Fare is Foul

United States v. Rodriguez, No. 08-2805-cr (2d Cir. November 30, 2009) (Newman, Calabresi, Katzmann, CJJ)

This interesting opinion concludes that a dispute over a taxi fare did not violate the Hostage Taking Act, 18 U.S.C. § 1203.

Background

In 2005, Azucena Gonzalez Mendez was smuggled into the United States from Mexico. She was driven from Arizona to Las Vegas, then flew to Long Island, where her husband, Julio Perez, who lived in New Jersey, was to meet her and drive her home. When she arrived at the airport, however, Mendez, could not find her husband.

Defendant Rodriguez saw Mendez and told her that it was not safe for her to wait in the airport, because there were immigration officers present. Rodriguez pretended to call Mendez’ husband, telling her that there was no answer, then offered to give her a ride. He brought her to a van, which was driven by co-defendant Reynoso. While Mendez was waiting in the van, she saw her husband arrive at the airport, but Rodriguez told her not to get out because immigration officers were following them.

She then reluctantly agreed to let them drive her home. Reynoso drove off with Mendez, and Rodriguez met up with them later at a convenience store. In the meantime, he called Mendez’ family and said that he would bring Mendez home. The family told him not to, but Rodriguez insisted. Rodriguez then spoke directly to Perez, telling him that he was a Customs Service employee who had directed Mendez to car for her own safety. Rodriguez later told Perez that she was on her way to New Brunswick, New Jersey.

After several more conversations with Perez, Rodriguez told Perez to make a financial arrangement with the person driving Mendez, and they agreed to meet at a service area on the Garden State Parkway. Rodriguez, Reynoso and Mendez were the first to arrive there, and waited in an employee parking lot. Just after 9:00 p.m., Perez arrived. Mendez tried to leave the van, but Rodriguez would not let her, telling her that first the driver had to speak with her husband. Perez demanded that they let Mendez out, but they said they would not release her until Perez paid $475 for the ride.

When Perez said that he would not pay anything, Rodriguez threatened to call the police. Perez said that he would call the police himself, and did so, at 9:17. Ten minutes later, New Jersey state troopers arrived, released Mendez and arrested Rodriguez and Reynoso. At total of fifteen minutes elapsed between the demand for the $475 and Mendez’ release; during most of that time, they were all waiting for the police to arrive.

After a jury trial, the defendants were convicted of transporting an illegal alien, not challenged on appeal, and one count of violating the Hostage Taking Act.

The Circuit’s Ruling

On appeal, the defendants challenged both the applicability of the Hostage Taking Act to their conduct and the sufficiency of the evidence. The court agreed that the evidence was insufficient.

First, after a long discussion, the court concluded that § 1203 can be applied in cases that are not linked to international terrorism, even though the treaty that inspired the legislation was specifically direct to acts of terrorism. But the court went on to note that the statute’s original purpose should “serve as a frame of reference to caution against stretching the coverage of the Act.”

In concluding that the evidence was insufficient, the court noted that the statute required the government to prove that Rodriguez and Reynoso “detained” Mendez and continued to do so to compel her husband to pay the taxi fare. Moreover, the case law requires that the confinement be “for an appreciable period of time.” Here, the relevant period of time should not be measured from the moment that Mendez was first confined at the airport. While this is when the alien transportation offenses of which the defendants were convicted started, it was not the starting point of the hostage taking.

Here, the defendants did not try to compel Perez to pay money for his wife’s release until he arrived at the service area, and the confinement following the demand for payment “lasted at most fifteen minutes.” Rodriguez’ earlier efforts to get Perez to “make an arrangement” with Reynoso could not reasonably be deemed a demand for payment for Mendez’ release. Accordingly, the detention of Mendez for the purpose of compelling Perez to pay for the ride did not begin until the demand for payment was made at the service area.

The fifteen post-demand minutes that Mendez was confined in the taxi at the service area, without any injury or threat of injury, was not an “appreciable period of time,” and hence was “not sufficient to establish a Hostage Act violation.” This is particularly true since, for most of that time, Mendez, the defendants and her husband were all waiting for the police to arrive. In short, “confinement incident to a taxi fare dispute” was not “the confinement of a hostage proscribed by” § 1203.

The court accordingly reversed the defendants’ Hostage Act convictions and remanded the case for resentencing on the alien transportation convictions.

