Ed Sapone’s DECISIONS OF THE WEEK -August 29, 2019

by | Aug 29, 2019 | Ed Sapone’s Decisions of the Week

There were two interesting sentencing remands in the Second Circuit this week, and four reversals in the Second Department, including two from Queens Supreme Court for Miranda violations. Clearly, there are a lot more reversals by the NY State appellate courts than by the Second Circuit. I guess this isn’t news, but we should pause every so often to appreciate that we practice in one of the best states of the 50 for criminal defendants. And don’t forget that the SDNY is the best district to be in of the 94 U.S. district courts relative to downward variances based on Booker alone, with more than 50 percent of cases resulting in such non-GL sentences. But I digress, so let’s get back to business with a NGG sentence vacatur and remand.

Second Circuit

On Thursday, in United States v. Pugh, the Circuit affirmed defendant’s EDNY convictions for attempting to provide material support to a foreign terrorist organization (count one) and obstruction of justice (count two). But the Circuit vacated the aggregate 420-month sentence imposed by Judge Nicholas G. Garaufis and remanded the case for re-sentencing.

The Circuit agreed with defendant that the sentence was procedurally unreasonable because Judge Garaufis failed to sufficiently articulate his reasons for imposing the maximum available sentence for each count of conviction: 180 months on count one, plus a whopping 240 months on count two, the obstruction charge. Judge Garaufis also refused to allow defendant the opportunity to sufficiently address the court, which didn’t really matter but is worth mentioning.

By way of background, defendant was a U.S. citizen and U.S. Air Force veteran who moved to the Middle East to work as a civilian contractor for aerospace companies after he left the U.S. military. While living overseas, he began researching ISIS, downloading propaganda, and

discussing on Facebook ISIS tactics and activities. Defendant also married an Egyptian woman. In January 2015, he flew from Cairo to Istanbul. Upon arrival at the Turkish airport, he was denied entry and was apprehended by Turkish authorities. He then destroyed many of the electronic devices he was carrying, including a computer, multiple USB drives, and an iPod.

Defendant was returned to Egypt where his electronic devices were given to the U.S. authorities. A search of his laptop revealed Internet searches, videos and photos relating to ISIS and its presence in Turkey and Syria, and a letter from defendant to his wife in which he pledged allegiance to ISIS.

He was returned to the U.S. where he was briefly detained and released, but later arrested, charged and convicted.

On appeal, defendant argued that: (1) Judge Garaufis erred in denying his motion to exclude the draft letter he had written to his wife; (2) the evidence was insufficient to support his conviction; and (3) his 420-month sentence was procedurally and substantively unreasonable.

The Circuit rejected defendant’s claim that the court should have excluded the letter under the marital communications privilege. The privilege applies when the parties were (1) in a valid marriage at the time of the communication; (2) the “utterances or expressions” were “intended to convey information between spouses” (communication prong); and (3) the communications were intended to be confidential (confidentiality prong).

The Circuit found that the first prong was satisfied, even if the Egyptian marriage might not have been recognized in the U.S. Nonetheless, there was no proof that defendant had ever translated the letter into Egyptian, which meant that the information in the letter could not have been “conveyed.” Further, there was no evidence that his wife even had access to his computer where the letter was stored. Because defendant had not shown that the letter was intended to be a communication to his wife, it wasn’t necessary for the Circuit to reach the confidentiality prong.

Defendant’s claim that the evidence of “attempt” was insufficient was also rejected. According to defendant, he had not taken a substantial step in furtherance of his intended crime, i.e., providing material support to a FTO. The Circuit found that the evidence established more than just a person with an online interest in ISIS. For example, the government introduced evidence

that, at the time of his arrival in Turkey, defendant was carrying a tactical backpack filled with materials that would be unnecessary in the large city of Istanbul, but would be beneficial for travel through Turkey to the Syrian border. Defendant was not equipped with material needed for a job hunt, his alleged reason for traveling to Turkey; nor did he have a Turkish work visa. He also carried interesting maps and articles: “The secret jihadi smuggling route through Turkey,” “Where ISIS is Gaining Control in Iraq and Syria,” and “Syria’s border posts and who controls them.”

The Circuit found that, although defendant was apprehended by Turkish officials before he was able to complete his plan, the evidence demonstrated that he was traveling to Turkey to cross the Syrian border in an effort to join ISIS.

All of that said, the Circuit, nonetheless, rejected Judge Garaufis’s statement of reasons for imposing the maximum sentence, and found that it was procedurally unreasonable. At sentencing, after hearing from both sides, Garaufis stated that there was “ample evidence” admitted at trial for the jury to find defendant guilty of both counts. He commented on portions of the evidence, including defendant’s military service, which the court referred to as “commendable,” his time overseas in the Middle East, and his decision to attempt to join ISIS. After roughly two pages of comments about the evidence at trial, Judge Garaufis stated that the case was about defendant’s choice between standing up for, or betraying, the United States, a country that had “done so much” for him. The court also directly addressed defendant: “You’ve made your choice, sir. I have no sympathy.”

While the sentence fell within the applicable Guidelines range, that fact alone does not demonstrate substantive reasonableness. As we know, district courts are not allowed to presume that Guidelines sentences are substantively reasonable. See Rita v. United States, 551 U.S. 338, 351 (2007). The Circuit stated that, “[w]hen a defendant has been convicted of multiple counts, it is important for the sentencing judge to articulate why a sentence equal to the statutory maximum on one count will not produce a sufficient sentence within the meaning of 18 U.S.C. § 3553(a).” Here, the court had not explained why concurrent sentences would not have sufficed. The Circuit expressed concern that the parsimony clause may have been violated by the large consecutive sentences, and Judge Garaufis failed to provide enough from which to assess whether he appropriately exercised his discretion in imposing sentence. It remanded for resentencing.

