We’ve witnessed an interesting dodge by CA2 this week in Kassir, where CA2 avoided tackling the question of whether the Supreme Court’s crime-of-violence jurisprudence applied on collateral review to a claimed violation of 18 U.S.C. § 842(p)(2)(A) and its crime-of-violence definition. CA2 found, essentially, that the discretionary Concurrent Sentence Doctrine rendered the question academic or harmless.
This was a busy week in AD2, where the court demonstrated, once again, that it is the most favorable appellate court to criminal defendants in New York State. We have reversals in Kings, Nassau, Orange, and Queens counties.
Second Circuit
In United States v. Kassir, CA2 affirmed SDNY Judge Analisa Torres’ order denying defendant’s § 2255 motion. It affirmed on the ground that, because Kassir is currently serving numerous concurrent sentences and, no matter the outcome of his § 2255, he will remain in prison for the rest of his life on the other counts of conviction and a favorable disposition would not shorten his time.
In 2009, defendant was found guilty by a jury of numerous terrorism-related counts, including providing and concealing material support and resources to terrorists, conspiring to kill, kidnap, maim, and injure persons in a foreign country, and—most relevant here—distributing information relating to explosives, destructive devices, and weapons of mass destruction in violation of 18 U.S.C. § 842(p)(2)(A). He was sentenced to two terms of life imprisonment for conspiring to kill, kidnap, maim, and injure persons, 20 years of imprisonment for distributing information relating to explosives, and various other terms of imprisonment, with all terms to run concurrently. CA2 affirmed the convictions and sentences.
In 2015, in Johnson v. United States, 576 U.S. 591, 597 (2015), the Supreme Court invalidated the residual clause of the Armed Career Criminal Act, § 924(e)(2)(B)(ii), ruling that its definition of a “violent felony” was unconstitutionally vague. The Supreme Court later held that Johnson announced a new substantive rule of constitutional law that applied retroactively on collateral review. Welch v. United States, 136 S. Ct. 1257 (2016). In 2018, the Supreme Court decided Sessions v. Dimaya, 138 S. Ct. 1204, 1210 (2018), holding that the similarly-worded residual clause of § 16(b), the federal criminal code’s definition of “crime of violence,” was also impermissibly vague. The following year, in United States v. Davis, 139 S. Ct. 2319, 2324 (2019), the Supreme Court struck the residual clause of § 924(c)—another similarly-worded definition of “crime of violence”—as unconstitutional.
Defendant then filed a pro se motion arguing that, under Johnson and Dimaya, his conviction under § 842(p)(2)(A) was invalid because it was not premised on a qualifying “crime of violence.”
The Second Circuit, using the discretionary Concurrent Sentence Doctrine, held that, even if defendant’s § 842(p) conviction were vacated, he would remain imprisoned on his other convictions, serving at minimum two life sentences imposed for conspiring to kill people. Since a favorable decision on defendant’s claim would not shorten the amount of time he would spend incarcerated, it declined to review the merits of his challenge. CA2 has reserved § 2255 relief for prejudicial errors that are so grave, they “result[] in a complete miscarriage of justice.” Although there has been debate about the exact contours of harmless-error analysis in the collateral context—specifically, “how convinced,” on collateral review, “a reviewing court must be before it can declare a federal constitutional error harmless”—the general proposition is sound. Without prejudicial error, there is no basis for collateral relief.
CA2’s decision can be found here.
In United States v. Gonzalez, in a summary order, CA2 vacated defendant’s NDNY 46-month sentence for possession of ammunition, which was to run concurrent to her sentence for distributing heroin and cocaine. CA2 found that the court’s failure to state its reasons for imposing the sentence was procedurally unreasonable under the plain error standard.
The district court stated that its sentencing decision was based on a “thorough” review of the record and told defendant that it deemed the sentence “sufficient, but not greater than necessary to meet the goals of sentencing” based on her history, characteristics, and background. It further stated that it had considered “everything” in defendant’s “whole life, good and bad.” Without any commentary, it adopted the “factual information and the guidelines applications as contained in [the PSR].”
CA2 found this insufficient to satisfy § 3553(c)’s requirement of an in-court explanation of the sentence. Although a legally adequate explanation need clear only “a low threshold,” and although the court need not always “mention the required factors, much less explain how each factor affected the court’s decision,” the district court’s brief statement here provides no analysis and points to nothing about defendant or her crime of conviction by way of explaining the sentence. CA2 therefore remanded for resentencing.
CA2’s decision can be found here.
In United States v. Mercedes, in a summary order, CA2 affirmed defendant’s SDNY conviction following a jury trial before Judge Kenneth M. Karas, convicting him of conspiracy to possess with intent to distribute, and to distribute, 100 grams or more of heroin, and sentencing him to an aggregate 180-month prison term. CA2 rejected defendant’s challenge to the sufficiency of the evidence. It detailed the load of evidence, showing that defendant’s roommate at a community reentry center had been his drug supplier and had arranged for a series of drug purchases from him.
CA2’s decision can be found here.
