This deference [sentencing judges must pay] to the Guidelines is not absolute or even controlling; rather, like our review of many agency determinations, “[t]he weight of such a judgment in a particular case will depend upon the thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” On a case-by-case basis, courts are to consider the “specialized experience and broader investigations and information available to the agency” as it compares to their own technical or other expertise at sentencing and, on that basis, determine the weight owed to the Commission’s Guidelines. (citations omitted)

There was, for example, no cooperating witness testifying at trial. There was no evidence of any drug records implicating him. The cocaine was well concealed and not visible. There was no proof of any narcotics-related conversation to which Torres was a party . . . [T]he government presented no evidence as to the nature of Torres's associations with the persons who shipped the cocaine or with the persons who expected to distribute it. There was no evidence of a sizeable payment to Torres that might reflect an expectation related to the million-dollar street value of the cocaine . . . Nor was there evidence that Torres was placed in a position of trust . . . Torres was never in a position to be alone with the Packages until the driver of the minivan fled the mall upon spotting the police surveillance. This record does not lend itself to an inference that Torres was so trusted that he must have known that he was dealing with narcotics.

Making a formal pact with federal prosecutors has many advantages, as demonstrated in United States v. Menendez, 2010 WL 1172076 (2d Cir. March 29, 2010).  The appellant (Sierra) had pled guilty without a plea agreement to an indictment charging him with heroin distribution and money laundering.  He challenged his sentence of 135 months in part on the grounds that the district court created an unwarranted disparity in sentencing by imposing upon him a longer term of imprisonment than on each of his several co-defendants, who, he argued, played the same or a larger role in the criminal scheme. (This argument was not raised at the district court level, and so was reviewed on a plain error analysis.)  Rejecting the claim, the Court explained:

Although it is true that a district court may compare co-defendants' sentences to avoid unwarranted sentencing disparities, the sentencing disparities between Sierra and his co-defendants were not unwarranted in this case. Unlike Sierra, his co-defendants either (1) pleaded guilty pursuant to a plea agreement, (2) pleaded guilty to conspiracy to distribute heroin or narcotics but not to conspiracy to launder money, (3) pleaded guilty to conspiracy to launder money but not to conspiracy to distribute, or (4) were exceptionally honest in admitting to the crimes, and brought to the court's attention unique facts, such as HIV-positive status and a resulting reduced risk of recidivism. On plain error review, we therefore reject Sierra's unwarranted-disparity argument as without merit.

In the same case, the Court ruled as a matter of first impression that the base offense level for Sierra's conviction for conspiracy to launder narcotics proceeds could be calculated using the greater amount of drugs involved in the underlying offense of conspiracy to distribute heroin.

Lawyers: Randa Maher, Esq. (defendant); AUSAs Sarah Lai and Guy Petrillo.

At sentencing, a defendant's most personal and intimate experiences may be discussed and analyzed.  The public has a presumptive right of access to these proceedings, and where, as in United States v. Doe, 2009 WL 4823001 (2d Cir. December 14, 2009), the defendant "seeks to seal the record of the criminal proceedings totally and permanently, the burden [to overcome that presumption] is heavy indeed."

In fact in Doe, both the defendant and the government sought the permanent sealing order based on the existence of an undisclosed "compelling interest subject to a substantial risk of prejudice."  The Court accordingly appointed amicus curiae to defend the district court's order denying the application.

Although it held that total and permanent sealing was unjustified, the Court noted that "it may be possible to protect the 'compelling interest' at issue here by sealing the sentencing transcipt in a way that is less than total and permanent.  It therefore remanded the case "to afford the parties an opportunity to apply for a sealing of the sentencing transcript that is partial, non-permanent, or both."

Lawyers:  Lee Dunst, Anne Chamption, Daniel Chirlin, Brian Mogck, Aaron Simowitz, Gibson Dunn & Crutcher LLP (amicus curiae); AUSAs Elizabeth Kramer, Peter Norling, Jo Ann Navickas

Yesterday, in United States v. Bari, 2010 WL 1006555 (2d Cir., March 27, 2010), the Second Circuit held that in the context of a supervised release revocation hearing, where relaxed rules of evidence apply, it was not reversible error for a judge to employ an Internet search to confirm a reasonable intuition on a matter of common knowledge.  Importantly, the Court did not hold that the opposite is true – that facts gleaned from an Internet search may be treated as common knowledge (because if that’s the case, there’s life on Mars, intelligent design is a valid scientific theory, and Elvis is still alive . . .). 

Facts

Bari, a convicted bank robber, was charged with violating the terms of his supervised release by committing another bank robbery.  At a hearing on the violation, the district judge noted the strong circumstantial case against Bari – “too many coincidences” that supported his conclusion that Bari had indeed robbed another bank, including the yellow rain hat found in Bari’s landlord’s basement that looked awfully like the hat worn by the bank robber in surveillance video tapes.  He pointed out that there are “lots of different yellow rain hats that one can buy,” something he confirmed with a simple Google search. 

On appeal, Bari argued that the court violated Fed.R.Evid. 605 – which prohibits a judge from testifying as a witness at a trial – “by conducting its own Internet search and relying on the results of that search in making its decision to revoke Bari’s supervised release.”

Holding

First, the Court held that “the Federal Rules of Evidence do not apply with their normal force in supervised release revocation proceedings . . . so long as [the judges’] findings are based on ‘verifed facts’ and ‘accurate knowledge.’”

Second, the Court held that the availability of many different types of yellow rain hats was a “matter of common knowledge” of which the district court could take judicial notice under Fed.R.Evid. 201 - “[t]he District Court’s independent Internet search served only to confirm this common sense supposition.”  The fact that the judge chose to confirm his intuition with an easy Internet search, rather than rely solely on his common sense, was thus incidental.  The dispositive issue was that the fact being confirmed was already one of common knowledge. 

Comment

The reason why the Google search was useful in this particular case – confirming the district judge’s reasonable intuition, which on its own, passed muster under Fed.R.Evid. 201 – is why courts should be suspicious of them in general.  Google is the perfect enabler of confirmation bias – the tendency to notice data that supports our beliefs and ignore the data that doesn’t – and since our intuitions are not always reasonable or accurate, reliance on Google searches as an investigatory tool should generally be met with skepticism.

Lawyers: David Hammer (defendant); AUSA Peter Skinner