SAMs Club

United States v. Stewart, No. 06-5015 (2d Cir. November 17, 2009) (Walker, Calabresi, Sack, CJJ)

This 191-page opinion - three opinions, actually - deals with the aftermath of the Lynne Stewart trial. The defendants appealed their convictions - without success - while the government appealed the sentences. The court found procedural error with respect to Stewart’s sentence and remanded the case for resentencing.

Background

Beginning in the mid-1990's, Stewart represented Sheikh Omar Ahmad Abdel Rahman, who was convicted of several terrorism offenses - including the 1993 World Trade Center bombing conspiracy - and sentenced to life in prison. Although based in New York, Rahman was the spiritual leader of the Islamic Group, a terrorist organization that was responsible for acts of violence in Egypt.

In 1997, the Bureau of Prisons imposed restrictive Special Administrative Measures (“SAMs”) on Rahman to prevent him from soliciting acts of violence from prison. The SAMs were intended to severely restrict Rahman’s ability to contact outsiders and to receive or transmit communications. In order to maintain contact with her client, Stewart was required to - and did - execute several versions of the SAMs between 1998 and May of 2001. In doing so, she affirmed that she would abide by their restrictions and would not use her meetings with Rahman to pass messages between Rahman and third parties, including the media.

Nevertheless, Stewart, with the assistance of Mohammed Yousry, a translator, and Ahmed Abdel Sattar, a paralegal who had worked on the trial, repeatedly violated the SAMs.

In 1997, the Islamic Group declared a unilateral “cease-fire” in Egypt. Beginning in early 1998 Sattar - who had remained in contact with the Islamic Group - would deliver messages concerning the cease-fire to Stewart and Youssry, who would bring the messages to Rahman in prison. In an elaborate effort to trick the guards who were observing these visits, Yousry would read the messages to Rahman and take down his responses, while they pretended to discuss other matters. When Rahman began to question the effectiveness of the cease-fire, Stewart and Yousry smuggled his position out of the prison and passed it on to Sattar, who communicated it to his associates in Egypt.

As time wore on, Rahman - through more smuggled communications - officially repudiated the cease-fire. In May of 2000, Stewart and Sattar spoke to a reporter based in Cairo and Stewart announced that Rahman had withdrawn his support for the cease-fire; a few days later, after a telephone conversation with Rahman, Stewart contacted the reporter again and confirmed that her previous statement was correct. Stewart’s and Youssry’s surreptitious passing of messages to and from Rahman continued until June of 2001.

The three defendants were indicted in 2002, a superseding indictment was filed in later 2003, and, in February of 2005, a jury convicted them of conspiracy to defraud the United States by violating the SAMs. Sattar was also convicted of conspiring to murder persons in a foreign country and of soliciting crimes of violence. Stewart and Yousry were convicted of providing and concealing material support to Sattar’s murder conspiracy and of conspiring to do so, and Stewart was convicted of two counts of making false statements.

The district court sentenced Stewart to 28 months’ imprisonment, Youssry to 20 months, and Sattar to 288 months.

The Defendants’ Appeal

The defendants raised a host of challenges to their convictions. Only two are summarized here.

1. The Material Support Count

The original indictment charged the defendants with violating 18 U.S.C. § 2339B, which at the time made it a crime to “knowingly provide material support or resources to a foreign terrorist organization” or to attempt or conspire to do so. After the district court found that the statute was unconstitutionally vague and dismissed that count, the government superseded and charged them with violating 18 U.S.C. § 2339A, a similar statute that, unlike § 2339B required the government to prove that a defendant knew or intended that the material support would be used to commit specific crimes of violence. Here, the government alleged that the defendants provided material support or resources - specifically “personnel,” in the form of Rahman himself - to the murder conspiracy knowing or intending that Rahman would help commit the crimes.

Amongst other claims, Stewart and Yousry argued that the evidence was insufficient to support a finding that they provided “personnel” to the conspiracy. The circuit disagreed. The trial evidence supported a reasonable inference that they helped Rahman participate covertly in the conspiracy to engage in violence abroad by communicating to his supporters news of his repudiation of the cease-fire. Nor was it true that the defendants were prosecuted for Rahman’s “pure speech.” The jury reasonably found that, since Rahman was the Islamic Group’s spiritual leader, his messages were a “call to arms” intended to sway the group’s members to commit criminal acts of violence.

2. The False Statements Counts

Stewart challenged her convictions under 18 U.S.C. § 1001, characterizing her disregard of the SAMS as a “broken promise,” and not a false statement.

