New York Federal Criminal Practice

Second Circuit Issues Notable Decisions Applying Rule of Lenity

Sat, 21 Jan 2012 11:20:11 -0500

The New York State Association of Criminal Defense Lawyers recently published its winter edition of Atticus, showcasing the two impressive honorees at the upcoming annual dinner of the NYSACDL Foundation, Chief Judge Jonathan Lippman and David Ruhnke, Esq. In it, I also have an article addressing three recent Second Circuit decisions of note: United States v. Banki (reach of a regulatory crime narrowed under the rule of lenity); United States v. Lee (government abused its authority when it withheld a third “acceptance of responsibility” point because the defendant had challenged errors in his presentence report); and United States v. Rivera (ameliorating “shameful inequalities” of crack-cocaine disparity by applying the rule of lenity to an ambiguous sentencing guideline). It is available here.

The NYSACDL Foundation’s annual dinner is this Thursday, January 26, at the Prince George Ballroom. If last year’s elegantly fast-paced event is anything to go by, this will be a memorable celebration of two champions of criminal defendants’ rights and indigent defendants in particular, and the New York State criminal defense community in general. Tickets (which are fast disappearing) are available here.

Finally, a belated Happy New Year to my loyal readers from snowy Minnesota, where I have assumed a position as Practitioner in Residence at the University of Minnesota Law School for the 2011-12 academic year.

Second Circuit Issues Notable Rulings on Prior Bad Acts and Knowledge in Conspiracy Cases

Sun, 17 Jul 2011 17:20:55 -0500

The NYSACDL has published its latest edition of Atticus, downloadable here, featuring this author's column "Second Thoughts." This quarter, I consider the Court's decisions in Curley (admissibility of prior-act evidence involving the defendant and others), Cedeno (right of defense to cross-examine a detective regarding a prior adverse credibility finding against him)) and Andino (scienter of drug type and quantity in drug conspiracy cases). There is also a fascinating account by Steve Zissou of his experience on the Ghailani defense team.

Second Circuit Issues Notable Rulings on Two-Step Miranda Procedure, Factual Underpinnings of Sentencing and IAC Prior to Sentencing

Mon, 14 Mar 2011 21:37:18 -0500

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.”)

Second Circuit Reverses Fraud Conviction with Notable Nugget for Alleged Insider Traders

Wed, 12 Jan 2011 16:19:47 -0500

Guest blogger Valerie A. Gotlib of Sher LLP writes:

Buried in the impressive reversal of the fraud conviction of Mark Kaiser, an executive at U.S. Food Services (“USF”) in United States v. Kaiser, 609 F.3d 556 (2d. Cir. 2010), issued last summer, is a quotable acknowledgement that insider trading is a very different and unique kind of securities fraud, deserving of a heightened level of scienter. As the Court notes, “[u]nlike securities fraud, insider trading does not necessarily involve deception, and it is easy to imagine an insider trader who receives a tip and is unaware that his conduct was illegal and therefore wrongful. The same cannot be said of one who deliberately misleads investors about a security.”

In addition to that notable dictum, the court held that the district court committed two independent errors. First, the district court instructed the jury with respect to conscious avoidance without informing the jury that it could find that Kaiser had knowledge of the fraud if he was aware of a “high probability” of its existence unless he “actually believed” that it did not exist. Second, the district court admitted double hearsay when it allowed a USF employee, Tim Lee, to testify that USF’s CEO had told Lee that USF’s general counsel wanted to go to the SEC to expose Kaiser’s improper accounting entries. The Second Circuit found that both errors were grounds for reversal.

Facts

As one of the largest food distributors in the United States, USF was in the business of purchasing food products from manufacturers and selling them to restaurants. Between 1994 and 2001, Kaiser managed the company’s dealings with its food vendors. An important source of revenue for USF was derived from “promotional allowances,” or “PAs,” a type of rebate paid to USF by vendors upon satisfaction of certain purchasing targets. Part of Mr. Kaiser’s job included negotiating PAs with vendors. Early in 2001, Mr. Kaiser was named Chief Marketing Officer of USF, but he continued to be involved in negotiating PAs.

The indictment alleged that Mr. Kaiser fraudulently inflated USF’s PA income for the years 2001 and 2002, hid the inflated numbers from outside auditors, and made various misrepresentations to the auditors concerning the PA agreements with vendors. The scheme included recording prepayments from vendors as income and, thereby, artificially inflating the amount of revenue earned from PA payments to ensure that USF met its earnings and other budgetary targets. USF’s executives, including Mr. Kaiser, received bonuses only if USF met these targets.

