Ed Sapone’s DECISIONS OF THE WEEK -March 7, 2019

| Mar 7, 2019 | Ed Sapone’s Decisions of the Week

This was a quiet week for precedential decisions in the Second Circuit, but it was a busy one for summary affirmances.

Second Circuit

On Tuesday (3/5), in United States v. Kroll, the Circuit vacated defendant’s life sentence, imposed by now-deceased EDNY Judge Leonard Wexler. The Circuit found that, under the categorical approach, defendant’s 1993 NY second-degree sodomy conviction was not a “prior sex conviction” under 18 USC § 3559(e)(1), and did not require a life sentence because it was broader than its equivalent federal counterpart.

By way of background, defendant pleaded guilty to two counts of sexual exploitation of a child. At sentencing, Judge Wexler concluded that he was required to impose a life sentence because defendant’s prior conviction for sodomy in the second degree under New York law was a “prior sex conviction” under 18 U.S.C. § 3559(e).

Defendant argued on appeal that the district court erroneously failed to apply the categorical approach. The Circuit agreed.

A prior state conviction qualifies as a “prior sex conviction” under § 3559(e) only if “the least of conduct made criminal by the state statute [of conviction] falls within the scope of activity” punishable under one of the statutes constituting a federal sex offense. The parties agreed that the federal sex offense equivalent to second degree sodomy is 18 USC § 2241(c).

A person is guilty of sodomy in the second degree when, “being eighteen years old or more, he engages in deviate sexual intercourse with another person less than fourteen years old.” Penal Law § 130.45. By contrast, § 2241(c) applies to a defendant who “knowingly engages in a sexual act with another person who has not attained the age of 12 years . . . or attempts to do so.” Under the categorical approach, the court asks, “whether the least of conduct made criminal by the state statute falls within the scope of activity that the federal statute penalizes.” If the state statute “sweeps more broadly,” then the state crime cannot count as a “predicate offense.” Because the state statute punishes those who victimize those under 14, and the federal statute those under 12, the state statute sweeps more broadly.

Because the error seriously affected the fairness of the judicial proceedings, the Circuit vacated the sentence and remanded for resentencing.

The Circuit’s decision can be found here.

On Friday (3/1), in United States v. Sterling, in a summary order, the Circuit affirmed defendants’ convictions for participating in a 21 USC 841 (b)(1)(A) narcotics conspiracy; using, possessing, and discharging firearms during a narcotics distribution conspiracy; and possessing ammunition after having been convicted of a felony. The Circuit rejected defendants’ contentions that SDNY Judge Lewis A. Kaplan made the following, among other, errors: (1) Kaplan denied Sterling’s motion to suppress his post-arrest statements; (2) Vernon was denied his Sixth Amendment right to a jury trial; and (3) Kaplan improperly excluded Vernon and Sterling’s request to introduce expert testimony.

Firstly, a U.S. Marshal’s investigator asked Sterling while he was in custody whether he had any questions. Sterling, who had not been Mirandized, responded by asking who gave him up. The Circuit found that the investigator’s question, under the totality of the circumstances, was not one that was reasonably likely to elicit an incriminating response. SeeRhode Island v. Innis, 446 U.S. 291, 300–01 (1980). The investigator, therefore, was not required to issue a Mirandawarning, as his question was not tantamount a custodial interrogation. Moreover, “admission of statements obtained in violation of [Miranda] may be deemed harmless [] if it appears beyond a reasonable doubt that the error . . . did not contribute to the verdict obtained.” United States v. Newton, 369 F.3d 659, 679 (2d Cir. 2004). Such was the case here.

Secondly, defendant Vernon argued that the indictment should have been dismissed on speedy trial grounds. Because he didn’t make the motion in the trial court, the Circuit reviewed the argument on appeal for plain error. Four factors are considered when evaluating a potential constitutional violation of a defendant’s speedy trial right: (1) length of delay; (2) reason for delay; (3) whether defendant asserted the right, and (4) any prejudice to defendant. United States v. Moreno, 789 F.3d 72, 78 (2d Cir. 2015) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). The Circuit found no error, much less plain error.