The court disagreed. The jury was “entitled to conclude” that when Stewart executed the SAMs she affirmed that she had the intention of conforming to their strictures, but that her assertions about her intent were knowingly and willfully false when she made them.

The Sentencing Appeals

For each defendant, the district court imposed a sentence far below that recommended by the Sentencing Guidelines. The government challenged all of them as procedurally and substantively unreasonable. The panel unanimously affirmed Sattar’s and Youssry’s sentences. As for Stewart, although it unanimously agreed that the sentence was the product of procedural error and thus should be vacated, the panel was deeply divided over the precise nature and extent of the error.

1. Sattar

For Sattar, the Guidelines recommended life. Due in very large part to the applicability of the terrorism enhancement, § 3A1.4, his offense level was 43 and he was in criminal history category VI. Under 18 U.S.C. § 3553(a), however, the district court imposed a 24-year sentence instead.

The circuit found no procedural error in the district court’s findings that: (1) the terrorism enhancement did not account for the fact that no injury actually occurred in this case; (2) the terrorism enhancement placed Sattar in criminal history category VI even though he had no criminal history points, thus overstating both his past conduct and likelihood of recidivism; and (3) his “extremely restrictive conditions of [pretrial] confinement” and the likelihood that they would continue were a mitigating factor.

With respect to this last consideration, the court noted that it was “not unreasonable for the district court to conclude that the severity of the conditions of confinement would increase the severity of the punishment and the amount of deterrence associated with a given term of imprisonment in light of the particular conditions of confinement under which Sattar is incarcerated.”

2. Yousry

For Yousry, the district court concluded that the terrorism enhancement did not apply, and thus that his sentencing range was 78 to 97 months. Under § 3553(a), the court imposed a 20-month sentence.

First, the circuit affirmed the district court’s conclusion that the terrorism enhancement did not apply to Yousry because Yousry did not act with the requisite state of mind. The enhancement applies if the offense of conviction is a felony “that involved” or “was intended to promote” a federal crime of terrorism, defined as one that “is calculated to influence or affect the conduct of government through intimidation or coercion.” The district court concluded that the government failed to establish that Yousry acted with the requisite motivation or purpose.

The government conceded this point on appeal but argued that the enhancement should still apply because Yousry’s offense “involved ... a federal crime of terrorism.” The circuit disagreed, holding that the word “involved” (1) meant that the enhancement could only apply if Yousry himself had committed a federal crime of terrorism, and (2) incorporated the specific intent to “influence or affect the conduct of government by intimidation or coercion.” Since there was “no evidence that Yousry himself sought to influence or affect the conduct of government,” the enhancement did not apply.

Nor could Yousry’s co-defendants’ motivations be imputed to him under the relevant conduct Guideline. Section 1B1.3 applies to “acts and omissions” and a mens rea is not an “act” for the purposes of the relevant conduct guideline.

The court found no procedural error in the district court’s reliance, under § 3553(a), on the following mitigating factors: (1) Yousry’s conduct fell outside the heartland of material support for terrorist activity; (2) no “actual harm to victims occurred” - holding, for the first time, that “a district court may rely on the fact that no harm resulted from the criminal act at issue,” at least to some degree; (3) Yousry’s role was “subservient to the others involved” in the scheme; (4) since Yousry did not act for profit and did not support or believe in the use of violence, he was less dangerous and more easily deterred; (5) his conviction would render him unable to pursue his career as an academic or translator - holding, again for the first time, that the “collateral effects of a particular sentence” are a necessary component of the “just punishment” provision of § 3553(a)(2)(A); Yousry extensively cooperated with the government after the September 11, 2001, attacks; and (7) Yousry will not again be in a position to commit this type of offense.

Finally, the court of appeals found that the resulting sentence was substantively reasonable because these factors could “bear the weight” assigned to them by the district court and because the district court did not give an inappropriate level of deference to the Guidelines.

3. Stewart

For Stewart, the guidelines recommended 360 months, the statutory maximum. Given the applicability of the terrorism enhancement, her offense level was 41 and her criminal history category was VI. After considering § 3553(a), the court settled on a 28-month sentence.

The district court first found that, although the terrorism enhancement applied, and Stewart’s conduct was within that provision’s “heartland,” this case was nevertheless an “atypical” one for the enhancement, because the “thrust” of the conspiracy was providing a co-conspirator, no harm resulted, and the enhancement did not take into account her actual criminal history. The court held that category VI overstated the seriousness of Stewart’s criminal past and the likelihood of recidivism, which the court described as “nil.”

