Ed Sapone’s DECISIONS OF THE WEEK -December 20, 2019

Ed Sapone’s DECISIONS OF THE WEEK -December 20, 2019

| Dec 20, 2019 | Ed Sapone’s Decisions of the Week

A very busy week in the Second Circuit, with an unusual mandamus grant in a criminal case to the government in In re: United States, and a very thorough and complex Fourth Amendment discussion relating to FISA warrants and electronic surveillance in Hasbajrami, which we summarized in a Decisions of the Week, Special Edition, on December 20, 2019.

In the state courts, a depressing week in the Court of Appeals, with a slate of affirmances, over—in most of them—the dissents of Judges Rivera and Wilson.

Second Circuit

On Friday, in United States v. Johnson, CA2 affirmed defendant’s EDNY wire fraud and conspiracy to commit wire fraud convictions following a jury trial before Judge Nicholas Garaufis. CA2 rejected defendant’s claim that the evidence was insufficient to support the government’s theory that defendant denied Cairn Energy the right to control its assets by depriving it of information necessary to make its own discretionary economic decisions.

Defendant was the former global head of the foreign exchange trading desk at the investment bank HSBC. The fraud charges were connected to a foreign currency exchange transaction with Cairn Energy. At trial and on appeal, the government argued that Johnson could be convicted on either of two theories of criminal liability: (1) misappropriation of the confidential information of Cairn in breach of a duty of trust and confidence owed to Cairn; or (2) denial of Cairn’s right to control its assets by depriving it of information necessary to make discretionary economic decisions. Defendant argued on appeal that there was insufficient evidence of both theories, because Cairn received the benefit of its bargain and any misrepresentation were immaterial.

CA2 held that because there was sufficient evidence to prove the right-to-control theory, it need not consider whether the misappropriation theory was supported. In right‐to‐control cases, CA2 determines if sufficient proof of fraudulent intent exists by considering whether defendant’s deception “affect[ed] the very nature of the bargain” between defendant and the victim. CA2 rejected defendant’s claim that he could not be criminally liable for wire fraud in the absence of a contractual breach. Defendant represented to Cairn that the price of a monetary exchange transaction would be determined under a particular set of conditions; he then deceptively manipulated those conditions.

CA2 found that defendant’s misrepresentations were material.

CA2’s decision can be found here.

On Tuesday, in In re: United States of America (Yehudi Manzano), in an interesting opinion CA2 granted the government’s petition for a writ of mandamus directing the Connecticut District Court to preclude defense counsel from arguing jury nullification at respondent’s criminal trial for production of child pornography.

Respondent was charged with, among other things, production of child pornography, an offense punishable by a mandatory minimum term of 15 years of imprisonment. Before trial, respondent filed motions asking permission to argue jury nullification—i.e., that the jury should render a verdict not in accordance with the law—and to present evidence regarding the sentencing consequences of a conviction in this case. The district court granted respondent’s request to argue jury nullification, but reserved decision on the admissibility of evidence regarding the sentencing consequences of a conviction.

The government sought a writ of mandamus directing the district court to (1) preclude defense counsel from arguing jury nullification, and (2) exclude any evidence of sentencing consequences at trial. CA2 found that mandamus was appropriate for the jury nullification claim but not the sentencing claim.

As to the jury nullification claim, CA2 found that the government had no other adequate means to attain the relief it sought. The appellate process was inadequate because, if the jury nullified, double jeopardy would bar any retrial. CA2 found that the government had a clear and indisputable right to the relief it sought, because the case law was clear that courts may not encourage nullification. The district court’s distinction—that it could not encourage nullification through jury instructions, but could allow counsel to make a nullification argument—was unsupported by case law.

CA2 denied the government’s writ to preclude mention of the mandatory minimum sentence during the trial. First, because the district court had not reached a final ruling on the issue, there were other means short of mandamus to preclude the information. Second, the district court had the discretion to defer ruling on the issue. But in declining to direct mandamus, CA2 made its position pretty clear: “If we were confident in the premise that evidence of sentencing consequences will be offered solely for that improper purpose, we would agree that the district court clearly erred in failing to preclude such evidence, even at the pretrial stage. As the government correctly argues, there is no difference between improperly permitting defense counsel to argue nullification and admitting evidence for the sole purpose of encouraging nullification.”

With this signal, CA2 essentially precluded the minimum sentence information from being placed before the jury without directing it through mandamus.

