Court Denies En Banc Review -- By One Vote

United States v. Taylor, No. 11-2201-cr(L) (2d Cir. May 23, 2014), available here

The saga of this Hobbs Act prosecution continues. In December 2013, a panel of the Court (Judges Kearse, Jacobs, and Carney) issued an opinion, available here, vacating the three defendants' convictions relating to a conspiracy to rob a pharmacy in Manhattan. The panel ruled that the post-arrest statements of one of the defendants, Taylor, were not voluntary because he was "largely stupefied" when he made them and because his interrogators took undue advantage of his condition. Because the error was not harmless as to Taylor or as to the other defendants, the Court vacated the convictions of all three defendants. The Court found it unnecessary to decide whether the admission of Taylor's statements against his co-defendants violated Bruton v. United States, 391 U.S. 123 (1968). 

In March 2014, the panel granted the government's petition for panel rehearing, withdrew its original opinion, and issued a revised opinion, available here. The new decision once again vacated all three defendants' convictions, and again found Taylor's post-arrest statements involuntary. But this time the panel reached the Bruton issue and resolved it in favor of the co-defendants. 

That brings us to the latest development: On May 23, 2014, the Court issued an order denying rehearing en banc. The vote was seven-to-six against en banc review. The seven judges against rehearing were Judges Katzmann, Jacobs, Pooler, Lynch, Chin, Lohier, and Carney. 

The remaining six active judges (Cabranes, Raggi, Wesley, Hall, Livingston, and Droney) dissented from the denial of rehearing en banc. The principal dissent was written by Judge Raggi and joined by the other five dissenters. Judge Cabranes also wrote a separate dissent speaking only for himself.

The dissent's main contention was that the panel's conclusion -- that Taylor's post-arrest statements were involuntary -- not only defies "common sense," but also the Supreme Court's decisions in Dickerson v. United States, 530 U.S. 428 (2000), Colorado v. Connelly, 479 U.S. 157 (1986), and Oregon v. Elstad, 470 U.S. 298 (1985). The dissent further argued that the panel misapplied Bruton in its revised opinion. 

Interestingly, neither of these alleged errors was raised in the government's rehearing petition. The government's rehearing petition did not seek en banc review of the panel's conclusion regarding the involuntariness of Taylor's post-arrest statements. The sole basis for requesting rehearing was the government's contention that the panel could not grant a new trial to the co-defendants without finding a Bruton violation, a finding the panel did make in its revised opinion. Nor did the government ever seek rehearing en banc on the ground that the panel misapplied Bruton in its revised opinion.

In any case, without a majority of the active judges favoring en banc review, the panel's revised opinion stands.

[Disclosure: Federal Defenders of New York, Inc., represents one of the defendants, Samuel Vasquez, in this case.] 

Circuit Affirms Terrorism Conviction for Plan To Bomb New York City Subways

United States v. Medunjanin, No. 12-4724-cr (2d Cir. May 20, 2014) (Kearse, Wesley, and Droney), available here

Adis Medunjanin was convicted, following a jury trial, of nine terrorism-related crimes involving a plan to carry out coordinated suicide bombings in the New York City subway system.  He was sentenced to life plus 95 years of imprisonment.

The defendant's sole argument on appeal was that the district court (Judge Dearie) erred by denying a pretrial motion to suppress certain of the defendant's post-arrest statements on the grounds that questioning by the government violated his rights under Miranda v. Arizona, 384 U.S. 436 (1966), his Sixth Amendment right to counsel, and his Fifth Amendment right to substantive due process.

The Circuit affirmed. Its key holdings were:

1. Assuming Miranda rights may properly be asserted by a suspect prior to his being in custody and prior to his being questioned, the defendant did not clearly and unambiguously invoke his right to counsel before his arrest. The defendant's statement -- asking whether his counsel had been notified about the issuance of a search warrant -- was "at best unclear and ambiguous."

2. The defendant did not show that his signed Miranda waivers were involuntary. The district court committed no clear in finding that the waivers were knowing and voluntary based on the totality of the circumstances -- including evidence that the defendant was eager to speak with the agents, that he was given breaks to attend to his personal and religious needs, and that the atmosphere of the interrogations was "friendly and open."

3. The government did not improperly interfere with the attorney-client relationship prior to indictment. The Sixth Amendment right to counsel in a criminal proceedings does not attach until criminal proceedings are initiated. Here, after the indictment was handed down, the defendant was promptly notified of the charges and allowed to see counsel, without any additional questioning. Contrary to the defendant's assertions, no pre-indictment conduct by law enforcement "ripened into" a cognizable post-indictment violation of the Sixth Amendment. 

