The case is remarkable not just for the extent of the variance from the applicable guideline sentence and its reasoning (essentially, that the guideline sentence was simply too much), but also because the prosecutors evidently agreed with him and assisted in a “collaborative effort” to ameliorate the Guidelines’ effect.
Facts
Convicted of securities fraud and witness tampering after trial, the Parris brothers faced an adjusted offense level of 42, as a result of a “piling on” of adjustments, including adjustments for loss, number of victims, sophisticated means, director status, managerial role and obstruction. Finding each adjustment justified as a matter of pure Guidelines calculation, and also finding that there was no basis for a traditional downward departure, the judge nonetheless concluded that a Guidelines sentence would be “draconian” and therefore inappropriate to use as the “initial benchmark” in determining the sentences he would impose. Accordingly, he turned to the parties for alternative means of “realistic guidance.”
Judge Block noted that “[t]o its credit, the Government shared [the court’s] angst,” and joined the court in “a collaborative effort to search for an effective means to avoid what Judge Rakoff [in United States v. Adelson, 441 F.Supp.2d 506, 512 (S.D.N.Y. 2006))] has appropriately described as ‘the utter travesty of justice that sometimes results from the guidelines’ festish with absolute arithermetic.’” In fact, the government helpfully provided the court with a compendium of securities fraud sentences going back to 2001, so that the court could consider the defendants’ sentences in the context of nationwide similarities. (Interestingly, the court had sought similar information from the Sentencing Commission, but found that “it does not keep such statistics” – so much for the Commission’s raison d’être to reduce nationwide sentencing disparities.)
Holding
The court imposed sentences of 60 months on both defendants, citing two primary reasons: sentencing patterns based on the relative seriousness of similar cases, and disproportionality in the relentless accumulation of upward adjustments in securities fraud cases.
First, while it was “realistically impossible ‘to line up similarly situated defendants on a national scale,’” the government’s compendium of cases was relevant to “the relative seriousness of the nature of the defendants’ crimes under 18 U.S.C. § 3553(a)(1).” In particular, “there was a correlation between the losses in those cases and the periods of incarceration” – cases with enormous losses yielding sentences in double-digit terms of imprisonment (in years) and those with losses less than $100 million resulting in sentences of single-digit terms. The 360 month to life sentence was driven by Congressional “disdain for corporate predators,” but, now free to disagree with the Guidelines as long as he stated “sufficient justifications,” Judge Block held that such a sentence would be “unreasonable as a matter of law” for the Parrris brothers, who “were simply not in the same league as the likes of Enron, Worldcom and Computer Associates defendants.”
Second, the court also disagreed with “the guidelines’ ‘one-shoe-fits-all’ approach for its number of victims, officer/director and manager/supervisor enhancements. Thus, in all securities-fraud cases, once the threshold of 250 victims is met, the same 6 points applies for victim enhancement, whether the number of victims be in the neighborhood of 500, as apparently in this case, or in the hundreds of thousands, as in Worldcom. The three-point leadership role enhancement attaches regardless, for example, of whether the requisite minimum of five, as here, were supervised or 500. As for the four-level enhancement for officers and directors, there is simply no accounting for the differences their decisions may have had on destroying a major corporation affecting the lives of hundreds of thousands, compared to decisions – although inexcusable – of those jeopardizing the investments of several hundred investors in speculative penny stocks.”
Comment
Like Judge Rakoff’s decision in Adelson, Parris is as an important milestone in the post-Booker path to freedom from what Judge Block describes as “the shackles of the mandatory guidelines regime.” Practical, reasonable and courageous, it is decisions like these that give judges and practitioners the inspiration and ammunition to reject excessive guideline sentences, and instead, search for alternative benchmarks that more readily relate to the harm caused and the extent of the defendant’s culpability. And while the prosecutors will rarely join in that endeavor, the fact that they did so here is a remarkable and citable precedent unto itself.
