Another week where there were no precedential opinions in criminal cases from the Second Circuit, but quite a few summary orders.
Second Circuit
Last Friday, in United States v. Benton, in a summary order, the Circuit affirmed defendant’s convictions for conspiracy to distribute cocaine, racketeering, and money laundering, and whopping the 480-month sentence imposed by the Connecticut District Court. But the Circuit remanded, finding that the restitution order was unlawful to the extent that it did not provide for payment terms for the restitution during the 480-month sentence. You may have noticed that restitution mistakes are a common reason for Circuit court action.
The district court ordered that defendant, with several other co-conspirators, pay restitution for funeral expenses for several dead people, and provided that if these expenses were not paid by the time defendant left prison (40 years for this defendant minus good time credit, time served and halfway house time), they would be due in monthly increments of at least $100.
Defendant first argued that the district court’s order was unlawful because it had the effect of treating coconspirators who’d been killed as ‘victims,’ and thereby required ‘restitutionary’ payments to the perpetrators of the offense of conviction.
The Circuit disagreed. While a court may not order restitution to alleged victims who were also co-conspirators in the crime of conviction, that was not the case here, because a victim cannot be a co-conspirator of their own murder.
The Circuit agreed with defendant, however, that the district court erred in ordering restitution immediately with no schedule taking into consideration his inability to pay. The order was erroneous to the extent that it made no provision for the more than 40 years that defendant would be required to serve in prison, other than noting that the Bureau of prisons must implement a restitution schedule.
The Circuit remanded for the district court to develop a reasonable payment scheme for defendant’s term of incarceration as well as supervised release.
The Circuit’s decision can be found here.
On Friday (3/8), in United States v. Patterson, in a summary order, the Circuit affirmed the SDNY judgment convicting defendant of being a felon in possession of a firearm (18 USC 922(g)(1)), and the 46-month sentence imposed by Judge Vernon Broderick. The Circuit rejected defendant’s claim that his applicable sentencing guidelines range was improperly calculated because it was based, in part, upon his contention—now conclusively decided against him (see United States v. Moore, _ F.3d _ (2d Cir 2019), No. 16-1604, slip op. at 17 (2d Cir. Feb. 25, 2019)—that the New York state crime of robbery in the third degree is not a crime of violence.
The Circuit’s decision can be found here.
In United States v. Burke, in a summary order, the Circuit affirmed the EDNY judgment convicting defendant of depriving an individual of his civil rights and conspiring to obstruct justice and the 46-month sentence, rejecting defendant’s claim that now-deceased Judge Leonard Wexler should have sua sponte recused himself from the case.
Defendant’s recusal claim was based entirely upon a letter the government sent to the court and defendant. The contents of the letter are not revealed in the decision. The Circuit found it unnecessary to discuss the contents of the letter, because it found that defendant’s recusal request was untimely.
The letter was dated February 22, 2016. Defendant provided no explanation for why he failed to move for recusal or request a hearing before the district court during the eight-month period between his receipt of the letter and his sentencing hearing on November 2, 2016. Having failed to raise his recusal claim below, “let alone having done so timely,” defendant was foreclosed from raising it on appeal. A defendant must raise a claim of recusal “at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim.”
The Circuit’s decision can be found here.
On Tuesday (3/12), in United States v. Peralta, in a summary order, the Circuit affirmed the SDNY judgment convicting defendant of conspiracy to distribute and possess with intent to distribute cocaine, and the 78-month sentence imposed by Judge Richard J. Sullivan. The Circuit rejected defendant’s claim that the court abused its discretion in refusing to grant an acceptance-of-responsibility reduction under the sentencing guidelines. See U.S.S.G. 3E1.1 cmt. N.5 (“[D]etermination of the sentencing judge is entitled to great deference on review.”)
As an initial matter, it should be noted that the Circuit reviews length of sentence challenges for reasonableness, which is a “particularly deferential form of abuse-of-discretion review.” United States v. Cavera, 550 F.3d 180, 188 & n.5 (2d Cir. 2008)(en banc). A miscalculation of the applicable sentencing guidelines range is a procedural error. United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013). Finally, the Circuit reviews a district court’s findings of fact for clear error, and its Guidelines interpretation de novo. United States v. Conca, 635 F.3d 55, 62 (2d Cir. 2011).
Here, Defendant failed to appear for a court-ordered conference to address failed drug tests while on pretrial release supervision. Defendant argued that his absconding predated his acceptance of responsibility demonstrated by his entering a guilty plea. C.f. United States v. Aponte, 31 F.3d86, 88 (2d Cir. 1994) (explaining that an obstruction enhancement is appropriate when defendant fails to appear at judicial proceeding).
