New York Federal Criminal Practice

IABANY Presents Roundtable Discussion on The Rule of Law in the Age of Terror - May 27, 2010; Two Free CLE Credits

Thu, 13 May 2010 11:38:38 -0500

Reconciling the protection of fundamental democratic liberties with the necessity of combating terrorism is a relatively new challenge to the United States. Not so to many democratic countries that have had long struggles against terrorism. Countries like Ireland, Britain and Israel have faced the powerful temptation – and in some cases, imperative - to compromise the rule of law and civil liberties when confronting terrorism.

As U.S. courts and criminal justice agencies grapple with the threat of domestic terrorism, this is an especially appropriate time for a dialogue on the delicate and symbiotic balance between fighting terrorism and protecting constitutional liberties. The Irish, with their experience in addressing terrorism within the framework of a constitutional democracy, have much to add to this debate.

This program, presented by the Irish American Bar Association of New York, in association with Fordham Law School, and organized by the undersigned and Janet Walsh, Esq., will focus on what the United States can learn from other countries’ legal responses to terrorism, with a particular emphasis on the Irish experience. Join us for a fascinating discussion with academic experts who have studied this issue in depth, Benton Campbell, former Interim U.S. Attorney for the Eastern District of New York, who addresses these issues on a daily basis in actual investigations and prosecutions, and the Hon. Brian M. Cogan, who will moderate the discussion.

When:   May 27, 2010, from 6:00 to 8:00 p.m. (reception to follow)
Where: Fordham Law School, 140 West 62nd Street, Room 430
Panel:    Prof. Deborah Pearlstein (Princton University);
             Prof. Martin Flaherty (Fordham Law School);
             Prof. Arie Perliger (Stony Brook University/West Point);
             Aisling Reidy (Human Rights Watch; former director of the ICCL);
             Benton Campbell (former U.S. Attorney for the E.D.N.Y.)
Moderator: Hon. Brian M. Cogan (U.S. District Judge, E.D.N.Y.)

This event is free and attendees earn two professional practice CLE credits

RSVP to janeannem@iabany.org or janetw@iabany.org

Second Circuit Issues Notable Ruling on Deconstructing Sentencing Guidelines

Wed, 12 May 2010 09:03:51 -0500

Kimbrough’s green light to reject sentencing guidelines that are not the product of “empirical data and national experience,” has been a call to arms to defense lawyers and judges to subject individual guidelines, and their related commentary, to rigorous scrutiny. In fact, the National Federal Defender Sentencing Resource Counsel has a project called “Deconstructing the Guidelines,” which publishes papers critically examining individual guidelines to determine if they fail to reflect the exercise of the Sentencing Commission’s “characteristic institutional role.” One such paper – Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines (January 1, 2009) by Troy Stabenow – is the likely impetus behind a notable decision from the Second Circuit issued yesterday: United States v. Dorvee, No. 09-0648 (2d Cir. May 11, 2010).

In Dorvee, the Court reached the rare conclusion that a sentence was substantively unreasonable (a 240-month sentence, to be exact), citing in part the “serious flaws” in the child pornography guideline. Like the crack guideline at issue in Kimbrough, the child pornography guideline yields harsh and iniquitous results, not because of any empirical analysis, but solely as a result of Congressional directives. In words that apply far beyond the guideline at issue here, the Court reminds us that Sentencing Commission is just a fallible government agency, and whether its pronouncements are entitled to respect should be determined on a case-by-case basis:

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)

Comment

In its conclusion, the Court would appear to limit this decision to the peculiar flaws in the child pornography guideline – “an eccentric Guideline of highly unusual provenance” – but as the Federal Defenders establish in their Deconstructing the Guidelines project, every guideline has the potential to be viewed as an “eccentric” one “of highly unusual provenance” if you just take the trouble to peel the layers of amendments away, and put its origin under a microscope. Dorvee is also further proof, as my colleague Harlan Protass has argued at the Second Circuit Sentencing Blog, of the blurring between procedural and substantive review of sentences.

