DECISIONS OF THE WEEK ENDED JULY 16, 2021

by | Aug 3, 2021 | Ed Sapone’s Decisions of the Week

The Second Circuit had an unusually unusually busy week, resulting in six published opinions covering a diverse range of topics. Moyer-Hernandez, which held that the district court need not consider the § 3553(a) factors when deciding a First Step Act sentence reduction motion under § 404, was perhaps the most interesting, because it identifies a significant split in the circuits, with the Third, Fourth, Sixth, and D.C. Circuits requiring consideration, but the First (and now the Second), Eighth, Tenth, and Eleventh Circuits, and the Ninth Circuit (in an unpublished decision) ruling that consideration is not required.

In the New York State courts, the First Department has gone into summer mode, releasing only a handful of previously held-back decisions, none of them in criminal cases. There were a few interesting decisions from AD2 in AddimandoBrissett, and from AD4 in Dejardins.

Second Circuit

In United States v. Braggs, on the government’s appeal, CA2 reversed the WDNY order that had suppressed evidence found at defendant’s house, finding that the district court erred by applying New York State’s reasonable suspicion standard and instead should have applied federal law to the analysis.

Defendant, who had recently been released on parole after serving time in New York State prison for the criminal sale of a controlled substance, was subject to DOCCS supervision and restricted by certain “standard and special conditions of release.” Those conditions included a curfew and prohibited him from possessing firearms, ammunition, or mind-altering substances. Defendant was also required to sign a form by which he agreed, among other things, to “permit [his] Parole Officer to visit [him] at [his] residence and/or place of employment and . . . permit the search and inspection of [his] person, residence and property.” But DOCCS Directive No. 9404—an internal policy document—instructed that a parole officer may conduct a warrantless search of a parolee only “when there is an articulable reason to conduct the search that demonstrates a risk to public safety or the parolee’s re-entry into the community.”

DOCCS received an anonymous tip that defendant possessed guns in his home. The tip was relayed to Parole Officer Bailey through a supervisor; Bailey testified that he received no further information regarding the source or contents of the tip. Bailey obtained approval from his supervisors to search defendant’s house to ensure that he was in compliance with his release conditions. When Bailey and a team of parole officers arrived at defendant’s house, they immediately handcuffed defendant for “safety reasons.” Officers recovered two rifles, one handgun, a loaded magazine, a box of ammunition, drugs and drug paraphernalia, and $2,700 in cash. Defendant was subsequently indicted in WDNY for possessing the weapons.

Following a suppression hearing, the district court found that the officers lacked reasonable suspicion to search defendant, in violation of what it believed to be the Fourth Amendment’s limitations on parole searches under New York law.

CA2 found that the court erroneously applied New York law to determine the validity of the search. As a general matter, “evidence admissible under federal law cannot be excluded [in a federal criminal proceeding] because it would be inadmissible under state law.” United States v. Pforzheimer, 826 F.2d 200, 204 (2d Cir. 1987). This is true even “when the evidence in question was solely the product of a state investigation.” Id. at 202. State law may at times “inform the contours of the government intrusion, both in terms of the legitimate state interests and the parolee’s diminished expectation of privacy,” United States v. Hensley, 941 F.3d 646, 650 (3d Cir. 2019). But that was not how the district court performed its analysis.

Nor was that analysis appropriate given the availability of a straightforward application of the Special Needs Doctrine. Because a search undertaken by a parole officer of a parolee to detect parole violations is “reasonably related to the parole officer’s duties,” such a search is “permissible” under the Special Needs framework and “comport[s] with the Fourth Amendment.” The search of defendant’s house was reasonably related to the performance of the DOCCS officers’ duties and therefore constitutionally permissible. Once Bailey received notice of an anonymous tip suggesting that defendant had guns in his possession, which was a clear violation of his parole conditions, Bailey was constitutionally permitted to search the house to determine whether defendant was complying with the relevant condition.

CA2’s decision can be found here.

In United States v. Fleming, CA2 granted appellate counsel’s motion to be relieved as counsel on defendant’s appeal from an EDNY final order denying his motion for compassionate release. CA2 found that, because a defendant has no constitutional or statutory right to counsel on an appeal from a compassionate release motion, an attorney seeking to be relieved from such an appeal need not file a brief complying with the requirements of Anders v. California, 386 U.S. 738 (1967), before they may be relieved.

