District Court Failed to Make Sufficient Findings to Support Enhancement for Distributing Child Pornography

United States v. Reed, No. 11-4820-cr (2d Cir. Nov. 12, 2013) (Winter, Pooler, and Chin) (summary order), available here

This summary order holds that the district court's factual findings were not adequate to support a two-level enhancement under U.S.S.G. 2G2.2(b)(3)(F) for distributing child pornography.

Reed was convicted of one count of receiving child pornography and one count of possessing child pornography. He was sentenced to concurrent terms of ten years of imprisonment on each count.

At sentencing, the district court found that more than 600 files of child pornography were located in "peer-to-peer" sharing folders on the defendant's computer, and that these files were "being offered for sharing." On this basis, the court enhanced the defendant's offense level by two levels under U.S.S.G. 

2G2.2(b)(3)(F), which applies if the offense involved "distribution" of child pornography.

The Circuit held that, under United States v. Reingold, 731 F.3d 204, 229 (2d Cir. 2013), available here, the distribution enhancement requires proof of mens rea and applies only if the defendant "knowingly placed" child pornography files into shared folders. Here, while the evidence arguably supported an inference that Reed knew that he was placing files into peer-to-peer sharing folders, the district court did not make a finding on that disputed subject. Thus, a remand was required.

Circuit Directs District Court to Reconsider Request for Transfer of Supervision

United States v. Murdock, No. 13-3236 (2d Cir. Nov. 8, 2013) (Katzmann, Kearse, and Wesley), available here

This decision concerns a district court's authority to modify a defendant's conditions of supervised release to require that supervised release be served in another district.

In 2012, Murdock was convicted in the District of Vermont of interstate transportation of stolen vehicles. He was sentenced to 30 months of imprisonment, to be followed by a three-year term of supervised release. Murdock's only connection with Vermont was his acquisition in Vermont of the vehicles that were the subject of his conviction. He was born and raised in the Eastern District of Michigan, where he had substantial family and business ties.

As his release date approached, Murdock asked the district court to modify his conditions of supervised release to require that his supervised release be served in the Eastern District of Michigan. Officials in Michigan agreed to accept Murdock's case for supervision, but only if he agreed to serve six months in a Residential Reentry Center there.When Murdock told probation officials that he would not accept that condition, the district court denied the motion to transfer supervision, stating: "The Eastern District of Michigan has refused to accept supervision of Mr. Murdock, and this Court has no authority to reverse that decision."

The court of appeals vacated the district court order's and remanded for further proceedings. The Circuit declined to decide whether the district court had the authority to transfer Murdock's supervised release to the Eastern District of Michigan without that district's consent. But the Circuit concluded that the district court may have misapprehended its authority to grant Murdock's request based on Michigan's conditional consent. The district court stated only that Michigan had "refused to accept supervision" and that the court therefore lacked "authority to reverse that decision." This explanation, the Circuit ruled, did not show that the court understood that Michigan's refusal was conditional. Also, the record did not establish that Murdock had been afforded an adequate opportunity to accept Michigan's proposed condition.

  

 

Anonymous Tips Did Not Create Reasonable Suspicion

United States v. Freeman, No. 12-2233 (2d Cir. Nov. 7, 2013) (Pooler, Wesley, and Droney) (as amended), available here

In this important Fourth Amendment decision -- required reading for anyone dealing with a search or seizure based on an anonymous tip -- the Court held that the police, acting primarily on a pair of anonymous 911 calls from the same caller, lacked reasonable suspicion to stop the defendant. Accordingly, the Court reversed the district court's decision denying a motion to suppress and vacated the defendant's conviction for illegally possessing a firearm. Judge Wesley dissented. [Disclosure: the Federal Defenders of New York represents Mr. Freeman.]

These were the facts: On April 27, 2011, around 1:40 a.m, the police responded to two 911 calls from the same caller. The initial call reported that a "Hispanic male, wearing a black hat and a white t-shirt had a gun, near the Chase Bank on East Gun Hill Road in the Bronx." The second call described the suspect as a "male black" wearing a white du-rag, a black hat, and a long white t-shirt.

The caller refused to identify herself, and the 911 operator could not re-contact her despite multiple attempts. The 911 calls were recorded, and the number was identified as a cell phone number, but the caller was never identified.

When the police arrived at the scene, they encountered Freeman, who fit the most recent reported description of the suspect. The police grabbed Freeman around his waist in a "bear hug" and, after a short struggle, handcuffed him and found a gun in his waistband.

The Circuit held that the gun should have been suppressed. First, the Court ruled, the police "seized" Freeman when one of the officers grabbed him in a "bear hug." Thus, at that moment, they needed "reasonable suspicion" to justify the seizure. The Court rejected the government's argument that Freeman was not seized until he was handcuffed.