Lawyers: Paul J. Angioletti, Esq. (defendant); AUSAs Paul D. Silver, Thomas Spina, Jr., Paul Ryan Conan, and Brenda K. Sannes

Second Circuit Reverses Drug Conspiracy Conviction on Grounds of Insufficient Evidence

Wed, 12 May 2010 09:00:36 -0500

United States v. Torres, 2010 WL 1790220 (2d Cir .May 5, 2010), is one of those rare cases in which the Court has reversed the defendant’s drug conspiracy conviction on the grounds of insufficient evidence. While there was evidence that Torres knew or should have suspected that he was participating in something illicit – “especially the facts that Torres undertook to receive heavy and bulky packages on the street, which were addressed to him at a building with which he had no apparent connection” – the record was lacking “any evidence that Torres knew the Packages contained narcotics.”

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.

Lawyers: Edward Zas (Federal Defenders, Inc.); AUSAs Nicholas L. McQuaid, Michael D. Maimin

Lawyers in the Dock - Roundtable Discussion at the New York City Bar, April 29, 2010 - Free CLE Ethics Credit

Wed, 28 Apr 2010 11:38:09 -0500

As this blog has often pointed out (see here and here), the investigation and prosecution of lawyers for their lawyering is different. Because these cases carry the potential to chill creative and zealous advocacy, they merit special precautions and scrutiny. In fact, the ABA includes several recommendations in its "Standards on Prosecutorial Investigations" on how defense counsel should be prosecuted, including noting that "the prosecutor’s office should protect against the use of false allegations as a means of harassment or abuse that may impact the independence of the defense counsel or the Constitutionally protected right to counsel." (Click here for the complete set of standards.). That's not to say that lawyers should get a free pass with the claim that their conduct was mere advocacy (see here for Professor Gillers' tough comments on lawyers who hide behind their advocate status), but the line between ethical advocacy and criminal conduct can be a fine one and in the eye of the beholder.

This fascinating issue will be the subject of a roundtable discussion at the Association of the Bar of the City of New York tomorrow evening from 6:30 to 8:30 p.m. Conceived and organized by this blog author, on behalf of the Criminal Law and Professional Responsibility Committees, it features Gerald Shargel, Daniel Alonso, Barry Bohrer, AUSA Jon Kolodner and Professor Ellen Yaroshefsky. It will be moderated by the Hon. Carol Bagley Amon of the Eastern District of New York. For good measure, the program is free and offers two CLE credits in ethics. There is still time to register (see here), but space is filling up fast!

Update [May 12, 2010]: The New York Law Journal has this report on the debate.

Second Circuit Finds No Error in Co-Defendant Sentencing Disparity

Tue, 13 Apr 2010 17:12:33 -0500

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.

Second Circuit Issues Notable Decision on Sealing of Sentencing Transcript

Tue, 13 Apr 2010 17:08:22 -0500

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

Second Circuit Finds No Reversible Error in District Court’s Use of Google

Tue, 23 Mar 2010 15:36:02 -0500

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

Second Circuit Holds that Prosecutor’s Advocacy of Guideline Higher than Plea Agreement Is Not Plain Error

Tue, 23 Mar 2010 15:25:38 -0500

Plea-bargaining is critical to the administration of federal criminal justice, since over 95% of federal criminal cases end in a guilty plea. In turn, good faith – especially on the part of the most powerful party in that process – is key to maintaining that high non-trial disposition rate. Why would thousands of defendants plead guilty to plea agreements, like the standard plea agreement in the Eastern District of New York, that permit the government to advocate a higher guideline at sentencing than the one carefully calculated in the plea agreement? Well, because there is a good faith understanding that the prosecutor will not use this provision to support a higher guideline at sentencing absent extraordinary circumstances, such as new facts coming to light, or the application of some arcane, unanticipated guideline. When, as in United States v. Habbas (discussed here) and United States v. MacPherson, 590 F.3d 215 (2d Cir., December 30, 2009), the prosecutor does advocate a higher guideline at sentencing on basic, predictable, nuts and bolts issues like drug type and quantity or managerial role, the entire plea bargaining process, and the manageability of judges’ trial calendars, is in jeopardy. Luckily, MacPherson can be distinguished on its facts, but it highlights the troubling problems in the standard EDNY plea agreement, the need to avoid pleading under a plea agreement unless it genuinely gives the defendant a benefit, and the importance of obtaining some additional assurances that the prosecutor will stand by the guideline estimate in the agreement.

