DECISIONS OF THE WEEK ENDED JUNE 4, 2021

by | Jun 9, 2021 | Ed Sapone’s Decisions of the Week

The Second Circuit’s decision in Trimm addresses, in depth, the authority of a district court to override the U.S. Attorney’s Office’s decision not to file a § 3553(e) motion, where the parties agree that defendant provided “substantial assistance” but disagree about the value of that cooperation on the issue of how much defendant’s sentence should be reduced.

In the New York courts, NYCA’s decision in Schneider found that a New York judge has jurisdiction to issue eavesdropping warrants for cell phones in an ongoing New York investigation where the phones were not physically present in New York.

Second Circuit

In United States v. Trimm, on the government’s appeal following a prior remand for resentencing, which was also on the government’s appeal, CA2 vacated the 60-month sentence imposed by NDNY following defendant’s guilty plea to conspiring to use a minor to engage in sexually-explicit conduct for the purpose of producing visual depictions of that conduct. CA 2 found that, where a plea  agreement reserves to the government the sole discretion to determine whether and how to value the cooperation of the defendant, the government need not express dissatisfaction with the defendant’s assistance to conclude that a § 5K1.1 motion, but not a § 3553(e) motion, is appropriate based on the government’s good faith valuation of the defendant’s cooperation.

Defendant pleaded guilty to pursuant to an agreement with the government to a single count of conspiring to use a minor to engage in sexually-explicit conduct for the purpose of producing visual depictions of that conduct. The statutory minimum sentence was 15 years.

An addendum to the plea agreement included terms of defendant’s agreement to cooperate with the NDNY U.S. Attorney’s Office. It provided that, at or before sentencing, the Office would advise the court of the nature and extent of the cooperation provided. If the Office determined that the defendant had provided “substantial assistance” it “may, in its sole discretion, credit the defendant in one or more of the following ways: (i) move for a downward departure pursuant to either or both Guidelines § 5K1.1 and/or § 3553(e)….” The addendum provided that the Office “does not promise or guarantee that it will make such motion(s) for departure,” and “[w]hether and how to credit any proffered cooperation and assistance is within the sole discretion of the United States Attorney’s Office.” The agreement stated that, in the event of a government motion for departure based on the defendant’s substantial assistance, “the final decision as to how much, if any, reduction in sentence is warranted because of that assistance rests solely with the sentencing court, subject to any statutory minimum penalty, which will limit the extent of any departure in the event the US Attorney’s Office, in its sole discretion, declines to make a motion for a downward departure under § 3553(e).”

At the change of plea hearing before the district court, the government indicated that, based on the parties’ sentencing stipulations as to base offense level and adjustments, defendant’s offense level was over 43, the highest level in the Guidelines. Even at Criminal History Category I, the government advised, the Guidelines in such a case would yield a sentencing range of life, which is over the statutory maximum for the offense to which defendant was pleading guilty. Defendant’s actual guidelines sentence, the government said, would be 360 months, the statutory maximum. As to the statutory minimum, the district court specifically advised defendant that she also faced a mandatory minimum of 15 years.

It was undisputed that defendant provided substantial assistance in the prosecution of her more culpable co-defendant, who was described as a dangerous serial sex offender.

The Probation Department prepared a Presentence Investigation Report in connection with defendant’s contemplated sentencing and concluded that her offense level was 43 and that the Guidelines would thus yield an imprisonment range of life. Defendant’s actual imprisonment  range became the statutory maximum of 30 years for her offense of conviction. Before defendant was sentenced, the government advised that, while it intended to move at the sentencing hearing pursuant to § 5K1.1 for a downward departure from defendant’s applicable Guidelines range based on her substantial assistance, it did not intend to move pursuant to § 3553(e) for a sentence below the 15-year mandatory minimum. In a letter to the court, the Office stated that it “intend[ed] to move for a departure of 5 levels, from a Total Offense Level 3 of 42,” (sic) which represented the “closest Guidelines level” to 43 (defendant’s actual offense level) “that allows for a 30-year sentence.” A five-level downward departure from that starting point yielded a sentencing range of 210 to 262 months. The Government recommended a term of imprisonment of 210 months, the bottom of that range.