In United States v. Sampel, in a summary order, CA2 affirmed defendants’ WDNY convictions for conspiracy to distribute and possession with intent to distribute five kilos or more of cocaine, but vacated the 360-month sentence imposed on defendant Sampel, agreeing with defendant that the court erroneously applied the managerial-role and use-of-affection Guidelines enhancements. Recall that if a defendant is hit with an aggravating role enhancement and they used affection, among other possible methods such as fear or friendship, to induce someone to become involved in a controlled substances offense, increase the Guidelines by an additional two levels
In calculating the applicable Guidelines offense level, the district court determined that Sampel was subject to a three-level aggravating-role adjustment for being a “manager or supervisor” in criminal activity that “involved five or more participants or was otherwise extensive.” § 3B1.1(b).
We all know that to qualify for this enhancement, a defendant need only manage or supervise one other participant and may properly be considered a manager or supervisor if he exercised some degree of control over others involved in the commission of the offense. But did you know that a defendant can be hit with another two levels if he also uses affection to involve another in his controlled substances crime? Bet you didn’t. Here, the district court determined that Sampel was subject to a two-level enhancement for purportedly using affection to involve his wife in the drug offense. § 2D1.1(b)(16)(A).
CA2 found these conclusions to be clear error. The only evidence cited by the district court was testimony that described how Miriam Sampel, defendant’s wife, played a role in her husband’s crimes. Specifically, Juan Sampel directed a cooperating witness, Angel Ocasio, to go to Miriam Sampel’s insurance agency to pick up money that Juan Sampel owed him for the purchase of cocaine. The next day, Ocasio went to the insurance agency and Miriam Sampel gave him a box containing $117,000.
CA2 found that the evidence did not establish that defendant directed his wife’s participation in the criminal activity or that he used affection to involve her in his crimes. Evidence that Sampel told a person to pick up money from his wife did not establish that Sampel “exercised [any] degree of control” over her, or that he in any way directed her involvement in the drug business. Likewise, this evidence did not support the conclusion that Sampel used affection to involve his wife in the crimes at issue.
CA2’s decision can be found here.
In United States v. Saunders, in a summary order, CA2 affirmed defendant’s SDNY convictions, following a guilty plea before Judge Vernon S. Broderick, to one count of conspiracy to distribute and possess with the intent to distribute controlled substances, in violation of 21 U.S.C.§§ 841(a)(1), (b)(1)(A) and 846, and one count of using, carrying and possessing a firearm during and relation to a drug trafficking crime, in violation of § 924 (c)(1)(A)(i). CA2 also affirmed the 228-month sentence, rejecting defendant’s contention, among others, that the district court erroneously classified him as a career offender under the Guidelines based on his prior New York second-degree assault conviction.
The district court found that career-offender offense-level enhancements applied because defendant had “at least two prior felony convictions of either a crime of violence or a controlled substance offense”—i.e., a “controlled substances” conviction for conspiracy to distribute crack cocaine and a “crime of violence” conviction for second degree assault under NY Penal Law § 120.05(1).
CA2 rejected defendant’s contention on appeal that his conviction under NY Penal Law § 120.05(1) did not qualify as a “crime of violence” because it did not satisfy Guidelines § 4B1.2(a)(1) (the “Force Clause”). The Force Clause defines a “crime of violence” to include any offense which “has an element the use, attempted use, or threatened use of physical force against the person of another.” Defendant argued § 120.05(1) may be violated by omission, and therefore does not categorically require the use or threatened use of physical force.
CA2 held that its recent decision in United States v. Brown —F.4th—, 2021 WL 2583444 (2d Cir. June 24, 2021), foreclosed this argument. Did you know that we are up to the fourth edition? Bet you didn’t.
Anyway, in Brown, CA2 rejected an interpretation of the Force Clause substantially identical to the one proposed by defendant, and squarely held that “§ 120.05(1) is a ‘crime of violence’ under the force clause of U.S.S.G. § 4B1.2(a)(1).”
CA2’s decision can be found here.
Appellate Division, First Department
In People v. Hatchett, AD1 held defendant’s appeal of his New York County second-degree weapon possession conviction in abeyance and remanded to supreme court for it to reassess the hearing evidence to determine whether probable cause existed to support a search of defendant’s person, or whether the search was “outside of the Fourth Amendment’s purview” under the circumstances. While the decision is somewhat cryptic, it appears that Supreme Court denied suppression for reasons not raised by the People, and which should not have been considered by the court. AD1, therefore, remanded to give supreme court an opportunity to consider the issues preserved by the People.
AD1’s decision can be found here.
Appellate Division, Second Department
In People v. Bowen, AD2 reversed defendant’s Kings County second-degree assault conviction, finding that the evidence was legally insufficient to prove physical injury.
Defendant walked up behind the then 73-year-old complainant on a public street and grabbed him around his neck. The complainant wrestled with the defendant, and the two fell backward to the ground. The complainant refused medical assistance and, after the incident, continued on his way to a fast-food restaurant. He testified at trial that he continued to have pain in his back and neck for approximately three weeks, had pain when he lifted “something” when working in construction, without specifying what “something” was, and was unable to use a pillow to sleep. He never sought medical treatment after the incident, claiming that he did not need it, and he used only a topical pain-relief cream to relieve pain.
