Ed Sapone’s DECISIONS OF THE WEEK-June 28, 2019

by | Jun 28, 2019 | Ed Sapone’s Decisions of the Week

It was quiet in the Second Circuit this week, but SCOTUS released the remaining criminal cases on its docket.

Second Circuit

On Monday, in Hyman v. Brown, the Circuit reversed EDNY Senior Judge Raymond J. Dearie’s grant of petitioner’s state habeas petition, following petitioner’s Queens County murder conviction. The Circuit found that the district court erred in concluding that petitioner made the required gateway showing of actual innocence necessary for merits review of his procedurally barred IAC claim.

Judge Dearie concluded that petitioner’s conviction was obtained in violation of the Sixth Amendment right to effective assistance of counsel. As the result of a conflict of interest grounded in a fee dispute with a private investigator, counsel failed to call the investigator as a witness at petitioner’s trial; the investigator could have offered evidence to impeach the prosecution’s lead identification witness.

When petitioner earlier presented this constitutional claim in a collateral state challenge to conviction, Queens Supreme Court rejected it on the procedural ground that it was not adequately supported by a sworn affidavit (as well as on the merits). The procedural ruling erected a bar to federal habeas review that petitioner conceded he could not overcome by showing good cause to excuse his procedural failure and ensuing prejudice.

Petitioner alleged, and the district court agreed, that habeas review was permitted because petitioner had made a credible and compelling showing of actual innocence that lifted the procedural bar to his Sixth Amendment claim. The Circuit reviewed all of the evidence and reached the contrary conclusion: petitioner had not made the “demanding and rarely met” gateway showing of actual innocence. While the evidence demonstrated that a recanting witness had not seen the shooting as she’d claimed, it did not show that petitioner did not or could not have committed the crimes.

The Circuit’s decision can be found here.

On Friday, in United States v. Mercedes, in a summary order, the Circuit affirmed the SDNY judgment convicting defendant of murder in furtherance of a narcotics conspiracy, as well as Judge Richard J. Sullivan’s denial of defendant’s motion for a new trial. The Circuit rejected defendant’s claims that (1) the district court abused its discretion in denying defendant’s Rule 33 motion for a new trial on the ground that the government’s cooperating witness was patently incredible; (2) the district court plainly erred by prematurely giving the jury an Allen charge after less than two full days of deliberations; and (3) there was insufficient evidence to support the conviction because there was inadequate proof that defendant knew his co-defendants would use a firearm to kill the victim.

First, defendant had ample opportunity to attack the witness’ credibility on cross-examination and in closing argument. Second, “[w]hether an Allen charge was appropriate in a given case hinges on whether it tends to coerce undecided jurors into reaching a verdict.” Small v. Batista, 191 F.3d 272, 278-79 (2d Cir. 1999) (internal quotation marks omitted). The Circuit considers whether, “in its context and under all the circumstances,” an Allen charge “encourages jurors to abandon, without any principled reason, doubts that any juror conscientiously holds as to a defendant’s guilt.” United States v. McDonald, 759 F.3d 220, 223 (2d Cir. 2014) (internal quotation marks omitted). Further, the Circuit does not require that a “fixed period of time must necessarily elapse before the charge may properly be given.” United States v. Vargas-Cordon, 733 F.3d 366, 378-79 (2d Cir. 2013) (internal quotation marks omitted). Third, the Circuit found that the evidence was sufficient to show that defendant knew his co-defendants would use a gun to kill the victim. Viewed in a light most favorable to the government, the Circuit found it sufficient that defendant was aware of his co-defendants’ prior use of guns and their modus operandi for using guns and that they were close friends.

The Circuit’s decision can be found here.

On Monday, in United States v. Cean, in a summary order, the Circuit affirmed EDNY Judge Sterling Johnson, Jr.’s order requiring defendant and her co-defendants to pay approximately $250k in restitution to Impac Funding Corporation. The Circuit rejected defendant’s argument that Impac was not a “victim” for purposes of the Mandatory Victims Restitution Act (MVRA). Although Impac was a successor lender on a fraudulent mortgage, its purchase was forseeable in light of common industry practice of selling loans on the secondary market.

