Ed Sapone’s DECISIONS OF THE WEEK -October 18, 2019

Ed Sapone’s DECISIONS OF THE WEEK -October 18, 2019

| Oct 18, 2019 | Ed Sapone’s Decisions of the Week

Factually inconsistent verdicts are almost never a successful basis for challenging a conviction on appeal. In United States v. Kendrick, the Circuit reminded us why the “almost” qualifier is necessary, finding that inconsistent indications on a verdict sheet relating to a single count and a single defendant cannot be reconciled and require reversal.

It was an interesting week in the Second Department with two significant weight of the evidence reversals, involving serious offenses, reminding us of the power of New York’s intermediate appellate courts to do justice, even in the absence of legal error.

Second Circuit

On Friday, in United States v. Degroate, the Circuit affirmed the NDNY judgment revoking, for a second time, defendant’s supervised release and imposing an 18-month term of imprisonment. CA2 rejected defendant’s contentions that (1) the district court abused its discretion when it denied his request to present a mitigation expert at the revocation hearing; and (2) the sentence was procedurally unreasonable because one of the conditions he’d admitted to having violated had been unlawfully imposed.

Defendant pleaded guilty, pursuant to a written plea agreement, to RICO conspiracy, and, in 2013, received a 73-month sentence to be followed by 3 years’ supervised release. In 2015, defendant’s sentence was reduced to 63 months based on a retroactive lowering of the applicable Guidelines range. The term of supervised release was unaffected. In 2017, defendant was found to have violated the terms of his supervised release and the court imposed a further 8-month term of imprisonment to be followed by a 24-month term of supervised release.

In 2018, three months after he’d begun his second term of supervised released, defendant was interviewed by local police at a strip club, past his curfew, where he had been associating with a twice‐convicted felon. He thereafter consented to a modification of the terms of his supervision, agreeing to comply with a renewed two‐month curfew “commencing on a date and under conditions to be set by the probation officer.” He further consented to the use of location-monitoring technology to ensure compliance with the curfew. The district court ordered the agreed‐upon modifications to the terms of supervised release. A second petition to revoke defendant’s supervised release was filed when Probation learned that defendant

was found to have been tampering with his monitoring bracelet, and admitted that he’d twice left his home in violation of the curfew provision.

At the revocation hearing, counsel asked that defendant’s mother be given an opportunity to speak in mitigation. The court refused, stating that no one would be permitted to speak on defendant’s behalf except counsel. The Circuit found that Rule 32 gives only four parties an explicit right to speak at sentencing: the defendant’s attorney, the defendant, the Government, and any victims who may be present. Agreeing with other circuits that have considered the question—the First, Fifth, and Seventh—CA2 found that no other parties were required to be given an opportunity to speak.

Defendant also argued that his curfew violation was not a permissible basis for revoking his supervised release because the curfew condition was imposed unlawfully in the first place. According to defendant, the district court had unlawfully delegated its judicial authority to the Probation Office when it imposed a special condition of supervised release requiring that defendant comply with a curfew commencing on a date and under conditions to be set by the Probation officer. The Circuit found that, because the district court had unambiguously authorized a curfew, it was not an improper delegation to allow the Probation Office to decide the days and precise timing of the curfew.

The Circuit’s decision can be found here.

On Thursday, in United States v. Kendrick (Pierce), the Circuit affirmed NDNY’s order setting aside the jury verdict finding defendant guilty of conspiracy to possess with intent to distribute and distribution of four types of narcotics, on the grounds that the verdict was inconsistent with specific jury findings that it was “not proven” that defendant conspired to possess with intent to distribute each one of the four types of narcotics charged or distributed each one of the four types of narcotics.

Count 1 of the indictment charged defendants with conspiracy to possess with intent to distribute and distribution of cocaine, cocaine base, heroin, and marijuana. The verdict sheet for that count first asked the jury to determine whether the government had proven “Conspiracy to possess with intent to distribute, and to distribute, cocaine, cocaine base, heroin and marijuana, between in or about 1993 and on or about March 2, 2011.” It then asked, as to each substance, whether the allegation had been proven. While the jury marked that conspiracy to distribute “cocaine, cocaine base, heroin and marijuana” had been proven, it indicated, as to each individual substance, that the allegation had not been proven.