Thirdly, although defendants’ expert psychiatric testimony should not have been excluded, as it may have discredited a prosecution witness’ testimony, the error was harmless beyond a reasonable doubt. See United States v. Mejia, 545 F.3d 179, 200- 02 (2d Cir. 2008) (holding “vacatur is required unless we are convinced that the error was harmless beyond a reasonable doubt.” (internal citations omitted)).

The Circuit’s decision can be found here.

On Tuesday (3/5), in United States v. Asmodeo, in a summary order, the Circuit affirmed defendant’s sexual exploitation of a child and child pornography convictions before SDNY Judge Vincent L. Briccetti, rejecting defendant’s claims that the district court erroneously failed to suppress evidence that was the unattenuated fruit of illegal government conduct.

A search of defendant’s Mahopac, NY home pursuant to a valid warrant revealed child pornography on his computer. Defendant was arrested and brought to a local police station where he was given Miranda warnings, but refused to waive. Nonetheless, officers continued to question him. During the interrogation, he disclosed that his devices contained child pornography downloaded from the internet. He also described two videos that he filmed and had stored on his computer. Defendant moved to suppress both the evidence seized from his computer and his post-arrest statements. Before the hearing on the motion, an interview of the mother of defendant’s son revealed further evidence of child sexual misconduct. After the interview, the child’s mother provided the government with a CD containing child pornography.

At the hearing, the court assumed, without deciding, that the initial search following the unlawful interrogatoin violated the Fourth Amendment. It found that the voluntary production of the CD was remote in time from the initial search and broke the causal chain.

The Circuit agreed. The voluntary production of the CD was an intervening event that weighed against suppression. Investigators learned of defendant’s child’s mother not through the unlawful interview, but through unrelated investigation. The long delay between the search and discovery of the CD, according to the Circuit, weakened the causal connection between the two events and thus undermined the potential deterrent value of suppression.

The Circuit’s decision can be found here.

On Tuesday (3/5), in United States v. Cheng, in a summary order, the Circuit affirmed the 68-month sentence imposed by former chief EDNY Judge Carol Bagley Amon following defendant’s guilty plea to conspiring to participate in the use of extortionate means to collect and attempt to collect an extension of credit. The Circuit rejected his procedural-reasonableness challenge to the sentence.

While on bail and cooperating with the government, defendant was arrested for assault in the third degree, menacing in the third degree, and harassment in the second degree. These charges arose from a physical altercation between defendant and two men after defendant berated and shoved the mother of a testifying witness in the trial of one of defendantʹs buddies.

The Circuit rejected defendant’s four procedural-reasonableness challenges, finding that the court (1) properly considered his prior cooperation, (2) did not err by failing to grant a two-level downward adjustment for acceptance of responsibility, (3) did not err by applying a two-level enhancement for bodily injured suffered by one of the men he

assaulted while on bail, and (4) did not abuse its discretion by refusing his request for a downward departure for the six months he had served in immigration detention pre-indictment because time spent in ICE custody ʺpending a final determination of deportabilityʺ is not ʺofficial detention.ʺ

A close analysis of this fourth challenge reveals that it should have been couched as a substantive-reasonableness, not a procedural-reasonableness, challenge. Judge Amon did not incorrectly calculate the Guidelines. Instead, the defendant was hoping that Amon would recognize that the BOP would not include in its time calculation the six months he spent in ICE custody, and that she would therefore sentence him to six months less. In this vein, however, the request is for the court to exercise its sentencing discretion. So when the court fails to honor the request, we cry a substantive-reasonableness foul. And the ask is easier as couched in a request for a downward variance as opposed to a traditional downward departure.

The final lesson is that we ought to try to convince the DOJ to formally charge our clients and have them presented in the district court at which time we can consent to detention without prejudice to make a future bail application. At that point, the client will get credit for that time in detention.

The Circuit’s decision can be found here.

