DECISIONS OF THE WEEK ENDED AUG 28, 2020

| Aug 28, 2020 | Ed Sapone’s Decisions of the Week

The most interesting decision from the Second Circuit this week was the summary order in United States v. Tapia, where CA2 recalled its prior decision affirming defendant’s conviction, finding that a previously-unchallenged jury instruction directly conflicted with recent precedent warranting reversal as plain error.

The state courts remained quiet in this last week of August. Yes, my dear friends, summer is coming to an end.

Second Circuit

On Tuesday, in United States v. Birkedahl, CA2 affirmed defendant’s WDNY possession of child pornography conviction, rejecting defendant’s challenge to three conditions of supervised release which will begin after he completes his 24-month prison term.

Defendant contended on appeal that: (1) the special condition requiring him to attend a sex offender treatment program was impermissibly vague; (2) the special condition that required him to be tested to verify his compliance with the conditions of his supervised release improperly permitted the use of a computerized voice stress analyzer (CVSA) that he claimed was unreliable; and (3) the standard notification-of-risk condition, which contemplates that defendant might be required to notify third parties that he poses a risk to them, delegated too much discretion to the U.S. Probation officer.

CA2 held that the voice-stress analyzer challenge wasn’t ripe because the efficacy of computerized voice stress analyzers in promoting sentencing goals was subject to change with technological advances before defendant’s term of supervision begins. CA2 has generally upheld the use of verification testing in supervising defendants convicted of sex offenses, recognizing the strong deterrent value of polygraph conditions and their ability to further the sentencing objectives of rehabilitation and deterrence, with reasonably small incremental deprivations of liberty. Defendant contended that CVSA is so unreliable at detecting deception that it cannot be imposed. CA2 held that where, as here, the necessity or propriety of a supervisory tool hinges on the state of technology available at the time of supervision, it is inappropriate to assess a tool’s reliability until the term of supervised release begins. Even though defendant was serving a relatively short sentence, CA2 found it likely that the technology would change significantly in that time period.

CA2 rejected defendant’s challenge to the sex-offense-treatment condition, rejecting defendant’s claim that it was erroneously vague as to the scope of the Probation officer’s supervisory role. Defendant contended that the condition was too vague, because it failed to delineate the other functions that constitute administrative aspects within the Probation officer’s supervision, and raised concerns about the amount of discretion given to the officer not listed in the condition.

CA2 disagreed. The district court made clear that it was delegating to the Probation officer discretion over only “the details of the defendant’s participation in the program, including the selection of a provider and schedule.” This was not an inappropriate delegation of authority.

CA2 also rejected defendant’s claim that WDNY’s revised standard risk condition delegated more discretion to the Probation officer than CA2’s precedents allow. CA2 found that this argument was foreclosed by its recent holding in United States v. Traficante, which held that the challenge was not ripe. The condition provided that “[i]f the court determines . . . that, based on [defendant’s] criminal record, personal history and characteristics, and the nature and circumstances of [his] offense,” he presents “a risk of committing further crimes against another person[,] . . . the probation officer may require [defendant] to notify the person about the risk” and may confirm compliance. CA2 explained in Traficante that any allegedly improper delegation is conditioned on the district court finding, during defendant’s term of supervised release, that he poses a risk of committing further crimes against another person, a contingency that may never occur.

CA2’s decision can be found here.

In United States v. Caraher, CA2 affirmed defendant’s NDNY convictions and the 90-month sentence imposed for possession and distribution of child pornography, rejecting defendant’s claim that the district court had erroneously denied his motion to suppress evidence obtained pursuant to a search warrant.

The case arose from the FBI’s investigation into a website known as Playpen. Playpen used software that allowed users to access websites without revealing their internet protocol (IP) addresses. The FBI, using a search program called the Network Investigative Technique (NIT), infiltrated the website and collected computer-related identifying information, including IP addresses, from the computers of Playpen users.

This software was deployed pursuant to a warrant, issued by an Eastern District of Virginia magistrate. An attachment to the warrant listed the ‘place to be searched’ as ‘activating computers,’ i.e. ‘those of any user or administrator who logs into the Playpen website by entering a username and password.’” Defendant was one such user. While the NIT was deployed, it did not deny the users any functionality on their computers, or collect any additional, unrelated information, so users accessed the website without any knowledge that law enforcement had assumed control of the site. The FBI operated Playpen from a server in the Eastern District of Virginia for a period of about two weeks. The information obtained under the NIT warrant allowed law enforcement to identify Playpen users’ true identities and locations.