Next, the district court viewed Stewart’s personal history as an attorney as “extraordinary” and concluded that it merited a “substantial downward variance.” The court also took into account her ill health - she was a cancer survivor - and her age, noting that her sentence would represent a “greater portion of her remaining life than for a younger defendant and provide increased punishment.”

All three judges on the appellate panel agreed that the district court committed three procedural errors in sentencing Stewart.

First, there was some evidence that Stewart had committed perjury at trial by testifying that “she understood that there was a bubble built into the SAMs whereby the attorneys could issue press releases containing Abdel Rahman’s statements as part of their representation of him” and by denying knowing about one of Rahman’s confederates in Egypt. Although the district court acknowledged that there was reason to think these were false statements, it declined consider whether the obstruction of justice Guideline should apply because the Guidelines calculations were at the statutory maximum without that enhancement and because it had decided to impose a non-Guideline sentence.

Second, the district court did not consider whether Stewart abused a position of trust, an enhancement under § 3B1.3.

Third, all three judges expressed some concern that Stewart’s sentence was only 8 months longer than Yousry’s, but that her conduct was considerably more serious.

The court accordingly remanded Stewart’s case for resentencing and directed the district court to “determine the issue of perjury and if it finds such perjury to resentence Stewart so as to reflect that finding,” and to consider § 3B1.3 and “reconsider the extent to which Stewart’s status as a lawyer affects the appropriate sentence.” The court also remanded Sattar’s and Yousry’s cases, as well. Although it found no error in their sentences, since the “interrelationship among the sentences of the co-defendants is a principal consideration as to a proper sentence of Stewart, the district court should have the ability, if not the obligation, to resentence them as well.”

There was much, however, that the panel did not agree on.

Judge Calabresi, concurring, stressed the appellate court’s “limited ... institutional role” in reviewing sentences and the need to “avoid second guessing.” That said, and although the majority expressly refrained from addressing the substantive reasonableness of Stewart’s sentence, Judge Calabresi noted that he would be “very reluctant ... to find an abuse of discretion in a conclusion by the district court that Stewart’s conduct, though undeniably serious, was significantly less serious than that of other defendants subject to the terrorism enhancement.”

Judge Calabresi also wrote specifically on the desirability of permitting a district court to correct procedural errors and “exercise its discretion anew” before “prematurely” reviewing a sentence substantively.

Finally, Judge Calabresi suggested a further ground for possible leniency. Other members of Rahman’s legal team - including former United States Attorney General Ramsey Clark - had also violated the SAMS, albeit to a much lesser degree than Stewart, and were not prosecuted at all. Judge Calabresi was “inclined to think that the district court should not be barred from considering the relevance of prosecutorial discretion in a particular case, and that our legal system should take advantage of the district court’s unique position to consider a defendant’s sentence ‘in its complete relevant context.’” He noted, “we should not forget that there might be even greater disparities between a defendant and other individuals who were not charged at all.”

Judge Walker dissented. Although he agreed with the other members of the panel on the three procedural errors, Judge Walker concluded that the sentence was substantively unreasonable and should be vacated on that ground, as well. First, he viewed the district court’s decision to completely eliminate the effect of the terrorism enhancement as error. “Without a reasonable assessment of the seriousness of Stewart’s crime, the district court could not reliably determine the sentence necessary to afford adequate general and specific deterrence” in material support cases. He also found that the district court erred in weighing too heavily Stewart’s age, health and career. “I am at a loss for any rationale upon this record that could reasonably justify a sentence of 28 months’ imprisonment for this defendant under § 3553(a).”

Bye-Bye Baby

United States v. Hasan, No. 08-4921-cr (2d Cir. November 10, 2009) (Cabaranes, Sack, CJJ, Rakoff, DJ)

Syed Hasan was convicted of a number of crimes in connection with his successful scheme to kidnap his infant son and spirit the child off to India. He appealed on a number of grounds. This long opinion covers little new ground, but closes one open question.

In preparation for the kidnapping, Hasan applied for a passport for the child. In the application, he falsely gave his brother's address in South Carolina as the child’s home address . In fact, the child lived in Brooklyn. On appeal, Hasan challenged his passport fraud conviction, arguing that the South Carolina address was not a “material misstatement.”

The circuit affirmed. It looked at the text of the statute, which makes it a crime to “willfully and knowingly make[] any false statement in an application for a passport,” and concluded that “the statute plainly does not require that the false statement be material.”