The Circuit rejected defendant’s claim principally because he received an obstruction-of-justice enhancement for absconding. The guidelines provide that, only in “extraordinary circumstances can a court give an obstruction-of-justice enhancement and an acceptance-of-responsibility reduction. No extraordinary circumstance existed here.
The Circuit’s decision can be found here.
On Wednesday (3/13), in United States v. Richards, in a summary order, the Circuit affirmed defendant’s SDNY conviction and 120-month sentence, rejecting his contention that Judge Sidney Stein erroneously denied his motion to withdraw his guilty plea.
In finding that the district court properly rejected defendant’s motion, the Circuit cited four factors: First, although defendant asserted his innocence as he knew he must, that bald statement alone was not sufficient to warrant plea withdrawal. Second, defendant could point to nothing in the plea colloquy that raised a “significant question” about the plea’s voluntariness. Third, the timing of the plea withdrawal motion did not favor defendant. Although defendant wrote a letter to the court shortly after the plea, he wavered for nearly a year before actually deciding that he wanted to withdraw the plea. Fourth, because defendant did not come forward with sufficient grounds to justify plea withdrawal, the government was not required to show prejudice to defeat the motion; nor was defendant entitled to an evidentiary hearing as a matter of right, as he failed to present even a significant question as to the plea’s voluntariness or validity.See United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992).
The Circuit’s decision can be found here.
In United States v. Figueroa, in a summary order, the Circuit affirmed in part and reversed in part the WDNY judgment sentencing defendant to 30 months of
supervised release for having violated supervision conditions imposed as part of a 2005 firearms conviction.
Defendant was originally sentenced under the ACCA to 18 years in prison, and five years of supervised release. He successfully moved to vacate that sentence in light of Johnson v. United States, 135 S. Ct. 2551 (2015). Because he had by then been imprisoned for approximately two years more than the statutory maximum for non-ACCA convictions, he was resentenced for his 2005 conviction to time-served, to be followed by three years of supervised release.
After the resentencing, defendant violated the terms of his supervised release several times. For those violations, he was sentenced to a five-month prison term, which he served, as well as the 30-month supervision term he challenged on appeal.
Defendant contended that the district court failed to credit him with (1) 14 days spent in detention while awaiting admission to a residential reentry center, and (2) 90 days during which he was subject to a curfew condition. Defendant also contended that the district court failed to consider time above the statutory maximum that he spent in custody before vacatur of the original sentence.
The Circuit agreed that the 14 days spent in detention awaiting admission to the residential reentry center should have been credited. But the Circuit found that defendant was not entitled to credit for the 90 days for which he was subject to a 9 pm to 7 am curfew, because it was not the equivalent of denying him “liberty akin to incarceraion.”
The Circuit found that the question of whether to reduce the supervised release because of time he’d been imprisoned past the statutory maximum was up to the discretion of the district court, which the court had not abused. Johnson 2000, 529 U.S. at 60.
The Circuit’s decision can be found here.
In United States v. Trimm, in a summary order, on a government appeal, the Circuit vacated the NDNY judgment following the district court’s imposition of a sentence below the statutory minimum of 15 years. The district court had deemed the government to have made a motion pursuant to 18 USC § 3553(e), notwithstanding that the government had expressly declined to make the motion.
Section 3553(e) gives the government the power, not the duty, to file a motion when a defendant has substantially assisted it in an arrest or prosecution. The district court here purported to “deem” the government to have made a motion that it had expressly declined to make, apparently because the court believed that a sentence below the statutory minimum was warranted. Because the court did not find that the government had an unconstitutional motive or had exercised bad faith in declining to make the motion, the Circuit found that the district court did not have the authority to sentence defendant below the statutory minimum under the guise of a government 3553(e) motion.
The Circuit’s decision can be found here.
On Friday (3/15), in United States v. Keith, in a summary order, the Circuit affirmed the SDNY judgment convicting defendant of sexual exploitation of a child, receipt and distribution of child pornography, and making false statements, and the 168-month sentence imposed by Judge Alison Nathan, rejecting defendant’s claims that his plea was involuntary and the sentence substantively unreasonable.
Defendant contended that his plea was involuntary because his lawyer failed to investigate or advise him about a potential motion to suppress evidence stemming from law enforcement’s use of a computer-network investigative (“NIT”) technique to locate individuals accessing child pornography. Defendant argued that the warrant authorizing the search was invalid because the magistrate lacked authority to issue an NIT warrant permitting the seizure of property outside her district.
The Circuit rejected defendant’s plea-voluntariness claims because every Circuit that has ruled on the jurisdiction issue had found that suppression was inappropriate because officers had acted in good-faith reliance on the warrant, regardless of whether the magistrate was legally correct. Thus, counsel’s actions in failing to move to suppress, or advising defendant about the potential for suppression, were not unreasonable. See United States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005); Strickland v. Washington, 466 U.S. 668, 687-96 (1984).