When the foreman reported the verdicts, the judge recognized the conflict and polled the jurors, each of whom orally confirmed their verdicts. The jurors were sent back to the jury room to await further instructions. After discussion among the parties, the jury was discharged at defense counsel’s request. The court subsequently granted defendant’s motion to set aside the verdict.

The Circuit found that it would “strain harmonization” beyond the breaking point to reconcile the verdict with the verdict sheet. Even though there is generally no requirement that verdicts be consistent between counts or defendants, the Circuit held that irreconcilably inconsistent verdicts as to the same defendant on the same count were impermissible. According to CA2, the jury should have been instructed to resume deliberations with the direction to eliminate the inconsistency. Absent that, however, the verdicts were “metaphysically impossible,” and the only remedy was to set aside the verdict.

The Circuit’s decision can be found here.

On Friday, in United States v. Lopez, in a summary order, the Circuit affirmed SDNY Judge Paul A. Crotty’s order denying defendant’s motion for a reduction of his sentence. Defendant had moved for a reduction seeking a retroactive application of Guidelines amendment 782, which lowered the base offense levels of most drug crimes.

The Circuit found that the district court had correctly rejected defendant’s motion because defendant’s total offense level was calculated based on the first-degree murder Guidelines, which amendment 782 did not affect.

The Circuit’s decision can be found here.

In United States v. Monnat, in a summary order, the Circuit vacated and remanded the NDNY amended judgment imposing special conditions of release, in particular those conditions that: (1) prohibited defendant from having direct or indirect contact with a minor unless supervised and approved by a probation officer; (2) required defendant to avoid and remove himself from situations where he might have contact with a minor; and (3) prohibited defendant from being in any area where minors are likely to congregate.

The district court first imposed the special conditions as a component of the original sentence. Defendant subsequently violated these and other conditions of his supervised release. He was sentenced to eight months’ imprisonment for the violation, his term of supervised release was extended to life and the challenged conditions were reimposed over counsel’s objections. Although defendant conceded that a life term of supervised release was appropriate, his counsel objected to the imposition of these specific conditions.

The Circuit found that the district court did not adequately explain why the special conditions were needed to reasonably promote the § 3553(a) factors.

The Circuit’s decision can be found here.

On Monday, in United States v. Delcid, in a summary order, the Circuit affirmed in part, but vacated in part and remanded for resentencing defendant’s EDNY convictions before Judge Leo Glasser.

Defendant, pleaded guilty to two counts of conspiracy to commit Hobbs Act robbery and one count of unlawful possession of a firearm during the commission of one of the robbery conspiracies, a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). The Circuit held, as it had in United States v. Barrett, 937 F.3d 126, 127 (2d Cir. 2019), that the Supreme Court’s decision in United States v. Davis, 139 S.Ct. 2319 (2019), precluded a finding that Hobbs Act robbery conspiracy is a crime of violence within the meaning of § 924(c).

The Circuit’s decision can be found here.

On Tuesday, in United States v. Baires (Merino), in a summary order, the Circuit affirmed defendant’s EDNY RICO conviction, which was based on racketeering acts including conspiracy to murder and attempted murder, committed while leading the Flushing, Queens clique of MS-13, and the below-Guidelines 120-month sentence imposed by Judge William F. Kuntz following defendant’s substantial assistance of the government. CA2 found that defendant “ha[d] a point,” when he argued that specific deterrence should not have been a factor in the sentence because his cooperation precluded him from returning to MS-13 and general deterrence was not furthered because defendant was punished more harshly than the non-cooperating defendants. The Circuit found “interesting” defendant’s argument that a district court might be “misled into disfavoring a cooperator – whom the government requires to plead guilty to a litany of offenses in order to ward off insinuations that the cooperator was given a sweetheart deal – while codefendants are free to bargain down the seriousness of the offenses to which they ultimately plead.” But, ultimately, the Circuit found defendant’s challenges an insufficient basis to reduce the sentence because the record indicated that defendant received the individualized consideration to which he was entitled and derived significant benefits from his cooperation.

