New York Federal Criminal Practice Blog

Recently in the Post-conviction category:


The NYSACDL has published its latest edition of Atticus, focusing on the organization’s often unsung and unknown efforts to influence the legislative process.  It includes my article addressing three recent Second Circuit decisions, including Capers (setting up some serious hurdles to the admission of statements obtained through a “two-step”– question first, Mirandize later – interrogation procedure), Cossey (“a sentencing decision that relies on factual findings that were unsupported in the record . . . seriously affects the fairness, integrity, and public reputation of judicial proceedings”), and Brown (“when a claim of ineffective assistance of counsel is first raised in the district court prior to the judgment of conviction, the district court may, and at times should, consider the claim at that point in the proceeding.”) 
The BOP is granted enormous discretion in conducting its affairs, from inmate classification and designation, to calculation of good time and eligibility for early release, to managing an inmate's program needs and medical care - to name just some of the key issues affecting an inmate's quality of prison life.  That's not to say that a court order carries no weight.  In fact, the BOP will often endeavor to comply with a court's wishes, particularly in connection with an initial designation.  In two recent decisions, district judges have issued orders seeking some amelioration of a defendant's conditions of incarceration.

In United States v. Seminerio, 2010 WL 749840 (S.D.N.Y. February 22, 2010), the defendant had been designated to the low security facility at Butner to serve his sentence in connection with his conviction for honest services fraud, rather than a minimum security camp.  SDNY Judge Buchwald ordered the BOP to "correct its records to reflect that the defendant did not commit a crime of violence" and further apprised the BOP "that the designation of the defendant [to Butner] is not consistent with the Court's intentions."  The BOP's website indicates, however, that 74 year-old Mr. Seminerio is currently in Butner.

In United States v.  Hatfield, 2010 WL 550392 (E.D.N.Y. February 16, 2010), after an evidentiary hearing conducted before a magistrate, EDNY Judge Seybert ordered the Queens Private Detention Center to provide anti-anxiety medication to a trial defendant, "as directed by prescriptions written by" the defendant's private psychiatrist, and at the defendant's expense.  The magistrate's recommendation of court intervention into the defendant's medical care was based on concerns that he might not be able to assist in his own defense if the medication issue is not resolved.  
The Second Circuit has held that “overreaching attempts to dismiss appeals as frivolous . . . will not be accorded a friendly reception,” and in United States v. Davis, 08-3240-cr (2d Cir. March 15, 2010), it was not especially friendly to the government’s effort to short-circuit a sentencing appeal through a summary affirmance motion.  

The defendant had challenged his sentence on procedural and substantive grounds.  First, he argued that the district court had found “no reason” to give a below-Guidelines sentence, indicating an improper presumption in favor of Guideline sentences.  Rejecting the government's motion for summary affirmance, the Second Circuit found that this position “is not inarguable nor totally devoid of support.”  

Second, this 57 year-old defendant argued that his sentence was substantively unreasonable, where he was sentenced to 97 months for possession of child pornography, despite the absence of any evidence that he had ever acted inappropriately with a child, or distributed or traded the material.  Similarly finding this argument non-frivolous, the Court pointed out that while it may apply a deferential abuse-of-discretion standard in evaluating the reasonableness of sentences, it still had a “duty to examine the substance of the sentence and to ‘patrol the boundaries of the reasonableness.’”  The Court added: “Strong deference to a district court’s decision is not an invitation to rush to characterize an appeal from it as frivolous.”  The motion for summary affirmance was denied and the regular appeal process will proceed.

Lawyers: James Greenwald and James Egan, Federal Public Defender (Defendant); AUSA Paul Silver
Throwing out the convictions of Robert Simels’ associate for witness tampering among other charges, EDNY Judge Gleeson found in United States v. Irving, 2010 WL 430952 (E.D.N.Y. February 8, 2010), that there was insufficient evidence to support the “sizable inferential leap[s]” necessary to find the associate knew of Simels’ “hair-raisingly criminal” plans.  The case, previously discussed here and here, is notable because of what it says (and doesn’t say) about “mere association” in a criminal case, and for its discussion of the standards applicable to sufficiency challenges.  

Mere Association Not Enough

Irving may have been Simels’ law associate, but that fact does not dilute or alter the well-established principle that “mere association with those implicated in an unlawful undertaking is not enough to prove knowing involvement.”  Notably (and rightly) absent from the decision is any suggestion that Irving, by virtue of her training, status and professional responsibilities as a lawyer, should be held to a different standard of criminal liability:

Specifically, Irving’s association with Simels and her presence in his law offices were insufficient to establish that she aided and abetted his crimes, even if her actions assisted him and indeed even if she were aware that he was committing a crime. As I instructed the jury at trial, the government was required to prove beyond a reasonable doubt that Irving herself acted with the specific intent to influence or prevent the testimony of the witnesses through intimidation, threats or corrupt persuasion.