CA2’s decision can be found here.

On Thursday, in United States v. Canteen, CA2 affirmed defendant’s 151-month sentence imposed by SDNY Judge Valerie Caproni following his conviction for racketeering conspiracy based on underlying predicate acts of racketeering that qualified as crimes of violence. CA2 rejected defendant’s contention that the court erred in applying the 2015 Guidelines Manual and should have instead used the 2016 Guidelines Manual, under which his conviction would not have triggered the career offender enhancement, resulting in a lower Guidelines range.

CA2 found that, even assuming that defendant had preserved his argument that the 2016 Guidelines should have been used, the court did not err in concluding that his conviction for racketeering conspiracy based on the predicate acts of racketeering is a crime of violence under § 4B1.1 of the 2016 Guidelines.

In pleading guilty, defendant admitted that he committed five bank robberies with gang members between August 2015 and January 2016. A written plea agreement set forth the terms of defendant’s plea, including that defendant and the government disagreed about the application of the career offender enhancement under § 4B1.1. That enhancement applies if the offense of conviction and two prior convictions qualify as felony crimes of violence or drug offenses as defined by § 4B1.2. The plea agreement also stipulated that “[t]he Guidelines Manual in effect as of November 1, 2015 applie[d].”

At sentencing, the court found that defendant’s prior NY state robbery convictions counted as crimes of violence under the career offender provisions. Applying the 2015 Guidelines, it determined that defendant was a career offender for purposes of § 4B1.1 and 4B1.2, that his criminal history category was VI, and that his Guidelines range was 151 to 188 months, and sentenced him to 151 months of imprisonment.

On appeal, defendant contended, among other things, that the court should have applied the 2016 Guidelines rather than the 2015 Guidelines. CA2 found that it did not matter which year’s Guidelines applied, as the same career offender enhancement would apply.

Defendant also claimed that the career offender enhancement did not apply because racketeering conspiracy is not a crime of violence, given that racketeering, the object of the conspiracy, was not included in the list of enumerated offenses in § 4B1.2(a)(2) of the 2016 Guidelines that replaced the residual clause in the 2015 Guidelines. CA2 disagreed. It found that the predicate act of bank robbery satisfied the 2016 Guidelines.

CA2’s decision can be found here.

In United States v. Wright, CA2 remanded defendant’s appeal of his WDNY convictions for two counts of assault on a law enforcement officer, with a direction that it convert defendant’s untimely notice of appeal into a petition for habeas relief, and to assess whether such a petition would have been timely when the untimely notice of appeal was filed.

Defendant was convicted after a jury trial and sentenced to 240 months of imprisonment on May 2, 2014. The sentencing transcript “suggests” that defendant wanted to appeal and his attorney was told to file a notice of appeal. No notice was filed. On August 25, 2017, more than three years after he was sentenced, defendant filed a notice of appeal pro se. Defendant contended that he undisputedly received ineffective assistance of counsel because his attorney failed to file a notice of appeal.

CA2 found that the relevant question was whether a petition for habeas relief would have been timely under § 2255 when defendant filed his own pro se notice of appeal. CA2 found that when a defendant files an untimely notice of appeal but is still well within the limits set out under § 2255, a remand to set aside a judgment “vulnerable to being set aside in any event,” is an efficient and reasonable use of judicial resources. But if the untimely notice of appeal would not have been timely had it been filed instead as a habeas petition at the district court under § 2255, defendant should not be permitted to circumvent AEDPA’s “carefully calibrated system” of filing deadlines.

Had defendant filed a § 2255 petition on August 25, 2017 in the district court instead of a notice of appeal, for it to be timely, either (1) the fact that his attorney did not file a notice of appeal must not have been discoverable using due diligence prior to August 25, 2016; or (2) he must qualify for equitable tolling for some period of time between the day by which he should have discovered the facts of his ineffective assistance claim and the latest possible beginning of the § 2255(f)(4) limitations period, i.e., August 25, 2016.

A remand to the district court was necessary to resolve these factual issues.

CA2’s decision can be found here.

On Friday, in United States v. Sergentakis, in a summary order, CA2 affirmed defendant’s SDNY conviction for retaliating against a witness following a guilty plea before Judge Nelson S. Roman. CA2 rejected defendant’s contention that the district court erred when it denied his motion to dismiss on First Amendment grounds. Without reiterating the statements that constituted the act of witness retaliation, CA2 agreed with the district court that, because the speech in question was defamatory, it was not protected by the First Amendment, as it consisted of false statements of fact about a private individual.