The Court then held that, under the Supreme Court's decision in Florida v. J.L., 529 U.S. 266 (2000), the police lacked reasonable suspicion to justify Freeman's seizure because the pair of anonymous 911 calls lacked any indicia of reliability. Though the caller's cell phone number was automatically recorded by the 911 system, and the caller's description of the gunman was more detailed than that in J.L., these factual differences did not show that the 911 calls were sufficiently reliable to establish reasonable suspicion. Since the caller was never identified, the police (and the reviewing courts) had no way: (1) to assess her credibility and reputation for honesty, or (2) to hold her accountable for false reporting.

In addition to its significant holding, this decision contains lots of useful language reaffirming important Fourth Amendment principles. For example, the Court rejected the government's argument that reasonable suspicion existed because the stop occurred in a "high crime" area and because Freeman supposedly continued walking in an "aggressive manner" when initially approached by the plainclothes officers. The Court also noted that judicial review for "reasonable suspicion" is "not a rubber stamp," and that district courts "must not merely defer to [a] police officer's judgment."  

District Court Erred in Denying Motion to Reduce Sentence

In United States v. Bethea, No. 12-961-cr (2d Cir. Oct. 13, 2013) (Winter, Jacobs, and Straub) (per curiam), available here, the Circuit vacated the district court's decision denying the defendant's motion to reduce his sentence under 18 U.S.C. 3582(c).

Convicted of distributing cocaine, Bethea was originally sentenced in September 2010 to 80 months of imprisonment, above the then applicable 60-to-71 month Guidelines range. In September 2011, he filed a 3582(c) motion for a reduced sentence based on retroactive amendments to the crack cocaine sentencing guidelines. Everyone believed at the time that the defendant faced a mandatory statutory minimum sentence of 60 months in prison. The district court summarily denied the defendant's motion for a sentence below 80 months, stating only that, since the original sentencing range of 60-to-71 months was already found inadequate, a further reduction "would only exacerbate the insufficiency."

The Circuit vacated, holding that the district court failed to engage in the "systematic [two-step] approach" required by Dillon v. United States, 130 S. Ct. 2683 (2010), and United States v. Wilson, 716 F.3d 50 (2d Cir. 2013). Under that approach,  a court must first "consider whether the defendant is eligible for a reduction by calculating the Guidelines range that would have been applicable had the amended Guidelines been in place at the time the defendant originally was sentenced." The court must then consider whether a sentence reduction is warranted under the particular facts of the case.

In Bethea's case, the district court's ruling was too perfunctory and infected by error. Had the court engaged in the required two-step analysis, the Circuit concluded, it would have discovered that Bethea, in fact, was not subject to a mandatory minimum sentence after all. His original sentencing range did not merely shift from a 60-to-71 month range to a fixed term of 60 months, as everyone assumed. Rather, the original range was 57-to-71 months, and was considerably reduced to 37-to-46 months. On remand, the district court was required to consider this development.

Alleyne v. United States Is Not Retroactive

In United States v. Redd (Shue), No. 13-2971 (2d Cir. Nov. 5, 2013) (Jacobs, Straub, and Pauley) (per curiam), available here, the Circuit held that Alleyne v. United States, 113 S. Ct. 2151 (2013), does not apply retroactively to cases on collateral review.

Alleyne held that "any fact that increases the mandatory minimum [sentence] is an 'element' that must be submitted to the jury" and proved beyond a reasonable doubt. 133 S. Ct. at 2155.

Shue, whose 1996 convictions and 292-month prison sentence had been affirmed on direct appeal, and whose 2255 motion had been denied as time-barred, sought to take advantage of the new rule announced in Alleyne. Specifically, he asked the Circuit to reinstate his direct appeal so he could obtain relief under Alleyne.

The Circuit first construed the request as motion for leave to file a successive 2255 motion. The Circuit then held that leave could be granted only if Alleyne announced "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. 2255(h).

The Circuit, joining the other courts of appeals that have addressed the issue, held that the Supreme Court has not made Alleyne retroactive to cases on collateral review. Thus, Shue was not entitled to file a successive 2255 motion.

United States v. Nunez-Banuelos: Circuit Upholds Convictions for Misusing Social Security Number and for Wire Fraud

In United States v. Nunez-Banuelos, No. 12-85-cr (2d Cir. Nov. 4, 2013) (summary order), the Circuit upheld the defendant's convictions of misusing a social security number in violation of 42 U.S.C. 408(a)(7)(B) and of wire fraud in violation of 18 U.S.C. 1341. The evidence at trial showed that the defendant used a social security number that he had made up to obtain unemployment benefits from the Connecticut Department of Labor.