At trial, the government presented a case based primarily on the testimony of three alleged coconspirators, including Tim Lee, who cooperated with the government and testified pursuant to plea agreements. Kaiser argued in his defense that he had been setup by the three USF employees and had been unaware of the fraud. Kaiser was convicted of securities fraud, making false filings with the SEC, conspiracy to commit those crimes, and conspiracy to falsify books and records. Kaiser appealed.

Conscious Avoidance Jury Instruction

On appeal, Kaiser argued that the district court’s jury instructions with respect to conscious avoidance omitted two necessary elements: “that knowledge of the existence of a particular fact is established 1) if a person is aware of a high probability of its existence, 2) unless he actually believes that it does not exist.” United States v. Schultz, 333 F.3d 393, 413 (2d Cir. 2003) (internal quotations marks omitted) (emphasis added). The court reviewed Kaiser’s conscious avoidance argument for plain error because he had failed to raise an objection to the instruction at trial.

The court held (and the government conceded) that the district court erred in instructing the jury on conscious avoidance because it “did not contain either the ‘high probability’ or the ‘actual belief’ language,” which the court had “long held is essential for an accurate conscious avoidance instruction.” 609 F.3d at 566. The government argued nonetheless that there was no prejudice from the instruction in light of the overwhelming evidence that Kaiser had actual knowledge of the fraudulent scheme. The court disagreed and found that there was a risk that the jury convicted Kaiser based on its conclusion that he was merely negligent and could have convicted him even if it found that Kaiser actually believed the PA numbers were correct. Because there was ample evidence for the jury to question the credibility of the government’s witnesses, the court concluded that there was a reasonable probability that the jury convicted Kaiser based on a conscious avoidance theory and would not have done so but for the instructional error. The court further held that the error seriously affected the fairness, integrity or public reputation of judicial proceedings and thus met all of the requisite elements for a finding of plain error.

Admission of Hearsay Statement of USF’s General Counsel

Kaiser also argued on appeal that the district court erred in admitting certain testimony. Lee testified that the CEO of USF told him that USF’s general counsel had discovered that Kaiser improperly had booked $18.5 million in prepayments as income and that the general counsel wanted to report this to the SEC. Kaiser objected at trial on the ground that it was double hearsay. The government countered that the testimony was admissible as a statement of an unindicted coconspirator under FRE 801(d)(2)(E) and that the statement was in furtherance of the conspiracy. The district court held that the statement was admissible for the limited purpose of explaining why Lee and the CEO engaged in certain subsequent acts.

On appeal, the Court held that the statement constituted hearsay and did not fall into any of the hearsay exceptions. The court observed that even if the government could have overcome the hearsay objection, the statement would have been inadmissible under FRE 403 because its prejudicial effect outweighed its probative value. Indeed, because of the highly prejudicial nature of the testimony and the risk that the jury could have given it more credence since it came from USF’s general counsel, who was not a co-conspirator, the court concluded that the error was not harmless.

Willfulness Instruction

The Court, however, rejected the defense challenge to the district court’s instruction on willfulness. Acknowledging that insider trading is different (as noted earlier), the Court concluded that securities fraud charges like those at issue in Kaiser required merely that the defendant “had an awareness of the general wrongfulness of his conduct” and “do not require a showing that a defendant had awareness of the general unlawfulness of his conduct.” Here, the jury was charged that they had to find that Kaiser knew the statements were “false and fraudulent” and that he made those statements “with intent to create a deception,” and the government had to prove “the contrary of the idea of mistake or good faith.” If the jury found that Kaiser possessed such an intent, as it did, “it follows necessarily that it also concluded that there was “a realization on the defendant’s part that he was doing a wrongful act.”

Lawyers: Alexandra Shapiro (Macht, Shapiro, Arato & Isseries, LLP) and Richard Morvillo, Andrew Frey, Peter White, Charles Rothfeld, Daniel Brown and Michael Passaportis (Mayer Brown LLP) for defendant; AUSAs Daniel Chung, Daniel Braun.