4. Finally, the government did not deny the defendant substantive due process by declining to disclose his whereabouts to his lawyer, failing to inform the defendant that his lawyer was trying to reach him, and refusing to deal with the defendant solely through his counsel.  The Court held that the Sixth Amendment, not the Fifth Amendment, provides a right to counsel. Since the defendant's rights under the Sixth Amendment -- and to freedom from compulsory self-incrimination under the Fifth Amendment -- were not violated, he could not prevail by recasting his claims of attorney-client interference as violations of substantive due process. 

Erratic Behavior Following Guilty Plea Did Not Mandate New Competency Hearing or Reversal of Conviction

United States v. Kerr, No. 11-5462-cr(L) (2d Cir. May 16, 2014) (Kearse, Parker, and Hall), available here

After being charged with possessing MDMA with intent to distribute, Kerr ceased communicating with  -- and then fired -- his two appointed attorneys, insisted on pressing several "ill-advised theories of defense," and underwent a competency examination that ultimately found him competent to stand trial. He elected to represent himself at trial but, with the assistance of a newly appointed attorney, pled guilty midway through. After entering the plea, Kerr resumed his prior behavior: he again refused to communicate with counsel and filed numerous pro se motions to withdraw his plea and obtain new counsel. At sentencing, Kerr's attorney expressed concern about Kerr's mental stability; the court also commented on his belligerent behavior. Ultimately, the court sentenced him to 121 months of imprisonment.

On appeal, the Circuit affirmed. It rejected Kerr's argument that his post-plea "erratic" and "irrational" behavior required the district court to hold another competency hearing before imposing sentence. The Court also rejected the argument that Kerr was deprived of his Sixth Amendment right to counsel by the denial of his multiple post-plea requests for an attorney to help him withdraw his plea.

Finally, the Court rejected Kerr's challenges to his sentence, his claim that the district court should have allowed him to withdraw his plea, and all of his other arguments.  

Circuit Upholds Ten-Year Mandatory Minimum Sentence for Child Pornography Offender

United States v. Lockhart, No. 13-0602-cr (2d Cir. May 15, 2014) (Katzmann, Straub, and Lohier), available here

This appeal required the Court to decide the meaning of 18 U.S.C. § 2252(b)(2), which mandates a ten-year minimum term of imprisonment for a defendant who possesses child pornography and was previously convicted "under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." Specifically, does the phrase "involving a minor or ward" modify only "abusive sexual conduct," such that a prior sexual abuse conviction involving an adult victim constitutes a qualifying predicate offense?

The Circuit said yes, and affirmed the defendant's ten-year sentence. [Disclosure: Federal Defenders of New York, Inc., represents Mr. Lockhart.]

Lockhart pled guilty to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), which ordinarily carries no mandatory minimum sentence. But he had previously been convicted in a New York State court of first-degree sexual abuse involving his adult girlfriend. The district court found that this prior conviction related to "aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward," and therefore triggered a mandatory minimum ten-year sentence under 18 U.S.C. §  2252(b)(2). The court rejected Lockhart's argument that his prior conviction did not trigger the mandatory minimum because his sexual abuse offense did not involve a minor or ward.

The Circuit affirmed. After determining that the plain meaning of the statute was unclear, the Court employed familiar tools of statutory interpretation, including canons, statutory structure, and legislative history, to discern the statute's meaning. Ultimately, the Court decided that the government had the better of the argument, and that the phrase "involving a minor or ward" modifies only prior state convictions for "abusive sexual conduct," not those for "sexual abuse" or "aggravated sexual abuse." The Court acknowledged, however, that "the Sixth, Eighth and Tenth Circuits have reached the opposite conclusion, namely, that the phrase 'involving a minor or ward' modifies all three categories of state sexual abuse crimes."

Given this apparent conflict in the Circuits, will the Supreme Court step in and settle the matter? Stay tuned....

Circuit Issues Important New Decision on Availability of Relief from Deportation

United States v. Gill, No. 12-2207-cr (2d Cir. May 7, 2014) (Katzmann, Winter, and Calabresi), available here

Section 1326(a) of title 8, U.S.C, makes it a felony for an alien who was previously deported from the United States to reenter this country without the consent of the Attorney General to reapply for admission. But, assuming certain procedural requirements are met, a defendant may defend against the charge by challenging the fundamental fairness of the underlying deportation order.

In this case, Gill was deported to Barbados in 2004, following his conviction after trial of attempted robbery, an aggravated felony. At his deportation hearing in 1997, Gill unsuccessfully requested relief from deportation under former section 212(c) of the Immigration and Nationality Act (repealed in 1996), and he appealed to the Bureau of Immigration Appeals (BIA). The BIA dismissed the appeal, ruling that the Antiterrorism and Effective Death Penalty Act of 1996 made noncitizens with aggravated felony convictions, including Gill, ineligible for § 212(c) relief.