On appeal, the defendant argued that the evidence was insufficient to establish that he had the requisite intent to deceive. He claimed that he did not know that only United States citizens and aliens lawfully residing in the United States could receive unemployment benefits.

The Circuit rejected the defendant's arguments. The trial evidence showed that the application for unemployment benefits asked the defendant to submit an alien registration number if he was not a citizen but that the defendant submitted a fictional social security number and falsely claimed to be a United States citizen. Based on this evidence, the jury could conclude beyond a reasonable doubt that the defendant knew that, unless he deceived the Department of Labor, he could not obtain unemployment benefits. Accordingly, the Circuit affirmed.

The summary order can be viewed here.   

On Bank

United States v. Gyanbaah, No. 10-2441-cr (2d Cir. November 8, 2012) (Winter, Lynch, Carney, CJJ)

The appellant here was part of a group that, for more than three years, stole names and other identifying information, then used it to file thousands of fraudulent tax returns in those victims’ names. The group expected that about half of the refunds would be approved; having sought $2.2 million in refunds, they actually received more than $500,000. When they received a refund check, one of the fraudsters would forge the payee’s signature and endorse the check over to a group member, who would deposit the check into a controlled bank account and withdraw the money. 

Gyanbaah, the particular appellant here, was linked to deposits at three different banks and nearly seventy fraudulent tax returns.  A jury convicted him of five counts, including, in relevant part, one count of bank fraud and one count of aggravated identity theft relating to that bank fraud. On appeal, the circuit agreed that the evidence was legally insufficient to support the bank fraud charge and that both that count and the related identity theft count should be reversed.

Despite the brazenness of the scheme, and the centrality of banks to its success, the conduct was not bank fraud because the government failed to prove Gynabaah’s “intent to victimize” the banks, that is "expose the banks to losses" by fraud. Its evidence on this point consisted only of the testimony of a Secret Service agent who explained only that when a bank “transmits funds to be collected” and it “comes back” as a counterfeit or fraudulent check, the bank “will no longer get those funds back” because “most of the time” the bank has “already given out the funds” to whoever withdrew them. But, “when pressed about specific losses suffered by banks as a result of [Gyanbaah’s] specific use of accounts,” the agent “could not confirm that such losses occurred.” And, while he believed that banks might have to bear the loss from accepting for deposit fraudulently obtained treasury checks, he was “unsure” if that was actually so.

On appeal, to defend the convictions, the government punted. It pointed to conversations between Gyanbaah and others indicating their desire to select banks that would be least likely to detect the scheme. But those conversations showed only an intent to avoid detection, not an intent to injure the banks.

The government also relied on the banks’ claimed exposure to losses, citing cases in which a defendant fraudulent caused a bank to pay out some of a depositor’s funds held in an account in that bank by, for example, cashing a forged check. But in that type of situation the bank’s “direct legal exposure to losses is sufficiently well known” that “a jury may infer that the defendant intended to expose the bank to the loss.” 

Here, by contrast, there was no “clear,” much less “well-known exposure of the banks to loss.”  Until alerted by the Treasury, the banks might well have been holders in due course with the risk of loss borne entirely by the Treasury. After all, here, in one such transaction, the treasury check was real, the signature of the final endorsee was the authorized signature for the account - even though it was fraudulently created by Gyanbaah - and was the only signature the bank needed to very to take the checks as a holder in due course. There was no evidence that the Treasury dishonored the checks or sought reimbursement from the banks. 

Judge Lynch filed an opinion concurring in the result, agreeing that it was dictated by the court’s precedent. He wrote separately to “express [his] view that those prior decisions are predicated on an unwarranted and unwise judicial injection of an offense element that” is not in the statute. Judge Lynch did not believe that “an intent to harm the bank is a required element of” bank fraud, and that it would be poor policy to include it. “The government cannot adequately protect federal insured banks from loss without being able to prosecute criminals who, while undertaking scheme to obtain property under the control of such banks, are ignorant or insouciant about whom they will harm.”  

Radio Smack

United States v. Lacey, No. 11-2404-cr (2d Cir. November 7, 2012) (Winter, Straub, Lynch, CJJ)

Defendants Lacey and Henry were convicted after a jury trial of various offenses resulting from their involvement in a mortgage fraud scheme. In the scheme a real estate company, MTC,  would purchase “short-sale” properties from distressed homeowners, then resell them to straw buyers, who would obtain mortgages on the properties, without intending to live in them or make payments. MTC helped the straw buyers complete fraudulent mortgage applications to ensure that they would be approved, and sometimes made a few payments on the loans to further deceive the banks, but eventually the loans defaulted and the lending banks took title to the properties through foreclosure.

One component of the fraud involved radio ads, through which MTC recruited straw buyers. Those ads told buyers that they could earn a fee by buying a house through MTC - some actually did receive a fee - and also recruited distressed homeowners looking to sell.