Facts

MacPherson pled guilty to conspiracy to import heroin and cocaine, under a plea agreement that estimated his guideline range to be 120 to 135 months, and in which he stipulated that his sentence would be calculated using 15 kilograms of cocaine. The agreement provided that the guideline estimate was not binding on the government, and that the defendant could not withdraw his plea if the government argued a different guideline at sentencing. During his allocution, the defendant admitted to “repeatedly traveling to Peru to make arrangements to purchase heroin and meeting a courier at [JFK] who was carrying ten kilograms of cocaine.”

The Probation Department estimated an offense level that was 6 levels higher than the one in the plea agreement – two additional levels arising from the inclusion of 7 kilograms of heroin in the offense calculation, and 4 levels for his managerial role in the scheme. At sentencing, the defendant objected to these enhancements, but not on the basis of the inconsistency with his plea agreement. The government advocated the Probation Department’s estimate, which the district judge adopted. She imposed a sentence of 262 months (at the high end of the new guideline range). On appeal, MacPherson argued that the government had violated his plea agreement in advocating the higher guideline at sentencing.

Holding

Reviewing the claim on a plain error standard (as required by the Supreme Court’s recent ruling in Puckett), and noting its conflicting rulings on this issue in Habbas and Palladino, the Court held that the prosecutor’s conduct here (which was similar to that upheld in Habbas) “cannot have precipitated plain error, if any error at all.” In particular, there was no plain error despite the defendant’s stipulation in his plea agreement that his sentence would be based on 15 kilograms of cocaine:

[W]hereas typical contract stipulations state that the parties stipulate to some agreed upon terms, the agreement in this case states only that the defendant stipulates to a sentence based on the cocaine quantity. In any event, the agreement and the plea colloquy put the defendant on notice that the Pimentel estimate was not binding on the prosecutor and that if the estimate was wrong, the plea could not be withdrawn. In such circumstances, there was no plain error.

In his concurrence, Judge Newman went one step further, finding that “there [was] no error at all,” citing clear language in the plea agreement and during the plea colloquy that the government could advocate a higher offense level at sentencing than the estimate in the plea agreement.

The Court also found that the district court’s sentencing at the high end of the new guideline was not unreasonable.

Comment

MacPherson can be distinguished, both on the grounds that the defendant did not claim a violation of the plea agreement at the district court level, and also because the defendant allocuted at his plea proceeding to much of the facts underlying the enhancements advocated at his sentencing. But the bottom line is that the defense should not put too much stock in a plea agreement that permits the government to repudiate its own guideline estimate, and in which the government does not stipulate to the facts underlying that estimate.

Richard Willstatter adds:

In light of MacPherson and Habbas, defense lawyers should be sure to ask for a written agreement in which the US Attorney’s Office agrees to advocate for the guideline range estimated in the plea agreement absent new facts, or, if that is not forthcoming, to make an oral statement on the record before the plea is entered to the effect that the government will not later advocate a higher sentencing range unless the government learns of a factual basis for such a higher range after the plea is entered. If there is reluctance to agree to either of these, the client should be counseled that the government may do an about-face at sentencing, against which the client may have little recourse.

MacPherson underlines the importance of figuring out whether a plea agreement (as opposed to a plea without an agreement) actually gets you anything. If the standard agreement does not bind the government and if there is a possibility that a higher range could be found, as was readily apparent in MacPherson’s case, reliance on the agreement is risky and dependent on the integrity of the assigned prosecutor (or her supervisor). It is in those cases where the government might advocate for a higher range – but agrees to forego such arguments in exchange for a plea – that a binding plea agreement is most useful.

Lawyers: Todd Merer (not lawyer in district court) (defendant); AUSAs Susan Corkery, Licha Nyiendo

SDNY Judges Order Monsanto Hearing on Whether Frozen Assets Were Tainted

Tue, 23 Mar 2010 01:07:23 -0500

Defendants in parallel civil and criminal cases involving allegations of securities fraud won a significant victory earlier this month when two SDNY judges granted their motions to be permitted to pay for lawyers of their choice from untainted funds, and ordered a hearing under United States v. Monsanto, 924 F.2d 1186 (2d Cir. 1991), to determine if there was probable cause to believe the funds are tainted by fraud. In Commodity Futures Trading Commission v. Walsh, 2010 WL 882875 (S.D.N.Y. March 9, 2010), SDNY Judges Daniels and Cedarbaum held that the fact that the defendants' funds and assets had been frozen in the parallel civil proceedings rather than the criminal case was of no matter:

[T]he present action involves asset freeze orders in civil actions, with Defendants also being tried in a parallel criminal proceeding. These unique circumstances require the court to pay particular attention to the Defendants' Fifth and Sixth Amendment rights. The Government has failed to cite any case law which stands for the proposition that a defendant is not entitled to use untainted funds, frozen in a civil action, in order to pay legal fees for his counsel of choice in a parallel criminal action.

