnitude of the offense.” See “SAMs Club,” posted November 29, 2009.

At resentencing, the district court applied the terrorism enhancement, an obstruction-of-justice enhancement on a finding that Stewart committed perjury, and abuse-of-trust. In addition, in determining her sentence, the court considered some of Stewart’s public post-sentencing comments and concluded both that she lacked remorse and that she regarded the original sentence as trivial. Finding that the Guideline range was 360 to life, the district court resentenced Stewart to 120 months’ imprisonment.

On Stewart’s appeal, the circuit affirmed the sentence.  Stewart’s primary claim was grounded in the First Amendment. She argued that the district court erred in basing her punishment on statements she made to the public and the press. 

Here, the district court explicitly considered two such statements. The first was one Stewart made outside the courthouse in 2006, immediately after she was sentenced to 28 months, in which she said, in part, “I don’t think anybody would say that going to jail for two years is something you look forward to, but as my clients have said to me, ‘I can do that standing on my head.’” About three years later, during a television interview, when asked whether she would have done anything differently, she replied, again in part, that she would have been “a little more savvy that the government would come after me,” that she did not have any criminal intent, and that she “would do it again. I might handle it a little differently, but I would do it again.”

The circuit gave serious consideration to the tension between the requirement that a sentencing court consider a defendant’s history and characteristics, which can often be only or principally assessed by things she has said, and the First Amendment’s guarantee that free speech not be encroached by the government. But the court found that Stewart’s First Amendment rights were not violated.

The court’s legal analysis focused on the degree to which speech relied upon by a sentencing court is related to a legitimate sentencing issue. Thus, it is “impermissible to sentence a defendant more harshly” based on associations or public statements that “do not relate to specific criminal wrongdoing.” But, while a defendant cannot be punished for her political beliefs or speech, such evidence might be relevant to proving specific sentencing factors, such as “motive or aggravating circumstances, to illustrate future dangerousness, or to rebut mitigating evidence.” That is all that the district court did here - it used Stewart’s statements to make a legitimate judgment about her lack of remorse.

And, while Stewart argued that she was prosecuted and punished for her political beliefs, the circuit found “not a hint in the record of any fact to support” this. The circuit also disagreed that Stewart received a longer sentence on remand principally because of her statements. To the circuit, the primary bases for the longer sentence were the terrorism and other enhancements that the district court explicitly found to apply at the resentencing. 

The circuit also rejected Stewart’s claim that the increased sentence in her case might have a “chilling effect” on others who might otherwise wish to speak out in the way that she did.

The circuit first took pains to define the concept of a “chilling effect,” concluding that “a chilling effect occurs when individuals seeking to engage in activity protected by the [F]irst [A]mendment are deterred from doing so by governmental regulation not specifically directed at that protected activity.” But, to the circuit, Stewart’s case did not in any way turn on the permissibility of a government regulation under which Stewart’s speech had been punished. And it is simply untrue that any action by an agent of government that has a “collateral deterrent effect on protected speech” violates the First Amendment. Indeed, there is “no authority” for the proposition that the government cannot use the contents of voluntary public speech to the speaker’s disadvantage, even if there is a risk that someone will subsequently think twice about making a similar public statement.