On appeal, the defendants argued that these radio ads should not have triggered the “mass-marketing” enhancement of § 2B1.1(b)(2)(A)(ii), and a divided panel agreed. The majority concluded that the enhancement is “properly applied only when the targets of the mass-marketing are also in some way victims in the scheme.” This is so because the guideline applies to an offense “committed through mass-marketing.” As the Eighth Circuit has already observed, an offense is “committed through mass- marketing” only when mass-marketing is used to recruit or commit victims. It is not enough for the scheme to be advanced by mass-marketing.

This interpretation is also bolstered by the surrounding text; the enhancement is surrounded by provisions that relate to the number of victims; thus it is designed to measure “the scope of the wrong by the number of victims.” The use of mass-marketing is relevant to this calculus because it provides for an enhancement when the number of actual victims is small, but the marketing creates a large number of potential victims. 

Here, the record was unclear whether some of the consumers targeted by the radio ads were “in some sense victimized,” even though the “main thrust of the fraud was directed at banks.” Obviously, any buyer who was in on the scheme or who received payment from MTC could not be seen as a victim. But some straw buyers complained that their credit scores were ruined, and others complained that MTC misled them into believing that the scheme would result in a legitimate sale and that they would be able to pay for the properties through rental income. 

The record was also unclear whether the radio ads even constituted mass-marketing at all.  The relevant provision applies to a scheme intended to “induce a large number of persons to ... invest for financial profit.” Here, while the record contained some evidence that this was true, it did not establish it sufficiently clearly. 

The court accordingly vacated the sentence and remanded to the district court for findings on whether the defendants engaged in “mass-marketing” at all, and if so, whether the targets of the marketing were “also in some sense victims” of the scheme, in that they were injured by it. 

Judge Straub, in dissent, believed that the enhancement was properly applied because the “offense” - using the relevant conduct definition - employed mas-marketing. He disagreed that the enhancement applies only where the victim is targeted by the mass-marketing. 

The panel was unanimous, however, in concluding that the restitution order erroneously failed to credit the value of the collateral underlying the foreclosed loans.

PC World

United States v. Harrison, No. 11-1240-cr (2d Cir. November 6, 2012) (Cabranes, Chin, Carney, CJJ) (per curiam)

The court's latest per curiam opinion holds that the appellate waiver provision of the standard Southern District plea agreement is enforceable, even in the wake of Dorsey v. United States, 132 S.Ct. 2321 (2012). Thus, although the defendant was sentenced to a 120-month mandatory minimum when, per Dorsey, his minimum should have been lower, he validly waived his right to appeal the sentence.

Stop and Flop

United States v. Wilson, No. 11-915 (2d Cir. October 25, 2012) (Jacobs, Calabresi, Pooler, CJJ)

Defendant Wilson was subject to a car stop near New York’s border with Canada. He was just outside of the St. Regis Mohawk reservation, not a member of the tribe, and the officers who stopped the car - which was registered to a known marijuana dealer - were members of the tribal police department. As tribal officers, under state law they were without authority to exercise police duties outside of the reservation, although one of them was also cross-designated as a U.S. Customers Officer by ICE. After a brief interview, in which Wilson admitted traveling into and out of Canada, and scoring a bit of weed while there, a U.S. Border Patrol Agent, who had arrived after the stop, searched Wilson’s car and found three bags of marijuana.

The district court suppressed the evidence, finding that the car stop violated the Fourth Amendment. The lower court concluded that the tribal officers lacked the authority to stop the car: as tribal police officers they could not act and, although one was designated a Customers Officer, the regulation covering such designations required him to obtain prior authorization to exercise customs authority, which he had not. 

On this, the government’s appeal, the circuit reversed.  The court held that the relevant Supreme Court Fourth Amendment precedents make clear that the legality of a stop turns on the existence of probable cause and not on the officers’ jurisdictional bounds. While a search or seizure based on probable cause might violate the Fourth Amendment if conducted in an “extraordinary manner” that is “unusually harmful to an individual’s privacy” or “physical interests,” that exception is not implicated by a run-of-the-mill car stop. “[T]he Fourth Amendment does not generally incorporate local statutory or regulatory restrictions on seizures and ... the violation of such restrictions will not generally affect the constitutionality of a seizure supported by probable cause.”

Here, the officers had probable cause to believe that Wilson had intentionally failed to enter the United States at a designated border crossing, a violation of federal law, and that he was driving with an obstructed license plate, in violation of New York’s Vehicle and Traffic Law.  And the ICE directive that would have given the tribal officer authority to act but that was not followed here was of no consequence to the analysis. “Nothing about the Fourth Amendment elevates an internal law enforcement agency directive regarding the chain of command to constitutional significance.” The agent’s failure to seek authorization did not result in the stop’s being conducted in an “extraordinary manner.” After all, he was indeed a Customs Officer at the time.

