Friday, March 07, 2014
A jury convicted Roohid Hakimi of conspiracy and attempt to possess and distribute controlled substances. After the verdict, the district court (Judge Hurd) entered a judgment of acquittal, holding that the evidence was insufficient to establish guilt. This published opinion (authored by Judge Carney) reverses and reinstates the convictions. Judge Hall dissents.
The key issue on appeal was whether the evidence allowed a rational juror to conclude, beyond a reasonable doubt, that Hakimi knew that the bag he was poised to receive from Anderson, a co- defendant-turned-cooperator, contained drugs.
The majority said, "Yes." It summarized its reasoning as follows:
"[T]he jury could infer that Hakimi was a trusted member of the conspiracy, and accordingly that he knew of the contents of the bag that Anderson plausibly testified she was about to give him. These general inferences derive decisive strength in Hakimi's case from Anderson's testimony that the principals in this conspiracy in particular would not have committed a valuable shipment of drugs to a person who was not a trusted individual."
Judge Hall's dissent took a different view:
"There is no basis in this record on which the jury could rationally infer a trust relationship between Hakimi and the principals and thereby infer Hakimi's knowledge of the nature of the contraband. To that end, the majority proposes a broad holding that a jury can infer a 'trusted insider' status, and thereby knowledge of the nature of the object of a conspiracy, from nothing more than the value of the contraband to be transported, phone calls of unknown content, and a co-conspirator's intention that the defendant have sole possession of the object to be delivered. This is not ... in line with this Circuit's prior precedent and is tantamount to the sort of speculation that we have previously held insufficient to support a conviction for drug conspiracy or attempted possession of controlled substances."
Wednesday, March 05, 2014
Circuit Grants Rehearing and Vacates Three Convictions Tainted by Involuntary Confession and Ineffective Redactions Under Bruton
United States v. Taylor, Nos. 11-2201(L), 11-2426(CON), 11-2639(CON) (2d Cir. Mar. 4, 2014) (Kearse, Jacobs, and Carney), available hereIn this published decision, the Circuit granted the government's petition for panel rehearing and withdrew its original opinion vacating the convictions of all three defendants. Unfortunately for the government, the Court, on rehearing, not only again vacated the defendants' convictions, but expanded its rationale for doing so. [Disclosure: the Federal Defenders of New York, Inc., represents one of the defendants in this case.]
All three defendants were convicted of charges related to the robbery of a Manhattan pharmacy. The Court's original opinion (issued on December 4, 2013) vacated the convictions, holding that the admission of the main defendant's involuntary confession was prejudicial to all three defendants. The Court found the confession so critical to the government's case, and so essential to buttressing the credibility of the cooperating accomplice, that it prejudiced the co-defendants as well. Thus, the Court found it unnecessary to decide whether the admission of the confession, as redacted by the district court, also violated the co-defendants' Confrontation Clause rights under Bruton v. United States, 391 U.S. 123 (1968).
The government then sought rehearing, arguing that the confession was admitted only against the defendant who made it (as a limiting instruction advised the jury), and that the confession therefore could not be grounds for a new trial for the co-defendants unless it violated Bruton.
In this new decision (authored by Judge Jacobs), the Court granted panel rehearing, withdrew its original opinion, and once again found the main defendant's confession involuntary and prejudicial as to him. But this time the Court not only reached the Bruton issue, but resolved it in favor of the co-defendants. The panel held that the admission of the redacted confession violated the Confrontation Clause rights of the co-defendants because the redactions left it obvious that the confession implicated the co-defendants and had been redacted. The Court emphasized that the confession referred throughout to the testifying accomplice by her full name, Luana Miller, while referring awkwardly to the co-defendants as "two other individuals," or as "the driver" and "the person who waited with Luana Miller," and even as "the mother of one of the two other individuals." The Court held that "the awkward circumlocution used to reference other participants, coupled with the overt naming of Luana Miller (only), is so unnatural, suggestive, and conspicuous as to offend Bruton, Gray [v. Maryland, 523 U.S. 185 (1998)], and [United States v.] Jass[, 569 F.3d 47 (2d Cir. 2009)]."