]]>While Handy deals with the gun possession guidelines, it has broader ramifications both for any guideline enhancement dictated by guideline commentary that fails to represent the Sentencing Commission’s traditional considered, statistical and rational analysis, and for guidelines that permit enhancements without scienter. As Judge Weinstein observes, “[t]o add many months of incarceration for possession of a gun because the gun was stolen, when the defendant did not and could not know it was stolen, is to punish by lottery. Haphazard chance is not a guiding spirit of our rule of law.”
Facts
Twenty year-old Handy pled guilty to being a felon in possession of a gun, in violation of 18 U.S.C. § 922(g)(1). His presentence report contained a two-point enhancement because the gun was stolen, under U.S.S.G. § 2K2.1(b)(4), an enhancement that applies, according to the guideline’s commentary, “regardless of whether the defendant knew or had reason to believe the firearm was stolen.” At sentencing, defense counsel challenged the enhancement, citing “the recent revolution in sentencing,” arguing that the enhancement was an “ill-considered” provision, since it contradicted congressional intent (Congress had already criminalized possession of stolen firearm in a separate statute, with an unambiguous scienter requirement) and “ignored hundreds of years of common law . . . that knowledge and intent are . . . the touchstones of criminal liability.” Questioned under oath at the sentencing, the defendant stated he did not know the gun was stolen.
Holding
Agreeing with defense counsel, Judge Weinstein held that the stolen gun enhancement, “devoid of any mens rea connection, is irrational, is inconsistent with the Constitution and criminal laws of the United States, and is void.” Noting the historical and constitutional importance of mens rea in criminal statutes, including firearms possession statutes, he gave several reasons for the invalidity of the provision. First, the Sentencing Commission cannot ignore the congressional policy and constitutional implications behind a related, unambiguous statute criminalizing knowing possession of a stolen firearm. Second, research shows that guns are often not in fact stolen, they are simply reported stolen by a gun dealer seeking to avoid liability for selling to an ineligible person. Third, the Commission’s inclusion of and edits to the stolen gun enhancement were inadequately explained, and inconsistent with other guideline provisions and commentary (e.g., the guideline addressing possession of explosives provides for a two-point enhancement if the defendant knows or has reason to know that the explosives are stolen). Finally, the enhancement did not comport with 18 U.S.C. § 3553 factors (e.g., “it does not provide deterrence since a person cannot be deterred from doing what he or she does not know is being done” and the absence of the requirement of scienter “does not reflect the seriousness of the offense, promote respect for the law or provide just punishment for the offense”).
Comment
Handy is an important blueprint for analyzing and challenging guideline enhancements, like the stolen gun provision, that are dictated by the guideline commentary. Commentary has the full force of guidelines, but unlike guidelines, is not presented to Congress for review, nor is it subject to the rigors of the APA. As such, Judge Weinstein points out, quoting EDNY Judge Gleeson’s recent article in the Hofstra Law Review, amendments to the commentary can effect “important policy changes . . . by stealth, disguised as ‘clarifications.’” In fact, as Handy details, that is precisely how the stolen gun enhancement emerged.
Moreover, Handy contains the seeds for more far-reaching challenges to guideline enhancements (whether in actual guidelines or the commentary) on the grounds that they lack an explicit requirement of intent or, at least, reasonable foreseeability. Examples abound, but would include the enhancement for jeopardizing the soundness of a financial institution in a fraud case, smuggling an alien who happens to be a minor, distributing an anabolic steroid to an athlete, or engaging in an offense involving fish or wildlife that is included in certain protected lists or creates a risk of infestation or disease. As Judge Weinstein points out: “The same due process requirement for legislative enactments that conduct without culpable mens rea cannot be criminalized except for minor strict liability crimes, is applicable to the work of the Sentencing Commission. Consistent with fundamental legal tradition that blameworthiness hinges upon a culpable state of mind, the defendant’s Guideline calculation must be predicated upon culpability.”
In a post-Booker/Kimbrough world, where all sentencing precedents may be revisited and guidelines challenged as ill-considered, Handy is a rallying cry to defense lawyers to subject every guideline enhancement to rigorous scrutiny for legal and factual fault-lines.