The Things We Do For Love

United States v. Caraballo, No. 08-4640-cr (2d Cir. November 5, 2009) (Leval, Raggi, Livingston, CJJ)

Gilberto Caraballo was a large-scale drug supplier in the Sunset Park section of Brooklyn. In September of 2000, he started dating Quincy Martinez, former girlfriend of Jose Fernandez, a dealer who worked for Caraballo. Three months into their relationship, Martinez asked Caraballo to murder Fernandez because he had been abusive toward her. Caraballo answered, “Say no more.”

Caraballo recruited one of his former drug dealers, Aguilar, and Aguilar’s associate, Taylor, to help do the job. Caraballo had previously cut off Aguilar’s supply over an unpaid drug debt, but promised to forgive the debt and resume supplying to him in exchange for the hit. Taylor, who realized that his own sales would increase once Caraballo started supplying Aguilar again, agreed to help and was to receive $5,000 in cash or drugs.

Aguilar, Taylor and Caraballo did the deed and, as promised, Caraballo gave Taylor cocaine and ecstacy pills, forgave Aguilar’s drug debt and arranged for both of them to begin receiving drugs on consignment. As a result of this arrangement, Caraballo was convicted of violating 21 U.S.C. § 848(e)(1)(A), which makes it a crime for “any person engaging in” a specified drug crime to kill or solicit a killing.

On appeal, although he conceded that the evidence supported his conviction for the predicate drug offense, Caraballo argued that the evidence was insufficient to support a finding that he committed the murder while “engaging in” the drug conspiracy.

The circuit affirmed. It first noted that the statutory language - “engaging in” - would seem to require only a temporal connection between the murder and the drug crime. But the Second Circuit, like every other court, has concluded that the government must prove a “substantive, and not merely temporal, connection” between the murder and the drug predicate. This requirement saves the statute from a possible Commerce Clause challenge and furthers the law’s purpose, which is to “target drug-related killings.”

Previously, the court has held that the “engaging in” element is satisfied by proof that there was a drug-related motive for the killing, although the court has made clear that it does not have to be the “primary” motive, or even of equal importance to any non-drug-related motive. But here, the court rejected Caraballo’s argument that these precedents required that the government prove that the killing was, at least in part, in furtherance of the drug crime.

Rather, the court explained, those precedents are simply illustrations of one type of substantive connection; they do not hold that proof of a drug-related motive is the only way to establish it. Nor is there any legitimate policy reason for limiting the scope of the statute to cover only killings that are specifically motivated by the predicate drug crime.

With that as a background, the court had little trouble finding the evidence sufficient here. “[W]e see no reason why [the substantive connection] is not also proved by evidence that the defendant used qualified drug dealings to procure the murder.” Thus, here, while the motive for the killing - Caraballo’s romantic relationship with Martinez - was not drug-related, using the drug conspiracy’s proceeds as a tool to procure the killing was “sufficient to permit a reasonable jury to find that Caraballo killed Fernandez while ‘engaging in’ the charged drug conspiracy.”

In a footnote, however, the court reiterated its view - still dicta, since it has not yet come up - that a drug dealer who killed a spouse in a purely non-drug-related domestic dispute would not satisfy the “engaging in” requirement of § 848(e)(1)(A).

Summary Summary

Two summary orders of interest:

In United States v. McDarrah, No. 07-1849-cr (2d Cir. November 5, 2009), a child enticement case, the district court admitted opinion testimony from an FBI agent that was improper in two ways. First, the agent used "we" to preface one of his opinions, which suggested that the opinion was based on his and other agents' collective knowledge and experience, and thus was "specialized knowledge" and not a "lay" opinion. Second, the agent expressed his opinion that the defendant was in fact guilty of attempted enticement. However, the court found the errors to be harmless.

In United States v. Creary, No. 06-2233-cr (2d Cir. November 3, 2009), the court noted that it is "plain error" for a district court not to adopt the presentence report in open court at sentencing, but not where the report adequately supports any contested enhancements.

Cash and Quarry

United States v. Byors, No. 08-4811-cr (2d Cir. October 29, 2009) (Cabranes, Livingston, CJJ, Korman, DJ)

Defendant, while ostensibly raising money for a Vermont marble quarry, made material misrepresentations to his investors. He also converted substantial amounts of their money to pay for his personal expenses, including vacation homes, cars and horses. He pled guilty to multiple fraud and money laundering offenses and was sentenced to 135 months’ imprisonment. On appeal, he raised two unsuccessful challenges to his Guidelines calculations.