SDNY Judge Finds Spousal Relationship is Predicate for Insider Trading Charges Based on Misappropriation Theory

Wed, 12 Jan 2011 16:10:48 -0500

Despite the Supreme Court’s view in United States v. O’Hagan, 521 U.S. 642 (1997), that the misappropriation theory of insider trading is not an “all-purpose breach of fiduciary duty ban,” it has become that and more – capturing relationships not typically viewed as fiduciary ones, and tippees multiple levels removed from the source of the information. The theory holds that a person violates Section 10(b) of the Securities Exchange Act and its related Rule 10b-5 when s/he misappropriates material non-public information for trading purposes in breach of a fiduciary or fiduciary-like duty owed to the source of the information. One problem, as Justice Scalia identified in United States v. Skilling, 130 S. Ct. 2896 (2010), when addressing the similarly fraught concept of honest services, is not just determining whether a fiduciary relationship exists, but what obligations that fiduciary owes in light of case-law that remains “hopelessly undefined.” The situation is amply illustrated in United States v. Corbin, 2010 WL 4236692 (S.D.N.Y. October 10, 2010), in which SDNY Judge Marrero – meticulously applying Second Circuit precedent – held that marriage can be the fiduciary relationship predicating a charge of insider trading. Moreover, a tippee defendant like Corbin may face criminal insider trading charges despite the fact that he had no relationship either with the source of the information or the individual who owed a duty to the source.

Facts

Corbin was charged with securities fraud arising out of his alleged trading on material, nonpublic information he received from a separately-charged co-conspirator, Matthew Devlin. Devlin, in turn, received the information from his wife, an employee at an international communications firm that provided services to companies engaged in mergers and acquisitions. Policies in place at her firm required Devlin's wife to maintain the confidentiality of information she learned regarding the firm's clients. Apparently unable to honor these policies at home, she had a "domestic confidentiality policy of sorts" with Devlin, requiring him not to use or share any confidential firm information she imparted to him. Despite this, Devlin passed the information on to Corbin and another, who made substantial profits trading on the tips emanating from the woman they dubbed the "golden goose." The government premised the insider trading charges against Corbin on the misappropriation theory, hypothesizing that Corbin had obtained the material, nonpublic information in violation of the duty of trust and confidence that existed between Devlin and his wife. Corbin moved to dismiss under F.R.Crim.P. 12(b)(2) and 12(b)(3), arguing that the application of misappropriation theory to him was unconstitutional because the Devlins’ relationship was not a fiduciary relationship as a matter of law.

Holding

The court rejected Corbin's constitutional challenge, finding that a duty of trust and confidence existed between the Devlins on three separate bases (all of which are set forth in the SEC's Rule 10b5-2(b)): an agreement between them that Devlin would maintain the information in confidence; a history of sharing confidences with an expectation that confidentiality would be maintained; and the spousal relationship itself. The court noted that in addition to being codified in Rule 10b5-2, the Second Circuit has expressly adopted the duty Corbin was charged with violating in United States v. Chestman, 947 F.2d 551 (2d Cir. 1991) (holding that the dynamic in certain marital relationships can constitute a fiduciary-like relationship for insider trading liability). The court also rejected the argument that Rule 10b5-2 was unconstitutional because the SEC exceeded its authority in promulgating it.

Comment

The Supreme Court approved the misappropriation theory in O’Hagan in the context of a lawyer who had traded on information he stole from his law firm’s client. Thus, O’Hagan had breached an archetypical fiduciary duty that he himself owed to the source. Corbin, by contrast, obtained the information from someone who owed an unusual duty to a conduit of the information. The expansion of misappropriation theory to encompass such attenuated tippees and novel duties makes it ripe for a void-for-vagueness constitutional challenge. While the court’s holding in Corbin is entirely consistent with Second Circuit precedent, that precedent may not survive Supreme Court scrutiny. Like § 1346 and its elusive predicate “the intangible right to honest services,” we can expect that when the Supreme Court addresses misappropriation theory again, it will - at the very least - “pare [it] down” to “paramount applications” presenting no vagueness problem (Skilling, 130 S.Ct. at 2928).