On the issue of the substantive reasonableness of the sentence, the Circuit found that defendant had waived his right to challenge it: defendant had knowingly and voluntarily waived the right to appeal the sentence he received.
The Circuit’s decision can be found here.
In United States v. Insaidoo, in a summary order, the Circuit affirmed in apart and vacated in part defendants’ SDNY convictions, following a jury trial before Judge Valerie Caproni, for conspiracy, embezzlement, wire fraud, and money laundering in connection with a government-funded not-for-profit organization. The Circuit rejected their challenges to the convictions, but found that a supervised release condition was unlawful.
The Circuit rejected defendant’s challenges to the jury instructions and the sufficiency of the evidence. But it found unlawful a supervised release condition providing that, should defendant’s probation officer determine that he presents a risk to any person, the officer may require defendant to notify that person of such risk. The Circuit noted its recent decision in United States v. Boles, 94 F.3d 95, 111-12 (2d Cir. 2019), finding that an identical risk condition was vague and afforded too much discretion to the probation officer. It found the same problem with the risk condition here.
The Circuit’s decision can be found here.
Appellate Division, First Department
On Thursday (3/14), in People v. Perez, the First Deparment reversed defendant’s third-degree sale conviction. AD1 found that the court should have granted defendant’s motion to suppress identification testimony. Although police had reasonable suspicion to detain a drug-sale suspect, they lacked probable cause to handcuff him since the undercover buyer had yet to identify him. The handcuffing elevated the intrusion to an arrest lacking probable cause. The fruits of that arrest, including the undercover’s identification, should have been suppressed.
The Court reversed for a new trial preceded by an independent source hearing.
The Appellate Division’s decision can be found here.
Appellate Division, Second Department
On Wednesday (3/13), in People v. Robinson, the Second Department reversed defendant’s Queens County second-degree possession of a weapon conviction. AD2 found that the admission of recordings of telephone calls defendant placed while incarcerated at Rikers Island following his arrest on an unrelated gun possession charge were unduly prejudicial, and of limited probative value.
While the Court of Appeals recently found in People v. Diaz and People v. Cisse that calls from Rikers Island were not per se inadmissible, the Second Department found here that the timing and content of the calls made it highly likely that the defendant was referencing his other case, i.e., his subsequent arrest on gun possession charges, in his phone calls. In addition to the lack of relevance of this evidence to the charges in this case, the jury was otherwise unaware of the defendant’s subsequent arrest, and therefore was unable to properly evaluate the weight to be accorded to the recordings as evidence of the defendant’s guilt of the instant offense. Because there was a substantial risk that the jury would be misled into believing that the defendant’s admissions in the telephone recordings referred to the instant offense, the admission of the recordings into evidence placed the defendant in the untenable position of deciding whether to accept this misleading narrative that the telephone recordings referred to the instant offense or disclose his later arrest on a similar gun possession charge.
The Second Department’s decision can be found here.
In People v. Gonsalves, the Second Department reversed defendant’s Kings County first-degree robbery conviction, in the interest of justice, concluding, that the Confrontation Clause was violated where a testifying detective recounted a conversation with an anonymous, non-testifying informant who witnessed the robbery and identified the defendant. Kings County Supreme further erred, the Second Department found, in admitting the victim’s testimony that the defendant’s stepfather
apologized for his stepson’s conduct and returned some of the stolen goods, as there was no showing that the defendant was involved in these remedial measures.
The Second Department’s decision can be found here.
Appellate Division, Third Department
On Wednesday, in People v. Vandegrift, the Third Department remanded defendant’s Chemung County violation of probation conviction for a reconstruction hearing.
The Third Department concluded that County Court, which had received conflicting reports from psychiatrists about a defendant’s competency, erroneously cancelled a scheduled CPL § 730 hearing after defense counsel informed the court that one of the psychiatrists had changed his mind and would no longer testify favorably to the defense. The Third Department found that the court was required by statute to conduct the hearing precisely because the reports had conflicted.
The Third Department’s decision can be found here.
In People v. Smith, the Third Department reversed defendant’s Tioga County third-degree rape conviction, finding that defendant had been denied his right to be present.
At an appearance one week before trial, the court told defendant that the trial would proceed in his absence if he did not appear. The defendant did not appear at trial, the trial proceeded in defendant’s absence, and defendant was convicted.
The Third Department concluded that, because defendant had been present at all prior appearances, and there was insufficient evidence that efforts were made to locate defendant, it was improper to proceed without him.
The Third Department’s decision can be found here.
Warm regards, Edward V. Sapone Sapone & Petrillo, LLP One Penn Plaza/ 53rd Floor/ 23rd Floor New York, NY 10038
646-844-3445 www.saponepetrillo.com