Ed Sapone’s DECISIONS OF THE WEEK-January 18, 2019

| Jan 18, 2019 | Ed Sapone’s Decisions of the Week

This week’s decisions from the Second Circuit and SCOTUS reflect those courts’ focus

on two areas of continuing interest: overly broad supervised-release conditions (Eaglin),

and the definition of what constitutes a violent crime (Stokeling).

Second Circuit

On Friday (1/11), in United States v. Eaglin, the Circuit vacated two conditions of

supervised release imposed by NDNY following defendant’s conviction for failure to

register as a sex offender, and remanded for resentencing. The Circuit found that those

conditions, which banned defendant from accessing the internet without prior

permission and viewing or possessing adult pornography were an abuse of discretion.

In 2012, defendant was convicted of failing to register as a sex offender, in violation of

18 U.S.C. § 2250(a). In 2017, NDNY found that defendant violated certain conditions of

supervised release imposed as a consequence of the 2012 conviction. It imposed a

one‐year term of imprisonment to be followed by 11 years of supervised release.

On appeal, defendant challenged two conditions of his 2017 supervised release: a ban

on accessing the internet without prior specific permission of the court and a total ban

on viewing or possessing adult pornography. The Circuit found that the “sweeping”

conditions were an abuse of discretion.

Defendant had been convicted more than 15 years earlier, when he was only 21 and 22

years old, of having unlawful sexual relationships with two 13 year old girls. Since that

time, he’d “substantially, if imperfectly, complied with the terms of his extended periods

of supervised release.”

The Circuit found that the district court’s explanation for imposing these conditions was

“wanting.” It concluded that both the internet ban and the pornography ban were

substantively unreasonable on this record because the conditions were not reasonably

related to the relevant sentencing factors. Further, they imposed a greater restriction

than reasonably necessary to achieve the goals of sentencing in light of defendant’s

crime of conviction and his criminal history.

The Circuit’s decision can be found here.

The Circuit also upgraded the summary order it had released earlier in the week

in Gupta v. United States (discussed in last week’s summaries), to a precedential

opinion. The content of the decision was unchanged.

The precedential opinion can be found here.

Also on Friday (1/11), in United States v. Read, in a summary order, the Circuit affirmed

the conviction and sentence imposed by Judge Richard J. Sullivan upon defendant for a

violation of his supervised release. The Circuit rejected defendant’s substantive and

procedural reasonableness challenges to the above-guidelines sentence of 18 months

of imprisonment followed by 18 months of supervised release.

Defendant had previously been sentenced to, and served, a 33‐month sentence after

conviction as a felon in possession of a firearm. Within weeks of starting the three‐year

period of supervised release, defendant tested positive for marijuana. Over the next two

months, he repeatedly failed his drug tests. Probation referred him to an outpatient

treatment facility and a life skills development program at the courthouse. When

defendant came to attend the life skills program, a Court Security Officer found

marijuana in his pocket; he fled, knocking down the officer. He was arrested two days

later, and found to have violated conditions of his prior sentence. The advisory

sentencing guidelines range was 8‐14 months of imprisonment for the assault

specification, and 5‐11 months of imprisonment for the marijuana‐related specifications.

The district court imposed an above‐guidelines sentence of 18 months of imprisonment,

to be followed by 18 months of supervised released.

The Circuit rejected defendant’s procedural- and substantive-reasonableness

challenges, finding, among other things, that the court had not overemphasized the

seriousness of the violations as they related to the statutory factors of deterrence and

public safety.

The Circuit’s decision can be found here.

On Monday, in United States v. Kloszewski, in a summary order, the Circuit affirmed

defendant’s narcotics conspiracy convictions before SDNY Judge Alvin K. Hellerstein,

rejecting in short order his claims that (1) his indictment should have been dismissed

because the government had failed to preserve evidence from a cooperating witness’s

cell phone; (2) (a) the government’s failure to produce the contents of another cell

phone and (b) the district court’s refusal to permit him to cross‐examine an agent

Cunningham about a photograph sent from that phone were error; (3) there was a

Confrontation Clause violation because the court admitted recorded conversations

between himself and cooperators who were not called as witnesses; (4) the evidence

was insufficient, particularly with regard to venue and proof of intent to distribute

narcotics weighing at least five kilos; (5) the court erroneously discharged a juror for

lateness during the trial; and (6) his sentence was substantively unreasonable.