He first argued that the district court should have deducted from the loss calculation - about $9 million - the “legitimate business expenditures” that went into his efforts to “capitalize” the quarry business. The circuit disagreed. Under the “plain language” of Application Note 3(E) to the fraud guideline, the loss amount is only offset by any “value” that the victims receive, and not by legitimate expenditures. Byors' expenditures conferred nothing of value and no benefit to his victims. He rendered no “services” to them and did not deliver any return on their “investment.” Even accepting his claim that he used the money for the purposes he promised his victims, there was no error here. Byors' victims were left with nothing of value when the fraud was uncovered.

Byor, who tampered with a witness during the investigation into his fraud, also raised an issue about the interaction between the general obstruction of justice guideline, § 3C1.1, and the specific provision dealing with obstruction in the money laundering Guideline, § 2S1.1, comment. n.2(C). These two provisions seemingly conflict in cases where the defendant has obstructed a predicate offense, but not the subsequent money laundering offense itself.

The money laundering guideline provides that the application of § 3C1.1 “shall be determined based on the [laundering of criminally derived funds] ... and not on the underlying offense from which the laundered funds were derived.” Byors argued that under this provision the Chapter 3 adjustment could only apply if the obstruction related to the money laundering offense, and not the underlying fraud. The circuit disagreed. The Chapter 3 obstruction enhancement covers the offense of conviction, “any relevant conduct,” or “a closely related offense.” The fraud that underlay the money laundering offense, during which Byors obstructed justice, was either relevant conduct or “closely related” to the money laundering offense.

The court refused to conclude that an application note to a separate offense conduct guideline “creates an exception” to § 3C1.1, since that would be contrary to its practice of seeking to “harmonize” commentary with the Guidelines.

Action Jackson

United States v. Jackson, No. 08-5151-cr (2d Cir. 2009) (McLaughlin, Katzmann, CJJ, Korman, DJ)

Here, the circuit concluded that erroneous introduction of prejudicial “other acts” evidence required a new trial.

The Facts

Police officers responding to a “shots fired” call in Queens encountered Jackson and others outside the target apartment building. Jackson fled, and has he ran, one of the officers claimed to see what looked like the butt of a gun in his pocket. Jackson was arrested later coming out of a different building. He was unarmed, but the police found a gun in a trash can in the courtyard that separated the two buildings. Jackson was charged with being a felon in possession of that gun.

The next day, the police executed a search warrant in the target apartment and found guns, drugs, bulletproof vests and cash. Jackson was not charged with possessing those items, but at 11:15 on the night before the trial was to begin, the government moved to admit them at trial, claiming it had “eye witnesses” testimony that they were his. The government claimed that the evidence was “necessary background” and would go to “opportunity, plan and lack of mistake.”

The district court admitted it, holding that evidence that Jackson was in an apartment with “that kind of armament” is “highly relevant” and “not unduly prejudicial.” Accordingly, the government called a witness who testified that, on the night Jackson was arrested, he brought her to the target apartment so that she could use the bathroom. This was the government’s only evidence tying him to the apartment. The government also introduced into evidence photographs of all of the contraband found in the apartment, as well as four actual guns.

The Evidence Was Erroneously Admitted

The circuit reversed, finding that the evidence from the apartment was “not admissible for any proper purpose.” First, it was not proper background evidence, as it was “not particularly helpful to explain the crime.” The only crime that Jackson was charged with occurred on the street, not in the apartment, and the government did not need to introduce the contents of the apartment to explain why the police were at the building, why they pursued Jackson after he bolted, or why he was charged with possessing a gun.

The court also rejected the government’s argument that the evidence was relevant to Jackson’s opportunity or motive. These matters were not really at issue at trial, since Jackson’s defense was that he did not have a gun at all. Moreover, even though evidence that Jackson had ready and contemporaneous access to guns was relevant circumstantial evidence that he possessed the gun he was charged with, the evidence the government introduced went “far beyond what was necessary for this purpose,” and the government never argued at trial that the evidence showed opportunity.

The Error Was Not Harmless

This case presented the perfect storm of harmfulness: a weak case, improper use by the government, and truly baffling limiting instructions.

First, the circuit found the government’s case to be “by no means overwhelming.” The officer who said he saw what looked like the but of a gun in Jackson’s pocket admitted on cross-examination that he was not sure it was a gun. No one saw Jackson put anything in the trash can where the gun was found, and the gun had no fingerprints on it.