The Circuit’s decision can be found here.

United States Supreme Court

On Friday, in Rehaif v. United States, in a 7-2 decision, with the majority opinion written by Justice Breyer, the Court, reversing the Eleventh Circuit, held that, in a prosecution under 18 USC § 922(g), which makes it unlawful for certain persons, including aliens illegally in the country, to possess firearms, and §924(a)(2), which provides that anyone who “knowingly violates” the first provision can be imprisoned for up to 10 years, the government must prove

both that the defendant knew he possessed a firearm and that he knew he belonged in the category of persons barred from possessing a firearm.

The question, according to the Court, was one of congressional intent. Because of the longstanding presumption that Congress intends to require a defendant to possess a culpable mental state for each statutory element of a crime, and the statutory text that supported that presumption, proof of knowledge was required.

SCOTUS’s decision can be found here.

In Flowers v. Mississippi, in another 7-2 decision, with the majority opinion written by Justice Kavanaugh, the Court reversed the Mississippi Supreme Court. It ruled that the Mississippi trial court had committed clear error at defendant’s sixth murder trial (talk about attrition) when it concluded that the state’s peremptory strike against a black prospective juror was not motivated by discriminatory intent. Putting aside the question of whether Mr. Flowers was guilty of the charged crimes, the history of the six separate trials (two of which were reversed due to prosecutorial misconduct) outlined in Justice Kavanaugh’s opinion, where the prosecution exercised 41 of its 42 peremptory challenges against prospective African American jurors, is a story of the failure of the criminal justice system.

SCOTUS’s decision can be found here.

On Monday, in United States v. Davis, the Court, in a 5-4 decision, with the majority opinion written by Justice Gorsuch, held that 18 USC § 924(c)’s residual clause is unconstitutionally vague because it requires a categorical approach to identifying a “crime of violence.” Davis overrules the Second Circuit’s decision in United States v. Barrett, 903 F.3d 166, which had reached the contrary conclusion.

Defendants were charged with multiple counts of Hobbs Act robbery and robbery conspiracy, and, under § 924(c), with using or carrying a firearm during and in relation to a federal “crime of violence or drug trafficking crime.” Violators of § 924(c) face enhanced mandatory minimum prison sentences. The government argued, and the jury agreed, that the defendants had each committed two separate § 924(c) violations by brandishing a short-barreled shotgun in connection with their crimes.

The Court had twice, recently, struck down similarly-worded statutes as vague. In Johnson v. United States, 576 U.S. _ (2015), the Court struck down the residual clause of the Armed Career Criminal Act. § 924(e)(2)(B)(ii) (defining a violent felony to include offenses that presented a “serious potential risk of physical injury to another”). In Sessions v. Dimaya, 584 U.S. _ (2018), the Court struck down a different, but almost identically worded statute, 18 USC § 16.

By Justice Gorsuch’s reckoning, “imposition of criminal punishment can’t be made to depend on a judge’s estimation of the degree of risk posed by a crime’s imagined ‘ordinary case.’” Section 924(c) required such unlawfully vague estimation. The Court rejected the government’s

argument that the traditional categorical approach should not be used to evaluate the statute’s constitutionality, instead, favoring a case-specific approach. While Congress could have written a residual clause that required a case-specific approach, the statute’s text, context, and history showed that it did not.

A dissent, authored by Justice Kavanaugh, in which Thomas and Alito joined in full, and Roberts joined in part, would have approved the government’s alternate non-categorical approach.

SCOTUS’s decision can be found here.

On Wednesday, in United States v. Haymond, in a 5-4 decision, with the majority opinion written by Justice Gorsuch, the Court agreed with the Tenth Circuit. The district court’s conclusion, that defendant had violated the terms of his supervised release and the subsequently imposed five-year prison term, violated defendant’s constitutional right to have his sentence determined by a jury, rather than a judge, beyond a reasonable doubt.