(1)

A case should be dismissed based on spoliation of evidence if: (1) the evidence

possessed “exculpatory value that was apparent before it was destroyed,” (2) the

defendant would be “unable to obtain comparable evidence by other reasonably

available means,” and (3) the government acted in bad faith. United States v.

Greenberg, 835 F.3d 295, 303 (2d Cir. 2016) (quotation marks omitted); see Illinois v.

Fisher, 540 U.S. 544, 547‐48 (2004); California v. Trombetta, 467 U.S. 479, 489 (1984).

“Failure to satisfy any of these requirements, including a failure to show the

Government’s bad faith, is fatal to a defendant’s spoliation motion.” Greenberg, 835 F.3d

at 303. The Circuit found, among other things, that the government did not act in bad

faith.

(2)

(a) The Circuit found that here was no obligation to produce the cell phone contents

because the requested communications did not relate to any witness’ testimony at

trial. See United States v. Pacelli, 491 F.2d 1108, 1118 (2d Cir. 1974).

(b) The Circuit found that the trial court properly exercised its discretion in precluding

cross‐examination concerning a “racy photograph” that the snitch sent to the agent. The

agent did not act inappropriately, and he quickly reported the photograph “up the chain

of command.” Cross‐examination may have “confused and distracted” the jury.

(3) The Circuit found that the trial court’s admitting recordings of defendant and a third

party did not violate the Confrontation Clause. The third party’s statements were used

only to “provide context, and not for the truth of what was said.” See, e.g., id.; United

States v. Paulino, 445 F.3d 211, 216 (2d Cir. 2006); United States v. Barone, 913 F.2d

46, 49 (2d Cir. 1990). Plus, the district court properly instructed the jury.

(4) The recordings of defendant’s conversations reveal sufficient evidence to sustain a

conviction. In one recording, defendant indicated that the target of the robbery

possessed 20-50 “bricks.” And the jury heard testimony that a “brick” refers to a

kilogram of narcotics, usually heroin or cocaine. Venue is proper when, as in this case,

an overt act is committed within the district.

(5) It was within Judge Hellerstein’s discretion, as he had enough information, to make a

proper determination as to whether the juror, who was late and could have delayed the

trial, should be excused. See United States v. Iverson, 897 F.3d 450, 465 (2d Cir. 2018)

(quoting United States v. Mulder, 273 F.3d 91, 108 (2d Cir. 2001)).

(6) “[I]n the overwhelming majority of cases, a Guidelines sentence will fall comfortably

within the broad range of sentences that would be reasonable in the particular

circumstances.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.

2006), abrogated on other grounds by Rita v. United States, 551 U.S. 338, 364

(2007). Here, defendant was sentenced within the guidelines. Plus, he had an

extensive criminal history and was not deterred from committing the instant

offense.

The Circuit’s decision can be found here.

On Monday (1/14), in United States v. Finch, in a summary order, the

Circuit vacated the sentence imposed by the late Leonard Wexler (EDNY), finding that

the sentence was procedurally defective because the record did not show that the court

had calculated or considered the appropriate guidelines range. Judge Wexler also failed

to provide reasons for the significant upward departure for the sentence the guidelines

would have suggested.

Defendant was sentenced to 18 months of imprisonment following his admission that he

violated the terms of his supervised release by using a controlled substance.

The Circuit found two procedural errors. First, the record did not show that the district

court had calculated or considered the appropriate guidelines range, as it was not

mentioned during the sentencing or in the written judgment.

Second, the court deviated from what would have been the guidelines range without

explanation. Defendant pleaded to a Grade C violation, see U.S.S.G. § 7B1.1(a)(3), and

had a criminal history category of II, making the guidelines range four to 10 months of

imprisonment, id. § 7B1.4(a). The district court imposed almost twice that sentence,

without explanation.

The Circuit therefore remanded for resentencing.

The Circuit’s decision can be found here.

United States Supreme Court

On Tuesday, in Stokeling v. United States, the Supreme Court, in a close 5-4 decision,

affirmed the 11th Circuit’s decision, holding that the ACCA’s elements clause

encompassed Florida’s robbery offense, which required as an element the use of force

to overcome the victim’s resistance.