Second Circuit Issues Notable Decision Finding Procedural Error in Sentence of Cooperating Career Offender

Mon, 03 Jan 2011 08:12:03 -0500

One of the Second Circuit’s last published criminal decisions of 2010 is also one of the most notable sentencing decisions of the year. In United States v. Preacely, 2010 WL 5156384 (2d Cir. December 21, 2010) – a case that generated separate opinions from each member of the panel, including a dissent from Judge Raggi – the Court vacated on procedural grounds the sentence imposed on a cooperating career offender because of the district court’s possible misapprehension of its power to depart from the career offender guideline. The case is an important reaffirmation of a district court’s power – and in some cases, duty – to depart from or reject entirely the “remarkably severe” career offender guideline, and its obligation to give effect to post-offense rehabilitation.

Facts

Preacely pled guilty to crack distribution under a cooperation agreement and was released on bail. Between arrest and sentencing, he underwent “exceptional rehabilitation,” overcoming a daily marijuana habit, participating in pro-active cooperation leading to “several successful criminal investigations,” completing two work training programs, and “dramatically transform[ing] his personal life” through marriage, parenting and becoming a youth advisor for the Nassau DA’s gang prevention program.

Preacely’s presentence report determined that he was a “Career Offender” as defined under the Sentencing Guidelines, a category that resulted in a dramatic bump both of his offense level and criminal history category. His applicable guideline was therefore 188-235 months in custody. Rejecting defense counsel’s request for a sentence of time-served (about two years), EDNY Judge Platt noted repeatedly that he could not ignore the fact that he was dealing with a “Category VI” offender (the category to which career offenders are automatically assigned), and imposed a sentence of 94 months, exactly half of the low end of the recommended guideline range.

Holding

In a decision written by Ninth Circuit Judge Wallace (sitting by designation), the Court held that it was unclear from Judge Platt’s repeated emphasis of Preacely’s status as a Category VI career offender that he understood he was free to reject the career offender classification entirely. Evidence of Preacely’s rehabilitation was “particularly relevant to determining whether the Career Offender Guideline was appropriate,” but Judge Platt’s statement that he was “dealing with a Category VI career offender, regardless of all of what you said,” “reinforce[d] [the Court’s] doubt that the district judge fully understood his authority to depart from Category VI if it significantly over-represented the seriousness of Preacely’s criminal history and/or the likelihood that he will commit further crimes.” Accordingly, the Court remanded so that Judge Platt could consider that option.

Judge Lynch’s Concurrence

Adding his “common-sense” explanation for the decision, Judge Lynch described the career offender guideline as “a simplistic three-strikes policy,” which in Preacely’s case was “distinctly inflated” and “remarkably severe.” Premised on the likelihood that someone in that category “presents an extreme danger of committing more crimes,” it may not be the appropriate baseline for someone, like Preacely, who “had reformed, and no longer present[s] such a danger.” While the district court was not required to accept Preacely’s claims of reform, “[it] was required to consider those claims” and not simply to assume that he was dangerous based on his classification as a Category VI offender. Judge Lynch adds:

[I]t is extremely useful to give separate consideration to that aspect of the cooperation departure that operates as a pure reward to induce testimony, regardless of the defendant’s character, and the quite separate basis for mitigation that relates to a defendant’s potential reformation (which might be evidenced in part by his cooperation with the authorities).

Judge Raggi’s Dissent

In a dissenting decision, Judge Raggi took issue with the majority’s conclusion that Judge Platt may have misunderstood his power to depart from the career offender guideline, pointing out that he acknowledged on the record that he could depart as far down as a non-custodial sentence. Even if the majority was correct that there was some ambiguity on that score, she proposed that “the proper action would be to remand for clarification, not to vacate and order resentencing.”

Comment

As the authors point out in the excellent “Deconstructing the Career Offender Guideline” (and citing the Sentencing Commission’s own research), “[s]entences recommended by the career offender guideline are among the most severe and least likely to promote sentencing purposes in the United States Sentencing Guidelines Manual.” Preacely places that harshness in a stark light – relatively minor convictions catapulted him into the category, while his stunning post-arrest transformation established that he clearly did not belong among the incorrigible offenders for whom the category was written. Indeed, the subtext of the majority’s opinions in Preacely is that his sentence – cruelly returning a newly-productive individual back to prison for at least another five years – was substantively unreasonable. Preacely is therefore an important case not just on the power to depart from the career offender guideline, but the duty to depart from it where the defendant has presented compelling evidence that it should not apply to him. More generally, the case is an important precedent on a sentencing judge’s obligation to consider a defendant’s post-offense rehabilitation efforts, and, in cases involving cooperation, to give additional credit for that aspect of cooperation that reflects the defendant’s actual or potential reformation.