Facts
Abiodun pled guilty to credit card fraud arising out of his purchase of between 300 and 400 stolen credit reports, and, on appeal, challenged the district court’s determination that his criminal activity involved more than 250 victims, resulting in a six level enhancement of his guideline level. He argued that individuals whose identities were stolen but who were fully reimbursed for their financial losses cannot be deemed victims. The district court, however, disagreed, finding that the victims affected by Abiodun’s crimes included “individuals who had spent an appreciable amount of time securing reimbursement for their financial losses from their banks or credit card companies.”
Holding
Rejecting the challenge, and adopting conclusions reached by the Sixth and Eleventh Circuits, the Court held that “individuals who are ultimately reimbursed by their banks or credit card companies can be considered ‘victims’ of a theft or fraud offense for purposes of U.S.S.G. § 2B1.1(b)(2) if – as a practical matter – they suffered (1) an adverse effect (2) as a result of the defendant’s conduct that (3) can be measured in monetary terms.”
Comment
Leaving aside the practical difficulties presented by this decision (while amounts actually stolen and not reimbursed are usually easily established and verified, “lost time” is a far more elastic and subjective concept), the Court’s holding in Abiodun could lead to increased adjusted offense levels in many fraud and theft cases – not least Abiodun’s own case. Pointing out that the district court’s correct conclusion regarding the number of victims necessarily impacted its loss determination in that case, which did not include a calculation of lost time, the Court remanded Abiodun's case for resentencing, so that the district court could “(1) recalculate the loss amount associated with each of the defendants’ crimes to include the time lost by these potential victims or (2) determine whether, if these individuals are excluded from the count, it is still ‘more likely than not’ that Abiodun’s crimes affected ‘250-plus victims.’”
]]>In United States v. Taleb-Jedi, 06 Cr 652 (BMC), 2008 WL 2832183 (E.D.N.Y. July 23, 2008), the court denied her lawyers’ multi-layered and creative motion to dismiss the indictment, but in the process warned the prosecutors that “if the proof at trial shows only that defendant participated in the PMOI through mere membership and chanting at meetings, it may well be insufficient to reach a jury or sustain a guilty verdict.” Similarly, “if the defendant taught English for the sole purpose of helping other members to advocate before the United Nations on behalf of the PMOI, the statute may not reach such conduct.”
The case is a splendid example of no-stone-unturned criminal defense. Ms. Taleb-Jedi’s lawyers argued variously that the indictment should be dismissed for failure to state a claim under Fed.R.Crim.P. 7(c) (because it fails to detail the material support provided), that the statute is unconstitutional under the First and Fifth Amendments (because it precludes the defendant from challenging at trial the FTO designation), that the statute’s specific intent element is deficient (it is not enough that the defendant intend to further the PMOI’s goals, she must also specifically intend to further its terrorist aims), that the statute is impermissibly vague (because it doesn’t adequately define “personnel”), that the statute is overbroad (because it criminalizes protected First Amendment activity) and that the prosecution is outrageous (e.g., because the U.S. military may now use the PMOI to gather intelligence).
In a lengthy and meticulous decision, the court rejected these challenges, highlighting the difference between someone who is merely an advocate, and one who is an actual employee, “under the terrorist organization’s direction or control.” The court also noted that in wartime, it is permissible for the military to pick and choose its friends, and the DOJ its enemies, war being an “outrageous but . . . sometimes necessary undertaking.”
The case is, however, a disturbing reminder – in the same week that Osama Bin Laden’s driver gets acquitted of the most serious charge against him and sentenced to close to time-served by a military jury – that in the war on terror, just like the war on drugs, the Department of Justice devotes its preciously limited resources on easy and innocuous targets.
]]>Requirements for Rule 15 Depositions
The court held that, as to two witnesses, all the requirements for depositions under Fed.R.Crim.P. 15 were met here: (1) they were unavailable (they were outside the subpoena power of the court, and refusing to testify, despite the government’s promise of an all expenses paid trip), (2) their testimony was material (it was “highly relevant” to one of the defendant’s alleged knowledge of and participation in the fraudulent schemes at issue, and to both defendants’ alleged misrepresentations), and (3) their testimony was necessary “to prevent a failure of justice” (a requirement usually satisfied when the first two are met, and here, the government’s delay did not represent such “as serious lack of due diligence” as to justify denying the motion).