The Circuit’s decision can be found here.

On Friday, in United States v. Greenland, in a summary order, the Circuit affirmed defendant’s SDNY conviction for illegal reentry into the United States after deportation following an aggravated felony conviction, and the 151-month sentence imposed by Judge Kenneth M. Karas. CA2 rejected defendant’s contention that the sentence was substantively unreasonable. Defendant had argued that the illegal reentry guideline in the 2016 Sentencing Guidelines was “eccentric” and “arbitrary” insofar as it yielded offense levels for non‐violent acts that are higher than other violent acts. The Circuit found, however, that defendant’s within-range sentence was not “shockingly high.” The Circuit also rejected defendant’s contention that it was improper to run defendant’s sentence partially consecutive to a not-yet-completed state sentence, because the district court was correct in deciding that the partially consecutive sentence was proper for the purpose of ensuring that the federal sentence for illegal reentry “remain relevant.”

The Circuit’s decision can be found here.

In United States v. Beniquez, in a summary order, the Circuit affirmed defendants’ SDNY conviction for conspiring to distribute and possess with intent to distribute cocaine and cocaine base, and the sentences imposed by Judge Cathy Seibel, rejecting defendants’ contentions that the evidence was insufficient, particularly as the determination of the quantities of drugs involved, and as to proof of the existence of a “wheel conspiracy” wherein the participants “knew or had reason to know of the existence, but not necessarily the identity, of one or more of the other spoke participants.”

CA2 found that the testimony of a cooperating co-conspirator, intercepted communications between co-conspirators and drugs recovered during the investigation provided sufficient evidence of the quantities of drugs involved. Additionally the evidence was sufficient to establish a shared expectation between the co-defendants for the jury to conclude that they had conspired to distribute drugs.

The Circuit’s decision can be found here.

In United States v. Martinez, in a summary order, the Circuit affirmed an order by SDNY Judge Naomi R. Buchwald denying defendant’s motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). Defendant moved for a reduction based on Amendment 794 to the Guidelines, which revised the commentary regarding the application of role adjustments under U.S.S.G. § 3B1.2. Under § 3582(c)(2), a sentencing court may reduce a defendant’s term of imprisonment if it was based on a guideline range subsequently lowered by the Sentencing Commission. In order to be eligible for relief under § 3582(c)(2), however, a defendant must establish that his sentence was lowered by an amendment to the Sentencing Guidelines that is listed as retroactive in § 1B1.10(d). Because Amendment 794 was not specifically listed as retroactive, it could not form the basis for a reduction.

The Circuit’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Clavell, AD2 reversed defendant’s Queens County second-degree murder conviction, finding that the conviction was against the weight of the evidence. In a decision which undertook a very thorough review of the facts, AD2 found that an acquittal on the basis of ID would not have been unreasonable, where there was no direct evidence of defendant’s guilt, none of the forensic evidence recovered linked the defendant to the crime and the People’s case, which was brought 11 years after the murder, was based entirely on circumstantial evidence. The primary circumstantial evidence appears to have been the defendant’s “contentious relationship” with the victim—his child’s mother—and the fact that he was near the murder scene, where defendant himself lived, on the morning of the murder.

AD2’s decision can be found here.

In People v. Cruz, AD2 reversed defendant’s Rockland County controlled substance sale and possession convictions, finding that the convictions were against the weight of the evidence. In another decision with a thorough review of the facts, AD2 concluded that the People had not disproven defendant’s agency defense, because, among other things, the People had not established that defendant, who purchased drugs for an undercover, had a pre-existing relationship with the supplier, or benefited from the transaction.

AD2’s decision can be found here.

In People v. Zapata, AD2 reversed defendant’s Queens County robbery convictions, finding that Justice Ronald Hollie (again) erroneously failed to suppress pretrial identifications and statements. According to AD2, the People failed to establish at the suppression hearing that defendant was lawfully arrested. In particular, AD2 ruled that the People’s reliance on the fellow officer rule was unwarranted where they did not introduce evidence showing how the conveying officer had come to learn of the information on which the fellow officer relied.

AD2’s decision can be found here.

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