Defendant pleaded guilty to possessing a firearm and ammunition after having been

convicted of a felony. Based on his prior criminal history, the probation office

recommended the mandatory minimum 15-year prison term that the Armed Career

Criminal Act (ACCA) provides for §922(g) violators who have three previous convictions

“for a violent felony,” §924(e). Defendant objected that his prior Florida robbery

conviction was not a “violent felony,” which ACCA defined, in relevant part, as “any

crime punishable by imprisonment for a term exceeding one year” that “has as an

element the use, attempted use, or threatened use of physical force against the person

of another,” §924(e)(2)(B)(i).

Defendant argued that he did not qualify under the “elements clause” because the

Florida robbery offense did not have as an element the use, attempted use, or

threatened use of physical force. The Government did not argue that Florida robbery

should qualify under §924(e)(2)(B)(ii), because robbery is not among those listed in the

enumerated offenses clause and the Court held the “residual clause” unconstitutionally

vague in Johnson v. United States, 576 U. S. ___ (2015).

The district Court held that defendant’s actions during the robbery did not justify an

ACCA sentence enhancement, but the Eleventh Circuit reversed. The Supreme Court,

in an unusual lineup, defined “physical force” as a quantity of “force capable of causing

physical pain or injury.” Thomas authored the majority, and was joined by Breyer, Alito,

Gorsuch, and Kavanaugh.

In United States v. Johnson, 559 U.S. 133, 140 (2010)(not the Johnson that held the

residual clause unconstitutionally vague), the Court had used words such as “severe,”

“extreme,” “furious,” and “vehement” when it defined physical force. But in his majority

opinion in Stokeling, Thomas held that Johnson “did not require any particular degree of

likelihood or probability that the force used will cause physical pain or injury; only

potentiality.” Physical force, under this definition, included robbery offenses, like the

Florida offense, that required the criminal to overcome the victim’s resistance.

In a dissent joined by Roberts, Ginsberg, and Kagan, Justice Sotomayor wrote that the

ruling distorted the meaning of physical force the Court had previously stated in

Johnson.

The Court’s decision can be found here.

Appellate Division, First Department

On Tuesday, in People v. Ortiz, the First Department reversed defendant’s Bronx

County convictions for first-degree assault and burglary, finding that Justice Cirigliano

had made a number of errors, including allowing the admission of cell-tower-range

evidence without an appropriate expert, improper identification bolstering, unbalanced

marshaling of the identification evidence during final instructions, improper denials of

defense requests for missing-witness instructions, and the improper handling of a jury’s

interaction with a court officer.

First, during trial, the court permitted a T-mobile subpoena compliance agent to testify

that on the date of the attack two calls were made from defendant’s cell phone, which

were transmitted to a cell tower at a given location in the Bronx. She gave her opinion

that defendant’s phone had to be within two miles of that tower, which was located a

block from the victim’s apartment. The First Department found that the witness was

unqualified to provide that opinion, because she was not an engineer, and had no

engineering background.

Second, the First Department found error with the trial court’s decision to permit a police

officer to testify twice, over defense objection, that the victim had identified her attacker

as “male Hispanic, bald, by the name of Jose Ortiz.” Testimony by a police officer to a

previous identification of the defendant by another witness is inadmissible.

Third, the First Department found that the court had seriously mishandled the

identification evidence in its final instructions. The judge had “improperly highlighted the

identification evidence favorable to the prosecution” when he told the jury, among other

things, that the testimony “serve[d] to establish that the defendant” was the perpetrator,

and that the complainant had identified defendant when her “memory was fresher than

at present.”

Fourth, during the trial, a juror revealed that he had an interaction with a court officer

that left him feeling “really … violated, … really disrespected,” and “upset about the

whole situation,” even after speaking to the officer’s superior. When the issue was

brought to the judge’s attention, the judge acknowledged that he could see in the juror’s

face how upset he was. The judge offered to adjourn proceedings for the rest of the day

to give the juror an opportunity to process what happened, and relax, and to then report

whether he could be fair to both parties. The record contained no discussion with the

juror the following day to ensure that he could pay attention and be fair to both parties.

The First Department faulted the judge for leaving unresolved the question of whether

the juror was grossly unqualified to serve due to any ongoing inability to be fair and

focus on the case at hand. It fell short of the “probing and tacful” inquiry that was

required.

The First Department’s decision can be found here.