In United States v. Castillo, in a summary order, the Circuit affirmed the 46-month sentence imposed by SDNY Judge P. Kevin Castel, following his guilty plea to illegally reentering the United States after his conviction for an aggravated felony. The Circuit rejected his substantive-reasonableness challenge to the sentence.

The Circuit found that the sentence was warranted. Defendant had been deported three times: in 2007, following a federal gun conviction and a state court bail jumping conviction; in 2008, following an attempted illegal reentry; and in 2013, following convictions for the criminal sale of marijuana and illegal reentry. With a criminal history category of IV, defendantʹs Guidelines range was 37 to 46 months, based, in part, on an 8-level increase, because his 2007 bail jumping conviction constituted a felony offense for which the sentence imposed exceeded two years. The sentence, which was within the advisory Guidelines range, was not unreasonable.

The Circuit’s decision can be found here.

In United States v. Wade, in a summary order, the Circuit dismissed defendant’s appeal in part, and affirmed the District Court’s decision to revoke the defendant’s term of supervised release and sentence him to 36 months.

The defendant had been convicted in 2009 in EDNY of conspiring to commit Hobbs Act robbery and brandishing a firearm during a crime of violence, for which crimes he was sentenced to 75 months’ imprisonment and 5 years’ supervised release. While on supervised release following the completion of his prison term, the defendant was

arrested again for promoting prostitution in New York State. Judge Joanna Seybert revoked the defendant’s supervised release and sentenced him to an additional 36 months’ incarceration based on his commission of another crime while on supervision.

The defendant appealed, arguing that the district court’s revocation decision was infected by four errors: (1) reliance on inculpatory hearsay statements from an anonymous minor, who reported that she engaged in prostitution at the defendant’s direction, which statements were admitted without the interest-of-justice determination required by Fed R. Crim. P. 32.1(b)(2)(C); (2) reliance on uncorroborated allegations in the defendant’s state court indictment; (3) the denial of discovery pertaining to the anonymous hearsay declarant; and (4) the denial of a continuance pending the conclusion of the defendant’s state prosecution.

While defendant’s appeal was pending, the Court became aware that the defendant had entered a guilty plea to Promoting Prostitution 2nd Degree in the state and been sentenced to a term of imprisonment of five-to-ten years. In further briefing requested by the Court, the parties acknowledged that defendant’s state prostitution conviction made it unnesccessary for the Court to address the merits of the defendant’s challenges on appeal, with the defendant relying on mootness and the government relying on harmless error to support that conclusion.

The Circuit ultimately concluded that the appropriate action under the circumstances was to dismiss defendant’s fourth claim as moot, as no further action by the court was required to grant him the relief sought. With respect to the remaining three claims, the Circuit concluded that the defendant’s state court conviction did not make it impossible to grant relief, but that even if any errors had informed the district court’s initial determination that the defendant had violated his supervision by promoting prostitution, those errors were harmless beyond a reasonable doubt in light of his conviction. They, therefore, affirmed that part of the judgment.

The Circuit’s decision can be found here.

On Wednesday (3/6), in United States v. Muntslag, in a summary order, the Circuit affirmed defendant’s SDNY conviction for conspiracy to import cocaine, and 135-month sentence (Judge Schira A. Scheindlin presided over the trial, and Judge Alison J. Nathan presided over sentencing), rejecting his claims that (1) the court failed to conduct a formal arraignment, (2) the court erroneously denied his motion seeking a mistrial, (3) the court erroneously admitted certain evidence at trial, and (4) the sentence was substantively and procedurally unreasonable.

As to the defendant’s first claim, the Circuit found that, although the defendant was not formally arraigned prior to trial, he waived his right to challenge his conviction on this ground by failing to raise it at any point prior to his appeal. Nonetheless, the Court found that the defendant clearly had notice of the charges and an adequate opportunity to prepare a defense, and the district court’s failure to arraign him did not affect his substantial rights.