Government’s Case Less than the Sum of its Parts

In a lesson on effective summation, the decision deconstructs the government’s case against Irving in painstaking detail, showing how she was simply not present for any of the crucial meetings in which Simels was charged with plotting to intimidate witnesses, and how her various emails and memoranda did not establish, as the government claimed, that she knew of any plan to “neutralize” witnesses by illegal means.  The court goes on:

It often happens that the whole of the government’s case is greater than the sum of its parts . . . However, that is not the case here.  Indeed, when the evidence against Irving is viewed from a broader perspective, it is arguably less than the sum of its parts, for the theory that Simels implicated Irving in his crimes made no sense. Simels had been a criminal defense attorney for more than 30 years.  Irving was a young, inexperienced attorney. When she began working for him in December 2006, Simels had already begun defending Khan.  Simels had numerous reasons to involve Irving in his many legitimate lawyering functions but none to involve her in his illegal activity.  

Competing Inferences of Guilt and Innocence

How should a court assess a sufficiency challenge where the evidence gives equal circumstantial support to a theory of guilt and a theory of innocence?  Not clear under Second Circuit law, Judge Gleeson points out, noting decisions that give opposing answers.  So he applies the more stringent formulation, “which requires deference to the jury’s verdict even where a verdict of not guilty would have been equally supported by the evidence at trial.”  But even under this standard, he notes that

[T]he Second Circuit has emphasized that where a fact to be proved is also an element of the offense, “it is not enough that the inferences in the government’s favor are permissible.”  The court “must also be satisfied that the inferences are sufficiently supported to permit a rational juror to find that the element, like all elements, is established beyond a reasonable doubt.”


This was a case where Judge Gleeson had a “very real concern that an innocent person may have been convicted’ – a concern, I would argue, that is heightened in cases involving prosecutions of lawyers for acts of advocacy, because jurors may not fully appreciate the dictates and ethics of zealous advocacy.  Processes at the core of advocacy – withholding judgment, demanding the development of additional facts, and embracing the concept that memory and personal narratives can be fluid – are often viewed by non-lawyers as manipulative and relativistic.  For example, as Judge Gleeson points out (but a non-lawyer may not immediately grasp): “There is nothing remotely criminal about a defense attorney telling a defense investigator that a particular witness could offer damaging testimony against the defendant at trial.  And Irving’s act of giving [a witness’s] address to a person acting as an investigator for the defense is innocuous.”  Luckily for Irving, her trial judge knows the difference between lawyering on the edge of ethics and lawyering that spills over into criminal conduct.

Lawyers: Javier Solano, Lawrence Berg, Law Offices of Javier A. Solano, PLLC (Defendant); AUSAs Daniel Brownell, Steven D'Alessandro, Morris Fodeman.
In another notable decision from the FCPA prosecution of Frederic Bourke that just ended in conviction last Friday (see also here and here), SDNY Judge Scheindlin denied Bourke's motion for a judgment of acquittal in United States v. Kozeny, 2009 WL 1940897 (S.D.N.Y. July 6, 2009).  

Of particular note is her rejection of Bourke's challenge to his money laundering conspiracy conviction as time-barred because his last transfer of funds outside the U.S. occurred outside the relevant statute of limitations period.  Quoting the Second Circuit's decision in United States v. Mennuti, 679 F.2d 1032 (2d Cir. 1982), the court pointed out that "where the object of the conspiracy is economic, the conspiracy 'continues until the conspirators receive their anticipated economic benefits.'" Here, "a reasonable jury could infer that the conspiracy had not terminated by [the date of the last payment], because the privatization [of Azerbaijan's state oil company] had not occurred at that time and no returns had been made on the investments."  

Bourke's lawyers argued that "tying the money laundering conspiracy to the underlying substantive violation 'would render the statute of limitations essentially indeterminate.'"  Judge Scheindlin disagreed. "That is not the case here. It would be reasonable to conclude that the conspiracy ended when Kozeny and his co-conspirators abandoned their attempts at encouraging the privatization of SOCAR or when they ceased paying bribes to Azeri officials."

Continuing a streak of notable decisions in this circuit on the evidence necessary to establish knowledge and intent in conspiracy cases (including Murray Law LLC’s reversal in Lorenzo, and also reversals in Kapelioujnyj and Wexler), EDNY Judge Sifton has granted a motion for a judgment of acquittal to a defendant convicted after trial of participation in a drug conspiracy, and aiding and abetting drug distribution.  United States v. Heras, 2009 WL 1874373 (E.D.N.Y. June 29, 2009), makes the important (and not always obvious) point that knowledge is not the same thing as intent, and reminds us of that great principle: “If the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, then a reasonable jury must necessarily entertain a reasonable doubt.”


Nelson Heras had driven Simon Correa, a/k/a Luichi, a known drug dealer, and an acquaintance of Correa’s to a hotel. During the ride, Correa and his companion openly discussed Correa’s plan to pick up drugs at the hotel, something Heras later admitted overhearing.  Correa entered the hotel, whereupon he was arrested in a controlled delivery operation.  Heras and the companion, who remained in the minivan in the parking lot, were also arrested.  Upon being told that “a serious federal crime had been committed involving the importation of narcotics,” Heras stated “Whoa, whoa ... Whatever happened up there, that has to do with Simon. That has nothing to do with me,” and “This is ... Luichi’s deal.”