Defendant filed a motion for compassionate release pursuant to the First Step Act, seeking relief from the 65-month prison sentence imposed by EDNY Judge Kiyo A. Matsumoto following his conviction of possession with intent to distribute cocaine base and use of a firearm during a drug trafficking crime. The court denied the motion, rejecting defendant’s arguments that his risk of contracting COVID-19 in his facility, FCI Danbury, and a heightened risk of complications if he were to contract the virus due to asthma, constituted extraordinary and compelling reasons justifying modification of his original sentence. The district court found that the added risk of asthma-related complications if defendant were to contract COVID-19 “weigh[ed] only slightly in favor of modifying [his] sentence,” while defendant’s history of committing increasingly violent crimes over nearly three decades weighed heavily against modifying the sentence given the need to ensure the protection of the public at large.

Defendant appealed. His counsel moved pursuant to Anders v. California, 386 U.S. 738 (1967), to be relieved from representing defendant on appeal. Counsel submitted a brief accompanying her Anders motion explaining that she could make no reasonable argument that the court abused its broad discretion under the First Step Act because the district court understood its discretion and properly exercised it. Counsel acknowledged that the district court, in assessing whether defendant was a danger to the safety of the community, considered the Guideline § 1B1.13 policy statement, which CA2 had since held to be inapplicable in United States v. Brooker, 976 F.3d 228, 237 (2d Cir. 2020). But counsel explained that the district court also relied on§ 3553(a), whose factors equally required the court to consider protection of the public, such that there was no basis to conclude that the court’s reasoning would have been any different if it had only considered the § 3553(a) factors and not that Guideline policy statement.

CA2 found that an attorney who moves to be relieved from representing a client who appeals the denial of a motion for compassionate release need not comply with the requirements applicable to motions made under Anders. Those procedures are not required because a defendant filing a compassionate release motion or appealing from the denial of such a motion has no constitutional or statutory right to the assistance of counsel.

CA2’s decision can be found here.

In United States v. Reichberg, CA2 affirmed defendant’s multiple bribery and obstruction of justice convictions, after a jury trial before SDNY Judge Gregory H. Woods, rejecting defendant’s multiple claims of error in an opinion that read more like an extended summary order than a precedential decision.

Defendant ran a business selling favorable outcomes relative to encounters with the New York Police Department, which he secured by bribing high-ranking NYPD officers. Defendant, sometimes through co-defendant intermediaries, would contact NYPD officers to request favors and, if the officer came through, would confer benefits upon them. The benefits took many forms, including trips on private jets and luxury hotel stays with prostitutes; sports tickets worth tens of thousands of dollars; international travel; home improvements; and approximately $60,000 in business steered toward certain of the officers’ private security companies.

Defendant’s bribes obtained a host of favors from NYPD officers. For example, one of defendant’s clients was arrested three separate times, but each time was released from custody after defendant contacted NYPD officers. High-ranking officers also exerted their influence to secure the processing and approval of gun licenses, even when those applications were deficient or the applicants unqualified.

Following an eight-week jury trial, defendant was convicted of honest services fraud, conspiracy to pay bribes and gratuities, and obstruction of justice. He was sentenced to 48 months of imprisonment.

The CA2 opinion rejected 10 separate creative claims of error by defendant, giving none of them much credit: (1) evidence collected from his electronic devices should have been suppressed because it was seized in violation of the Fourth Amendment; (2) the district court prejudiced him by correcting a misstatement of law made by co-defendant’s attorney; (3) evidence of uncharged conduct should have been excluded as unfairly prejudicial; (4) the government disclosed certain documents in an untimely fashion, prejudicing his defense; (5) the temporary admission of a phone call against his co-defendant generated spillover prejudice against him; (6) the admission of his non-testifying co-defendant’s statements against that co-defendant violated his Confrontation Clause rights; (7) the district court abused its discretion in excluding two proposed expert witnesses for the defense; (8) the district court erred by failing to hold a hearing to investigate his attorney’s potential conflict of interest; (9) the jury was wrongly instructed on the relevant law; and (10) the evidence was insufficient to support his convictions.

CA2’s decision can be found here.

