On Behalf of | Feb 2, 2021 | Ed Sapone’s Decisions of the Week

Despite the wild events in the Capitol this week, the machinery of the Federal and State appellate courts continued on. The Second Circuit’s sentencing remand in Brogdon for the district court’s failure to consider, or at least articulate how it had considered, defendant’s sentence on a related state court sentence, is worth a read. So, too, is AD1’s reversal in Alvarez, something that has become in recent months a somewhat unusual event for that court.

Second Circuit

In United States v. Razzouk, CA2 released an amended opinion that affirmed defendant’s EDNY bribery and tax evasion convictions, and Judge Allyne R. Ross’ decision to impose restitution under the Mandatory Victims Restitution Act (MVRA). CA2 found that defendant’s bribery conduct was an offense against property, but it remanded for the district court to reconsider its decision to include investigatory costs in the restitution order in light of the Supreme Court’s decision in Lagos v. United States, 138 S.Ct. 1684 (2018). The amended decision was not materially different than the original decision summarized in the Decisions of the Week Ended October 2, 2020.

CA2’s amended precedential decision can be found here.

In United States v. Tyrell, in a summary order, CA2 affirmed defendant’s SDNY convictions for, among other things, racketeering conspiracy; murder in aid of racketeering, and aiding and abetting the same; conspiracy to distribute and possess with intent to distribute narcotics; distribution of narcotics within 1,000 feet of playgrounds and schools; and several firearms offenses. CA2 also affirmed the aggregate sentence of life imprisonment plus 55 years imposed by the Hon. Jed S. Rakoff, summarily rejecting legal sufficiency and evidentiary claims.

Among other things, CA2 rejected defendant’s claim that it was error to admit a fellow gang member’s out-of-court statements as against his penal interest. When the fellow gang member expressed his intention to invoke his Fifth Amendment privilege due to his pending charges, Judge Rakoff declared him unavailable. CA2 found that the prior statements were admissible under Federal Rule of Evidence 804(b)(3) because they were supported by corroborating circumstances that clearly indicated their trustworthiness. The statements were made to a person whom the declarant believed to be an ally, did not represent an attempt to shift blame, and took credit for actions committed jointly. CA2 also found that admission of the statements did not violate the Confrontation Clause. The statements were neither testimonial nor the product of government interrogation.

CA2 also found that Judge Rakoff did not abuse his discretion when he wouldn’t let defense counsel cross-examination of one of the arresting officers about racist tweets the officer had made from his twitter account, “ObamaHater55.” The officer’s testimony was not material and was corroborated by other accounts. Defendant also was unable to identify any specific facts in the officer’s testimony that he disputed.

CA2 rejected defendant’s challenge to the mandatory life sentencing based on Miller v. Alabama, 567 U.S. 460 (2012), where the Supreme Court held that mandatory life sentences for those under 18 at the time of their crimes was a violation of the Eight Amendment. Because defendant was 19 at the time of the offense, Miller did not apply.

CA2 did find that the district court erred in its sentencing calculations with respect to defendant’s narcotics convictions. Tyrell was convicted only of distributing and conspiring to distribute less than 50 kilograms of marijuana on the two narcotics counts, which carry maximum sentences of five and 10 years of imprisonment, respectively. The district court imposed concurrent sentences of 25 years on each count, exceeding the statutory maximum. The error was plain and required resentencing. Any resentence will not, however, result in a reduced sentence, as the sentence was life plus a bunch of years, regardless of the number of years in the bunch.

CA2’s decision can be found here.

In United States v. Brogdon, in a summary order, CA2 remanded defendant’s EDNY racketeering conspiracy conviction for resentencing. CA2 found that Judge William F. Kuntz did not adequately consider the sentencing implications of defendant’s potentially related state-court sentences that were relevant conduct.

Defendant argued that the district court committed procedural error when it declined to adjust his sentence to account for time served on a related state conviction pursuant to guideline § 5G1.3(b) or when it failed to explain its reasons for declining to adjust his sentence. CA2 found that it could not conclude with confidence that the sentence was procedurally reasonable. The sentencing transcript revealed that the district court explicitly recognized that § 5G1.3(b) applied to defendant’s sentencing and noted that § 5G1.3(b) provided for both an adjustment and the imposition of concurrent sentences. The district court then stated that the parties had stipulated in the plea agreement that the terms of incarceration should run concurrently, and “this Court so orders.” It did not explain why it was declining to adjust defendant’s sentence downwardly.

CA2 remanded so that the district court could state its reasoning for declining to downwardly adjust defendant’s sentence in accordance with § 5G1.3(b)(1).

CA2’s decision can be found here.

Appellate Division, First Department

In People v. Alvarez, AD1 reversed defendant’s NY County burglary in the second degree as a sexually motivated felony, and sexual abuse in the first degree convictions, finding that a juror had acted extensively as an unsworn witness, and Supreme Court erroneously admitted evidence in violation of Molineux.

During deliberations, a juror who was a retired detective expressed his opinion on the feasibility of DNA and fingerprint extraction, the likelihood that tests were conducted and evidence was suppressed regarding a set of keys that were in evidence, and the probability that defendant was lying based on his speech patterns and body language.

AD1 found that these opinions, which were communicated to and apparently influenced the jury, were within the scope of the juror’s specialized expertise and were explicitly offered on that basis, and at least some of these opinions concerned material issues, including defendant’s credibility and whether he entered the victim’s apartment by mistake.

AD1 also found that it was error to admit evidence recovered from defendant’s cell phone that he had accessed a pornography website on the phone shortly before committing the charged offense. This evidence was not admissible to establish defendant’s intent in sexually abusing the victim, which could be readily inferred from the charged conduct itself. While it may have been admissible to establish defendant’s intent in entering the victim’s apartment, its probative value was outweighed by its prejudice and the admission of this evidence was not harmless.

AD1’s decision can be found here.

Appellate Division, Third Department

In People v. Miller, AD3 affirmed defendant’s Albany County fourth-degree grand larceny convictions, but remanded for resentencing, because the Albany County Public Defender’s office, which represented defendant, was precluded, as a matter of law, from representing defendant at the sentencing hearing. The Public Defender, prior to being appointed to that position, was the County Judge who presided over defendant’s plea and deferred sentencing pending defendant’s completion of or discharge from the drug court treatment program.

AD3’s decision can be found here.