After Gill returned to the United States in 2007, he was charged with illegal reentry under Section 1326. He moved to dismiss the charge on the ground that his deportation was fundamentally unfair because, contrary to the BIA's ruling, he was in fact eligible for § 212(c) relief. The district court denied the motion, holding that, under the Second Circuit's decision in Rankine v. Reno, 319 F.3d 93, 96 (2d Cir. 2003), Gill was ineligible for § 212(c) relief because he was convicted of his underlying aggravated felony after trial, rather than after a guilty plea, and that Congress's repeal of 212(c) did not have an impermissible retroactive effect on defendants who went to trial.    

This important decision holds that Rankine is no longer good law in light of the Supreme Court's decision in Vartelas v. Holder, 132 S. Ct. 1479 (2012), and that "deeming noncitizens like Gill ineligible for § 212(c) relief merely because they were convicted after trial would have an impermissible retroactive effect because it would impermissibly attach new legal consequences to convictions that pre-date the repeal of § 212(c)." Accordingly, because the district court erroneously found Gill to be ineligible for relief under § 212(c), the Circuit remanded for the court to determine whether, under 8 U.S.C. § 1326(d), Gill had been deprived of the opportunity for judicial review and whether his deportation order was fundamentally unfair. If so, his conviction would have to be vacated and the indictment dismissed.

Commentary: This decision, written by Chief Judge Katzmann, is a must-read for practitioners with illegal reentry cases. 

Challenge to Indictment's Failure to Charge Sufficient Nexus to United States Was Waived By Guilty Plea

United States v. Yousef, No 12-4822-cr (2d Cir. Apr. 29, 2014) (Sack, Lynch, and Lohier), available here

Jamal Yousef pled guilty to one count of conspiracy to provide material support to a foreign terrorist organization (18 U.S.C. 2339B). Judge Keenan sentenced him to 12 years in prison.

On appeal, Yousef argued, as he had before pleading guilty, that the indictment failed to allege a sufficient nexus between his alleged conduct - directing an arms trafficking organization in Honduras - and the United States. Though a guilty plea waives all non-jurisdictional defects in the indictment, he contended on appeal that the due process requirement of a territorial nexus to this country was a jurisdictional defect that could not be waived.

The Circuit rejected the defendant's argument, holding that the absence of a territorial nexus between a defendant's alleged conduct and the United States did not implicate the authority of a federal court to decide a case presented by an otherwise valid criminal indictment where, as here, the nexus requirement is not mentioned anywhere among the elements of the charged offense. In other words, because the indictment unambiguously alleged all of the elements of the charged crime, it conferred subject-matter jurisdiction on the district court. 

Accordingly, because the defendant's guilty plea was valid, and the district court had the authority to hear his prosecution, his guilty plea waived his challenge to the indictment's failure to alleged a sufficient nexus between his conduct and the United States. The Court therefore affirmed Yousef's conviction.

Circuit Upholds Kidnapping Conviction: Evidence Was Sufficient to Prove That Defendant "Held" Victim Against His Will

United States v. Corbett, No. 11-3678-cr (2d Cir. Apr. 29, 2014) (Katzmann, Winter, and Calabresi), available here

What evidence is sufficient under the Lindbergh Law, 18 U.S.C. § 1201(a), to convict a defendant of "holding" a victim against the victim's will? The circuits disagree. The Fourth and Eleventh Circuits, for example, say that a defendant who first "takes" control of his victim by "decoy" or trick must intend to back up his pretense with physical or psychological force in order to "hold" the unwilling victim under the statute. The Eighth Circuit, in contrast, does not require proof an intent to use force; kidnapping a victim by means of continued trickery is enough.

Here, the Second Circuit found it unnecessary to join either side of the split because, the Court held, the evidence allowed the jury to find that the defendant, Corbett, after tricking his victim, McPherson, into a minivan, intended to continue holding the victim against his will -- as the defendant did -- before robbing and killing him, and leaving his body along the road. The evidence was therefore sufficient to support the defendant's kidnapping conviction. 

Here's the key paragraph of the Court's opinion:

"Focusing, as we do, on the defendant's intent, we need not, and hence, do not, decide today whether

§ 1201 may be satisfied when a victim is 'held' only by the victim's continuing belief in his kidnapper's dupe. In this case, the Government produced sufficient evidence that Corbett intended to lure McPherson into his van for the purpose of robbing him; and that Corbett intended to 'hold' McPherson in the van against McPherson's will."