Lawyers: Glenn Colton and Mark Flessner (defendant Walsh); Frederick Hafetz and Tracy Sivitz (defendant Greenwood); AUSAs John O'Donnell and Marissa Mole

SDNY Judge Analyzes Scope of Rule 16 Discovery

Tue, 23 Mar 2010 00:53:24 -0500

Under Rule 16, the government must turn over to the defense documents that are "material to preparing the defense." United States v. Ghailani, 2010 WL 653269 (S.DN.Y. June 21, 2010), the case involving the first Guantanamo detainee to be brought to the United States to face criminal charges, becomes the occasion for a notable analysis of the parameters of Rule 16's reach, in particular, the definition of "government" in that rule. Does it, for example, reach vertically up through the D.O.J. in D.C, into the oval office?

Rule 16 Discovery for Speedy Trial Motion

First, the court queried whether Rule 16 applied at all to an affirmative defense unrelated to the prosecution's case-in-chief, citing dictum in United States v. Armstrong, 517 U.S. 463 (1996). Neither party had addressed the issue, and the court proceeded on the assumption that Rule 16 permitted discovery in support of the speedy trial motion at issue here.

Work Product Excluded From Rule 16

One of the documents the defendant sought under Rule 16 was a bullet point memorandum sent from the USAO in the SDNY to the DOJ in Washington that was "something of an order of proof with respect to Ghailani." The court held that this was not discoverable "regardless of its materiality," because it was government work product, which is protected from disclosure under Rule 16(a)(2).

(I note that Rule 16(a)(2) exempts work product "[e]xcept as Rule 16(a)(1) provides otherwise," and since Rule 16(a)(1) requires disclosure of documents that are "material to preparing the defense," there is an argument - without any case law support that I know if, I hasten to add - that under the plain language of Rule 16, materiality trumps the work product privilege.)

What is the "government" for Rule 16 purposes?

The issue then turned to the defense request for the disclosure of all communications between various branches of government indicating that the decisions to move Ghailani between various places of detention were not related to national security. These communications were material to the speedy trial motion because the government had claimed in part that "national security justified delaying Ghailani's federal prosecution."

The trickier question was the meaning of the term "government" under Rule 16. Does it extend "beyond the USAO and the trial team up into Main Justice and the FBI and, if so, how far?" The government argued that "the government" is co-extensive in the Rule 16 and Brady contexts. In the latter context, "courts have held that prosecutors are under a duty to disclose not only exculpatory evidence known to the prosecutors, but also to 'others acting on the government's behalf in the case, including the police.'"

Finding it "unnecessary, in the unique circumstances of this case" to decide the issue (but noting that the government's position was "not quite as compelling as it first appears"), the court reached a "practical interpretation of Rule 16" in this case that would be fair to the defendant and would not unduly hamper the prosecution. He concludes "the term 'government' includes individuals at DoJ who participated in advising on or making the decisions regarding Ghailani's prosecution." He explains:

Even if those officials had no other involvement with Ghailani's investigation or prosecution, the decisions at issue were so important to the timing and progress of this case that participation in the decisionmaking renders those individuals members of the prosecution team, at least to the extent of that participation.

Lawyers: Peter Quijano, Gregory Cooper, Michael Bachrach (Defendant); AUSAs Michael Farbiarz, Nicholas Lewin

Two District Judges Order Improvements in Defendants' Conditions of Incarceration

Tue, 23 Mar 2010 00:49:40 -0500

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.

Second Circuit Slaps Down Effort to Dispose of Sentence Appeal Via Summary Affirmance Motion

Wed, 17 Mar 2010 00:29:28 -0500

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

Lawyers in the Dock: EDNY Judge Acquits Law Associate of Witness Tampering

Wed, 17 Mar 2010 00:24:40 -0500

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.”

Comment

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.

