Ed Sapone’s DECISIONS OF THE WEEK -October 4, 2019

by | Oct 4, 2019 | Ed Sapone’s Decisions of the Week

A few of the Second Circuit’s decisions this week returned to the frequent topic of what constitutes a crime of violence in its many incarnations in federal criminal law, including its opinion in Watkins, which dealt with the issue in the context of the Bail Reform Act.

In New York State’s appellate courts, decisions in all four departments granted relief to defendants, including a few on weight-of-the-evidence and sufficiency-of-proof grounds.

Second Circuit

On Thursday, in United States v. Watkins, the Circuit wrote to explain its January 30, 2019 affirmance of a WDNY order denying defendant’s request for pretrial release. CA2 found that the government was entitled to a detention hearing under the Bail Reform Act and rejected defendant’s vagueness challenge to the Act’s definition of “crime of violence.” The Circuit concluded that (1) possession of ammunition by a convicted felon is categorically a crime of violence under the statute’s residual clause, and (2) pursuant to a conduct-specific inquiry, defendant’s offense also involved the possession or use of a firearm.

Defendant was charged in a one‐count indictment with possession of ammunition as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). A WDNY magistrate entered a detention order, which a district court judge affirmed. Defendant appealed that order to the Circuit. The central issue on appeal was whether a detention hearing should have been held under 18 U.S.C. §§ 3142(f)(1)(A) and 3142(f)(1)(E). Under § 3142(f)(1), a judicial officer must hold a detention hearing upon motion of the government “in a case that involves,” among other things, “a crime of violence.” A crime of violence is defined, in relevant part, as (A) an offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another (the “elements clause”); or (B) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense (the “residual” clause).

As a threshold issue, the Circuit found that the statute’s residual clause was not subject to constitutional void-for-vague analysis. Unlike the Supreme Court’s decisions in Johnson v. United States, 135 S.Ct. 2551 (2015); United States v. Davis, 139 S.Ct. 2319 (2019); and Sessions v. Dimaya, 138 S.Ct. 1204 (2018), the statute here did not define criminal offenses and laws that fix the permissible sentences for criminal offenses. Like the Guidelines (see, Beckles v. United States, 137

S.Ct. 886 (2017)), the Bail Reform Act does not define criminal offenses or mandatory penalties, and was therefore not subject to a void-for-vagueness challenge.

Next, the Circuit concluded that possession of ammunition by a felon was categorically a crime of violence. Like possession of a firearm, possession of ammunition “gives rise to some risk” that the ammunition may be used in an act of violence. Under the “categorical approach,” a court is required to “imagine how the idealized ordinary case of the crime subsequently plays out.” Johnson, 135 S. Ct. at 2557–58.

The Circuit concluded that, in the “idealized ordinary case,” possession of ammunition occurs in connection with eventual possession or use of a firearm, because there is little reason to possess ammunition other than to eventually discharge it from a firearm. And where there is a firearm, the risk that physical force will occur “in the course” of the ammunition‐possession offense is substantial.

Alternatively, the Circuit found that, even if the charge was not categorically a crime of violence, the Government nevertheless would have been entitled to a detention hearing in this case, because § 3142(f)(1)(E) mandates a detention hearing in connection with “any felony” if the Government proves by a preponderance of the evidence that the charged felony involves, among other things, the possession or use of a firearm.

Here, the conduct underlying defendant’s possession‐of-ammunition charge plainly involved the use of a firearm, because defendant discharged at least nine bullets from an illegally possessed firearm.

The Circuit’s decision can be found here.

On Friday, in United States v. McCourty, in a summary order, the Circuit affirmed an order by EDNY Judge Kiyo A. Matsumoto revoking defendant’s supervised release, and sentencing him to 24 months of imprisonment. The Circuit rejected defendant’s contentions that: (1) the judge abused her discretion by admitting hearsay evidence at defendant’s violation of supervised release hearing; and (2) there was insufficient evidence to support the court’s conclusion that he had violated the terms of his supervised release by committing three New York State misdemeanors.

Defendant was arrested on February 11, 2017 and charged with Assault 3o, Menacing 3o and Endangering the Welfare of a Child. According to defendant’s girlfriend, who made the 911 call that precipitated the arrest, defendant punched her in the face, kicked and dragged her out of a car in which they were transporting their child, and continued to hit her in the street. The government sought to admit statements made by the victim to an officer who responded to the 911 call in the absence of the victim’s testimony. The District Court engaged in a balancing test pursuant to FRCP 32.1(b)(2)(C), weighing the defendant’s interest in confronting the declarant with the government’s reasons for not producing the witness and the reliability of the proffered hearsay. CA2 found that that the District Court was reasonable to conclude, as part of that analysis, that the victim refused to testify out of fear of defendant, and that the hearsay statements, which were consistent with, and occurred contemporaneously with, other admissible statements, was reliable.