The defendant’s next claim was that the district court erred in failing to grant a mistrial based on a confidential source’s testimony that one of the source’s aliases during the conspiracy was “Sheikh.” Although the district court had precluded the government from eliciting testimony regarding the nickname to avoid any association of the defendant with terrorism, the Circuit found no prejudice where the single mention of the source’s nickname was so brief and fleeting that the district court did not even hear it. Further, defense counsel declined a curative instruction, and the reference did not implicate the defendant; the confidential source merely volunteered his own nickname.

The Circuit found the defendant’s evidentiary challenges equally unavailing. The defendant first objected to the introduction at trial of two recordings for which the transcripts were not produced before trial. The Circuit failed to find any prejudice, however, because the transcripts for the two recordings were turned over prior to their introduction into evidence, the defendant had the recordings as part of discovery for months before trial, along with draft transcripts and translations, and upon the defendant’s objection, the district court excluded the underlying transcripts from evidence.

The defendant next challenged the admission of testimony by a cooperating source interpreting coded words and technical jargon used in the recorded conversations. According to the Circuit, the lay witness opinion testimony did not violate F.R.E. 701because the confidential source based his opinion solely on “insider perceptions of a conspiracy of which he was a member,” and thus the opinion was not based on the sort of specialized training or experience that scientific witnesses rely upon.

The Circuit also found no error in the admission of challenged out-of-court statements made by a non-testifying confidential source in conversations with the defendant because the statements were not offered for their truth, but to place the defendant’s recorded statements in context.

Finally, the Circuit affirmed both the procedural and substantive reasonableness of the defendant’s 135-month sentence. In finding the sentence procedurally sound, the Circuit rejected the defendant’s contention that the district court erred in imposing a two-level enhancement pursuant to 2D1.1(b)(1) for possessing a dangerous weapon in connection with a narcotics offense where the defendant never exercised control over any weapon. As the Circuit pointed out, the proper inquiry is whether a defendant could reasonably foresee a coconspirator possessing a dangerous weapon. The Court found that such possession by one of the defendant’s co-conspirators was reasonably foreseeable to him, especially where the defendant conceded that a co-conspirator in fact displayed a rocket launcher at a conspiratorial meeting.

The defendant challenged the substantive reasonableness of his sentence on the basis that his co-defendant, who was more culpable, and convicted of more counts, received the same sentence that he did. The Circuit, however, found the district court properly acted within its discretion because the co-defendant whose sentence the defendant cited, unlike the defendant, had pleaded guilty prior to trial and accepted responsibility.

The Circuit’s decision can be found here.

In United States v. Nelson, in a summary order, the Circuit affirmed defendant’s SDNY convictions, before Judge Denise L. Cote, for two counts of murder, firearms violations, and conspiracy to possess and distribute 280 grams and more of crack cocaine. The Circuit rejected his claims that (1) the untimely and insufficient disclosure of material impeachment evidence regarding a key cooperating witness violated Brady; (2) prosecutorial misconduct infected every stage of the proceedings; (3) the admission, under the residual exception of Rule 807, of double hearsay statements from four witnesses was an abuse of discretion; and (4) the use of unauthenticated threat evidence, and evidence of the victim’s violent character and specific prior acts, was plain error.

Shortly before trial the government disclosed in 3500 material statements that could be used to impeach one of the government’s cooperating witness. The defendant argued that the timing and manner of production amounted to suppression. The Circuit disagreed, finding that although the 3500 material was voluminous, it was catalogued and well organized, and it was clear from defense counsel’s comments during trial that they had reviewed the material. Further, the impeachment evidence was not material because of the substantial independent evidence of the defendant’s guilt and the ample impeachment evidence the defense had already elicited from this witness at trial.

The defendant next argued that the prosecutor committed misconduct by improperly vouching for the government witnesses’ credibility. The Circuit again disagreed, finding that defense counsel had “opened the door” to rehabilitation during opening statements by commenting on the honesty of the cooperating witnesses and their motivations to lie. The Circuit similarly concluded that statements by the prosecutor during rebuttal summation that text messages constituted “unassailable proof” and describing security video as “extraordinary evidence,” were not improper.