The government also misused the evidence by “invit[ing] the jury to infer that Jackson at least associated with dangerous drug dealers equipped with an array of weapons who operated a narcotics business out of a residential apartment building.” In its summation the government argued that the evidence showed “exactly what was going on that day” and “who the defendant really is.”

Finally, the district court’s limiting instructions were terrible. The court told the jury that the case had “nothing to do with a narcotics charge” and that the jury should not consider the drugs “for any reason whatsoever” because they were being admitted simply to show what was found in the apartment. The circuit concluded that there was an overwhelming probability that the jury would be unable to follow an instruction to ignore the drug evidence. Moreover, the instruction only mentioned the drugs, not the guns, leaving open the possibility that the “jury might have believed that the weapons [found in the apartment] ... could contribute to a finding that Jackson possessed the gun” he was charged with. A jury is not likely to be able to follow an instruction that evidence is “merely background” where the evidence is highly prejudicial and the government puts it “at the center of the trial.” Since that was true here, the error was not harmless.

Summary Summary

Two more summary orders of interest:

In United States v. Howard, No. 08-0944-cr (2d Cir. October 26, 2009), the court, when considering the denial of a motion to suppress wiretap evidence, questioned whether the district court correctly rejected without a hearing the defendant's claim that the government illegally began tapping his phone before it obtained a wiretap order. One record was "troubling," in that it seemed to support the defendant's claim, and the government's explanation - that the record was a "data entry error" - was unconvincing. The court noted that "[i]f we were in the district court's position, we would have conducted a hearing to delve further into this bare explanation," although it was not an abuse of discretion to decline to do so.

In United States v. Carrasco-Abreu, No. 08-4420-cr (2d Cir. October 20, 2009), the court held that an alien who failed to leave the the country under an order of voluntary departure and was removed by the immigration authorities years later, was still "deported" within the meaning of the illegal reentry statute.

Drug Abuse

United States v. Wright, No 08-0322-cr (2d Cir. October 19, 2009) (Jacobs, McLaughlin, Parker, CJJ)

Here, the circuit held that the admission of defendant McCallum’s two prior drug convictions - which it termed “propensity evidence in sheep’s clothing” - during his federal crack trafficking trial was an abuse of discretion. It also found the error to be harmless, however, and affirmed.

McCallum was a member of a drug crew in Spring Valley, New York. At trial, the government sought to offer into evidence his two prior convictions for possession and attempted sale of cocaine, arguing that they were admissible under Rule 404(b) to show his knowledge and intent. The district court allowed the evidence, but did not explain why it believed it was admissible.

The circuit began by noting that its “inclusionary approach” to Rule 404(b) does not give the government “carte blanche” to offer “any prior act of the defendant in the same category of crime.” In fact, where the government offers the evidence to establish knowledge or intent it must show a “similarity or connection between the two acts that makes the prior act relevant.” But, because of the risk that a jury will engage in “generalized reasoning about a defendant’s criminal propensity” such evidence “merits particularly searching, conscientious scrutiny,” particularly when it involves prior convictions, as opposed to other bad acts. Prior convictions should only be admitted after a careful Rule 403 balancing.

Here, there was no indication that the district court “engaged at all in the Rule 403 inquiry, let alone the required conscientious one” and the circuit would not presume that the district court “appreciated the seriousness of the risk that introducing the convictions would undermine the fairness of the trial.” While it was true that McCallum did not clearly indicate that the issues of knowledge or intent would not be disputed, which rendered them “sufficiently in dispute for the similar acts evidence to be relevant and ... admissible,” there was no basis for the district court to find any sort of probative need. There was extensive testimony from McCallum’s co-conspirators about the operation of the conspiracy, and the government introduced drugs seized from the apartment they shared along with extensive audio and video surveillance. “Given all of this evidence, we are at a loss to understand how the court or the government could believe that the prior convictions were necessary to prove ... intent and knowledge and that they passed muster under Rule 403.” It was accordingly an abuse of discretion to admit the convictions.

The error here was harmless in light of the government’s “indisputably strong” case against McCallum. The court warned, however, that in a “different case, in which prior convictions were admitted but the government’s other evidence was not overwhelming, or where the other harmless error factors tilted more strongly in the defendant’s favor, or where the government’s summation emphasized the prior convictions, a different result could well be indicated.”

PC World

Here are the two most recent PC’s.