Defendant had been convicted of possessing child pornography and was sentenced to 38 months in prison followed by 10 years of supervised release. While out on supervised release, defendant was again found with what appeared to be child pornography. The government sought to revoke his supervised release and secure a new and additional prison sentence. The district judge, acting without a jury, found by a preponderance of the evidence that defendant knowingly downloaded and possessed child pornography. Under 18 USC § 3583(e)(3), the judge could have sentenced him to a prison term of between zero and two additional years. But because possession of child pornography is an enumerated offense under §3583(k), the judge instead imposed the five-year mandatory minimum.

The Court found the increased prison term unconstitutional because the judge had increased “the legally prescribed range of allowable sentences” in violation of the Fifth and Sixth Amendments. Only a jury, and not a judge, could make that finding.

SCOTUS’s decision can be found here.

On Thursday, in Mitchell v. Wisonsin, in a 5-4 decision, with the majority opinion written by Justice Alito, the Court agreed with the Wisconsin Supreme Court that, when an apparently intoxicated driver is unconscious and cannot be given a breath test, the exigent circumstances doctrine generally permits a blood test without a warrant.

According to the Court, when a driver’s stupor or unconsciousness deprives officials of a reasonable opportunity to administer a breath test using evidence-grade equipment, and a blood test will be essential for achieving the goals of Blood Alcohol level testing, the exigent circumstances exception to the warrant requirement applies because there is a compelling need for official action and no time to secure a warrant.

SCOTUS’s decision can be found here.

New York Court of Appeals

On Tuesday, in People v. Ulett, in a unanimous decision, NYCA reversed the order of Kings County Supreme Court that had denied defendant’s CPL § 440.10 motion to vacate defendant’s murder conviction. NYCA found that the People’s failure to disclose a surveillance video that captured the scene at the time of the shooting, including images of the victim and a key prosecution witness, violated their obligation to disclose exculpatory evidence.

It was conceded that defendant had shown both that the video was favorable to the defendant and that it was suppressed by the prosecution within the meaning of Brady. The sole question on appeal was whether defendant was prejudiced, i.e., whether the suppressed evidence was material.

NYCA unanimously found that it was. The video could have been used to impeach the People’s proffered eyewitnesses, as well as provide leads for additional admissible evidence. The prosecutor’s statements in summation, which denied the existence of any video compounded the prejudice.

NYCA’s decision can be found here.

Appellate Division, First Department

On Thursday, in People v. Cook, AD1 reversed defendant’s NY County robbery convictions, finding that, under Chambers v. Mississippi, 410 US 285 (1973), supreme court erred when it denied defendant’s application to admit testimony that one of the robbery victims, who was unavailable to testify at trial, failed to identify defendant at a lineup. Even though such testimony would have been hearsay not subject to any exceptions, it was sufficiently reliable to warrant its admission.

AD1’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Lopez, AD2 held defendant’s appeal in abeyance and remitted to Nassau County Supreme Court for a hearing to assess whether defendant’s guilty plea to third-degree robbery should be withdrawn because the plea was unknowing.

On the date of sentencing, defendant referred to a letter that he’d sent to supreme court about his plea. After an off-the-record conversation between defendant and counsel, counsel stated that there was a language barrier, that she’d explained the case to defendant many times and the defendant wanted clarification of the charges again, but he was prepared to go forward with sentencing. The defendant complained that the promised sentence was too long and that

his attorney was not helping him. Defense counsel told the court that she had explained the case to the defendant on numerous occasions through a Spanish language interpreter, and that “[t]his is all news to me.” The defendant requested assignment of new counsel. The court denied the defendant’s pro se application, in effect, to withdraw his plea and for the assignment of new counsel, and imposed sentence.