CA2’s decision can be found here.

In United States v. Zia, in a summary order, CA2 affirmed defendant’s EDNY conviction for conspiracy to conceal and harbor aliens for financial gain, and the approximately $500,000 restitution award imposed by Judge Sandra J. Feuerstein. CA2 rejected defendant’s claims that the written plea agreement erroneously implied that restitution was mandated by law, and that the court incorrectly failed to consider his ability to pay. CA2 noted that the payment schedule accounted for defendant’s expected financial circumstances.

CA2’s decision can be found here.

In United States v. Stasior, in a summary order, CA2 vacated, in part, the SDNY judgment convicting defendant of conspiracy to commit money laundering, and the sentence imposed by Judge Lewis A. Kaplan. Defendant was sentenced to a year and a day and four years of supervised release, with the special condition of 20 hours of community service per week during the term of supervised release.

The government conceded, and CA2 agreed, that the maximum term of supervised release should have been three years. Defendant also argued that the community service special condition, which amounted to 4,160 hours over four years, was substantively and procedurally unreasonable. The Guidelines normally cap community service at 400 hours. See USSG §5F1.3, comment. n. 1. You also may recall the Circuit vacating the sentence in United States v. Parkins (2d Cir., 8/19/19), because Judge Berman sentenced the defendant to too many hours of community service.

CA2 found that the district court gave inadequate reasons for its significant departure from the normal cap. It also found that a plenary resentencing was appropriate. Because defendant had asked for, in lieu of incarceration, an enormous amount of community service, and the district court had imposed a sentence well below the 30-37 Guidelines range, it was appropriate to give the court an opportunity to reassess the appropriate sentence.

CA2’s decision can be found here.

On Tuesday, in United States v. Forney, in a summary order, CA2 affirmed in part and vacated in part the NDNY sentence imposed following a revocation of supervised release. CA2 found that, although the need for the special condition that defendant refrain from the use of alcohol was “self evident,” the additional condition that he not “enter, remain in, or patronize any establishment whose business or purpose is the provision or sale of alcoholic beverages for onsite consumption, including . . . bars, taverns, lounges, and nightclubs,” as well as “the bar section of any restaurant,” was plain error, because its rationale was not adequately explained by the court.

CA2’s decision can be found here.

On Wednesday, in United States v. Santiago-Ortiz, in a summary order, CA2 affirmed defendant’s SDNY convictions for, among other things, murder in aid of racketeering and murder while engaged in a narcotics conspiracy before Judge Lewis A. Kaplan. CA2 rejected defendant’s contentions that (1) the evidence was insufficient to support his convictions, (2) the district court abused its discretion in admitting a hearsay statement of defendant’s drug supplier, (3) the indictment charged multiplicitous counts in violation of the Fifth Amendmentʹs Double Jeopardy Clause, and (4) his sentence was substantively and procedurally unreasonable.

CA2’s decision can be found here.

New York Court of Appeals

On Tuesday, in People v. Mairena & Altamirano, NYCA, in a 5-1-2 decision with Judge Stein writing for the majority, affirmed Defendant Mairena’s Kings County manslaughter and criminal possession of a weapon convictions, and Defendant Altamirano’s Kings County criminal possession of a weapon conviction. NYCA found that it was error not to charge the jury in accordance with the pre-summation rulings on defendants’ charging requests, but NYCA found that those errors were harmless.

In Mairena, the court told defense counsel that it would charge the jury that it had to find that defendant caused the victim’s death with a dangerous instrument, to wit, a box cutter. When charging the jury, the court failed to include that language.

In Altamirano, the court denied counsel’s pre-summation request for a temporary and lawful possession charge but then, after summation, without first informing the parties, gave the charge.

NYCA found that the court had erred, but found that harmless error applied, and found the error harmless, because the evidence in each case was overwhelming. The majority determined that it did not matter whether constitutional or non-constitutional harmless error analysis applied.

In a concurring opinion, Judge Fahey would have held that constitutional harmless error applied, but that, even under that heightened standard the error was harmless.

In dissent, Judge Rivera, joined by Judge Wilson, would have agreed that defendants were required to show prejudice, but that traditional harmless error should not apply, and that the courts’ errors were not harmless.

NYCA’s decision can be found here.