In United States v. Moyer-Hernandez, CA2 affirmed the order of SDNY Judge Loretta A. Preska that denied defendant’s motion for a reduced sentence under § 404 of the First Step Act, rejecting defendant’s contention that the district court was required to consider the § 3553(a) factors but failed to do so when denying the sentence-reduction motion, an issue upon which the Circuits are split.

Defendant was convicted in the year 2000 of conspiracy to distribute, and to possess with intent to distribute, more than 50 grams of cocaine base and other charges. Based on his status as a career offender, the district court (Mukasey, J.) sentenced defendant to 360 months of imprisonment, the bottom of his Guidelines range, plus a 10-year term of supervised release.

In 2019, defendant moved for a sentence reduction pursuant to § 404 of the First Step Act, which empowers district courts to apply retroactively the reduced penalties for crack-cocaine offenses set out in the Fair Sentencing Act of 2010. The court concluded that defendant was eligible for a reduced sentence but exercised its discretion to deny a reduction. The court reasoned that defendant remained a career offender and had a lengthy criminal history. As to the term of supervised release, the court added that defendant would be deported on release from custody. In reaching its decision, the court stated that it was not required to consider the § 3553(a) factors.

CA2 agreed and concluded that a district court is permitted, but not required, to consider the § 3553(a) factors when deciding a motion brought pursuant to § 404 of the First Step Act.

Because defendant was a career offender, his Guidelines range was 360 months to life. At the 2000 sentencing, Judge Mukasey conceded that 30 years of imprisonment was harsh. But the Guidelines were then considered mandatory. C.f. United States v. Booker, 543 U.S. 220, 233–34 (2005). Judge Mukasey identified “indicia of substantial involvement way beyond simply being a street dealer,” as well as defendant’s admission to “moving substantial quantities.” Defendant was sentenced to 120 months on a firearm count, to run concurrently with the 360-month sentence, and 10 years of supervised release.

The First Step Act, in § 404(c), precludes review of a motion to reduce a sentence if the sentence already conforms with the Fair Sentencing Act, or if a reduction under the First Step Act was previously denied. Otherwise, if a defendant is eligible for a sentence reduction, that is, if he was sentenced for a “covered offense,” a district court may, in its discretion, reduce the sentence.

Here, CA2 found that the district court properly determined that defendant was eligible for a sentence reduction because he was sentenced for a “covered offense,” and the § 404(c) limitations were inapplicable. The district court then exercised its discretion to decline to reduce the sentence without separately considering the § 3553(a) factors. The court reasoned that defendant “had a lengthy criminal record” and that the First Step Act “did not change the applicability of the career-offender designation.” Since defendant’s Guidelines range remained unchanged, and he was “sentenced . . . to the minimum of this range in 2000,” the court declined to “adjust that sentence now.”

CA2 held that § 404 contained no explicit mandate that the district court consider the § 3553(a) factors and refused to infer that Congress intended to imply one. CA2 noted a substantial Circuit split on the issue: the Third, Fourth, Sixth, and D.C. Circuits require consideration of the § 3553(a) factors; the First, Eighth, Tenth, and Eleventh Circuits, along with the Ninth Circuit (in an unpublished decision), rule that consideration of those factors is not required.

CA2’s decision can be found here.

In United States v. Hicks, CA2 affirmed defendant’s WDNY marijuana conspiracy and RICO conspiracy convictions and the 360-month sentence imposed.  In doing so, the court rejected defendant’s contentions that the district court (1) improperly admitted evidence of defendant’s involvement in cocaine or cocaine base trafficking during his trial on the RICO conspiracy charge in violation of the prohibition against double jeopardy because he’d been previously acquitted of that conspiracy, and (2) erred when it denied defendant’s motion to disqualify his co-defendant’s counsel and instead severed defendant’s trial from his co-defendant.

Defendant and others were charged principally with conspiracy to distribute marijuana, cocaine, and cocaine base, possession of a firearm in furtherance of a crime of violence and a drug trafficking crime, and RICO conspiracy. Before trial, defendant moved to disqualify co-defendant Arrington’s counsel, on the ground that he had previously represented defendant Hicks in a state court matter that, it turned out, the Government alleged was an overt act in furtherance of the charged RICO conspiracy. Following a Curcio hearing, the district court accepted Arrington’s waiver of any conflict. The district court nevertheless recognized that Arrington’s waiver did not fully resolve the potential conflicts that might arise in a joint trial. If defendant Hicks testified, his prior counsel could exploit his prior representation to cross-examine him. To avoid this problem, Arrington’s counsel proposed severing Hicks’s trial from Arrington’s, while Hicks sought counsel’s disqualification altogether. The district court decided that severing the trials was the better option. Disqualifying Arrington’s counsel, as Hicks proposed, would violate Arrington’s Sixth Amendment right to be represented by the counsel of his choice.