Showing Necessary to Succeed on Rule 15 Motion
Notably, in reaching its decision, the court rejected the defendants’ demand that in order to evaluate the availability prong, the government be directed to provide affidavits from the witnesses themselves confirming that they would not travel to the U.S, and in particular, that the government confirm that it had advised one of the witnesses that he himself may be a target in the case, which may impact his willingness to participate in any deposition. In addition, the court rejected a similar demand that in order to satisfy the materiality prong, the government must produce affidavits from the witnesses as to their proposed testimony, or at a minimum, produce all of the notes and memoranda of the witness interviews.
Timing of Rule 15 Motion
Also noteworthy is the court’s rejection of the defendants’ argument that in considering whether the government had engaged in “unexcused delay,” the court should take into account the government’s failure to seek these depositions during the three-year period following the indictment. “[T]hese prior periods of delay are simply unrelated to the issue of whether conducting the proposed depositions at this time would unfairly prejudice defendants . . . More importantly, defendants have failed to cite any order that the government violated by failing to bring a Rule 15 motion at an earlier date or any authority indicating that the government’s failure to file a Rule 15 motion prior to the two previously scheduled trial dates constituted a waiver of its ability to file such a motion at this time.”
Comment
This case is an interesting counterpoint to United States v. Mason, discussed here, where the court precluded evidence due to a late Rule 16 disclosure rather than adjourn a firm trial date in a multi-defendant case. Of course, Rule 16 disclosures, unlike Rule 15 notices, have timing constraints: they are to be made upon request, and newly obtained Rule 16 materials are to be “promptly” disclosed before trial. Moreover, in Vilar, unlike Mason, the only prejudice the defense could identify was disruption of trial preparation. There was no suggestion that the depositions themselves might open a hornet’s nest requiring additional investigation or a severance. Finally, the defendants’ laches claim might have had more traction if Mr. Vilar wasn’t simultaneously seeking his own adjournment of the trial until November.
]]>The Scope of Fed.R.Evid 410
The Second Circuit has held that statements made by a defendant to prosecutors are not “plea discussions” under Rule 410, unless the defendant, “in some way, express[es] the hope that a concession to reduce the punishment will come to pass.” United States v. Levy, 578 F.2d 896, 901 (2d Cir.1978). The Levy Court expressly left open the question of whether statements made in a less formal “de facto process of plea bargaining” can be “plea discussions” for purposes of Rule 410 protections.
In Galestro, the defense proposed that Levy’s void be filled with a two-tier analysis that focuses on whether at the time of the discussion, the defendant showed a subjective expectation to negotiate a plea, and whether that expectation was reasonable under the circumstances. The government, argued alternatively, that there are no “plea discussions” if the meeting was at the defendant’s behest, he “sought to avoid indictment altogether rather than to plead,” and no plea deal was offered or ever made.
Invoking Rule 410 Protection
In the end, the Galestro court did not have to decide the issue, because here, it was undisputed that Galestro’s attorney announced at the beginning of the proffer meeting that he considered it to be “in furtherance of settlement negotiations, pursuant to Fed.R.Evid. 410 and Fed.R.Crim.P. 11,” and the prosecutors present said nothing in response. As the court concluded: “permitting the government to frustrate a defendant’s reasonable, explicit understanding of the nature of a discussion by simply remaining silent would not only be inconsistent with the rationale in Levy, but would undermine the very rationale of Rule 410 – to ‘promote plea negotiations by permitting defendants to talk with prosecutors without sacrificing their ability to defend themselves if no disposition agreement is reached’” (citation omitted).
Comment
Here, Galestro's lawyer's prescient statement at the beginning of the proffer meeting saved the day. Without it, the government might have prevailed on the argument that this wasn’t a plea negotiation at all - it was a (misleading) innocence proffer, in which the defendant wasn't seeking to reduce his punishment, he was seeking to eliminate it. Which begs another interesting question: whether innocence proffers are exempt from Rule 410 protection, since their goal is not a plea bargain but a dismissal.