Defendant moved to compel the government to make a § 3553(e) motion to knock out the 15- year mandatory minimum. The government explained that it declined to make such a motion because the more than 12-year reduction to the Guidelines sentence that it had recommended was already sufficiently generous.

The district court nevertheless determined that defendant was entitled to a 10-level downward departure. Beginning with an offense level of 40 instead of 42 and Criminal History Category I, the district court determined that the applicable Guidelines range was 97 to 121 months. The court then “deemed” a § 3553(e) motion to have been made, notwithstanding that the government had made no such motion, and that the court had made no determination that the government had acted for an unconstitutional motive or in bad faith. The district court then sentenced defendant principally to a term of imprisonment of 90 months.

In the first appeal, CA2 vacated and remanded. It held that the district court should not have deemed the government to have made a motion that it had expressly declined to make, apparently because the court believed that a sentence below the statutory minimum was appropriate. The district court had not found unconstitutional motive or bad faith. CA2 held that the district court did not have the authority to sentence defendant below the statutory mandatory minimum of 15 years of imprisonment.

On remand, defendant again moved to compel the government to make a § 3553(e) motion. The district court granted the motion, concluding, first, that the government had acted with an unconstitutional motive to limit the court’s sentencing discretion in declining to make the motion and, second, that it had acted in bad faith. The district court resentenced defendant to a 60-month term, reducing defendant’s offense level from 40 to 35 based on her rehabilitation in prison, and again found her deserving of a 10-level downward departure based on § 5K1.1 and § 3553(e) resulting in an offense level of 25, and a Guidelines range from 57 to 71 months.

CA2 reversed again. It found that the district court erred in disregarding the statutory mandatory minimum in this case by both: (1) compelling the government to move pursuant to § 3553(e) to permit it to sentence defendant without regard to this minimum; and (2) “deeming” such a motion to have been made.

District courts have authority to review a prosecutor’s refusal to file a substantial-assistance motion and to grant a remedy if they find that the refusal was based on an unconstitutional motive. And, in the context of a plea agreement in which the government, as here, has promised to file a § 3553(e) motion in its sole discretion, based on its assessment of a defendant’s cooperation, the district court may review “whether the prosecutor has made its determination in good faith” and provide an appropriate remedy.

But this was not such a case where exercise of that authority was appropriate. There was no unconstitutional or “invidious” motive explained in the district court’s decision. The only evidence of impermissible motive cited by the district court was the fact that the government’s valuation of defendant’s concededly substantial cooperation nevertheless resulted in a recommendation above the mandatory minimum. The prosecutor was permitted to both determine whether defendant provided substantial assistance and the value of that cooperation. A prosecutorial decision not to move pursuant to § 3553(e) even when a cooperator has provided substantial assistance is not enough to suggest improper motive.

In addition, the prosecutor’s decision was not made in bad faith, CA2 found. The court’s bad-faith determination was premised on its conclusion that “the only reason the government did not make a § 3553(e) motion was to prevent [the court] from sentencing [defendant] below the 15-year mandatory minimum.” But the government explained that it is the practice in the NDNY to assess cooperation in terms of departure levels, and then to move pursuant to § 3553(e) only when necessary to give effect to its valuation of the cooperation. The government found no need to do so here because the 210 months that it recommended to account for defendant’s cooperation was higher than the mandatory minimum 180-month term of imprisonment she faced. That defendant upheld her end of the bargain by testifying was not enough to suggest bad faith in the context of an agreement that expressly lays out that such cooperation might – but might not – warrant a § 3553(e) motion.

Because CA2 was concerned with the court’s objectivity, it remanded to a different judge for resentencing.

CA2’s decision can be found here.