Information obtained pursuant to the NIT warrant tracked down defendant, who logged in from an identified IP address in Morrisville, New York. Using that information, the government obtained a warrant to search defendant’s home, vehicles, and computers for evidence related to the distribution, receipt, and possession of child pornography. FBI agents executed the search warrant and seized several computers, hard drives, cellular devices, electronic media, and pages of printed materials. Upon being interviewed by law enforcement, defendant admitted that he downloaded and stored child pornography and confessed to using Playpen to distribute child pornography to other users. His computers contained images and videos of child pornography, including some videos of adults raping children.

In United States v. Eldred, 933 F.3d 110, 111 (2d Cir. 2019), CA2 had held that suppression of the evidence derived from the same NIT warrant was not required. Eldred held that, even assuming that the warrant violated the Fourth Amendment, the good faith exception applied. Relying on the good faith exception, Eldred rejected most of the same arguments defendant made here: namely, that the evidence should have been suppressed because the search of his computer exceeded the territorial scope of the warrant, the warrant was void ab initio, and the government knowingly sought a warrant that violated Federal Rule of Criminal Procedure 41(b) (setting forth authority relative to venue for a warrant application).

CA2 rejected defendant’s attempts to press arguments that he claimed were not foreclosed by Eldred. The warrant was supported by probable cause, was not based on material misrepresentations or ommissions that should have triggered a Franks hearing, was not an anticipatory warrant, and was not a product of outrageous government misconduct.

CA2 also rejected defendant’s claim that the 90-month sentence with 20 years of supervised release was substantively unreasonable. The sentence was well-below the recommended Guidelines range. When it fashioned his sentence, the district court considered defendant’s lack of criminal history, family support, and willingness to accept treatment.

CA2’s decision can be found here.

On Thursday, in United States v. Sanchez, CA2 affirmed defendants’ SDNY convictions for conspiring to engage in drug trafficking activity in violation of the Maritime Drug Law Enforcement Act (MDLEA). CA2 rejected defendants’ contention that their unconditional guilty pleas before Judge Paul G. Gardephe were unlawful because the government had failed to establish, as a factual matter, that it complied with the MDLEA’s jurisdictional provision requiring that the interdicted vessel be “stateless.”

Despite having entered unconditional guilty pleas, defendants were permitted to assert sufficiency challenges on appeal because the government’s failure to establish statelessness renders a defendant’s underlying plea to MDLEA charges defective under Rule 11.

In early 2015, special agents from the Department of Homeland Security undertook an investigation of a suspicious money transfer from a Colombian drug cartel to a bank account in New York City. That investigation eventually turned up information about a planned shipment of cocaine from Colombia to Australia. The investigation also revealed that defendants were working with the cartel.

In April 2015, a U.S. Navy helicopter was patrolling an area approximately 135 nautical miles off the coast of Costa Rica. Navy personnel in the helicopter spotted two speedboats—one known as the El Vacan—a vessel colloquially known as a “go-fast.” They observed bales on the vessel’s deck, some of which the crew members began throwing overboard. The helicopter ordered the El Vacan to halt. The go-fast ignored the order. Naval personnel then fired warning shots, and the El Vacan stopped. The frigate dispatched a small boat of U.S. Navy and U.S. Coast Guard personnel to fetch the jettisoned packages and prepared a boarding team. Nearly 550 kilograms of cocaine were recovered from the water and the vessel. The boarding team reported that there was no visible registration number on the vessel, but there was a small Ecuadorian flag—either painted or on a decal—near the engine. The crewmembers claimed to be Colombian citizens. At the Navy personnel’s request, the self-identified captain, told the boarding team that the El Vacan was an Ecuadorian vessel with a home port of Puerto Manta, Ecuador.

Pursuant to a treaty with Ecuador, the Coast Guard contacted Ecuadorian authorities and requested confirmation or denial of whether El Vacan was an Ecuadorian vessel. The Coast Guard described the vessel in detail. Ecuadorian officials asked for photos of El Vacan and the names of its crew, because there were other boats registered with that name. The Coast Guard never sent those photos. Ecuadorian officials sent a form to the Coast Guard indicating that it could not confirm or deny nationality of the vessel without the photos. Based on that response, the Coast Guard concluded that the vessel was without nationality, and therefore subject to U.S. jurisdiction pursuant to MDLEA.

CA2 agreed with Judge Gardephe’s finding that the government adequately proved jurisdiction. The government had established that the El Vacan was a vessel without nationality, because: (1) there were insufficient markings and other identifying information on the vessel to put a reasonable official on notice that Ecuador’s interests might be affected by the vessel’s interdiction, and (2) Ecuadorian authorities responded that they could neither confirm nor deny the vessel’s nationality. The boarding party did observe a small flag decal near the boat’s engine, and the captain did state that the El Vacan was of Ecuadorian nationality with its home port in Puerto Manta. But U.S. officials comported with MDLEA statutory procedures when they sought verification from authorities in Ecuador, the “claimed nation of registry.”