This proof, the Court held, was sufficient to satisfy the federal kidnapping statute. Accordingly, the Court affirmed the defendant's conviction (and his life sentence).

Appointment of Substitute Counsel To Deliver Defense Summation Did Not Require New Trial

United States v. Griffiths, No. 13-2102-cr (2d Cir. Apr. 25, 2014) (Cabranes, Lynch, and Lohier) (per curiam), available here

Griffiths was tried before a jury on charges of making false statements, obstructing justice, and committing mail fraud. At the close of the evidence, his attorney suffered two strokes. The district court, instead of postponing trial indefinitely or granting a mistrial, appointed an attorney who had not witnessed the presentation of the evidence to deliver the defense summation. The jury convicted.

The defendant argued on appeal that the appointment of substitute counsel to deliver the summation deprived him of his Sixth Amendment right to the effective assistance of counsel. The Circuit disagreed. It held that the district court's decision to appoint the new lawyer was not a per se violation of the Sixth Amendment right to be represented by one's counsel of choice and to effective assistance. 

The Court further held that, under the unusual circumstances presented, the district court's decision to appoint substitute counsel was reasonable and did not prejudice the defendant. The Court noted that (1) replacement counsel was "undisputedly competent and prepared," (2) the defendant refused to consent to a mistrial that would have entailed a waiver of his Fifth Amendment right against double jeopardy, and, (3) before replacing the defendant's original lawyer and proceeding with the trial, the district court made appropriate efforts to determine whether and when counsel was likely to be able to return to court and effectively represent the defendant. The judge proceeded with the trial only after he was unable to obtain assurances that the original attorney would ever be sufficiently recovered to resume trial.    

New York Conviction for Sexual Abuse in the Second Degree Qualified as Conviction "Relating to ... Sexual Abuse" of a Minor

United States v. Allen, No. 13-0296-cr (2d Cir. Apr. 16, 2014) (Pooler, Parker, and Wesley), available here

Allen pled guilty to transporting, receiving, and possessing child pornography. At sentencing, the district court ruled that Allen's prior New York State conviction for Sexual Abuse in the Second Degree, N.Y. Penal Law 130.60(2), subjected him to increased penalties because it constituted a prior conviction under a State law "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." 18 U.S.C. 2252A(b)(1) and (b)(2). The Circuit agreed and, consequently, affirmed.

Penal Law 130.60(2) provides that "[a] person is guilty of sexual abuse in the second degree when he ... subjects another person to sexual contact and when such other person is ... [l]ess than fourteen years old." Allen's conviction under this provision resulted from his touching the genitalia of a thirteen-year-old boy through the boy's clothing. 

The Circuit had no trouble concluding that this prior conviction qualified as a conviction under a law "relating to ... sexual abuse ... involving a minor," as required to trigger the enhanced penalties under 18 U.S.C. 2252A(b). Using a "categorical approach," the Court found that the conduct enumerated in New York's definition of "sexual contact" embraces "any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party" including "through clothing." Accordingly, Allen's prior conviction qualified for the federal enhancement. 

The Circuit explicitly rejected Allen's claim that the terms "aggravated sexual abuse," "sexual abuse," and "abusive sexual conduct involving a minor or ward" refer exclusively to several specified federal offenses listed in 18 U.S.C. 2241-43. Thus, even if New York's sexual abuse statute differs significantly from the definition of sexual abuse in 18 U.S.C. 2243, it still triggers the federal statutory enhancements because it "relate[s] to" the "sexual abuse of a minor" as that phrase is ordinarily understood.

Defendant's Hearing Impairment Did Not Require New Trial

United States v. Crandall, No. 12-3313-cr (2d Cir. Apr. 10, 2014) (Walker, Cabranes, and Parker), available here

This summary was provided by noted criminal defense attorney Francisco Celedonio, who is also a member of the Board of Directors of Federal Defenders of New York, Inc.:

Crandall was convicted after a jury trial of being a felon in possession of a firearm and ammunition (18 U.S.C. §§ 922(g)(1) and 924(a)(2)). On appeal, he argued that his trial violated Due Process and the Sixth Amendment because he suffered from a hearing impairment that prevented him from fully exercising his rights. 

Crandall’s impairment was first raised at a suppression hearing where counsel informed the district court that “Mr. Crandall has a hearing problem, he does have his hearing aids in but he’s still having trouble hearing.” In response, the judge directed the clerk to turn up the volume on the microphone and instructed the witness to “speak up.” During trial, various references were made to Crandall’s hearing issues: Crandall complained of a “fuzzy noise” from his hearing device; on another occasion Crandall was admonished by the district court for speaking loudly to his investigator, at which time Crandall stated he could not hear the judge’s admonishment clearly. During his own testimony, Crandall asked his lawyer to push the microphone closer. At sentencing, Crandall claimed he “could not hear my trial, witnesses [sic] testimony, or the Judge [sic] ruling. I could not even communicate with my Attorney because he tried wispering [sic]and it was on deaf ears.”