Defendant Hicks was tried alone. The Government sought to prove that Hicks was a member of a violent Buffalo-based drug-trafficking organization. The government introduced evidence that Hicks and other gang members trafficked in marijuana, cocaine, and cocaine base. There was also evidence that Hicks, Arrington, and others plotted to murder a rival in retaliation for the murder of a fellow gang member. The jury reached a mixed verdict. It found Hicks guilty of engaging in the marijuana conspiracy, but it acquitted him of conspiring to traffic in cocaine or cocaine base. Hicks was also acquitted of the firearm possession charge. The jury hung on the RICO conspiracy count.

Because it was likely that he would be retried on the RICO conspiracy count, Hicks moved to exclude evidence of any cocaine or cocaine base trafficking in the retrial. Admitting the evidence, he claimed, would violate his double-jeopardy rights. The court denied the motion. The court explained that the jury could have concluded “that cocaine and cocaine base conspiracies existed but that [Hicks] was not a member of the conspiracies.” Because double jeopardy attached only if the jury had necessarily decided both of those elements in Hicks’s favor and because the retrial involved the very different charge of RICO conspiracy, the court reasoned, there was no basis to preclude evidence of the cocaine or cocaine base trafficking in Hicks’s retrial.

CA2 agreed with the district court on both the conflict and double-jeopardy claims. As to the conflict, severance was a remedy within the district court’s discretion to impose. Hicks had no right to a joint trial with co-defendant Arrington. Severing the trials eliminated any prejudice to Hicks because there was no opportunity that Arrington’s counsel would use any of the evidence he’d gained during his prior representation of Hicks against him.

CA2 found no double-jeopardy violation. Hicks was not charged with a substantive drug crime at his original trial. The government, therefore, was not required to show that he bought or sold drugs for the jury to convict him of conspiring to do the same. The jury’s verdict of acquittal as to the cocaine and cocaine base conspiracy charge reflected only that it found either that the conspiracy never existed or that Hicks never joined it. Hicks’s involvement in any particular cocaine or cocaine base transaction was not a fact “necessarily decided in his favor by the prior verdict.” There was, therefore no bar to admitting evidence of the drug conspiracy as proof of the RICO conspiracy.

CA2’s decision can be found here.

In United States v. Willis, CA2 affirmed defendants’ WDNY convictions on multiple drug- and gun-related counts, finding sufficient evidence to support the convictions and no errors requiring a new trial, but vacated the sentence and remanded for re-sentencing because the district court clearly erred in its fact-finding regarding jointly undertaken criminal activity and failed to rule whether defendant Willis’s sentence would run concurrently to an undischarged state sentence.

Following a jury trial, defendant Willis was convicted of possessing less than 28 grams of cocaine base with intent to distribute; possessing powder cocaine with intent to distribute; maintaining a drug involved premises; possessing a firearm in furtherance of a drug trafficking crime; and possession of firearms and ammunition as a felon. He was acquitted of other charges.

Prior to sentencing, defendant Willis filed objections to certain factual portions of the PSR. He argued against the PSR’s attribution to him of: currency recovered from co-defendant Pierce, currency recovered from an apartment at 369 Wabash Avenue, and quantities of drugs found at an “upper” apartment at 70 Henrietta Avenue, and discarded in a police interview room at 45 Elm (which he had been acquitted of possessing). The district court agreed with Willis in part, finding that the currency found at 369 Wabash, the home of Pierce’s girlfriend, was not attributable to Willis, but accepted the remaining facts in the PSR as its findings. The district court concluded that the drugs found at the 70 Henrietta upper apartment and at the 45 Elm police station were “possessed within the scope and in furtherance of the jointly undertaken criminal activity and were reasonably foreseeable,” and incorporated into the Guidelines calculation all the drugs from 70 Henrietta and the police interview room. These findings had a significant effect on the district court’s Guidelines calculation. The inclusion of the disputed contraband increased Willis’s base offense level from 24 to 30.