Innocence proffers, however, as the Second Circuit has pointed out elsewhere, are often preludes to plea negotiations. In other words, they are part of the de facto process of plea bargaining, which runs the gamut of mindsets from denial to acceptance. It makes no sense, and surely undermines the rationale of Rule 410, to carve out of the plea bargaining process (also known as the coming-to-terms process) any discussions where the defendant professes innocence. Moreover, the government, with its oft-described “awesome advantages in bargaining power,” knows full well how to obtain a waiver of Rule 410 protections prior to an innocence proffer, and it should not be rewarded for its failure to do so.
]]>In United States v. Patt, 06-cr-6016, 2008 WL 2915433 (W.D.N.Y. July 24, 2008), the court further refined the meaning of “ample opportunity,” concluding that there was no due process violation where the defense expert may have found it time-consuming and inefficient to do his job at the government facility, but was nonetheless able to “conduct a complete and independent analysis of the hard-drives” at issue. In the absence of any claim that the results were “incomplete or compromised . . Patt was provided ample opportunity to inspect and analyze the computer drives that were seized and are alleged to contain child pornography.”
]]>Facts
Finnerty, a specialist at the NYSE, was charged with securities fraud, arising out of the practice of “interpositioning” – whereby he prevented the normal agency trade between matching public orders, and instead interposed himself between the matching orders in order to generate profits for his firm’s account. In other words, he “act[ed] as an arbitrager by taking a profit on the spread between the bid price and the ask price of customers’ orders.” A securities fraud charge may be based on manipulative or deceptive conduct. Here, since the government conceded that Finnerty’s conduct was not manipulative, the sole question on appeal was whether the government sufficiently proved that it was deceptive.
Deception Requires Creating A False Impression
Pointing out that “ ‘deception’ ... irreducibly entails some act that gives the victim a false impression,” the Court held that the government had “identified no way in which Finnerty communicated anything to his customers, let alone anything false.” Perhaps shooting itself in the foot, the government had compared Finnerty in summation to a bank teller who occasionally pockets one of the hundreds of withdrawals he makes everyday. Like that thieving bank-teller, the Court agreed, Finnerty had, at most, engaged in “garden variety conversion.” But, in the absence of “proof that Finnerty conveyed a misleading impression to customers,” there were no grounds to impose securities fraud liability here, especially when to do so may simply “invite litigation beyond the immediate sphere of securities litigation and in areas already governed by functioning and effective state-law guarantees” (citation omitted).
Violation of NYSE Rule Not Enough
At most, the government proved that Finnerty violated a NYSE rule, but “violation of an NYSE rule does not establish securities fraud in the civil context, let alone in a criminal prosecution.” This is true even if Finnerty knew he violated the rule and tried to cover it up. While some customers may have assumed that he complied with NYSE rules, “unless their understanding was based on a statement or conduct by Finnerty, he did not commit a primary violation of § 10(b) – the only offense with which he was charged.”
]]>Analyzing the bail factors in the case – the circumstances of the offense charged, the defendant’s history, any potential danger to the community and the weight of the evidence – Judge Marrero, in a de novo review, affirmed the magistrate’s conclusion that the defendant had not rebutted the presumption. (Because of the charges the defendant faced, there was a rebuttable presumption that no bail conditions would assure the defendant’s presence in court.)
What is most interesting is the court’s analysis of the “weight” factor. Quoting a Ninth Circuit case, the court pointed out that “because the Bail Reform Act ‘neither requires nor permits a pretrial determination that the person is guilty,’ the Court’s function in examining the weight of the evidence is not to determine guilt or innocence.” The court continues: “[t]he Weight Factor ‘may be considered only in terms of the likelihood that the person will fail to appear or will pose a danger to any person or to the community.’” Thus, “c]ourts generally consider the Weight Factor as the ‘least important’ of the Factors.”
Here, the court concluded “although both parties made persuasive arguments regarding the weight of the evidence, this factor, even if all credibility issues were viewed in a light favorable to [defendant] Jones, does not tip the balance in favor of allowing his release on bail.”