On Thursday, in People v. Tyrell Cook, NYCA, in a 5-2 decision affirming a NY County conviction, with Judge Garcia writing for the majority, held that it was not an abuse of discretion for the court to allow the prosecution to reopen a suppression hearing after the prosecution had rested and the court had expressed skepticism about the adequacy of the People’s proof. By Judge Garcia’s reckoning, it is appropriate to allow the reopening of a suppression hearing until the point that the court has rendered a formal ruling on the merits.

In a dissent joined by Judge Rivera, Judge Stein would have ruled that the court abused its discretion, even under the “vague standard” articulated by the majority, when it allowed the prosecution to reopen the suppression hearing.

This is a scary decision that may embolden dishonest judges to allow the People to formulate and exercise their best strategy, and when it fails, to give them another shot at the apple prior to ruling. It also creates an unfair disadvantage for the defense who may take certain steps and avoid taking others based on the People’s initial strategy.

NYCA’s decision can be found here.

In People v. Udeke, NYCA, in a 5-2 decision, this time a brief memorandum decision, affirmed defendant’s NY County class-B misdemeanor conviction following a guilty plea. NYCA held that the court’s plea allocution, in which it suggested that this non-citizen defendant might not be entitled to a jury trial, was legally sufficient, because “the record as a whole” demonstrated the plea’s voluntariness.

In a dissent in which Judge Wilson joined, Judge Rivera would have held that, in light of the new rule announced by the Court in People v. Suazo, 32 N.Y.3d 491 (2018), defendant would have been entitled to a jury trial even if the prosecution reduced the charges to class-B misdemeanors, and that the plea allocution that did not advise him of that right was inadequate.

NYCA’s decision can be found here.

In People v. Britt, NYCA, in another 5-2 decision, with the majority written by Judge Fahey, affirmed defendant’s NY County conviction for criminal possession of a forged instrument in the first degree. NYCA found that the evidence was sufficient from which a jury could permissibly infer that defendant possessed counterfeit bills with the intent to use them, where the sole evidence of intent to defraud was that the counterfeit bills were found rubber-banded separately in his pocket from real money he was carrying.

In a dissent joined by Judge Rivera, Judge Wilson would have held that, while there was sufficient evidence to prove that defendant had possessed counterfeit money, there was insufficient evidence to prove he intended to use it to defraud another.

NYCA’s decision can be found here.

Appellate Division, First Department

On Thursday, in People v. McGhee, AD1 reversed the summary denial of defendant’s CPL 440.10 motion, and vacated his NY County second-degree murder conviction. AD1 agreed with defendant that the prosecution failed to disclose a witness that would have aided the defense in attempting to impeach the only eyewitness to the shooting for which defendant was convicted, and that the disclosure could have opened up an additional avenue of investigation.

AD1’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Dunbar, AD2 held defendant’s Queens County attempted robbery conviction in abeyance and remitted for a suppression hearing on the basis of evidence revealed by the prosecution after the reversal of his conviction by the Court of Appeals.

After the first trial, defendant was convicted of robbery. AD2 reversed and ordered a new trial on the basis of the erroneous admission of statements made during his arrest, and the Court of Appeals affirmed. 24 N.Y.3d 304. Prior to the second trial, the prosecutor revealed for the first time new evidence. The defense moved to reopen the suppression hearing on the basis of the new evidence. The court denied the motion, and defendant was again convicted of robbery at a second trial.

AD2 found that the court should have reopened the hearing based on the newly discovered evidence.

AD2’s decision can be found here.

In People v. Lewis, AD2 reversed defendant’s Queens County criminal sex act and sexual abuse convictions, finding that the court should not have permitted the prosecution to introduce photos of the child complainant’s genitals and anus, because they were irrelevant to any contested issue, and extremely prejudicial. The prosecutor compounded the error when he argued during closing argument that complainant was forced to get up on a table and display photos of her genitals to 15 strangers. AD2 also faulted the prosecutor for what it described as multiple instances of misconduct during closing argument, including, while discussing the character of the defendant, who was a church pastor at the time of trial, referencing the sexual abuse scandals involving the Catholic Church and Orthodox Jewish communities. The prosecutor also pointed out that during jury selection, a prospective juror expressed that she did not feel comfortable sitting on this case because of all the priests who have gotten away with child abuse, and that another prospective juror stated that a family member was raped by a member of the clergy.

AD2’s decision can be found here.

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