The district court determined that Willis’s Guidelines range was 248 to 295 months. The district court agreed with Willis that the Guidelines were “too high,” and sentenced him to 150 months concurrently on all counts, except for a mandatory consecutive 60-month term for possession of a firearm in furtherance of drug trafficking, for an aggregate term of 210 months of imprisonment. The district court did not state explicitly whether Willis’s federal sentence would run concurrently to a then-anticipated state sentence, although Willis’s counsel had noted on the record his assumption that this was the district court’s intention.

Defendant argued that the district court erroneously calculated his Guidelines range when it found that, although he had been acquitted of the conspiracy and most substantive narcotics possession counts, he nonetheless, for sentencing purposes, possessed all the narcotics seized from 70 Henrietta and 45 Elm because he participated in jointly undertaken criminal activity with co-defendant Pierce.

CA2 agreed. Even where a defendant is acquitted of a drug conspiracy, a court may consider as “relevant conduct” drugs distributed by co-conspirators in the course of the conspiracy. Acquitted conduct may be considered by the sentencing court so long as it is based on reliable information and is proven by a preponderance of the evidence. CA2 found that there was no reliable evidence in the record from which to conclude that defendant jointly engaged in criminal activity related to the drugs found at 70 Henrietta and 45 Elm. A remand was necessary for the district court to reconsider whether the government met its burden of proving jointly undertaken criminal activity between Willis and Pierce by a preponderance of the evidence, and if so, the scope of that activity.

CA2 also agreed with defendant that the district court failed to adequately address whether the sentence here would run concurrently with an anticipated stated sentence for relevant conduct. Although it appeared from counsel’s statements on the record that the sentence would run concurrently, neither the transcript nor the written judgment confirms counsel’s understanding that the sentence would be concurrent. Therefore, Willis’s sentence is remanded to the district court to expressly rule whether the sentence will run concurrently with his state sentence.

CA2’s decision can be found here.

In United States v. Cosme, in a summary order, CA2 affirmed defendant’s SDNY convictions for wire fraud and aggravated identity theft after a jury trial before Judge Loretta A. Preska.  The court rejected defendant’s contentions, among others, that a superseding indictment was time-barred, that the government lacked probable cause for the seizure of his assets, and that the court erroneously denied him his Sixth Amendment right to represent himself.  However,but CA2 vacated the sentence imposed, agreeing with defendant that the court erred when it applied a sentencing enhancement that was not in effect at the time he committed his offense.

While courts ordinarily apply the Guidelines version in effect at the time of sentencing, constitutional ex post facto concerns dictate an exception when the version in effect at sentencing gives rise to a higher sentence than does the version in effect at the time of the offense. Under an amendment to the Guidelines that became effective in November 2015, a two-level enhancement was created for offenses that “resulted in substantial financial hardship to one or more victims[.]” The criminal conduct here occurred between 2010 and 2012. CA2 agreed that the district court erroneously concluded that this two-level enhancement applied to defendant. As a result, the Guidelines range increased from 70 to 87 months of imprisonment to 87 to 108 months of imprisonment. A remand for re-sentencing was required.

CA2’s decision can be found here.

Appellate Division, Second Department

In People v. Addimando, AD2 reduced the sentence imposed on defendant following her Dutchess County convictions for, among other things, second-degree murder. AD2 found that County Court improperly applied the Domestic Violence Justice Survivors Act, which amended Penal Law § 60.12, permitting courts to impose reduced alternative sentences in certain cases involving defendants who are victims of domestic violence.

Defendant was sentenced to 19 years to life imprisonment after she was convicted of shooting her domestic partner. At trial, the defense presented significant evidence that defendant suffered abuse from her domestic partner. Even the trial judge described it as a “compelling story of abuse, with horrific allegations that include[d] repeated sadistic sexual violence and physical abuse, complete with pictures and eyewitnesses viewing the results of her abuse.” Nevertheless, the court denied her a lesser sentence under the DVSJA, because, among other things, the specific homicidal act was a point-blank shot to the victim’s temple when he was lying down with his eyes closed.