In United States v. Dawkins, CA2 affirmed defendants’ SDNY conspiracy to commit bribery and substantive bribery convictions, after a jury trial before Judge Edgardo Ramos. CA2 rejected defendants’ contentions that 18 USC § 666(a)(2) did not cover their charged scheme to bribe college basketball coaches.

The charges arose from an alleged scheme in which defendants Dawkins and Code planned to bribe basketball coaches at the NCAA Division I universities in exchange for their agreement to steer student athletes to Dawkins’ sports management company after leaving college and becoming professional basketball players.

Defendants argued at trial and on appeal that the government’s allegations failed to establish two elements of a § 666(a)(2) violation: (1) that the persons intended to be influenced or rewarded (here basketball coaches) were “agents” of federally funded organizations, and (2) that the scheme to influence or reward was “in connection with any business” of these organizations. They maintained that § 666 requires a nexus between the “agent” to be influenced or rewarded and the federal funds received by their organization, and that the “business” of a federally funded organization, to which the bribery scheme is connected, must be commercial in nature.

CA2 disagreed. When it enacted § 666, Congress used broad terms to prohibit bribery in relation to federally funded programs. As relevant here, the statute prohibits certain actions taken “with intent to influence or reward an agent” of a designated recipient of federal funds, “in connection with any business” of that recipient. The defendants asked CA2 to shorten the reach of § 666(a)(2), limiting the universe of “agents” to be influenced and “businesses” involved. But it is not the role of courts to engraft restrictive language onto statutes. CA2 found that it should not cabin a law that Congress wrote expansively to preserve the integrity of organizations that receive federal dollars. It followed the “logical course charted by longstanding precedent” to reach two conclusions with respect to § 666(a)(2): first, the “agent” of a federally funded organization need not have control over the federal funds, and the agent need not work in a specific program within the organization that uses those federal dollars; and second, the “business” of a federally funded organization need not be commercial in nature.

CA2’s decision can be found here.

In United States v. Woodhouse, in a summary order, CA2 affirmed defendant’s SDNY convictions for conspiracy to commit Hobbs Act robbery, and possession of a firearm during a crime of violence or drug-trafficking offense in violation of § 924(c)(1)(A), after a guilty plea before Judge Shira A. Scheindlin. CA2 rejected defendant’s challenge to his § 924 conviction on the grounds that it no longer qualified as a crime of violence following United States v. Davis, 139 S. Ct. 2319 2019), and United States v. Barrett, 937 F.3d 126 (2d Cir. 2019).

Because defendant did not challenge his conviction on this ground before the district court, CA2 reviewed the conviction for plain error. While it found that the district court erred, CA2 concluded that there was no reasonable probability that, absent the error, defendant would not have pleaded guilty. The object of the robbery conspiracy was a significant quantity of cocaine and heroin. The government had substantial evidence that defendant committed the drug-trafficking offense for which he was also charged. Thus, although defendant’s § 924(c) conviction was predicated on the Hobbs Act robbery conspiracy charge, it just as easily could have been based on the drug trafficking charge, and defendant need not have been charged with, pleaded guilty to, or been convicted of the latter for his Section 924(c)(1)(A) conviction to be valid.

CA2’s decision can be found here.

In United States v. Jaramillo, in a summary order, CA2 affirmed the orders of SDNY Judge Laura Taylor Swain that denied defendant’s pro se motion for compassionate release and a subsequent motion for reconsideration of that motion. CA2 found that the district court did not abuse its discretion when it found that defendant’s underlying conditions did not put him at higher risk of serious illness or death due to Covid-19, and did not establish extraordinary and compelling reasons for release.

CA2’s decision can be found here.

In United States v. Fernandez-Rosa, in a summary order, CA2 affirmed defendant’s SDNY conspiracy to distribute and possess cocaine conviction, and the whopping life imprisonment sentence imposed by Judge Richard J. Sullivan. CA2 rejected defendant’s claims that the sentence was procedurally and substantively unreasonable, in a decision that did not identify or address any of defendant’s claims except to say that it found no merit in his claims of misconduct and bad faith on the government’s part at sentencing.