As a separate matter, the court also concluded that there was probable cause for the search of Wilson’s car, not just the stop. The officers knew that Wilson was driving a car registered to a marijuana dealer, and he admitted buying marijuana while in Canada.

Finally, this decision leaves open an important question: whether a violation of the state’s jurisdictional statute - under which the tribal officers lacked authority to act outside of the reservation - affected the reasonableness of the stop. The government’s position was that all that matters is the level of suspicion, but the court did not take on this question. Deciding whether local geographical jurisdictional limitations are relevant to the Fourth Amendment will have “far reaching effects,” and it was not necessary to decide the question here.

PC World

United States v. Oehne, No. 11-2286 (2d Cir. October 25, 2012) (Kearse, Katzmann, CJJ, Gleeson, DJ) (per curiam)

This latest per curiam looks at the pretrial ruling on a motion to suppress, and the long sentence imposed in a child pornography production and distribution case. Finding no error, the circuit affirms.

The suppression issue involved custodial statements.  Oehne claimed that he unequivocally invoked his right to counsel by telling the agents that he had an attorney in a separate, unrelated case. But the circuit reminded that the right to counsel is "offense specific." And, since Oehne never requested counsel at all in the case he was being questioned about, he did not invoke his right to counsel.  Nor did he invoke his right to remain silent by not signing the Miranda waiver form. The record here showed not that he refused to sign it - although even that might not constitute an invocation of the right - but that he was never asked to. In any event, since he later spontaneously spoke with the agents about the investigation, that itself constituted a voluntary waiver of his Miranda rights.

The circuit also found no procedural error in the imposition of the sentence, which was 540 months' imprisonment. Relying on Dorvee, Oehne also argued that the sentence was substantively unreasonable, but the circuit noted important differences between Oehne's case and Dorvee. Oehne sexually abused the victim in this case for two years, starting when she was only eight years old, photographed the abuse and distributed it over the internet. To date, some 3,000 offenders had been found with some of those images. The district court also found that Oehne's conduct was part of a pattern, and that he was insufficiently remorseful. This was accordingly not one of the "run of the mill" cases identified in Dorvee; it was "among the most serious crimes we have."

The Wizards of I.D.

Young v. Conway, No. 11-830-cr (2d Cir. October 16, 2012) (Parker, Hall, Carney, CJJ)

While decisions on state prisoners’ federal habeas corpus petitions are not consistently covered on this site, this particular case is fascinating.  In it, the circuit agrees with the district court that the New York state courts misapplied federal law in finding that the victim of a home invasion robbery had an independent basis for her in-court identification of the petitioner, Rudolph Young.

In reaching this result, the circuit relies heavily on recent scientific findings about eyewitness identification furnished by The Innocence Project, amicus curiae here. Among those highlighted are: [1] even “subtle disguises” can “impair identification accuracy”; [2] the presence of a weapon during the crime “will draw central attention, thus decreasing the ability of the eyewitness to adequately encode and later recall peripheral details”; [3] “high levels of stress have been shown to induce a defensive mental state that can result in a diminished ability accurately to process and recall events”; [4] cross-racial identifications are “significantly prone” to error; [5] “prior identifications may taint subsequent in-court identifications due to a phenomenon known as the ‘mugshot exposure effect’ or ‘unconscious transference’”; [6] “the passage of time both degrades correct memories and heightens confidence in incorrect ones.”

There is much more to this long and thorough opinion, though; it is well worth the read.

You Don't Stay

United States v. Colasuonno, No. 11-1188-cr (2d Cir. October 12, 2012)(Kearse, Walker, Raggi, CJJ)

Answering a question of first impression, here the circuit holds that the automatic stay provisions of the bankruptcy code does not apply to either a restitution order or a probation violation proceeding based on a failure to comply with a restitution order.

The facts are fairly straightforward. A jury convicted Colasuonno of bank fraud offenses; he then pled guilty to an unrelated tax fraud. At a consolidated proceeding the district court imposed a noncustodial sentence, which included about $781,000 in restitution to the IRS on the tax case.  Colasuonno seemed to show little enthusiasm for making restitution payments. After two years, even with district court intervention, he had paid only about $6,600, even though his monthly income during that period was more than $7,000.

In July of 2009, Colasuonno and his wife filed a Chapter 7 bankruptcy petition, without letting the court or probation department know. He made a few more restitution payments, in decreasing amounts, before stopping altogether in February of 2010. By then, he had paid just under $12,000.