The Circuit held that the Sixth Amendment right to participate in one's own trial encompasses the right to reasonable accommodations for impairments to that participation, including hearing impairments. But where a criminal defendant fails to notify the district court of the impairment, she is only entitled to accommodations commensurate with the degree of difficulty reasonably clear or obvious to the district court. Here, the Circuit ruled, the district court was not notified of an ongoing hearing impairment – a “continuous inability to hear the proceedings.” Rather, the district court knew or should have known only that Crandall had some difficulty hearing at times. Given that knowledge, the accommodations provided by the district court were commensurate with the apparent severity of the impairment. Accordingly, no new trial was required.  

“Innocent Possession” and "Entrapment By Estoppel" Did Not Apply To Defendant Allegedly Returning Gun Under State or Local Amnesty Program

United States v. Miles, No. 13-1158-cr (2d Cir. Apr. 10, 2014) (Wesley, Carney, and Rakoff) (per curiam), available here

This summary was prepared by noted criminal defense attorney Francisco Celedonio, who is also a member of the Board of Directors of Federal Defenders of New York, Inc.:

Defendant Miles appealed his conviction and sentence as a felon in possession of  a firearm (18 U.S.C. § 922(g)(1)) after a bench trial on stipulated facts. He was sentenced to a mandatory prison term of fifteen years under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The stipulated facts at trial included that Miles had been previously convicted of at least one felony; that he possessed the pistol in the Southern District of New York; and that an interstate nexus existed.

Miles claimed at trial that his possession of the weapon (while riding the NYC subway) was in connection with the New York “cash for guns” program as he was en route to provide the gun to law enforcement. On appeal, the Circuit held that the affirmative defense of entrapment by estoppel was not available to Miles, because, as eight other Circuits have held, “a defendant charged with violating a federal crime must show reliance on the advice or authority of federal officials or agents to invoke this defense.” Here, however, Miles allegedly relied on representations made to him by state and local officials, not federal officials, offering "cash for guns."

The Circuit also rejected Miles's "innocent possession" defense. While noting that the Circuit had not yet decided whether to recognize an innocent possession defense in the context of § 922(g), the panel cited the Court’s “repeated” rejection of an innocent possession defense where “possession was not ‘momentary’ or ‘only for as long as necessary’ to deal with a justifying necessity.” Under that standard, the district court properly precluded Miles from asserting the defense. 

In addition, the Court summarily affirmed the police officer’s probable cause to arrest Miles, based on his passage through various NYC transit cars in violation of an administrative ordinance.

Finally, the Circuit upheld Miles's fifteen-year prison term under ACCA. The Court rejected the argument that the defendant's prior state court conviction for robbery in the third degree did not qualify as a "violent felony" under ACCA because he was sentenced to less than a year in custody for that offense. The Court noted that the crime need only be "punishable" by more than a year in prison; it does not matter what sentence the defendant actually received.

The Fact of a Prior Felony Conviction Does Not Go to the Jury Even if It Increases a Defendant's Statutory Mandatory Minimum

UNITED STATES V. ROSARIO, NO. 12-3963 (2D CIR. APR. 2, 2014) (WESLEY, CARNEY, AND RAKOFF) (SUMMARY ORDER), AVAILABLE HERE

The defendant in this case appealed his jury conviction for conspiracy to distribute and possession with the intent to distribute heroin.  He argued that the evidence was insufficient to support the conspiracy conviction and that other errors denied him a fair trial, including whether the jury should have considered the fact of a prior felony information.  Because the sufficiency claim related to the credibility of cooperating witnesses, the Court deferred to the jury's credibility determinations and held that the jury had "ample evidence" to find the defendant guilty.

With regard to the prior felony information question, the Court cited the continuing validity of the Supreme Court's decision in Almendarez-Torres and held that "the fact of a prior felony conviction may be decided by a judge, not a jury, even if that fact increases the statutory minimum term of imprisonment to which the defendant is exposed."  The Court relied on the more recent Supreme Court decision in Alleyne v. United States, which specifically declined to revisit the holding in Almendarez-Torres.