AD2 found that defendant’s right to counsel was affected because his attorney took a position adverse to him with respect to his motion to withdraw his plea. Supreme court should have assigned defendant a new attorney to assess a motion to withdraw the plea.

AD2’s decision can be found here.

In People v. Morris, AD2 reversed defendant’s Dutchess County burglary conviction, in the interest of justice, agreeing with defendant that the trial court erred when it denied him an opportunity to submit a late notice of intent to introduce psychiatric evidence. AD2 found that the trial court failed to exercise any discretion over whether to permit defendant to serve the late notice. Exercising its own discretion, AD2 found that defendant’s history of auditory hallucinations had high probative value to corroborate the defendant’s testimony that he entered the home with the intent to aid a woman who was yelling, rather than to damage the house. Any prejudice to the People was substantially outweighed by defendant’s “extremely strong interest” in presenting the psychiatric evidence.

AD2’s decision can be found here.

Appellate Division, Third Department

On Thursday, in People v. Palmer, AD3 reversed defendant’s Broome County narcotics possession conviction because the Broome County Public Defender’s office, which represented defendant, had an actual conflict of interest since it also represented a confidential informant that had provided the police with information that led to the issuance of a search warrant and defendant’s arrest. Even though the court was informed of the conflict, the court made no inquiry into the conflict and did not elicit an informed consent from defendant.

AD3’s decision can be found here.

In People v. Skyers, AD3 reversed defendant’s Clinton County assault convictions, finding that defendant’s comments at sentencing, which for the first time raised a possible intoxication defense, and called into question the intent element of assault in the first, were sufficient to trigger the narrow exception to the preservation requirement, thereby imposing a duty of further inquiry upon County Court “to ensure that defendant’s guilty plea was knowing and voluntary.”

AD3’s decision can be found here.

In People v. Jones, AD3 reversed defendant’s Saratoga County second-degree rape conviction, finding that the SCI to which he pleaded guilty was jurisdictionally deficient because it did not set forth the approximate time of the offense as required by CPL 195.20. Because the error was jurisdictional, it was not precluded by either his guilty plea or his waiver of right to appeal.

AD3’s decision can be found here.

Breaking News

As reported in Law360: BREAKING: High Court Takes On ‘Bridgegate’ Appeal, By Bill Wichert

Law360 (June 28, 2019, 10:14 AM EDT) — The U.S. Supreme Court on Friday agreed to hear an appeal in the so-called Bridgegate case against two former associates of ex-New Jersey Gov. Chris Christie, who were convicted of reducing local access lanes to the George Washington Bridge in a political revenge scheme.

The justices granted a petition from Bridget Anne Kelly, a onetime aide to the governor, to take a second look at a Third Circuit opinion last fall that upheld most of the convictions for her and former Port Authority of New York and New Jersey executive William E. Baroni Jr.

The circuit’s Nov. 27 precedential decision upheld the bulk of the charges against Kelly and Baroni, but freed them from the government’s civil rights claim that they denied the public the right to travel freely across the bridge. In addition to the civil rights charges, they were convicted at trial in 2016 of misusing the resources of the Port Authority and committing wire fraud.

Following the appellate decision, a New Jersey federal court resentenced Baroni to an 18-month prison sentence instead of the two-year term he originally received. The court later handed down a 13-month prison sentence to Kelly, down from the 18 months she initially faced.

Prosecutors have said that Kelly and Baroni conspired with former Port Authority executive David Wildstein to close two of three local access lanes to the bridge during a week in September 2013, causing extensive traffic jams in the borough, as retaliation against Fort Lee Mayor Mark Sokolich for not endorsing Christie’s 2013 re-election bid.

The three conspirators concocted a bogus story that the lane reductions were for a traffic study, prosecutors said. Baroni and Kelly both testified during the trial that they did not take part in the political payback scheme, claiming that Wildstein duped them into believing the lane closures were for a legitimate traffic study.

Wildstein, who pled guilty and cooperated with the government, was sentenced in July 2017 to three years of probation.