CA2’s decision can be found here.

In United States v. Allums, in a summary order, CA2 affirmed defendant’s SDNY narcotics conspiracy conviction, and the 240-month sentence imposed by Judge Vernon S. Broderick. CA2 rejected defendant’s contentions that the district court erroneously admitted evidence pursuant to Rule 404(b) about a prior conviction, and the district court committed substantive and procedural error in imposing sentence.

CA2 found that the decision to admit evidence about defendant’s prior conviction was not an abuse of discretion. Defendant placed his knowledge and intent at issue at trial when counsel stated that defendant was unaware of the drugs being trafficked through property he owned. The evidence about defendant’s prior conviction was properly admitted to show knowledge and intent. His prior conviction was for substantially the same conduct as his charged conduct, and the prior operation was conducted at the same location.

On the sentencing issues, CA2 rejected defendant’s claim that the district court did not have adequate factual support for its conclusions about the quantity of drugs trafficked. CA2 found the evidence more than sufficient.

CA2’s decision can be found here.

United States Supreme Court

In United States v. Cooley, in a unanimous decision, with the opinion of the Court written by Justice Breyer, SCOTUS held that a Crow Nation tribal police officer had the authority to detain temporarily and to search a non-Indian motorist on a public right-of-way that ran through a Crow Indian reservation. Because the stop was based on a potential violation of state and federal law, and tribes retain inherent sovereign authority to address conduct that threatens or has some direct effect on the health or welfare of the tribe, the stop and search were proper.

SCOTUS’s decision can be found here.

In Van Buren v. United States, in a 6-3 decision reversing defendant’s conviction, with the opinion of the Court written by Justice Barrett, SCOTUS held that a police officer defendant charged with a felony violation of the Computer Fraud and Abuse Act of 1986, which subjects to criminal liability anyone who “intentionally accesses a computer without authorization or exceeds authorized access,” 18 U.S.C. §1030(a)(2), does not exceed his authorized access when he uses his patrol-car computer to access a law enforcement database to retrieve information about a particular license plate number in exchange for money. The majority found that, because defendant was authorized to access that portion of the database, he did not exceed his authorized access within the meaning of the statute. The term “exceeds authorized access” is defined to mean “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” §1030(e)(6). The “exceeds authorized access” clause applied only to those who obtain information to which their computer access does not extend, not to those who misused access that they otherwise had.

Writing for the dissent, Justice Thomas would have held that the statute prohibited exceeding the scope of an authorized user’s consent.

SCOTUS’ decision can be found here.

New York Court of Appeals

In People v. Schneider, in a 4-2 decision, with Chief Judge DiFiore writing for the majority, NYCA held that a Kings County Supreme Court Justice had jurisdiction to issue eavesdropping warrants for defendant’s cell phones, which were not physically present in New York, for the purpose of gathering evidence in an investigation of enterprise corruption and gambling offenses committed in Kings County. NYCA held that the eavesdropping warrants were “executed” in Kings County within the meaning of Criminal Procedure Law § 700.05 (4), because eavesdropping warrants are executed in the geographical jurisdiction where the communications are intentionally intercepted by authorized law enforcement officers within the meaning of CPL article 700.

Justice Rivera would have held that Criminal Procedure Law § 700.05 did not authorize a New York court to issue a warrant commanding the diversion into New York of a cellular telephone call between a California resident who has never been to New York and persons not resident or present in New York, so that New York officers may listen to it in New York.

NYCA’s decision can be found here.

Appellate Division, First Department

In People v. Lewis, AD1 reversed defendant’s New York County criminal possession of forged instrument convictions, finding that the arresting officer’s removal of a small manila envelope from defendant’s pocket, and opening of it to “peek” inside was not a valid search incident to arrest.

AD1’s decision can be found here.

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