Accordingly, the Court once again vacated the convictions of all three defendants and remanded for a new trial.
Monday, March 03, 2014
Summary Order Upholds Denial of Suppression Motion
United States v. Lee, No. 13-1432-cr (2d Cir. Feb. 27, 2014) (Wesley, Droney, and Abrams) (summary order), available hereThis summary was provided by noted criminal defense lawyer Francisco Celedonio, who is also a member of the Board of Directors of Federal Defenders of New York, Inc.:
In this summary order, the Circuit upheld a decision of the district court (Judge Scullin) denying a motion to suppress. The district court found a confidential informant sufficiently reliable (based on detailed information that was corroborated) to provide officers with reasonable suspicion to stop a vehicle. Given the reliability of the CI's tip (which suggested the defendant was armed), the officers also had a basis to search the defendant upon stopping the vehicle.
Erroneous Advice Concerning Deportation Consequences Prompts Circuit to Grant Writ and Vacate Conviction
Kovacs v. United States, No. 13-0209 (2d Cir. Mar. 3, 2014) (Kearse, Jacobs, and Parker), available here
Kovacs, an Australian national, pled guilty in 1999 to misprision of felony (18 U.S.C. § 4). His lawyer advised him at the time -- and stated on the record -- that the plea would have no immigration consequences. Many years later, Kovacs learned that this advice was incorrect, and that his conviction placed him at risk of detention and deportation if he ever reentered the United States.
Kovacs then sought a writ of error coram nobis in the district court, arguing that his lawyer rendered ineffective assistance of counsel by giving erroneous advice concerning the deportation consequences of pleading guilty, and that his conviction should be vacated. The district court denied the petition without an evidentiary hearing.
In this published opinion, the Circuit reversed and ordered the granting of the writ. The Court held, first, that the petition was timely, and that counsel's affirmative misrepresentation about the deportation consequences of the plea constituted "objectively unreasonable" performance under Strickland v. Washington.
The Court also held that Kovacs had established that his lawyer's flawed advice caused him "prejudice." The Circuit declared that "a defense lawyer's incorrect advice about the immigration consequences of a plea is prejudicial if it is shown that, but for counsel's performance errors, there was a reasonable probability that the petitioner could have negotiated a plea that did not impact immigration status or that he would have litigated an available defense."
Here, Kovacs showed that, but for counsel's deficient performance, (1) he could have negotiated a plea that would not have impaired his immigration status; and, (2) even if he could not have negotiated such a plea, he would have litigated an available statute-of-limitations defense. Accordingly, the Circuit directed the district court to issue the writ and vacate Kovacs's conviction.
Wednesday, February 26, 2014
Restitution Under the Mandatory Victims Restitution Act Is Improper for Harms Not Listed in the Statute
United States v. Maynard, No. 12-5106-cr (2d Cir. Feb. 24, 2014) (Kearse, Jacobs, and Parker), available here
This important decision holds that, under the Mandatory Victims Restitution Act of 1996 ("MVRA"), 18 U.S.C. §§ 3663-64, restitution may be awarded only for the harms enumerated in the statute.
The facts were simple: Maynard and Ludwig robbed five banks between September and November 2011. At sentencing, the district court ordered the defendants to pay restitution to the banks under the MVRA. More than half of the restitution was to repay the money stolen during the robberies, and was clearly proper. But the rest included certain expenses paid by one of the banks: (1) paid time-off for the bank's regular staff, and the pay of replacement staff; (2) mileage expenses for the replacement staff; (3) the cost of wanted posters; and (4) the cost of a temporary security guard at the bank after the robbery.
The Court noted that the MVRA requires a court to order restitution for the four categories of harm listed in the statute, but makes no other expense reimbursement mandatory. And no provision of the statute gives district courts discretion to order any other restitution. Accordingly, the Court held, only those expenses enumerated in Section 3663A(b) are properly the subject of restitution.