In United States v. Bell, No. 08-5506-cr (2d Cir. October 20, 2009) (Miner, Cabranes, CJJ, Rakoff, DJ) (per curiam), the court reversed the district court’s grant of a new trial under F.R.Cr.P. 33 and remanded the case for sentencing.

After the defendant was convicted of attempted murder of a federal officer, assault and discharging a firearm in connection with those offenses, the lower court concluded that it had given the jury an erroneous definition of the term “intentional” that did not clearly distinguish between intentional and accidental conduct. The circuit disagreed, holding that the district court’s chosen language - that the defendant’s act must have been the product of his “conscious objective rather than the product of a mistake or accident” was not error. The appellate court was equally unimpressed with the district court’s alternative reason for granting a new trial: the uncontested use of a general verdict form. The form was not error, nor were the court’s instructions on how to consider the relationship between the counts.

In United States v. Thrower, No. 08-2016-cr (2d Cir. October 14, 2009)(Parker, Wesley, CJJ, Restani, JCIT)(per curiam), the court resolved an open question by holding that larceny from the person under N.Y. Penal Law § 155.30 (McKinney Supp. 2009) constitutes a “crime of violence” for the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2006) (“ACCA”). Larceny that involves a physical nexus between the victim and the property creates a risk of violent confrontation. Moreover, the offense is “roughly similar” to burglary - which is specifically listed in ACCA - in that it is “as inherently violent and aggressive.”

A Matter of Substance

United States v. Rigas, No. 08-3485-cr (2d Cir. October 5, 2009) (Feinberg, Winter, Cabranes, CJJ)

When we last heard about the Rigas père et fils - former senior officers at Adelphia Communications who were convicted of conspiracy, securities, wire and bank fraud - the circuit affirmed the majority of their convictions, but reversed a single count of bank fraud for insufficient evidence. United States v. Rigas, 490 F.3d 208 (2d Cir. 2007). Probably because the court remanded the case for resentencing, the 2007 opinion did not address the defendants’ long prison sentences: twenty years for the father and fifteen for the son, where the Guideline recommendation for each was life.

This case is the appeal from the remand. The decision covers little new ground, but provides very helpful guidance from the court on the standard it applies when reviewing a sentence for substantive reasonableness.

To get there, however, the court fist had to consider whether the district court correctly handled the resentencing. Under circuit precedent, where a conviction on one or more counts is overturned on appeal, the circuit’s “default rule” is that the case should be remanded for a de novo resentencing. Here, the district court viewed this rule as too “mechanical,” and instead treated the reversal of a single count of this multi-count indictment as a “sentencing error,” not a “conviction error.” It therefore conducted only a limited resentencing. Even so, however, the court reduced each defendant’s sentence by three years and noted that, alternatively, it would have done the same at a de novo resentencing.

The circuit held that the district court’s treatment of the remand was error. When any part of a conviction has been overturned on appeal “a district court ... is required to resentence de novo [and] must reconsider the sentences imposed on each count.” Here, however, the error was harmless, in light of the district court’s alternative ruling.

The court then turned to the substantive reasonableness of the resulting sentences. The court’s last decision to discuss meaningfully this issue, the en banc in Cavera, left us with a standard that was fairly amorphous. “[W]e will set aside a district court’s substantive determination only in exceptional cases where the trial court’s decision cannot be located within the range of permissible decisions.”

Here, the court gave some more structure to that language. First, it insisted, as it has before, that substantive reasonableness review is not a “rubber stamp.” It then likened the standard for substantive reasonableness to similar standards that apply in other situations: the “manifest-injustice” standard for granting Rule 33 motions and the “shocks-the-conscience” standard for intentional torts by state actors. All three standards are deferential to district courts and provide relief “only in the proverbial ‘rare case.’” They are also “highly contextual,” which means that they “do not permit easy repetition in successive cases." And, finally, they are “dependent on the informed intuition of the appellate panel that applies these standards.” All told, these standards provide a “backstop for those few cases that, although procedurally correct, would nonetheless damage the administration of justice because the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of law.”

Under these principles, the court had “no trouble” concluding that the Rigas’ sentences were substantively reasonable. The court noted that stiff Guideline sentences for white collar crimes reflect Congress’ judgment as to the appropriate national policy for such crimes. Moreover, the Rigas’ crimes were specifically intended to create a false picture of profitability at Adelphia, even for professional analysts, and were motivated by the defendants’ personal financial circumstances and outright greed.