CA2 also found that the evidence presented at the hearing, which included hospital records reflecting the victim’s injuries, the observations of the responding officer, and the 911 call, were more than

sufficient to establish by a preponderance of the evidence that defendant had committed the three New York State misdemeanor offenses.

The Circuit’s decision can be found here.

On Monday, in Baldwin v. United States, in a summary order, the Circuit vacated EDNY Judge Edward R. Korman’s decision that the New York offense of robbery in the third degree was not a violent felony under the Armed Career Criminal Act.

In 1997, Baldwin was convicted of possession of a firearm as a convicted felon. In 2016, he moved pursuant to 18 USC § 2255 to vacate his sentence on the ground, accepted by Judge Korman, that his prior New York third-degree robbery conviction was not a crime of violence. After Judge Korman’s decision, the Circuit decided United States v. Thrower, 914 F.3d 770 (2019), which concluded that third-degree robbery was, categorically, a crime of violence. Thrower required reversal here. The Circuit ordered resentencing, at which time the District Court may consider the fact that defendant has now been out of prison for more than a year, and had only six months remaining on his sentence at the time of his release.

The Circuit’s decision can be found here.

In United States v. Wiggins, in a summary order, the Circuit affirmed defendant’s EDNY conviction for being a felon in possession of a firearm, and the 78-month sentence imposed by Judge Nicholas G. Garaufis, rejecting defendant’s contentions that Judge Garaufis erred when he: (1) authorized a second search warrant of his cellphone that allegedly lacked sufficient probable cause; (2) admitted into evidence text messages obtained pursuant to the challenged warrant; (3) prevented defendant from introducing certain exhibits at trial; and (4) considered defendant’s prior third-degree New York robbery conviction a “crime of violence” for purposes of § 2K2.1 of the Guidelines.

Notably, the District Court considered defendant’s objections to the second cellphone search prior to authorizing the search and rejected those objections when it issued the search warrant. Under those circumstances, without getting into the merits of defendant’s objections, CA2 found that the good faith exception to the Fourth Amendment’s exclusionary rule clearly applied because the police officers had no reason to question the District Court’s probable-cause determination.

Defendant’s principal defense at trial was that the loaded revolver found at the time of his arrest was not his and likely belonged to a gang that operated in the area. The text messages that Judge Garaufis allowed to be admitted into evidence tended to show, among other things, that defendant had access to a firearm as recently as a few weeks prior to his arrest and that he had used it to threaten someone in connection with a dispute over money. Given those facts, CA2 agreed with Judge Garaufis that the text messages were relevant to demonstrate defendant’s access to a gun and motive for carrying that gun and did not constitute impermissible propensity evidence. CA2 further found that the District Court’s Rule 403 analysis was neither “arbitrary” nor “irrational.”

By defendant’s own admission, the excluded exhibits he sought to introduce at trial would likely have corroborated the proffered testimony of prosecution witnesses. As such, CA2 found the evidence to be merely cumulative and its exclusion not an abuse of discretion.

Finally, as defendant conceded on appeal, his argument that his prior third-degree New York robbery conviction was not a “crime of violence” for purposes of § 2K2.1 of the Guidelines was foreclosed by CA2’s decision in United States v. Pereira-Gomez, 903 F.3d 155, 166 (2d Cir. 2018).

The Circuit’s decision can be found here.

In United States v. Odiase, in a summary order, the Circuit affirmed defendant’s SDNY money-laundering conviction before Judge Sidney H. Stein, rejecting defendant’s contentions that (1) the evidence at trial was insufficient to support her convictions; (2) the government wrongfully shifted the burden of proof to her; (3) the court erred or “abused its discretion” by excluding portions of her video; and (4) the court erred by entering a restitution order holding her responsible for the entire loss caused by the fraud underlying the money laundering.

CA2 found that, viewing the evidence in the light most favorable to the government, the circumstantial evidence presented at trial was sufficient to establish defendant’s knowledge that the proceeds of the offense were derived from unlawful activity and that the financial transaction engaged in was for the purpose of concealing or disguising the funds. Defendant established two bank accounts which she did not use for her ordinary financial activity. She deposited a $50,000 cashier’s check into the first account, and two weeks later withdrew a $50,000 cashier’s check and deposited it into the second account. The evidence further showed that the movement of the funds was directed by her son and co-defendant, and that the funds were the proceeds of a fraudulent scheme. Finally, when interviewed by law enforcement, defendant made statements about the source of the funds that were not corroborated by any other facts in the case.