EDNY Judge Imposes Below-Guidelines Five-Year Sentence in Securities Fraud Case

Wed, 17 Mar 2010 00:20:57 -0500

EDNY Judge Weinstein’s much publicized sentencing decision in the securities fraud case, United States v. Butler, 2010 WL 234848 (E.D.N.Y. January 22, 2010), is notable for three reasons: the judge’s consultation with an advisory panel of judges before imposing sentence; the below guidelines sentence of five years, despite a government demand for a fifteen-year sentence and a potential guideline range of life in prison; and the court’s recognition that pervasive corruption on Wall Street undermines the deterrent effect of long prison sentences.

Advisory Panel of Judges

Given the sentencing complexities of the case, Judge Weinstein asked the Chief Judge to convene “an advisory panel of judges of the court and an expert on sentencing guidelines from the Probation Department” to meet with him before the sentence. This practice existed prior to the adoption of the Sentencing Guidelines and had been reinstituted in the EDNY after Booker. Quoting an article about Professor Daniel Freed, Judge Weinstein points out that noted commentators like Freed “had urged judges to reason among themselves about sentencing.”

Guideline Calculation and Sentence

Butler had been convicted after trial of securities fraud, among other charges, arising out of his sale of auction-rate securities. The government claimed the offense generated $1.1B in losses, and sought a prison sentence of 15 years (although their loss calculation yielded a guideline of life in prison and a statutory cap of 45 years). The defense asked for probation. The advisory panel counseled a sentence of between 6 and 10 years. Finding that the losses were impossible to determine (in part, because the victims’ securities were impaired but may over time “prove to possess some or all of the value of the original investments”), Judge Weinstein calculated a guideline range of 87 to 108 months, based on Butler’s gain ($250,000). He imposed a sentence of five years, citing the defendant’s family circumstances and prospects for rehabilitation as grounds for a below-Guidelines sentence.

Deterrent Effect of Long Sentence in Financial Fraud Case

Among the sentencing factors a district judge must consider is the general deterrent effect of the sentence. Adopting a novel view of contributory negligence in sentencing, Judge Weinstein points out (with some reason) that “the general deterrence value of sentencing may pale in comparison to the opportunities for short-term financial gain attainable by fraud such as defendant’s.” He goes on to say: “The staggering sums involved in this case reflect more than the magnitude of the defendant’s fraud. They also evince an industry beset by avarice that has been allowed to run rampant by regulators and negligent supervisors alike.”

Comment

There is a body of research in social psychology demonstrating that people will moderate their views when they believe they will be involved in face-to-face discussion with people who hold different views. Group discussion among people of like-minded views tends to lead to polarization (i.e. more extreme views), but the likelihood of a panel of advisory judges who all share the views of the sentencing judge is statistically small. It is notable that none of the judges on Judge Weinstein's advisory panel supported a sentence higher than 2/3 of the sentence advocated by the government, and anything remotely close to the 45-year sentence dictated by the government’s loss calculation. There are more than a few BOP inmates languishing under senseless, onerous sentences, who would surely have benefited from the kind of tempering, deliberative sentencing process encouraged by sentencing panels. It has the additional advantage of giving the sentencing judge the shield of consensus.

Lawyers: Paul Weinstein, Jean Babcock, Emmet, Marvin and Martin, LLP, Steven Molo, Molo Lamken, LLP (defendant); AUSAs Greg Andres, Daniel A. Spector, John P. Nowak, Claire Kedeshian.

Second Circuit Upholds Forfeiture Money Judgments

Thu, 11 Mar 2010 12:46:22 -0500

Just after this blog highlighted Judge Gleeson's thoughtful decision in Surgent holding that personal money judgments are not authorized in forfeiture proceedings, see here, the Second Circuit rules otherwise in United States v. Awad, 07-4483-cr (2d Cir. March 11, 2010). Forfeiture money judgments may be imposed as part of a defendant's sentence under 21 U.S.C. § 853(a), and such judgment "does not depend on a defendant's assets at the time of sentencing." The Court specifically notes Judge Gleeson's decision in Surgent and finds its reasoning "unpersuasive."

As the [Awad] district court reasoned, when "a defendant lacks the assets to satisfy the forfeiture order at the time of sentencing, the money judgment . . . is effectively an in personam judgment in the amount of the forfeiture order." . . . This is so because "[m]andatory forfeiture is concerned not with how much an individual has but with how much he received in connection with the commission of the crime." . . . A contrary interpretation could have the undesirable effect of creating an incentive for an individual involved in a criminal enterprise to "rid[] himself of his ill-gotten gains to avoid the forfeiture sanction."