During an October 2010 violation hearing, he argued that the automatic stay provision had allowed him to stop making restitution payments until the bankruptcy was resolved. He also argued that he stopped paying on the advice of his bankruptcy attorney. The district court disagreed, and concluded that Colasuonno had willfully failed to pay. The court revoked his probation and sentenced him to four months’ imprisonment.


On appeal, the circuit affirmed. The relevant provisions of the bankruptcy code provide that the filing of a bankruptcy petition “operates as a stay” of, inter alia, “the commencement or continuation” of certain judicial or administrative actions against the debtor. However, that statute contains an exception for the “commencement or continuation of a criminal action or proceeding against the debtor.”  In the district court, Colasuonno argued primarily that the bankruptcy statute meant that he did not have to make payments at all; on appeal, his argument was primarily that the automatic stay provision barred the district court from revoking his probation based on a failure to pay restitution.

The circuit disagreed, finding that “proceedings to enforce a probationary sentence" constitute the “continuation” of a “criminal action” against the debtor.  Obviously, the underlying case was a “criminal action.” And that action “did not end when the judgment of conviction became final.” It continued “through satisfaction of the judgment because all duties imposed on the defendant, as well as the court’s authority to hold [him] to account for those duties, derive from, and in that respect continue, the original criminal action.” 

To the court, this “plain meaning” resolution was “reinforced” by the statute’s legislative history, which stressed that the bankruptcy laws were not to be “a haven for criminal offenders.”

The appellate court also rejected the Colasuonno’s creative argument that a probation revocation proceeding was not a “criminal proceeding” because the defendant did not have the same procedural rights there as at a criminal trial. The circuit found nothing in the language of the bankruptcy statute to suggest that the “scope of the exception is determined by the rights afforded to a defendant in a particular proceeding.”

Finally, the district court did not abuse its discretion in rejecting Colasuonno’s “advice-of-counsel” defense. The district court found that Colasuonno had not told his bankruptcy attorney that the restitution order he was obliged to pay arose from a criminal conviction, and this finding was not clearly erroneous. Since the defense requires that the person invoking it had “fully and honestly laid all the facts before his counsel,” the defense did not apply here.

PC World

United States v. Ageloff, No. 11-2474-cr (2d Cir. October 10, 2012) (Pooler, Wesley, Lohier, CJJ) (per curiam)

This short per curiam opinion affirms the district court’s authority, under the All Writs Act, 28 U.S.C. 1651, to retrain a convicted defendant’s property - here, some $536,000 of Ageloff's money - in anticipation of ordering restitution. Preventing a defendant from “frustrating collection of the restitution debt” is a legitimate goal that may be furthered under the Act.  Here, the defendant had agreed that his fraud caused a loss of $80 million or more and, later, was convicted of laundering millions of dollars in proceeds from the same scheme. Nor was it an answer that Ageloff wanted the money to pay for counsel; the restraining order did not arbitrarily interfere with his opportunity to retain counsel, and he was “ably represented by CJA counsel.” 

Bail Doubt

United States v. Briggs, No. 12-2988-cr (2d Cir. October 5, 2012) (Calabresi, Carney, CJJ)

Antonio Briggs, charged in a large, multi-defendant drug conspiracy, was ordered detained in September of 2010, and remains in jail today. In this appeal, he claimed that this lengthy pretrial detention deprived him of due process. 

The circuit, although clearly concerned with the length of the delay, held that there was as yet no due process violation. However, the court directed that the district court either commence his trial, or set reasonable bail for him, on or before February 1, 2013.

The circuit noted that the reasons cited by the district court for detaining Briggs in the first instance were sound: it was a presumption case, and both Briggs’ sentencing exposure and the strength of the government’s evidence supported the initial detention order. And here, much of the two-plus-year-delay, although not necessarily Briggs’ fault, resulted from “repeated motions,” many of which Briggs joined, and abundant discovery. 

There is no “bright-line limit on the length of pretrial detention.” Due process requires a balancing among several factors: the length of the detention,  the complexity of the case, and the degree to which the government is responsible for the delay.  Here, the district court weighed these factors correctly and concluded that the “totality of the circumstances” did not support a finding that Briggs’ due process rights had been violated.

The circuit agreed, but “emphasize[d] that we are deeply troubled by the length of Briggs’ detention.” The appellate court’s “repeated statements” in other cases that the length of the detention alone “is not dispositive does not authorize "detnetions of any length simply because the other relevant factors weigh against the defendant.” Even though there is no “bright-line limit,” there is indeed a limit, and here Briggs’ case is “approaching the limits of what due process can tolerate.” Thus, as noted above, the court ordered the district court to either start the trial or set bail conditions by February 1, 2013.