Granting Heras’ motion for a judgment of acquittal on both the conspiracy and aiding and abetting convictions, Judge Sifton pointed out that these two specific intent crimes required that “the purpose - not merely the effect - of the defendant’s participation in the crime was to distribute narcotics.”  Noting that “the prosecution made little attempt to argue that the evidence established the element of intent, focusing instead on the issue of knowledge,” the Court held that knowledge that Correa was picking up drugs or that he Correa was a drug dealer was not the same as knowledge of any plan on Correa’s part to distribute drugs, much less the equivalent of Heras “knowingly join[ing] and participat[ing] in it or promot[ing] the venture himself.”  Moreover, once evidence was introduced of Heras’ “innocent explanation” prefaced with the words “whoa, whoa,” the jury could no longer presume that Heras intended to bring about the ordinary consequences of his actions.  “When faced with an innocent explanation sufficiently supported by the evidence to create a reasonable doubt about the defendant’s guilt, the Government’s burden is to present evidence sufficient to dispel that doubt.”

Whoa, now that’s a decision worth noting! 

Lawyers: Justine Harris, Federal Defenders of New York, Inc. and Justin Levine, Seijas & Levine (defendant); AUSA Andrew Goldsmith

Guest Contributor David Scott Johnson, Esq., writes:
As of the end of 2007, the Bureau of Prisons had rarely exercised its power to file a motion for a reduced sentence under the “compassionate release” procedures found in 18 U.S.C. § 3582(c)(1)(A), see here.  And, as is apparent in a recent decision by EDNY Judge Garaufis in United States v. Traynor, 2009 WL 368927 (E.D.N.Y. February 13, 2009), little has changed – despite the fact that the Sentencing Commission issued a new policy statement in November 2007 clarifying that the provision should encompass both medical and non-medical reasons, and circumstances beyond an inmate’s terminal illness. 


In 2005, defendant Traynor was sentenced to serve 120 months for committing bank robbery and attempted bank robbery.  Since the sentence was imposed, defendant’s health has deteriorated significantly and he is now being treated for asthma, epilepsy, headaches resulting from multiple bullet wounds and glaucoma.  Based on his health, defendant filed for a motion for reduced sentence under 18 U.S.C. § 3582(c).

“Extraordinary and Compelling Reasons”

Modification of an imposed term of imprisonment to permit early release may be granted to a prisoner in only three circumstances under 18 U.S.C. § 3582(c), the broadest of which – and the one at issue in Traynor – is where the reduction is both warranted by “extraordinary and compelling reasons” that are “consistent with applicable policy statements issued by the Sentencing Commission.”  In the 2007 amended policy statement, the Commission clarified that “extraordinary and compelling reasons” include not just situations where the inmate is terminally ill, but also where he/she “is suffering from a permanent physical or medical condition . . .  that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and for which conventional treatment promises no substantial improvement” – reasons that arguably include Traynor’s current circumstances.  The kicker is that any reduction on this ground must be precipitated by a motion from the Bureau of Prisons; it cannot be granted upon a motion of the defendant.  And as Judge Garaufis notes, “the Bureau of Prisons ‘has chosen to restrict the application of 18 U.S.C. § 3582(c)(1)(A) to inmates suffering from a serious medical condition that is generally terminal, with a determinate life expectancy.’”  In practice this means inmates that are literally at death’s door and have days or weeks to live.


Here, no such motion had been filed by the Bureau of Prisons, and Judge Garaufis accordingly concluded that he had no jurisdiction to grant any relief here, “even if Mr. Traynor's health is an ‘extraordinary and compelling reason’ warranting a reduction in his sentence.” 

JaneAnne Murray Adds:

Similar motions by inmates have been denied by other New York district courts over the past year, although the Second Circuit has not yet addressed the issue of the reviewability of the BOP’s failure to exercise its power to seek early release.  Given the cost of incarcerating inmates, especially ones that need constant and acute medical care, it is unfortunate that the Bureau of Prisons doesn’t choose to exercise its power to seek early release more often.  But it is hardly surprising.  The BOP is in the business of locking people up, and it prides itself on its ability to treat and accommodate all medical conditions and disabilities.  By establishing a compassionate release policy that rests solely within the BOP's discretion to apply, Congress has spun a lot of wheels to purely symbolic effect.  Perhaps, in the right case (probably not Traynor’s, whose health issues are not as compelling as some I have come across), a strong pitch can be made that the BOP’s failure to act is arbitrary and capricious.  At least Congress got it right in the Second Chance Act last year, in which it directed the BOP to implement a limited pilot program for the early release of elderly, non-violent prisoners - details of which are available here.  Experts estimate that fewer than 100 prisoners will qualify . . .

Lawyers: Matthew Traynor (pro se); AUSA Jeffrey Knox

See Archives for all posts since September 2007.