Lawyers: Yuanchung Lee (Federal Defenders of New York, Inc.); AUSA Thomas Sullivan and Susan Corkery

Second Circuit Issues Notable Decisions on Wiretaps, Batson and Sentencing

Thu, 04 Nov 2010 11:44:03 -0500

The NYSACDL has published its fall issue of Atticus. Judge Bellacosa has contributed an eloquent piece in support of open-file discovery, relevant both to state and federal prosecutorial practices, highlighting the success of a project in the Brooklyn DA's office, and advocating a state-wide statutory authorization, with uniform standards of application and accountability. Mark Hosken of the WDNY Federal Defender has contributed a notable piece on the Ex Post Facto Clause in a post-Booker world, and I have contributed a piece on some recent decisions from the Second Circuit, including the Rajaratnam and Amanuel cases on wiretaps, the Martinez case on Batson, and Ortiz on sentencing.

Second Circuit Issues Notable Decisions on Suppression, Omissions and Proffer Statements

Fri, 27 Aug 2010 00:32:43 -0500

The NYSACDL has published the second edition of its excellent revitalized Atticus. It's well worth checking out - Donna Newman gives a fascinating fly-on-the-wall account of the Russian spy case, and Donald Thompson has a moving essay on a wrongful conviction. I have also contributed a piece highlighting some recent Second Circuit cases, including three cases not previously mentioned in this blog: United States v. Julius (suppression); United States v. Sabhnani (liability for omissions, and also interesting on the issue of venue transfer and psychological evaluations of government witnesses); and United States v. Oluwanisola (proffer statements).

EDNY Judge Denies Rule 29 Motion but Issues Notable Comments on Government’s Disclosure Obligations

Thu, 05 Aug 2010 02:31:46 -0500

As Judge Gleeson pointed out recently in United States v. Mahaffy, 2010 WL 2925952 (E.D.N.Y. July 21, 2010), if a defendant’s interest in a fair trial is not reason enough, “one would think that the government’s selfish interest in the integrity and durability of the convictions it obtains would induce it to . . . err on the side of over-disclosure.” But when it comes to pretrial disclosure, prosecutors often act less like advocates for justice and more like adversaries in a chess game. It is an approach that is oddly counterproductive – leading to delayed dispositions and even appellate reversal.

In Mahaffy, the six defendants who went to trial in the case and were found guilty by the jury moved for a dismissal of the indictment, or, in the alternative, for a new trial, on the ground that the government failed to disclose the transcripts of 12 depositions taken by the Securities and Exchange Commission (“SEC”), which the defendants claim violated the government's disclosure obligations. Judge Gleeson denied the motion, finding that the depositions themselves did not contain sufficient favorable or exculpatory information as to have had a material effect on the verdict. He ends his decision, however, with this admonition to the government:

Notwithstanding the foregoing, I remain mystified by the government's failure to disclose the testimony of these various witnesses. I see no legitimate interest served by an approach that has the parties and the Court sifting through the transcripts of testimony taken by the SEC after the trial has already occurred-especially when the testimony was taken as part of the investigation that resulted in this very case. Nor do I see a justification for the decision by the government's trial team (which did not include any members of the team that handled the original trial) not to reconsider the disclosure decisions made by their predecessors. The disclosure obligations imposed by the federal rules, federal statutes and the Constitution are too important, and too easily complied with, to justify such an approach. Even if the prosecutors are not sufficiently motivated, as they should be, by the defendants' interest in a fair trial, one would think the government's selfish interest in the integrity and durability of the convictions it obtains would induce it to consider its disclosure obligations on an ongoing basis, and to err on the side of over-disclosure unless well-grounded concerns about particular witnesses or other investigations counsel otherwise. My only concern in denying the pending motion is that it might have the effect of diminishing that selfish incentive. The government has assured me otherwise, and that changes have been made in the United States Attorney's office to ensure that similar failures do not occur in the future. Time will tell in that regard, but I note here that those procedures ought to include a requirement that the prosecutors in the case make contemporaneous records of their actions and decisions regarding disclosure in a manner that makes them accessible later on. . . .Whatever else the United States Attorney does in response to the disclosure guidance recently provided by then-Deputy Attorney General David W. Ogden, it should make sure that it can provide a complete accounting of its actions in future cases.

(emphasis added).