Physical injury is defined as “impairment of physical condition or substantial pain.” Penal Law § 10.00[9]. AD2 found that there was insufficient evidence from which a jury could rationally infer that the complainant suffered substantial pain or impairment of his physical condition.
AD2’s decision can be found here.
In People v. Germosen, AD2 reversed defendant’s Kings County second-degree assault and second-degree weapon possession convictions, finding that supreme court erroneously allowed the People to elicit testimony from two police officers on the content of hearsay statements made to them by the complainant when they encountered her at a deli a few hours after the alleged assault.
AD2 found that, in light of the amount of time that elapsed between the incident and the statements, and the lack of evidence as to what transpired in the interim, the People did not establish that the complainant’s capacity for reflection and deliberation remained stilled by the time she spoke to the police officers at the deli. It found that supreme court erred in admitting this testimony into evidence under the excited utterance exception to the rule against hearsay and that its admission was not harmless.
AD2’s decision can be found here.
In People v. Hawkins, AD2 reversed defendant’s Orange County possession of a controlled substance convictions, finding that they were against the weight of the evidence.
AD2 found the evidence insufficient to connect defendant to a bag containing 10 bags of heroin found discarded over a chain link fence. Two women saw a young black man throw a shopping bag with red circles on it over a chain link fence. But they could only give a general description of the young man. Two officers had previously seen defendant in the vicinity, whom they recognized from previous encounters in the vicinity. They did not see him carrying the bag.
AD2 found that an acquittal would not have been unreasonable, since neither of the police witnesses observed the defendant carrying a bag, neither of the bystander witnesses was able to sufficiently identify the defendant as the man carrying the bag, and no forensic evidence linked the defendant to the bag. Weighing the evidence, AD2 found that reversal was appropriate.
AD2’s decision can be found here.
In People v. Kattis, AD2 reversed defendant’s Nassau County course-of-sexual-conduct-against-a-child conviction, finding, as the People conceded, that it was barred by double jeopardy.
Prior to pleading guilty in Nassau County, defendant pleaded guilty in supreme court, Suffolk County, to course of sexual conduct against a child in the first degree and course of sexual conduct against a child in the second degree. The charges in Suffolk and Nassau Counties related to the same victim. The Suffolk County indictment alleged that defendant committed acts constituting course of sexual conduct against a child in the first degree and course of sexual conduct against a child in the second degree between approximately April 2015 and March 1, 2016, whereas the Nassau County indictment alleged that defendant committed acts constituting course of sexual conduct against a child in the second degree between approximately March 1, 2016, and September 1, 2016.
As the indictments in both counties, viewed together, alleged a single continuing and uninterrupted offense against the same alleged victim, constitutional double jeopardy principles precluded a second conviction, in Nassau County, after the Suffolk County criminal action terminated in a conviction by plea of guilty.
AD2’s decision can be found here.
In People v. Rhames, AD2 reversed defendant’s Queens County weapon-possession convictions, finding that supreme court erred when it refused to suppress a weapon recovered from defendant following a street pursuit.
AD2 found that the inconsistent accounts of two police officers were insufficient to meet the People’s burden of going forward to establish the legality of the police action. For example, while one officer testified that she began to pursue defendant before he dropped the gun, the other officer testified that defendant dropped the gun before he began to flee. One officer also testified that she tried to grab the defendant with her right hand during the chase, whereas the other officer testified that the first officer attempted to grab defendant before he ran. It was also not clear, among other things, when, precisely, either officer identified themselves to defendant as police officers.
Given the “severely undermined” testimony of the officers, the People did not adequately establish what led to their pursuit of defendant and their recovery of a weapon.
AD2’s decision can be found here.
Appellate Division, Third Department
In People v. Taylor, AD3 reversed defendant’s Broome County murder conviction, agreeing with defendant that, in this case that rested purely on circumstantial evidence, County Court’s circumstantial-evidence charge was flawed.
There was no direct evidence identifying defendant as the shooter or as having possessed a loaded firearm. There was no DNA or fingerprint evidence linking defendant to the Colt .45 caliber handgun that was recovered near the scene of the shooting or the shell casing and projectiles that were found to have been fired from that gun. Surveillance footage — which only distantly captured the incident — did not depict defendant with a firearm; nor was it possible to discern from the footage who shot the victim. Equivocal testimony given by an elderly eyewitness did not qualify as direct evidence, because the witness did not identify defendant in court, and certain inferences had to be drawn from his testimony to conclude that defendant shot the victim and that he possessed a firearm.
Despite denying defendant’s request for a circumstantial-evidence charge, the court nonetheless gave a modified version of the charge. AD3 found the modified version wholly inadequate. Among other things, the modified version failed to include a critical component of the circumstantial evidence charge — namely, “that it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence.”
Because the error was not harmless, AD3 reversed.
AD3’s decision can be found here.