Ed Sapone’s DECISIONS OF THE WEEK-March 21, 2019

| Mar 21, 2019 | Ed Sapone’s Decisions of the Week

The Second Circuit published two interesting precedential opinions this week, finding: (1) in Black that a defendant in the WDNY was denied his Sixth Amendment right to a speedy trial (third time in two years that the Circuit has found a 6thAmendment speedy trial violation), and (2) in Mehta that an NDNY judge had improperly engaged in an ex parteconference with jurors. The New York state appellate courts were quiet, but the NY Court of Appeals should be releasing a few decisions next week.

Second Circuit

On Monday, in United States v. Black, the Circuit affirmed WDNY’s grant of defendants’ motion to dismiss the charges against them, which included Hobbs Act conspiracy, kidnapping, and murder charges, on speedy trial grounds, agreeing with the district court that the 68-month delay in bringing defendants to trial violated their Sixth Amendment rights, rebuking WDNY for the third time in two years for a speedy trial violation. See United States v. Tigano, 880 F.3d 602 (2d Cir. 2018); United States v. Pennick, 713 F. App’x 33 (2d Cir. 2017)(summary order).

On March 6, 2012, a grand jury indicted defendants Black, Rodriguez, and Green on one count of Hobbs Act conspiracy. Rodriguez was arraigned on the charge on March 7, Green on March 9, and Black on March 13. Although Black, Green, and Rodriguez were all confined in federal custody during the pendency of this case, each was detained under different circumstances. Black was serving a state sentence when he was arraigned on the federal charges; Green was arrested and detained on February 24, 2012, to answer to the charges in this case; and Rodriguez was at large at the time of the indictment and was subsequently arrested and detained on March 7, 2012.

While the government contemplated its death-penalty decision, the parties engaged in litigation about missing photo arrays. In December 2014, the government filed a superseding indictment that included murder charges. The charges were filed days before the statute of limitations was set to run on certain charges, and made defendants eligible for the death penalty. But in January 2015, the government informed the parties that it would not seek the death penalty. Pretrial proceedings began anew on the superseding indictment, including suppression hearings in May 2015, post-hearing briefing that

spanned from September 2015 to January 2016, and the resolution of several conflict-of-interest motions that were not resolved until June 2016. Resolution of objections to the magistrate’s decisions deferred the case until April 2017. At a May 2017 status conference, the matter was put over for trial on October 31, 2017.

Counsel submitted a motion to dismiss the superseding indictment on speedy trial grounds which was fully briefed before the jury reached a verdict. The jury was sworn and opening statements began in November 2017. On January 17, 2018, the jury returned a partial verdict that acquitted Green and Black of kidnapping, and, on January 18 hung on the remaining counts.

In an opinion dated February 8, 2018, the district court granted the motion to dismiss on speedy trial grounds. A majority of the Circuit panel, composed of Judges Jon O. Newman and Rosemary Pooler, affirmed. First, the Circuit found that the nearly five-year, eight-month delay was “extraordinary,” and presumptively prejudicial. The Circuit found that the relevant interval was from the first indictment or arrest to trial, as that is when the confinement began, and not when the superseding indictment was filed. The Circuit found that the “neutral delay” should be charged to the government, even though it was neither deliberate or in bad faith. The Circuit specifically faulted the government for (1) its more than two-year delay in deciding whether to seek the death penalty; (2) the five months of delay in managing its case in relation to the lost photo array, which it found “particularly egregious”; (3) the delay occasioned by its decision to seek a superseding indictment; and (4) other “smaller ‘neglects’” including the failure to produce defendants and witnesses.

Ultimately, the Circuit found that the factors balanced in favor of dismissal: “The government bears responsibility for making no effort to resolve the death-penalty question for two years, for waiting until the eve of the expiration of the statute of limitations to file a superseding indictment, for losing key evidence, and for repeatedly failing to produce” defendants for court appearances.

In dissent, SDNY District Judge Denise Cote, sitting by designation, concurred in the dismissal of the counts that were in the original indictment, but would have allowed the superseding counts to proceed.

The Circuit’s decision can be found here.

On Thursday, in United States v. Mehta, the Circuit vacated defendants’ NDNY convictions for marriage and immigration fraud, finding that the district judge’s ex parte communications with certain jurors to discuss their concerns about two defendants’ out-of-court behavior warranted a new trial.

During the course of the trial, the judge met ex parte with five jurors and discussed the jurors’ concerns about two defendants’ behavior outside the courtroom. Speaking for other jurors, one juror stated that she’d noticed two of the defendants entering and leaving the courthouse and “kind of lingering and staring,” and “lollygagging.” As the juror stated the concerns, the court stated that the defendants’ conduct was “disturbing,” and

“inappropriate,” and that he would assign a security officer to accompany the jurors to their cars.