This case will be an especially useful case in close bail cases where the evidence against the defendant is strong, but the other bail factors militate in favor of release.
]]>]]>From Richard Crane, Esq.: At a symposium in Washington last week held by the U.S. Sentencing Commission on sentencing alternatives, Beth Weinman, BOP's RDAP Coordinator, said that the average sentence reduction for inmates successfully completing the RDAP program is now 7.64 months. She attributed this to the large numbers of inmates eligible for the program and the lack of money to expand the program. She estimates that 40% of the inmates in BOP custody have a diagnosable substance abuse problem and that there is an RDAP waiting list of 7,000 inmates. Ms. Weinman also said that the BOP is working on a program statement to define exactly what documentations suffice to complement the Bureau's own diagnosis of an inmate's substance abuse problem. Typically, the presentence report or documentation from a treatment provider is acceptable proof, but what else might prove adequate varies from institution to institution.
From Joel Sickler of Justice Advocacy Group, P.C.: There is also another issue emerging. According to officials at the BOP's Designation and Sentence Computation Center (DSCC), inmates entering the system with a sentence yielding less than 24 months to serve cannot participate in RDAP. There is no published policy on this change. The DSCC claims it is a new "designation" policy not a "treatment" issue (again, unpublished) and the judiciary has been alerted to it. Additional information is awaited. In the meantime, if practitioners want to cite to this "policy" in sentencing letters, they should call the DSCC in Texas to confirm it.
Aref – Standard for Disclosure of Classified Material
In United States v. Aref, 2008 WL 2598018 (2d Cir. July 2, 2008) (a money-laundering prosecution that arose out of a terrorist sting operation), the Second Circuit addressed an issue of first impression: the standard for determining what relevant classified information a criminal defendant is entitled to receive during discovery.
In Aref, the government had moved under Fed.R.Crim.P. 16(d)(1) (which authorizes a district court to issue protective orders denying or restricting discovery for good cause) and Section 4 of the Classified Information Procedures Act (“CIPA”) (which sets out procedures for “[d]iscovery of classified information by defendants”) for a protective order permitting it to withhold certain classified information that would otherwise be discoverable.
On the defendants' appeal, the Second Circuit held that while the government may invoke the common-law state-secrets privilege underlying Section 4 of CIPA, that “privilege can be overcome when the evidence at issue is material to the defense.” In Aref, the Court adopted the following three-step analysis – reviewable under an abuse of discretion standard – for a district court to follow in determining when the government’s privilege must give way in a case where classified information is at issue:
First, is the classified information discoverable?
Second, if it is, does the state-secret privilege apply because (1) there is “a reasonable danger that compulsion of the evidence will expose ... matters which, in the interest of national security, should not be divulged,” and (2) the privilege is “lodged by the head of the department which has control over the matter, after actual personal consideration by that officer”?
Third, if the information is both discoverable and privileged, then is it also “helpful or material to the defense,” i.e., not necessarily Brady material, but useful “to counter the government’s case or to bolster a defense”?
In Aref, conducting its own review of the classified information at issue and the government’s sealed submissions, the Court found no abuse of discretion and affirmed the district court’s findings. Notably, in reaching its conclusions, the district court had held a series of ex parte conferences, not just with the government (as authorized under CIPA and approved by the Aref Court), but also with defense counsel “to assist the court in deciding what information would be helpful to the defense.”
Vilar – Early Production of 3500 Material Denied
United States v. Vilar, 05 Crim. 621, currently pending before Judge Sullivan in the Southern District, has already produced a very interesting search and seizure decision discussed here. Now, in a new decision in this case, 2008 WL 2531195 (S.D.N.Y. June 22, 2008), the court has considered but rejected a creative motion from the defense requesting early disclosure of 18 U.S.C. § 3500 material (prior statements of government witnesses), so that the defense could determine whether evidence to be presented at trial is tainted by illegal seizure.
First, the court reiterated, as it had pointed out in its earlier decision, that the defense had no right to litigate taint issues prior to trial. Second, and more significantly, the court pointed out that it had no authority to compel early disclosure of Section 3500 material bearing on alleged violations of Fourth Amendment rights. The language of Section 3500 itself only requires disclosure after the witness’s direct testimony, and the only carve-out of these mandates in Second Circuit case-law is for exculpatory or impeaching evidence under Brady, which concededly was not at issue here.