AD2 disagreed. It found a reduced sentence under the DVSJA warranted. The defendant was a 32-year-old mother of two young children and had no known prior arrests or convictions. The defendant testified that she was repeatedly physically and sexually abused by her partner, as well as by other men in her past, and reportedly was sexually assaulted at the age of five.

AD2 reduced the sentence to a 7-1/2-year determinate term followed by 5 years of  post-release supervision.

AD2’s decision can be found here.

In People v. Brissett, AD2 held defendant’s appeal of his Richmond County stolen property conviction in abeyance, and remanded for a Batson hearing, agreeing with the defendant that he had established a prima facie case of discrimination where the prosecutor peremptorily challenged three prospective black jurors.

During the first round of jury selection, the prosecutor exercised a peremptory challenge against a black prospective juror, without any questions having been posed to that prospective juror by either the prosecutor or defense counsel. Defense counsel asked the court, Justice William E. Garrett, to ask the prosecutor to provide a race-neutral reason for the strike. The court refused, finding that there was no possible prima facie case yet.

During the second round, the prosecutor attempted to exercise a for-cause challenge against the only black prospective juror on the panel, who indicated during questioning that his father and two cousins had been arrested and incarcerated. The prosecutor stated that he was challenging that prospective juror because “[h]e was a little vague with his responses as to the family members that he had as far as incarcerated and was kind of vague as far as it will play a role in his decision making here.” Defense counsel responded that although the prospective juror was vague as to the details of what happened with his father (with whom he did not maintain contact even after the father’s release from prison) and cousins, “he was very clear . . . that he could be fair.” The trial court denied the prosecutor’s for-cause challenge, and then the prosecutor exercised a peremptory challenge to that prospective juror. Defense counsel requested that the prosecutor provide a race-neutral reason, and the court found that the defense failed to make a prima facie showing of discrimination.

During the third round, the prosecutor again exercised a peremptory challenge against the only black prospective juror on the panel, who indicated that his brother was a recently retired NYPD Special Victims Division detective, and that he had experienced an attempted burglary. When the prosecutor exercised a peremptory challenge to that prospective juror, defense counsel made another Batson challenge, to which the trial court stated, “I am getting a little annoyed. . . . This is not the Bronx.” The court found that the defendant failed to make a prima facie showing of discrimination, since the prosecutor did not challenge three of four black prospective jurors during the first round of jury selection, and the People only challenged 50% of the six black prospective jurors in the entire pool. The court added that “[t]here was no reason for starting this black thing.”

AD2 found that defense counsel had adequately shown a prima facie case of discrimination and remanded for the prosecutor to provide race-neutral reasons for the peremptory strikes.

AD2’s decision can be found here.

Appellate Division, Fourth Department

In People v. Baek, AD4 held defendant’s Allegany County third-degree rape conviction in abeyance and remanded it to County Court to rule on defendant’s contention that the indictment, as amplified by the bill of particulars, was facially duplicitous. Because County Court failed to rule on that part of defendant’s omnibus motion that sought this relief below, AD4 was constrained by the LaFontaine rule from reaching it on appeal.

AD4’s decision can be found here.

In People v. Desjardins, AD4 reversed defendant’s Oswego County course of sexual conduct against a child conviction, finding that supreme court erred when it refused to suppress a statement made to a Child Protective Services caseworker.

The charges arose from incidents that were investigated by both the Oswego County Sheriff’s Office and Child Protective Services (CPS). The CPS caseworker testified at a Huntley hearing that, at the time she interviewed defendant, she was aware that defendant was being held on criminal charges and that he was represented by counsel. She further testified that she worked on a multidisciplinary task force composed of social services and law enforcement agencies, through which she received training on interviewing individuals accused of committing sexual offenses. In keeping with task force protocol directing her to report to law enforcement any inculpatory statements made during CPS interviews, the CPS caseworker called the investigating officer immediately following the interview with defendant and promptly went to his office to report defendant’s statements.

AD4 found that, although the police did not specifically direct the CPS caseworker to conduct the interview on a specific date or time or accompany her to the interview, the CPS caseworker here had a “cooperative working arrangement” with police such that she was acting as an agent of the police when she interviewed defendant and relayed his incriminatory statements. The statements were thus obtained in violation of defendant’s right to counsel, and the court erred in refusing to suppress them.

AD4’s decision can be found here.

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