The Circuit, not surprisingly, found that the district judge had failed to follow proper procedures relating to the jurors’ concerns. The court should have asked the jurors to put their concerns in writing, and, among other things, should not have met with the jurors ex parte and without notice to counsel. The loss of an opportunity to address how the court should approach the jury was no mere formality. The judge’s comments “strongly implied that the defendants posed some threat of physical danger to the jurors.” The judge also failed to mitigate its errors, and failed to address the content of the meeting with the other jurors, leaving the jurors who’d not been present at the ex parte conference to speculate about what had happened.

The error was compounded by the judge’s final instruction that the jury could “consider how the defendants’ self-interest in the outcome of the case could create a motive to testify falsely.”

The Circuit reminded that it has “repeatedly held, in no uncertain terms, that this charge is forbidden; district courts may not tell juries that a testifying defendant’s personal interest in the outcome of a trial supplies a motive to lie.”

The Circuit’s decision can be found here.

On Tuesday, in United States v. Munoz, in a summary order, the Circuit affirmed defendant’s SDNY convictions for, among other things, conspiracy to possess with the intent to distribute cocaine, murder in connection with a drug-trafficking crime and Hobbs Act robbery, and the 75-year sentence imposed by Judge Victor Marrero. The Circuit rejected defendant’s evidentiary challenges, including to: (1) the admission of what he contended was inadmissible hearsay; (2) the admission of several post-arrest death threats allegedly made by defendant to show consciousness of guilt; and (3) the court’s instructions about defendant’s possible motive to testify falsely.

On the consciousness-of-guilt question, while the Circuit ultimately rejected defendant’s claim, it found the issue a close one, and urged district courts to “continue to carefully scrutinize the necessity and purpose of such toxic death threat evidence before allowing it into a criminal trial.”

On the issue of the court’s motive-to-testify-falsely instruction, the Circuit was again troubled, but not enough to reverse. A court’s instructions “must not assume” that the defendant is guilty, and, as discussed in United States v. Mehta, supra, may not “tell[] a jury that a testifying defendant’s interest in the outcome of the case creates a motive to testify falsely.”

Here, the district court instructed that, “In evaluating credibility of the witnesses, you should take into account any evidence that any witness who testified may benefit in some way from the outcome of the case. Such an interest in the outcome creates a motive to testify falsely and may sway a witness to testify in a way that advances his or her own interests.”

The Circuit found that the instruction “skirted the spirit” of its warnings against assuming a defendant’s motive to testify falsely. But the Circuit found that the charge, taken as a whole, was not prejudicial, and any error was, in any event, harmless.

The Circuit’s decision can be found here.

In United States v. Melnyk, in a summary order, the Circuit affirmed defendant’s SDNY conviction for conspiracy to distribute contraband tobacco, and the 24-month prison sentence imposed by Judge Richard J. Sullivan. The Circuit rejected defendant’s challenges to the sentence, which contended that the court had incorrectly calculated the amount of the tax loss, and had improperly considered defendant’s profits from the conspiracy as a sentencing factor without adequate proof.

On the tax-loss issue, defendant contended that Judge Sullivan committed procedural error by considering the federal tax loss amount during sentencing even though federal excise tax losses should be excluded from the Guidelines calculation.

The Circuit disagreed, finding that the court’s consideration of the “nature and circumstances of the offense” required it to consider all tax losses, including excise taxes.

On the conspiracy-profits issue, the Circuit summarily found that Judge Sullivan’s conclusion was supported by the record because defendant had admitted the profit motive of the conspiracy, and the court correctly inferred that, based on his participation, defendant had profited.

The Circuit’s decision can be found here.

In United States v. Terry, in a summary order, the Circuit affirmed defendant’s EDNY tax-evasion conviction and the 36-month sentence imposed by Judge Joanna Seybert. The Circuit rejected defendant’s claim that his plea did not comply with Rule 11 because the court did not inform him of the nature of the crime to which he was pleading guilty.

Count Two of the indictment charged defendant with nine affirmative acts, including: (1) cashing more than $500,000 worth of checks that represented income to avoid levy collection by the IRS, and (2) creating and utilizing a checking account in the name of a corporate nominee to conceal such income and avoid levy by the IRS.

After determining that defendant—a lawyer—was ʺperfectly capableʺ of entering a plea, the district court asked defendant to describe ʺwhat [he] did with respect to . . . tax evasion.ʺ He then admitted to seven of the nine overt acts listed in the indictment—any one of which, the Circuit found, was sufficient to satisfy the elements of tax evasion. The court then engaged in a lengthy colloquy with defendant and his counsel over two of the alleged acts. Specifically, defendant stated that he could not admit to cashing checks ʺto avoid levy collection by the IRS,ʺ and counsel informed the court that defendant used a corporate nominee but could not admit that the purpose was to avoid levy by the IRS. Nevertheless, defendant subsequently confirmed to the court that he willfully

committed these acts, that they were not by mistake, and that the purpose of the acts ʺwas to avoid the payment of taxes.ʺ

Because defendant ultimately admitted to the acts, his plea was adequate, even though he’d previously refused to admit them, and even though the court did not explicitly explain the elements of tax evasion.