Defendant argued that under the “rule of completeness,” pursuant to FRE 106, the trial court erred in not admitting the entirety of her video interview with law enforcement. According to CA2, however, defendant made only a general argument that the whole video was necessary to put the admitted statements in context, and failed to demonstrate that the excluded passages were necessary to explain any of the admitted portions or to avoid misleading the jury.

According to CA2, while the government may not suggest that the defendant has the burden of producing evidence, the government may argue that a defendant has failed to support her own factual theory (see United States v. Rivera, 971 F.2d 876, 884 (2d Cir. 1992). Questions posed by the government to a witness about whether defendant had ever come forward with evidence she claimed corroborated her story about the source of the funds in issue, were thus more appropriately viewed as a means of highlighting defendant’s lack of credibility.

When the crime of conviction is a conspiracy, the district court may order a defendant to pay restitution for the reasonably foreseeable losses caused by the conspiracy. Such was the case here, and the District Court did not abuse its discretion in ordering defendant to pay the full amount

involved in the money laundering conspiracy for which she was convicted.

The Circuit’s decision can be found here.

On Tuesday, in United States v. Howell, in a summary order, the Circuit affirmed the order of restitution imposed by SDNY Judge George B. Daniels ordering him to pay approximately $675,000 jointly and severally with his co-defendants following his SDNY bank and wire fraud convictions. The Circuit found that defendant had waived his right to challenge the restitution order by the terms of his plea agreement, and had stated under oath that he had read and discussed the plea agreement with his counsel, and specifically understood that the agreement contained a waiver of his right to file an appeal.

The Circuit’s decision can be found here.

Appellate Division, First Department

On Tuesday, in People v. Correa, AD1 reversed defendant’s New York County narcotics sale convictions, finding that the verdict, which relied almost entirely on police testimony, was against the weight of the evidence. In a very unusual finding for AD1, it found that the People’s theory of the case—that defendant had sold drugs—was not supported by any direct evidence and was contradicted by physical evidence.

AD1’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Adderly, AD2 reversed defendant’s Kings County first-degree murder conviction. AD2 found, as it had last year for a co-defendant, see People v. Gedeon, 162 A.D.3d 1065 (Aug. 1, 2018), that the trial judge violated O’Rama during deliberations when it received jury notes but did not read them into the record or share their contents with counsel before responding to them. You may recall that this has been a hot topic in all of the appellate divisions for the last year or so. One wonders why trial courts continuously fail to respect the parties’ right to be made aware of jury notes.

AD2’s decision can be found here.

In People v. Yegutkin, AD2 reversed and dismissed three sexual abuse counts of conviction, and dismissed those counts in the indictment, finding, in the interest of justice, that they were not supported by sufficient evidence. Reaching a sufficiency claim in the interest of justice is a rarity, but it is not likely to help this defendant much, who was convicted of 72 other counts, including course of sexual conduct against a child and other sexual offenses, and who is serving a 50-year sentence.

AD2’s decision can be found here.

Appellate Division, Third Department

On Thursday, in People v. Waldron, AD3 concluded that the Franklin County Court erred when it ordered restitution in the amount of $4,100. The parties had agreed that defendant would pay restitution in the amount of $4,552. So AD3 remitted for the purpose of allowing defendant to either accept the enhanced restitution amount or to withdraw her guilty plea.

AD3’s decision can be found here.

Appellate Division, Fourth Department

On Friday, in People v. Rolldan, AD4 reversed defendant’s Monroe County criminal use and possession of a firearm convictions. AD4 found that there was insufficient evidence to show that defendant had constructively possessed a rifle found in a house where she was present when the police entered following a report that two victims were being held captive there. The most significant fact for AD4 was that another person had grabbed the rifle when the police entered.

AD4’s decision can be found here.

In People v. Wilson, AD4 remitted defendant’s Monroe County rape conviction to supreme court for further proceedings relating to whether defense counsel had consented to statutorily unauthorized annotations on the verdict sheet.

AD4 found that the verdict sheet, which stated in relevant part “Fourth Count: Rape in the Third Degree (lack of consent/totality of circumstances),” contained an “impermissible annotation,” because the “totality of circumstances” language was not “statutory language,” but language from the pattern jury instructions (see CJI 2d[NY] Penal Law § 130.25 [3]).

AD4 found that the court was required to obtain defense counsel’s consent prior to submitting the annotated verdict sheet to the jury. Rather than reverse, AD4 remitted to determine whether defense counsel had expressly consented.

While every case is different and turns on its individual facts, I see no reason to consent to such additional language.

AD4’s decision can be found here.