Finally, Judge Calabrese wrote a concurring opinion worth reading that underscores just how unreasonable it was for Judge Garaufis to tack on an additional 20 years for an obstruction

charge that was much less serious than the material support charge for which the court imposed the entirely reasonable statutory maximum 15-year sentence.

The Circuit’s decision can be found here.

On Wednesday, in United States v. Burks, in a summary order, the Circuit vacated the 48-month prison sentence imposed upon defendant for possession of cocaine with intent to distribute, finding that the WDNY’s calculation of drug quantity was not supported by a preponderance of the evidence and was, therefore, procedurally unreasonable.

Defendant was indicted on three counts of drug and firearms offenses, but ultimately pleaded guilty, pursuant to a plea agreement, to one count of possession of cocaine with intent to distribute. In the plea agreement, defendant admitted that, “prior to the police search, he knowingly and unlawfully possessed and distributed cocaine in ½ ounce and one ounce amounts.” The plea agreement stated that the amount of cocaine attributable to defendant that “could be readily proven by the government” was less than 50 grams based on the amount of cocaine and other items seized and defendant’s admission, resulting in an estimated Guidelines range of 15–21 months of imprisonment. The Agreement stated that defendant understood that the district court was not bound by that calculation, but that neither party would recommend any other Guidelines range or a sentence inconsistent with the agreed-upon estimate of drug quantity.

The PSR recommended a drug-quantity estimate that was substantially greater than the maximum of 50 grams agreed to in the plea agreement. The PSR noted that police officers also seized $39,000 in cash from defendant’s apartment on the day of his arrest. The PSR converted that amount to its “cocaine equivalent” and arrived at a drug quantity estimate of 312 grams. Based on that drug quantity, the PSR recommended a Guidelines range of 41–51 months of imprisonment, to which defendant objected.

The court conducted a Fatico hearing to resolve the drug-quantity dispute. At sentencing, the district court determined that the small amount of cocaine residue found in the apartment did not reflect the scale of the possession with intent to distribute. In calculating drug quantity, the court relied on a statement in the search warrant application from a police confidential source to whom defendant sold drugs on multiple occasions during the 6-month period before the search of defendant’s residence; defendant’s admission in the plea agreement and during the plea colloquy

that he had distributed cocaine in “ounce and a half quantities” before his residence was searched; and the seized cocaine-packaging and distribution materials, which suggested a large operation. The court did not rely on the cocaine-equivalent drug quantity calculation (based on the presence of $39,000 in cash in the apartment) that was the basis for the higher calculation of 312 grams in the PSR.

The Circuit found that the district court’s conclusion that defendant had sold 500 grams to 2 kilograms was based on a clearly erroneous factual finding: defendant had never admitted in his plea agreement that he’d sold in ounce and a half quantities. Instead, it reflected that he’d sold in half-ounce and ounce quantities.

Because it was unclear to what extent that error affected the sentence imposed, the Circuit found it necessary to remand for resentencing. The Circuit pointed out, however, that the court could have adopted the approach advocated by the PSR to calculate drug quantity based on the cocaine equivalent of the value of cash seized from defendant’s residence.

The Circuit’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Corchado, AD2 reversed defendant’s Queens County criminal sale of a controlled substance convictions, finding that defendant was denied his right to the effective assistance of counsel because his attorney failed to argue at the close of a suppression hearing that weapons recovered from his home were the product of a Miranda violation.

Police executed a search warrant at the defendant’s deli. The defendant was handcuffed and placed under arrest, but was not given Miranda warnings. A detective told the defendant that he was there looking for weapons and drugs. Defendant told the detective that the gun they were looking for was not there, because he had taken it home. The police used that statement to obtain a search warrant for defendant’s home where they ultimately found the gun.

Following a Mapp/Wade/Huntley/Dunaway hearing, defense counsel moved to suppress the evidence recovered during the search of the deli. But he did not contend that the evidence seized from the defendant’s home should be suppressed. The court suppressed the statements the defendant made at the deli after he had been arrested and handcuffed, because defendant had not been advised of his Miranda rights. The court did not suppress the physical evidence seized at the deli and at the defendant’s house.

AD2 found that counsel was ineffective for failing to argue that the search of the home was the product of the Miranda violation.

AD2’s decision can be found here.

In People v. Dorvil, AD2 reversed defendant’s Queens County robbery convictions, finding that the court should have suppressed statements he made to police, because they were the product of a Miranda violation.

After defendant was arrested and placed in an interview room at the police station, a detective asked the defendant a series of questions without administering Miranda warnings. Among other things, these questions concerned the defendant’s employment, the length of his tenure at his current job, his job responsibilities, the length of time he was living at his current address, and other places where he and his family had lived. After this questioning, the detective told defendant: “I’m [going] to read [the] Miranda rights to you, just to get it out of the way.” The detective then administered the Miranda warnings, defendant waived his rights, and made statements.

AD2 found that the pre-Miranda questioning was not mere “small talk,” but was interrogation, particularly because the questions about where defendant worked were relevant to the crime they were investigating.

AD2’s decision can be found here.