Applying this rule to the facts, the Circuit held that aspects of the restitution award were improper. Indeed, the award was proper only to the extent it compensated the bank for the amount stolen during the robbery and for the money it paid its regular staff for the afternoon while the bank was closed as a crime scene. Restitution was proper for the latter expense because the bank derived no benefit from the wages paid while the bank was closed. The bank then reopened, but allowed its regular staff to stay home (with full pay) for a couple of extra days to recover from the stress caused by the robbery. That expense was not a proper subject for restitution, because the bank would have paid the regular staff for these days even if the bank had not been robbed.
The wages (and mileage expenses) for the temporary staff also did not fall within the enumerated harms of the MVRA. The temporary staff wages did not compensate for losses such as destruction of property or funeral expenses, and were not necessary to the prosecution or investigation of the offense. While the expense was arguably attributable to the psychological recovery of the regular staff present during the robbery, the MVRA limits recovery for psychological harm to instances of "bodily injury." And even if the wages constituted a "business expense" absorbed by the bank, as the government argued, the MVRA does not include a business expense category.
Finally, the Circuit held that restitution for the cost of the wanted posters and the temporary security guard was not authorized. These expenses, the Court concluded, were not "necessary" to the investigation or prosecution of the offense, and did not fall within any other category of harm listed in the statute.
Defendant's Supreme Court Victory Did Not Entitle Him to New Trial
United States v. Bailey, No. 07-3719-cr (2d Cir. Feb. 21, 2014) (Cabranes, Pooler, and Raggi), available here
This case shows that even a Supreme Court victory isn't always enough to help a convicted defendant.
The police stopped Bailey about a mile from a residence that he had just departed and that was about to be searched (for drugs and a gun) pursuant to a warrant. In 2011, the Circuit upheld this stop as a lawful detention incident to the authorized search under Michigan v. Summers, 452 U.S. 692 (1981). The Supreme Court then reversed, holding that Summers's detention-incident-to-search rule did not apply because Bailey was not in "the immediate vicinity of the premises to be searched" when he was stopped. But, rather than ordering suppression or a new trial, the Supreme Court remanded for the Second Circuit to decide whether Bailey's detention could be justified independently as a reasonable investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968).
This opinion (authored by Judge Raggi) addresses that question and holds that Bailey's initial detention was reasonable under Terry, but ceased to be so when he was placed in handcuffs. Thus, while evidence obtained from Bailey before handcuffing was lawfully obtained under Terry, evidence obtained thereafter (including exculpatory statements that the prosecution claimed at trial were false) was not.
If you thought that this ruling would lead to a new trial, you'd be wrong. The defendant was not entitled to relief because, the Circuit held, the admission of the tainted evidence was harmless beyond a reasonable doubt. The Court cited the strength of the government's case, the prosecutor's limited reliance on the tainted evidence in summation, and other factors to support the conclusion of harmless error.
Judge Pooler agreed with the majority that the evidence obtained after handcuffing should have been suppressed, but dissented from the remainder of the Court's decision; she concluded that the defendant's entire detention was illegal and that a new trial was required.
Thursday, February 20, 2014
Circuit Vacates Restitution Order
United States v. Lochard, No. 12-5115-cr (2d Cir. Feb. 19, 2014) (Chin, Carney, and Droney) (summary order), available hereConvicted of access device fraud, the defendant was sentenced to 36 months of imprisonment and ordered to pay about $108,000 in restitution. The judgment did not set forth a payment plan or provide for the waiver of interest. A month after he was sentenced, the incarcerated defendant received a letter from the government advising him that the full amount of restitution was due immediately and that interest would accrue on any unpaid balance.
The defendant wrote to the district court seeking a payment schedule and modification of the judgment, but the court denied the requests. He then appealed.
Three issues were presented on appeal: (1) whether the appeal was time-barred; (2) whether the district court had jurisdiction to consider the defendant's motion to modify; and (3) whether the district court abused its discretion in denying the motion. The Court resolved all three issues in the defendant's favor:
First, the appeal was timely because the defendant timely filed a notice of appeal from the district court's order denying his motion to modify the judgment. Second, the district court had jurisdiction to consider the defendant's motion to modify because modification of the terms of payment of restitution is authorized by statute, and does not constitute a modification of the sentence itself.