Summary Summary

Here's a quick summary of noteworthy summary orders recently issued by the Circuit:

United States v. Davis, No. 12-4836-cr (2d Cir. Apr. 2, 2014) (Katzmann, Livingston, and Carter) (summary order), available here

The Circuit rejected Davis's argument that the district court improperly sentenced him as a "career offender." The district court, using the "modified categorical approach" to prior convictions, correctly found that Davis's prior conviction for assault in the second degree under Connecticut law constituted a "crime of violence." Accordingly, that conviction was properly used as a qualifying conviction for career offender purposes.

The Court also held that Davis's 112-month prison sentence -- less than half of the 262-month minimum term recommended by the Guideline -- was not substantively unreasonable.

United States v. Marks, No. 12-3788-cr (2d Cir. Mar. 31, 2014) (Parker, Hall, and Livingston) (summary order), available here

This summary order upholds the district court's decision to deny Marks a new trial based on alleged ineffective assistance of counsel. Though counsel failed to communicate a plea offer (of 20 years in prison) to the defendant, Marks failed to show a "reasonable probability" that he would have accepted the plea offer if it had been relayed.  

United States v. Green, No. 11-2958-cr (2d Cir. Mar. 31, 2014) (Parker, Livingston, and Carney) (summary order), available here

The Circuit held that the district court's erroneous failure to apply the Fair Sentencing Act of 2010 (FSA) at the defendant's sentencing (in May 2011) was not harmless. The court sentenced the defendant to ten years in prison, the minimum sentence under pre-FSA law. At sentencing, the Probation Department, the government, and defense counsel all referred -- incorrectly-- to a mandatory minimum prison term of ten years. Under these circumstances, the Circuit concluded, it could not be confident that the district court would have imposed the same ten-year sentence if it had recognized that the FSA governed and that the ten-year minimum did not apply. 

United States v. Hamdan, No. 11-4959-cr (2d Cir. Mar. 31, 2014) (Raggi, Chin, and Carney) (summary order), available here

Convicted of trafficking in counterfeit goods, defendant was ordered to pay $36,138 in restitution under the Mandatory Victim Restitution Act. He argued on appeal, inter alia, that the record evidence was insufficient to require him to reimburse certain expenses for which he claimed he was not responsible. 

The Circuit, applying plain error review, affirmed. The Court held that the evidence was sufficient to support the restitution order, that the defendant was properly ordered to pay restitution for a victim's travel and its destruction of counterfeit goods, and that the district court adequately considered defendant's economic circumstances in apportioning liability.   

United States v. Barner, No. 13-0379-cr (2d Cir. Mar. 31, 2014) (Sack, Livingston, and Lohier) (summary order), available here

Affirming defendant's conviction for illegally possessing a firearm as a convicted felon, the Circuit held that: 1) the district court did not err by failing to instruct the jury specifically that neither the defendant's presence nor his association with persons who owned or controlled the weapons was enough to convict the defendant; 2) the Allen charge given by the district court was not coercive; and 3) the evidence was sufficient to support the defendant's conviction; and 4) the defendant failed to demonstrate any improper courtroom closure that implicated his Sixth Amendment right to a public trial. 

Evidence Was Sufficient To Prove That Defendant Was Physically Deported

United States v. Harvey, No. 12-1490-cr (2d Cir. Mar. 26, 2014), available here

Harvey was convicted after a jury trial of one count of illegal re-entry into the United States after he was deported. He argued on appeal that the evidence was insufficient to prove his physical departure from the United States. The Circuit affirmed.

To prove Harvey left the country, the government relied on a 1992 warrant of deportation prepared by an immigration official, which indicated that the official witnessed Harvey depart on a flight from JFK airport to Kingston, Jamaica. That official was unavailable to  testify at Harvey's 2011 illegal re-entry trial, and the government did not present any other direct evidence that Harvey left the United States in 1992.

Nevertheless, the Circuit held that the evidence permitted a rational juror to conclude that Harvey had in fact left the United States on the date specified in the warrant. The Court ruled "that a properly executed warrant of deportation, coupled with testimony regarding the deportation procedures followed at that time, is sufficient proof that a defendant was, in fact, physically deported from the United States."

Here, the warrant specifically indicated that an immigration official had "witnessed" Harvey's departure, and set forth the date, flight number, and time it was effected. In addition, Harvey stipulated that he signed the warrant and that it contained his fingerprints. These facts, the Court held, coupled with testimony regarding the deportation procedures in effect in 1992, were sufficient to show that Harvey physically left the United States on the date specified in the warrant.

Commentary: The Circuit expressly left open whether the introduction of a warrant of deportation violates a defendant's rights under the Confrontation Clause where the person who prepared the warrant is not available for cross-examination, an issue not raised by this defendant.  