The court concludes: “The Court expects the government to abide by its disclosure obligations under Brady as well as its pledge to produce Section 3500 material no later than two weeks prior to the trial in this action.”
Siraj – Early Disclosure of Statements Made to UC Officer Denied
Finally, in United States v. Siraj, 2008 WL 2669321 (2d Cir. July 9, 2008) (also a case involving a foiled terrorist plot), the Court addressed another issue of first impression: whether written police reports that memorialize non-interrogation oral statements made by a defendant to an undercover officer must be produced upon demand under Federal Rule of Criminal Procedure 16(a)(1)(B)(i) (which provides that upon a defendant’s request, the government must disclose to the defendant “any relevant written or recorded statement by the defendant”). Answering in the negative, the Court reasoned that to hold otherwise would render other provisions of Rule 16 superfluous. As the Second Circuit Blog points out, however, the defendant would at least have received these reports as last minute disclosures under 18 U.S.C. § 3500, and so could not claim unfair surprise. Having them earlier, however, would certainly have helped the defense strategize for trial, and more importantly, may have encouraged more meaningful plea negotiations.
]]>Facts
In a nutshell, the sparse evidence against the two defendants consisted of the following: a courier, Francesca Leerdam, was arrested at the airport following the discovery of over three kilos of cocaine during a routine inspection of her luggage. Agreeing to participate in a controlled delivery, she made several monitored calls to her recruiter, Amauri, in the Dominican Republic, who after some indecision, directed her to call his uncle-in-law in Queens, “Julio.” Julio’s wife Andrea answered the call, told her Julio was sleeping, and directed Leerdam to their residence. Upon arrival, Andrea, clad in nightgown, greeted Leerdam and proceeded to carry one of her two suitcases into the house, telling her that she would call another taxi to take Leerdam to a nearby hotel. At this point, agents arrested Andrea, and later arrested the sleeping Julio. In post-arrest statements, Leerdam recounted an earlier trip when she had also brought a suitcase to the U.S. for Amauri. Passing through Customs without incident on this occasion, she called Amauri, who directed her to a location in Queens where she met “Ronnie.” Ronnie took her to Pennsylvania where he exchanged her suitcase for another. She was then driven back to New York, where Ronnie introduced her to both Lorenzos, who in turn, drove her to a hotel. The next morning, Julio Lorenzo arrived alone at Leerdam’s hotel room with a brown bag filled with $14,000, which he proceeded to conceal in Leerdam’s clothing in her suitcase. He told her it was for Amauri. He then took her to JFK and saw her safely off on her return flight. Throughout Leerdam’s entire encounters with the Lorenzos, there was no mention of drugs.
Holding
As to Julio, the Court found a critical element missing to sustain his convictions: “any indication from which a jury could reasonably infer that Julio knew the nature and specific object of the conspiracy.” Although there was undoubtedly a drug conspiracy, and “Julio was present at and participated in events that furthered the conspiracy,” there was “insufficient evidence to show that he did so knowingly and with the specific intent to further a cocaine smuggling and distribution conspiracy.” Moreover, the most incriminating evidence against him – his transfer of $14,000 to the courier during her first trip to the U.S. – while “suspicious” and “indicative of participation in illegal behavior . . . is consistent with participation in a wide variety of offenses, and in light of the other evidence, is insufficient to prove Julio’s intent to participate in the conspiracy charged in the indictment.”
The evidence as to Andrea was even less compelling in the Court’s eyes. Again, that evidence supported “at most an inference that Andrea knew she was assisting in suspicious behavior,” which was also “consistent with providing hospitality to her nephew’s girlfriend and regretting providing such assistance.”
Comment
Along with United States v. Wexler, 2008 WL 878582 (2d. Cir. April 3, 2008), discussed here, this is an important case on the sufficiency of the evidence necessary in conspiracy cases regarding the defendant’s knowledge of the “nature and specific object” of the conspiracy.
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