Appellate Division, Third Department

On Thursday (1/17), in People v. Hakes, following defendant’s unsuccessful appeal to

the Court of Appeals on the question of whether a defendant could be forced to pay for

a Secure Continuous Remote Alcohol Monitoring (SCRAM) device as a condition of

probation, the Third Department reversed the Sullivan County Court’s revocation of

defendant’s probation, finding that defendant had not willfully violated probation by

failing to pay for the cost of monitoring.

The Third Department found that County Court erred in finding that the People

established by a preponderance of the evidence that defendant violated the terms and

conditions of his probation by willfully refusing to pay or failing to make sufficient good

faith efforts to pay the cost of the SCRAM monitoring. AD3 concluded that defendant

had not refused to pay the $11-a-day cost, but had been unable to make that payment.

It concluded that the hearing testimony established that defendant made sufficient bona

fide efforts to acquire the fiscal resources to pay the costs associated with SCRAM

monitoring and that he could not do so as a result of his indigence, which resulted, at

least in part, from serious injuries that he’d sustained after his release from jail. AD3, in

a showing of compassion, required County Court to “consider alternate measures of

punishment other than imprisonment,” which the court failed to do.

The Third Department’s decision can be found here.

In People v. Degnan, the Third Department reversed defendant’s Broome County

second-degree burglary conviction, finding that the evidence was insufficient to show

that defendant had entered a dwelling with the intent to commit a crime therein.

The People argued at trial that, indicative of a consciousness of guilt relating to

separate sex-offense charges, defendant unlawfully entered a dwelling to evade arrest

and that sometime thereafter he formed an intent to steal several articles of clothing.

The People’s theory failed to establish any evidence that could provide a valid line of

reasoning and permissible inferences from which a rational juror could have concluded

that, at the time of entry, defendant had a larcenous intent. Absent legally sufficient

proof of the intent element, the conviction for burglary in the second degree was based

on insufficient evidence.

The Third Department’s decision can be found here.

In People v. Kaplan, the Third Department reversed defendant’s Warren County

conviction for making a terroristic threat, finding the evidence insufficient to establish

that defendant intended to influence a policy of a governmental unit by intimidation or

coercion, or that he intended to affect the conduct of a unit of government by murder,

assassination or kidnapping.

Defendant was arrested in July 2015 for an incident that occurred in the Town of

Horicon, Warren County. The sheriff’s office held as evidence items that were in his

possession when he was arrested, including a cell phone, police scanner, $2,707 in

U.S. currency, and rolling papers.

On August 2, 2016, the Chester Town Court issued a certificate of disposition (“CD”)

reporting that the case against defendant that arose from his 2015 arrest was

concluded. The CD did not identify the charges or the disposition of the charges; it

simply reported that the record was sealed.

Also on August 2, 2016, defendant presented the CD to Courtney Howse, the sheriff’s

office evidence custodian. He then requested the return of his personal property. Howse

denied that request, because (1) the CD was insufficient as it did not specify the manner

of disposition of the charges and, (2) policy precluded her from releasing personal

property held as evidence until 30 days after disposition of the case. Howse testified

that defendant grew angry. When he went to leave, she heard him say that he would

“come back and shoot the place down.”

Defendant was arrested and charged by indictment with making a terroristic threat.

Following a jury trial, he was convicted as charged and sentenced to five years of

prison, followed by three years of post-release supervision.

As relevant here, “[a] person is guilty of making a terroristic threat when[,] with intent to .

. . influence the policy of a unit of government by intimidation or coercion, or affect the

conduct of a unit of government by murder, assassination or kidnapping, he or she

threatens to commit or cause to be committed a specified offense and thereby causes a

reasonable expectation or fear of the imminent commission of such offense.”

The Third Department found that there was no evidence that defendant intended to

influence a policy of a governmental unit by intimidation or coercion; nor did he intend to

affect the conduct of a unit of government by murder, assassination or kidnapping.

Howse testified that, as defendant exited the building, he was mumbling to himself and

she “heard the word shoot.” She then asked defendant what he had said, and he

replied, “come back and shoot the place down.” Defendant made no statement relating

his threat to any policy or demanding that it take any specific action.

While the Third Department cautioned that it did not condone defendant’s statement, in

its view, defendant’s threat to “shoot the place down” — made in response to Howse’s

inquiry — did not evince an intent to influence policy or actions. It reflected his vented

anger that his property wasn’t returned.

The Third Department’s decision can be found here.

Warm regards,

Edward V. Sapone

Sapone & Petrillo, LLP

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