Forfeiture Is Limited to That Authorized by the Statute Listed in the Charged Count

United States v. Annabi, Nos. 12-4988-cr(L), 12-4990-cr(Con) (2d Cir. Mar. 25, 2014), available here

This published decision holds that where the government fails to invoke an applicable forfeiture provision in the indictment, and fails to correct that error prior to entry of a final judgment, forfeiture must be limited to that authorized by the statute cited as the basis for forfeiture, and of which the defendant had notice.

The facts: A jury convicted Annabi of, among other counts, three counts of mortgage fraud (Counts Seven, Eight, and Nine). The government sought, and the district court ordered, forfeiture of the gross proceeds of the fraudulently obtained loans described in these three counts.

The Indictment sought, on all three counts, forfeiture to the United States, citing the civil forfeiture provision (18 U.S.C. 981(a)(1)(C)), and 28 U.S.C. 2461(c). On  Counts Eight and Nine only, the Indictment also sought forfeiture under the criminal forfeiture provision (18 U.S.C. 982(a)(2)(A)). But Count Seven cited the civil forfeiture provision only. The civil and criminal forfeiture provisions, moreover, are different in at least one crucial respect: the criminal provision requires forfeiture of the entire amount of a fraudulent loan (even if it was already repaid), whereas the civil provision requires a deduction from forfeiture of any portion of the fraudulent loan that was repaid at no loss to the victim.

The decision: The Circuit held that, because the government failed to mention the criminal forfeiture provision in Count Seven, and did not correct this oversight prior to or during sentencing, the district court erred by ordering the defendant to forfeit the gross fraudulent proceeds for Count Seven. Since Count Seven cited only the civil forfeiture provision, the district court should have reduced the forfeiture on Count Seven by the amount of the fraudulent loan that was repaid with no loss to victim.

Circuit Affirms Former Goldman Sachs Director's Insider Trading Convictions

United States v. Gupta, No. 12-4448-cr (2d Cir. Mar. 25, 2014) (Newman, Kearse, and Pooler), available here

Rajat K. Gupta, a former director of The Goldman Sachs Group, was convicted, after a jury trial, of three counts of securities fraud and one count of conspiracy to commit securities fraud, based on insider trading. He was sentenced to 24 months of imprisonment, one year of supervised release, and a fine of $5 million. This published decision affirms the judgment.

Gupta argued on appeal that the trial court (Judge Rakoff) erred (1) by admitting statements of a coconspirator (Raj Rajaratnam), recorded in wiretapped telephone conversations to which Gupta was not a party, and (2) by excluding relevant evidence offered by Gupta.

The Circuit rejected these arguments. It held, first, that Rules 801 and 804 of the Federal Rules of Evidence allowed the admission of Rajaratnam's recorded statements, both as non-hearsay statements in furtherance of the charged "Rajaratnam-Gupta conspiracy" and under the exception for statements against penal interest.   

The Court also held that the district court did not commit reversible error by limiting or excluding evidence proffered by the defense to show that any communication by Gupta of inside information to Rajaratnam was improbable. This evidence included testimony from Gupta's daughter Geetanjali suggesting that Gupta was angry with Rajaratnam at the relevant time and therefore was unlikely to have shared insider information with him.

The Circuit held that the trial court did not abuse its discretion by concluding, under Fed. R. Evid. 403, that this evidence was "cumulative" and would have been "unfairly prejudicial" to the government. The Court further held that any error was harmless.

Finally, the Circuit upheld the exclusion of other defense evidence, including evidence that ostensibly suggested that someone else had provided confidential information to Rajaratnam, evidence of Gupta's intent to give to charity, and character testimony indicating that Gupta had "integrity."

District Court Had Jurisdiction To Adjudicate and Punish Violation of Supervised Release

United States v. Bussey, No. 13-1180-cr (2d Cir. Mar. 20, 2014) (Raggi, Lynch, and McMahon), available here

This summary was prepared by noted criminal defense attorney Francisco Celedonio, who is also a member of the Board of Directors of Federal Defenders of New York, Inc.:

Bussey appealed his conviction for violating the terms of his supervised release. He argued that the district court lacked jurisdiction because his term of supervision expired before judgment was imposed. The Circuit affirmed.

The facts: Bussey began serving a three-year term of federal supervision on February 9, 2010, upon his release from federal custody for a felon-in-possession conviction. On April 1, 2011, and April 7, 2011, arrests warrants were issued, respectively, by New York State and the United States, for Bussey's failure to report for state or federal supervision. Bussey was taken into state custody first and remained there until March 8, 2013. He was then transferred to federal custody on March 20, 2013, at which time he appeared in the district court and was found guilty of violating a condition of his supervision, i.e., he failed to notify his probation officer prior to changing his residence. The district court sentenced Bussey to time served and imposed an addition two years of supervision.