You've Been Trumped

United States v. Carter, No. 11-3605-cr (2d Cir. September 28, 2012) (Leval, Cabranes, Katzmann, CJJ)

The “parsimony clause” of 18 U.S.C. § 3553(a) requires that the court impose a sentence that is not “greater than necessary” to serve the goals of sentencing. Many offense statutes, however, contain a  mandatory minimum sentence: a “blunt directive that may require judges to give sentences that they consider unduly punitive.”

On this appeal, Carter, who received a ten-year mandatory drug sentence - five years doubled due to his prior felony conviction - argued that this minimum did not bind the district court because the drug statute did not expressly override the parsimony clause.  The circuit disagreed, and affirmed.

Carter relied on 18 U.S.C. § 3551(a), which states that, “except as otherwise specifically provided,” a sentence must comport with § 3553(a). He also noted that many other statutes that prescribe a mandatory minimum contain a phrase like “notwithstanding any other provision of law.” But to the circuit, the absence of this phrase in the drug statutes did not matter. The “general sentencing provisions in § 3553(a)” must “give way to specific mandatory sentencing provisions elsewhere in the criminal code.” The considerations in § 3553(a), therefore, “cannot override” a statutory mandatory minimum.  

And § 3551(a) does not require mandatory minimum provisions to specifically disclaim the applicability of § 3553(a). A statutory provision that specifically describes how a defendant “‘shall be sentenced’ trumps the general sentencing considerations in § 3553(a).”

Barnes Ignoble

United States v. Barnes, No. 10-3099-cr (2d Cir. September 4, 2012) (Kearse, Parker, Hall, CJJ).

Tuere Barnes and his co-defendants faced a thirty-eight count superseding indictment charging them with racketeering and several violent crimes in aid of it, including murder. The case moved fairly slowly - the original indictment was from 2004 and the superseder dropped in 2006. But by late 2007, it emerged that Barnes and his CJA attorney were not getting along. The district court conducted several hearings about this between November 2007 and March of 2008. By that time, Barnes’s position was that he did not want his CJA attorney, did not want to proceed pro se, did not want a different CJA attorney, and would not consent to a psychiatric evaluation.

A few months later, in July of 2008, Barnes formally asked the court to allow him to proceed pro se. In preparation for the necessary Faretta hearing, Barnes at last consented to a psychiatric evaluation. That evaluation, which took place the following month, concluded that Barnes was competent to represent himself.  Nevertheless, over the ensuing months, neither Barnes nor his counsel ever mentioned the subject again, despite the fact that there were several court appearances and written communications between counsel and the court between the summer of 2008 and the trial, which commenced in April of 2009.  As a result, the district court never formally ruled on the matter.

On appeal, Barnes argued that the court had denied him his Sixth Amendment right to represent himself because the court’s failure to rule on the request was “the equivalent of its denial.” But, finding that Barnes had abandoned the request through his own inaction, the circuit disagreed and affirmed.

Where a defendant’s request to go pro se has not been clearly denied, his failure to reassert it and his apparent cooperation with his appointed counsel constitutes a waiver of the right. Here, Barnes did not “in any way” pursue the request, despite ample opportunity to do so between August of 2008 and April of 2009.  Thus, his silence in the wake of the psychiatric evaluation finding him competent and his “post-evaluation conduct in allowing [counsel] to represent him with no further mention of his self-representation request” showed that he abandoned the request to proceed pro se.

Bad Sport

United States v. Mason, No. 11-544 (2d Cir. September 4, 2012, (Walker, Pooler, Livingston, CJJ)

In this part of the country, the “lawful sporting purposes” provision of U.S.S.G. § 2K2.1(b)(2) and Application Note 6 - a downward adjustment that the defendant bears the burden of proving - is rarely invoked. Indeed, this decision is only the Circuit’s second look at it.  Here, the court concludes that the district court misapplied the provision, but that the error was harmless.

Rodney Mason, resident of Vermont, pled guilty to being a felon in possession. He had four firearms and, in connection with his sentencing hearing, introduced some evidence that, at least for three of them, he kept the guns for hunting purposes. The district court nevertheless refused to apply the enhancement, finding that Mason had not shown that he actually used the guns for hunting.  This was error because the focus of the provision is the purpose of the defendant’s possession of the gun or guns, and not necessarily whether he can prove that he actually used them for a lawful sporting purpose. The guideline “state[]s no requirement that a defendant produce evidence of his actual use of the firearms in question.” 

But here, the error was harmless. Mason introduced evidence relating to only three of the four guns he had, and the guideline requires such proof for “each firearm at issue.” Mason denied possessing the fourth at all; by doing so, he “cannot be said even to have claimed,” let alone proven,” that he “possessed that firearm for lawful sporting purposes.”  Thus, since the district court would have rejected the adjustment even absent its interpretative error, the error was harmless.