The Circuit’s decision can be found here.

In United States v. Johnson, in a summary order, the Circuit affirmed defendant’s SDNY firearms trafficking and felon in possession of a firearm convictions and the sentence imposed by Richard J. Sullivan. The Circuit rejected defendant’s contention that his two prior New York second-degree robbery convictions were not crimes of violence under guidelines § 4B1.2(a). The Circuit found that defendant’s argument that second-degree robbery does not fall within § 4B1.2(a)’s “force clause” was “squarely foreclosed” by its recent opinion in United States v. Moore, which held that New York robbery in the third-degree is, categorically, a crime of violence under the same Guidelines provision. 916 F.3d 231, 239-42 (2d Cir. 2019).

The Circuit’s decision can be found here.

In United States v. Thomas, in a summary order, the Circuit affirmed defendant’s EDNY conviction for being a felon in possession of a firearm, but vacated and remanded the 51-month sentence imposed by Judge William F. Kuntz. The Circuit found, on the government’s cross-appeal, that the ACCA may have mandated a minimum 15-year sentence because defendant may have had three prior violent felony convictions.

The Circuit affirmed defendant’s conviction, rejecting his challenges to, among other things, (1) the discretionary dismissal of a juror who’d been overheard stating “huh, liars”; (2) the sufficiency of the evidence showing knowing possession of ammunition; and (3) a jury instruction that the defense had requested.

On the government’s appeal, the Circuit found that “[d]evelopments in the law since the sentencing render[ed] some of the district court’s conclusions no longer viable.” Judge Kuntz had found that New York’s crimes of first-degree robbery, attempted third-degree robbery and first-degree sexual abuse were not crimes of violence under the ACCA. This claim was foreclosed by United States v. Thrower, 914 F.3d 770, 777 (2019), which held that all degrees of NY robbery and attempted robbery were crimes of violence.

Remand was necessary on the issue of whether first-degree sexual abuse was also a crime of violence. The government, relying on the Certificate of Disposition entered in defendant’s conviction for that offense, contended that defendant was convicted under New York Penal Law § 130.65(1), which requires “forcible compulsion,” and that this incident of sexual abuse was a violent felony. Defendant argued that the Certificate of Disposition was unreliable.

The Circuit remanded: (1) to determine whether defendant was convicted under subdivision 1 and, if so, whether—in light of subsequent decisions—Penal Law § 130.65(1) qualified as a violent felony under the ACCA; and (2) for resentencing, in light of its conclusions on these points.

The Circuit’s decision can be found here.

New York Court of Appeals

On Thursday, in People v. Pendell, in a memorandum decision, the Court of Appeals affirmed defendant’s conviction. The Court rejected defendant’s claim that photographs that had been extracted from his cell phone and computers were not sufficiently authenticated.

While the facts are not set forth in the Court’s opinion, the Third Department decision revealed that the complainant authenticated the photographs recovered from defendant’s phone and computers by testifying that she recognized herself in the photos. This not only authenticated who was depicted in the photos, but who had taken them, when they were taken, and under what circumstances.

The Court of Appeals’ decision can be found here.

Appellate Division, First Department

On Tuesday, in People v. Holmes, the First Department reversed defendant’s NY County second-degree possession of a weapon conviction, and the 16-year to life sentence. AD1 found that the trial court improperly precluded counsel from cross-examining the only police officer who allegedly saw the pistol falling from defendant’s person about allegations raised in a federal civil action against the officer, which had settled. Counsel had a good faith basis for seeking to impeach the officer’s credibility by asking him about allegations that he and other officers approached and assaulted the plaintiff in that case, without any basis for suspecting plaintiff of posing a danger, and then filed baseless criminal charges against him (see People v. Smith, 27 N.Y.3d 652, 666-67 (2016)).

AD1 also found that the retrial should be preceded by a suppression hearing because the hearing court erred when it denied defendant’s motion to suppress a pistol based solely on the court’s finding that defendant lacked standing because the pistol was recovered from the ground. Two officers testified at the hearing to the effect that the pistol was recovered immediately after it fell from defendant’s person. Because AD1 lacked jurisdiction to affirm the denial of defendant’s motion to suppress the pistol on the alternative ground that the police had reasonable suspicion to stop and frisk him, a ground upon which the hearing court did not rule, a hearing on the issue was necessary.

The First Department’s decision can be found here.

Warm regards, Edward V. Sapone Sapone & Petrillo, LLP One Penn Plaza/ 53rd Floor/ 23rd Floor New York, NY 10038

(212) 349-9000 www.saponepetrillo.com

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