The decision: In rejecting the jurisdictional challenge, the Circuit relied on 18 U.S.C. 3583(i), which provides that the power of the district court to revoke supervision and impose punishment "extends beyond the expiration of the term of supervised release for any period reasonably necessary for the adjudication of matters arising before its expiration...." Further, the Circuit noted that 18 U.S.C.
3624(e) expressly tolls supervision terms for "any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days."

Here, Bussey was imprisoned for about  22 months by New York State for violating his parole. That period tolled his federal supervision because Bussey was imprisoned during that time "in connection with a conviction for a ... State ... crime." Accordingly, by virtue of the tolling, the district court had jurisdiction to adjudicate Bussey's federal supervised release violation in March 2013.  

Defense Lawyer's Decision Not to Call a Witness Who Might Offer Exculpatory Evidence Is a Question of Trial Strategy

PIERRE V. ERCOLE, NO. 12-3506-PR (2D CIR. MAR. 27, 2014) (SACK, LIVINGSTON, AND LOHIER) (SUMMARY ORDER), AVAILABLE HERE

This case involved an ineffective assistance of counsel claim following defendant's murder conviction.  The defendant argued that his defense lawyer was ineffective for not calling a particular witness at trial and for failing to investigate a possible witness.  The Court disagreed with both arguments. 

The decision whether to call a specific witness, even one that might offer exculpatory evidence, is a question of trial strategy and is not viewed as a lapse in professional representation.  The defendant claimed that the uncalled expert witness could have cast doubt on the state's pathologist, who opined as to the victim's date of death.  That date, however, did not coincide with the defendant's claimed alibi that existed two days later.  According to the Court, the decision to not call the witness was strategic.  It avoided potential cross-examination of the uncalled defense witness by the state, which could have "diluted" the points made by the defense lawyer during cross-examination of the state's pathologist. 

Nothing in the record supported the defendant's second claim, including any affidavit from the defense lawyer or the possible witness as to what she did or did not witness.  "Bare allegations" were insufficient to meet the defendant's burden of proving ineffective assistance of counsel.

A District Court's Failure to State in Open Court Reasons for the Sentence Imposed Is Not In and of Itself Plain Error

UNITED STATES V. PALMA, NO. 13-2230-CR (2D CIR. MAR. 27, 2014) (SACK, LIVINGSTON, AND LOHIER) (SUMMARY ORDER), AVAILABLE HERE

This defendant claimed that the sentencing court committed procedural error by failing to articulate the reasons for the sentence imposed and not addressing the 3553(a) factors.  On plain error review, the first challenge failed.  The Court explained that even if a sentencing court fails to state in open court the reasons for its sentencing decision, that is not tantamount to establishing plain error.  Moreover, the sentencing court in this case expressly adopted the presentence report, which was detailed.  The report discussed the amount of drugs and money involved in the offense.  The district court even noted the former at the sentencing hearing.  Based upon the totality of circumstances, no plain error existed. 

The Court also disagreed with the 3553(a) claim, noting there is no requirement that the sentencing court mention the factors or explain how each factor affected the sentencing decision.  Absent evidence to the contrary, the presumption that courts not only know the laws governing their decisions, but also followed those laws, controls.

Promise of Jail Time by District Court at Plea Hearing Did Not Give Rise to "Air of Inevitability" at Subsequent Sentencing

UNITED STATES V. DELGIORNO, NO. 13-625-CR (2D CIR. MAR. 27, 2014) (STRAUB, SACK, AND LOHIER) (SUMMARY ORDER), AVAILABLE HERE

This defendant appealed his sentence and claimed that the sentencing court committed procedural error by failing to calculate the guidelines, properly consider the 3553(a) factors, and adequately explain the sentence imposed.  All challenges failed.  The district court calculated the guidelines given its review and "explicitl[] adopt[ion]" of the presentence report's accurate guideline calculations.  At the hearing, it also noted the low end of the range when explaining that it would not impose a guidelines sentence.  The district court also provided an adequate explanation for the below guideline sentence imposed, including aggravating and mitigating factors.

As to the defendant's 3553(a) argument, the Court affirmed, but voiced concern about whether the sentence "had an air of inevitability" based upon comments by the district court at the defendant's plea hearing.  At that hearing, the district court noted an "agreement" it had with the defendant, which included a two-year sentencing adjournment.  If the defendant did not get into any trouble, he would receive no jail time.  But, if he did get into trouble, he would go to jail.  The defendant apparently got into trouble, prompting the district court to impose jail time per its earlier promise.  The Court quickly concluded that the district court's written statement of reasons for the sentence unambiguously demonstrated consideration of the 3553(a) factors prior to imposition of sentence.