CA2 found that the Coast Guard’s failure to provide to the Ecuadorian authorities the photos they requested of the vessel was not a magic bullet for defendant. The information that the Coast Guard did provide furnished all of the information a photo would have shown.

Finally, Defendants argued that the MDLEA offends the Due Process Clause insofar as it applies to land-based conspirators who have never set foot on the vessel during the scope of the conspiracy. Although due process requires a nexus between the United States and those not on board a stateless vessel, due process was not offended. First, the government has met its burden to establish that the El Vacan, was “a stateless vessel” and was “subject to the jurisdiction of the United States.” Second, Section 70506(b) of the MDLEA encompasses land-based conspiratorial conduct, and Congress is authorized to proscribe such conduct under the Necessary and Proper Clause of the U.S. Constitution. Finally, Congress did not exceed its legislative authority in enacting the MDLEA pursuant to the Define and Punish Clause.

CA2’s decision can be found here.

On Monday, in United States v. Tapia, in a summary order, CA2 recalled its prior mandate, which affirmed defendant’s judgment of conviction, and this time CA2 vacated defendant’s EDNY cocaine importation and possession convictions following her jury trial before Judge DeArcy Hall.

CA2 agreed with defendant that the jury instruction used by the court relating to defendant’s interest in testifying, which was identical to the jury instruction found unlawful in United States v. Solano, 966 F.3d 184 (2020), was plain error violating defendant’s constitutional right to the presumption of innocence.

CA2 found that the interested witness charge used in defendant’s trial “impute[d] a motive to testify falsely to ‘any’ interested witness and thereby encompasse[d] a testifying defendant,” and was identical to the charge used in Solano, and therefore was plainly erroneous. CA2 further concluded that the erroneous jury instruction affected defendant’s substantial rights, and that this error seriously affected the fairness of the judicial proceedings.

CA2 took the unusual step of recalling its prior decision to affirm defendant’s conviction. It considered four factors: (1) whether the governing law is unquestionably inconsistent with the earlier decision; (2) whether the movant brought to the Court’s attention that a dispositive decision was pending in another court; (3) whether there was a substantial lapse in time between the issuing of the mandate (here, affirming the conviction) and the motion to recall the mandate; and (4) whether the equities strongly favor relief.

While defendant did not challenge the jury instruction on her first appeal, the instruction was directly contrary to CA2’s subsequent decision in Solano, and it was brought to CA2’s attention less than three months after the mandate was issued and within two weeks of the decision in Solano.

This underscores the importance of remaining on the cutting-edge of the law so we can quickly act to help our clients. Yet another reason to keep your NYCBA membership current and continue to receive Decisions of the Week!

CA2’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Nettles, AD2 reversed defendant’s Kings County conviction for criminal possession of a firearm, finding that the Supreme Court should have granted defendant’s motion to controvert a search warrant that led to recovery of the firearm, because the information provided by a confidential informant, and relied upon by the judge who authorized the search warrant, was not credible.

By way of background, An NYPD detective obtained a “no knock” search warrant, which authorized a search of an apartment in a 21-story building in Brooklyn. In his affidavit in support of the search warrant, the detective swore that, based upon information from a confidential informant who made two controlled drug buys at the location, there was reasonable cause to believe that there would be evidence of the possession and sale of cocaine, including, cocaine, vials, caps, glassine envelopes, small bags, money, and financial records.

When a team of police officers executed the search warrant, no contraband was found except for a single plastic bag containing narcotics and some pipes with residue. A semi-automatic handgun was found hidden in defendant’s bedroom closet.

Defendant was charged with, and ultimately convicted of, criminal possession of a weapon, here a class E felony.

AD2 had previously remitted the matter to the Supreme Court for it to conduct a Darden hearing to assess the adequacy of the CI’s information. Upon remittal, the court found that the CI was credible and his information provided probable cause for the warrant.

AD2 disagreed, finding that there were substantial material discrepancies between the detective’s affidavit in support of the search warrant, and the testimonies of the alleged CI and the detective at the Darden hearing relating to: (1) the CI’s track record of reliability, (2) the prior relationship between the detective and the CI, and (3) the facts of the alleged controlled buy or buys at the subject apartment.

Consequently, AD2 found that the People failed to meet their burden at the Darden hearing.

AD2’s decision can be found here.

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