Of course, leaving this issue to the prosecutor’s sound judgment and good faith is like leaving the fox in charge of the henhouse, as the Second Circuit observed in Rodriguez. That’s why, to the extent possible, defense lawyers should try to identify and request specific Brady material in pretrial motion practice and request in camera review by the court if the government concedes the existence of the material but refuses to turn it over (as happened in Nogbou).

Second Circuit Reverses Due to Admission of Prejudicial Hearsay

Thu, 05 Aug 2010 02:28:24 -0500

Prejudicial hearsay is hardly ever introduced simply for its mere “context,” and the Second Circuit called out the government on a particularly egregious example of that in United States v. Gomez, No. 08-3829-cr (2d Cir., August 4, 2010).

The defendant was charged with ecstasy distribution. At his trial, the government elicited key testimony from a Detective Ryan, who had arrested Gomez’ co-conspirator Rivas, that Rivas had identified Gomez as his supplier. The communication was by inference: Ryan testified that he directed Rivas to call his supplier and Rivas called Gomez. Rivas did not testify. The government had argued that “the evidence was admissible for the proper, non-hearsay purpose of showing context, in that it explained how Ryan came to place a call to Gomez.” Gomez countered that the government had elicited from Detective Ryan inadmissible prejudicial hearsay testimony, which communicated to the jury that Rivas identified Gomez as his supplier.

The Circuit agreed, and did not find the error harmless, in part because the error also implicated the Confrontation Clause “the very concerns [of which] … are part and parcel of our harmless error analysis.”

The government continued insistence at the appellate level that the evidence was elicited for a contextual rather than prejudicial purpose so “puzzled and dismayed” the Court, that it added in a footnote:

[It bears repeating that:] The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he
may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

(quoting Berger v. United States, 295 U.S. 78, 88 (1935)).

Second Circuit Issues Notable Decision on Use of Psychologist's Report at Sentencing

Fri, 30 Jul 2010 23:28:48 -0500

The shift from a mandatory sentencing guideline regime to an advisory one has increased the importance of – and the district courts’ reliance on – expert evaluations of the defendant for sentencing purposes. This is especially true in cases where the defendant may pose a threat to the community upon release. In United States v. DeSilva, 2010 WL 2925863 (2d Cir., July 28, 2010), the Court reversed a 132-month sentence in a child pornography distribution case because the district court had erroneously relied on a psychologist’s report addressing the defendant’s potential dangerousness in the context of a bail application. In the process, the Court made some important observations about the use of a psychological report at sentencing, including acknowledging it may provide relevant mitigating evidence, and that a district court should explain its reasons in the event it rejects its conclusions.

Facts

The defendant, an admitted child molester, pled guilty to distributing child pornography. He faced a guideline range of 235-240 months. In sentencing him to 132 months, the district court relied in part on a psychological report of the defendant that concluded he was not a danger to the community. The report had been prepared for use at a pretrial bail hearing, and premised its dangerousness findings on the fact that any pretrial release would be into the defendant’s parents’ custody. The government appealed.

Holding

The Second Circuit agreed with the government that the district court had committed procedural error when it relied on the report “in so far as it entirely removed [the psychologist’s] opinion from the context in which it was rendered.” In particular, the Court noted that the report at issue “was conditioned on the premise that DeSilva would be released to his parents,’ and therefore was only of “minimal relevance” on the issue of his potential to molest children following his release from his term of imprisonment, when parental monitoring would not be on the cards.

Notably, the Court had this to say about psychological reports in general:

Although a psychologist’s report may provide mitigating evidence for the court’s consideration during sentencing, the court must still conduct an independent evaluation of the defendant in light of the factors set forth in 18 U.S.C. § 3553(a). If the psychologist’s report cannot be squared with the court’s own judgment of the defendant’s culpability and the danger he poses to society, the court is free, in its discretion, to decline to rely on the psychologist’s findings, so long as the court explains its basis for doing so.

Comment

In appropriate cases, psychological reports of the defendant can have a significant mitigating effect at sentencing – humanizing him in a way that the presentence report does not, elucidating his offense behavior in the context of his unique emotional and psychological deficits, and giving the sentencing judge security (and cover) in rejecting the applicable advisory guideline range. DeSilva reaffirms all of the above, with the simple and elementary caveat that if a psychological report is to be used at sentencing, it should not be recycled from another source, but should be tailored directly to the sentencing factors under 18 U.S.C. § 3553.

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.