White Out

United States v. White, No. 11-772-cr (2d Cir. August 30, 2012) (Jacobs, Calabresi, Pooler, CJJ)

Here, a divided circuit panel concluded that two evidentiary errors prejudiced the outcome of Lance White’s felon-in-possession trial. The court vacated the conviction and remanded the case for a new trial.

1. Erroneous Preclusion of Others Arrests and Charging Decisions

The case involved the stop of a minivan that contained White and four women. Officers found three firearms, one supposedly in White’s right front pocket. Two others were recovered from a purse belonging to one of the women, Jennings. Initially, all five individuals were charged in state court with possessing all three guns. Eventually the state dropped all charges against three of the women. For Jennings, the state pursued charges only for the guns in her purse. Over White’s objection, the district court granted the government’s motion to preclude White from introducing evidence of the initial decision to charge all of the women with all of the guns, finding that such evidence was categorically inadmissible.

But the circuit found that this was error.  A criminal defendant has a broad right to introduce evidence “tending to prove that another person may have committed the crime” with which he is charged. Such evidence may include the government’s charging decisions - such decisions “may be proper subjects for cross-examination and argument if otherwise admissible,” although they are not per se admissible. “District courts may not automatically exclude such evidence without an inquiry into its relevance and probative value.” 

Here, the evidence was relevant to whether White possessed a firearm  - “evidence that the other occupants of the vehicle were charged with possession of the firearm allegedly found in White’s pocket was plainly relevant to the question of [his] possession.” Those charging decisions “might very well” have “caus[ed] a jury to doubt the officers’ testimony that they recovered the firearm at issue from White’s person," particularly since this was the only “significant issue at trial.” In

 New York the so-called “ automobile presumption” creates a presumption that all occupants of an automobile possessed a firearm found there, except where the weapon is “found upon the person of one of the occupants.” Thus, that the state originally charged all four women with all of the guns, including the one supposedly found on White’s person supported his theory that “none of the firearms was found on his person” and discredited “the officers’ testimony to the contrary.”

Nor was the district court in rejecting reject this relevant evidence under Rule 403.  Indeed the court’s 403 balancing was fatally skewed by virtue of its holding that such evidence was, per se, not relevant at all. Here, the probative value of the evidence was, in fact, “high” - “crucial to proving” the defense theory. Accordingly, the preclusion was error.

2. Restriction of Cross-Examination

The district court also erred in preventing the defense from cross-examining one of the arresting officers about an adverse credibility finding against him in a different federal felon-in-possession case. The circuit now employs a “non-exhaustive list of factors that bear on the admissibility of prior credibility findings.” The district court here erred by relying on the rigid, two-part test rejected by the circuit’s later precedents. 

Here, the totality of the factors weighed strongly in favor of admissibility. The prior testimony that was found to be false “was made under oath in a judicial proceeding” and “plainly involved an important matter at issue” in the prior case. The prior false testimony took place “just months before White’s trial” and the officer’s motives were the same in both cases - an “attempt[] to secure a conviction.” Finally, the officer gave “no explanation for the previous inconsistencies in his testimony.”  Thus, the prior adverse credibility finding was “relevant and highly probative” here.

3. The Errors Were “Far From” Harmless

Here, the evidence the district court precluded “spoke directly to a critical element of the” government’s case; the preclusion “prevented White from presenting a complete defense.”  This is true even though other officers also claimed that they recovered a gun from White’ pocket. It was “certainly possible” that the jury, “if presented with reasons to doubt” one officer’s testimony “might similarly have questioned the testimony of the” others. 

4. The Dissent

Chief Judge Jacobs dissented on both points. For the charging decision, he believed that the evidence was properly excluded under Rule 403. The “vexing” explanations of state law involved in admitting the evidence might well have confused the jury.  And, while Judge Jacobs agreed that the district court applied an incorrect legal standard to assess the admissibility of the prior credibility finding, he would have ordered a Jacobson remand to allow the district court to apply the right test.

PC World

United States v. Reyes, No. 10-1400-cr (2d Cir. August 29, 2012) (Katzmann, Wesley, CJJ, Underhill, DJ) (per curiam)

Closing the question left open by United States v. Rosa, 507 F.3d 142, 156 (2d Cir. 2007), this per curiam opinion concludes that it was plain error for the district court to rely solely on the presentence report’s uncontested description of a prior offense in determining whether the defendant was a career offender, where the statute of conviction described some offenses that met the definition of crime of violence and some that did not. Even where the defendant does not contest the PSR’s factual description of the prior offense, the “modified categorical approach” still requires more. The PSR, after all, described only what the defendant did, not what he was convicted of. The circuit accordingly vacated the sentence and remanded for resentencing to give the government the “opportunity to introduce evidence demonstrating that” the prior conviction was indeed for a crime of violence.