Finally, the Circuit held that a remand for further proceedings was required because the Court could not discern the basis for the district court's decision denying modification of the payment schedule. The court simply checked a box saying that modification was "denied." The Circuit further noted that, under the Mandatory Victim Restitution Act, modification is expressly permitted if a defendant demonstrates a material change in his economic circumstances. The Court thus remanded, directing the district court to consider whether the defendant could demonstrate such a change and, if not, whether the court could impose a restitution schedule even absent such a showing.
Wednesday, February 19, 2014
Claim That Indictment Charged a "Non-Offense" Was Waived By Guilty Plea
United States v. Rubin, No. 12-3777-cr (2d Cir. Feb. 19, 2014) (Cabranes, Hall, and Chin), available hereRubin was charged principally with conspiracy to violate the Unlawful Internet Gambling Enforcement Act of 2006 ("Gambling Act"). He pled guilty under an unconditional, written plea agreement, and was sentenced to 36 months of imprisonment.
On appeal, the defendant argued that he was convicted of a "non-offense" when he pled guilty because the indictment did not charge him with conspiring in the business of "betting or wagering;" it alleged only that he handled gambling funds, conduct which, he claimed, was exempt from prosecution under the Gambling Act.
The Circuit held that, even assuming that the indictment charged a "non-offense," Rubin's guilty plea waived his right to challenge this purported defect in the indictment. The Court reasoned that, under the Supreme Court's decision in United States v. Cotton, 535 U.S. 625 (2002), the alleged defect in the indictment was non-jurisdictional, and therefore could be, and was, waived by the defendant's unconditional guilty plea.
The Court also rejected the defendant's argument that his 36-month prison sentence was unreasonable. The Circuit noted that the district court justified the sentence -- an upward variance from the Guidelines range -- by stating that the crime was "particularly reprehensible," that the defendant's conduct was "brazen, quite deliberate, and deceptive," and that the defendant was likely to commit new crimes upon release from imprisonment. Under these circumstances, the sentence was both procedurally and substantively reasonable.
Commentary: This decision holds merely that the defendant, by pleading guilty, waived his right to challenge an alleged non-jurisdictional defect in the indictment. But it never resolves a rather important question: Was this defendant actually guilty of the crime to which he pled guilty?
Tuesday, February 11, 2014
Court Rejects Pro Se Appeal
United States v. Faison, No. 12-5006-cr (2d Cir. Feb. 10, 2014) (Leval, Calabresi, and Lynch) (summary order), available here
Representing himself at a jury trial, the defendant was convicted, among other things, of possessing 28 grams of cocaine base with intent to distribute. On appeal, he continued to represent himself, challenging his arrest, the indictment, and several of the district court's trial rulings.
This summary order affirms the defendant's convictions. The Court ruled, first, that the federal authorities had probable cause to arrest the defendant at a state correctional facility at which he was being held, and therefore did not need a warrant to do so. The Court rejected the defendant's claim that he was arrested under a "fraudulent warrant."
Second, the Double Jeopardy Clause did not bar the defendant's prosecution in federal court following his arrest by state officials. "The Double Jeopardy Clause," the Court wrote, "does not prohibit sequential prosecutions by different sovereigns, so a prior state prosecution would not bar a later prosecution based on the same events." Here, the defendant was never even indicted on the state charges, thus dooming his Double Jeopardy claim.
Third, the government indicted the defendant well within the time limits set by the Speedy Trial Act.
The Court also upheld the district court's trial rulings. The trial court properly admitted testimony regarding the defendant's statements and conduct leading up a drug sale, and the defendant did not establish that any prosecution witnesses committed perjury. Further, the prosecutor did not commit any prejudicial misconduct during opening statement or summation. Finally, while the defendant challenged testimony from scientists at the Nassau County Crime Lab as untrustworthy, the Circuit ruled that any deficiencies in the testimony were harmless in light of the overwhelming evidence of guilt.