The defendant further argued that the district court abused its discretion in admitting under the residual hearsay exception objected-to testimony by a witness as to one of the deceased victim’s last words to her on the night he was shot. The Circuit found that the district court had not abused its discretion in admitting the evidence because the statements described the deceased’s then present state of mind and had other “circumstantial guarantees of trustworthiness.”

Finally, the Circuit concluded that the defendant’s self-identification was sufficient to properly authenticate evidence of a call he made before the shootings and a threatening call he placed after the murders.

The Circuit’s decision can be found here.

In United States v. Campos, in a summary order, the Circuit affirmed the defendant’s SDNY convictions, before Judge Valerie E Caproni, for wire fraud, bank fraud, and conspiracy to commit wire and bank fraud, and his sentence of 30 months of imprisonment. The Circuit rejected defendant’s challenges to (1) the sufficiency of the

evidence as to whether he had the requisite ʺintent to defraud,ʺ and (2) the admissibility of (a) the testimony of two witnesses and (b) certain excerpts of recorded conversations.

On appeal, the defendant argued that the government had failed to prove that he participated in the conspiracy with the intent to defraud. In rejecting this argument, the Circuit concluded that the cumulative evidence of the defendant’s participation in and attempts to cover-up the conspiracy made his arguments unpersuasive. According to the Circuit, the evidence clearly established that the defendant, an attorney, recruited “straw buyers” to purchase multiple vehicles, purportedly for personal use, financed by fraudulently obtained bank loans, for use in a livery cab business.

The Circuit found the defendant’s evidentiary challenges similarly unavailing. The defendant first challenged the district court’s decision not to permit testimony by two defense witnesses on Rule 401 and 403 grounds. The Circuit in agreeing with the district court’s decision that the first witnesses’ testimony was irrelevant found that his anticipated testimony would have shed little, if any, light on what the defendant knew or believed and his assessments of the defendant’s credibility were inadmissible because the defendant’s credibility was for the jury to assess. The defendant sought to call a second witness to testify as to his motivation in assisting one of the straw buyers return her fraudulently obtained vehicles. The Circuit agreed with the district court that this testimony was also irrelevant because it did not tend to show that the defendant’s actions were not a cover-up.

At trial, the government offered into evidence six excerpts from eight hours of thirty recorded conversations between the defendant and a straw buyer for the limited purpose of showing the falsity of the assertion that the cars were for personal use rather than business use. The defendant, citing the rule of completeness, sought to introduce additional excerpts from the recordings related to the straw buyer’s possible conversations with government investigators. The Circuit agreed with the district court’s conclusion that the excerpts sought to be introduced by the defendant were not related to or necessary to explain the excerpts introduced by the government, and that the defendant could not use the rule of completeness to get around the hearsay rule.

The Circuit’s decision can be found here.

Appellate Division, First Department

On Thursday (3/7), in People v. Bilal, in a signed opinion by Justice Renwick, the First Department reversed defendant’s conviction for criminal possession of a weapon in the second degree, finding that New York County Supreme Court Justice Arlene Goldberg had erroneously denied defendant’s motion to suppress a gun recovered by the police that he’d discarded during a police pursuit.

The First Department found that, while the police may have had an objective credible reason to approach defendant and to request information—based on the information the officers received from the radio report and their observations of defendant and his

companion—those circumstances, taken together with defendant’s flight, could not justify the significantly greater intrusion of police pursuit. The radio report indicated a sole perpetrator with a vague description—black man in a black jacket. There was nothing at all about defendant that matched any aspect of the suspect in the radio report, except that he was black. Nor was defendant wearing a black jacket. He was wearing a gray jacket and was with a second individual, several minutes after the radio report of shots fired. The men did not appear to be fleeing the scene, but rather, were exiting an apartment complex.

Justice Renwick found that, if the court were to “endorse a police pursuit under the grossly equivocal circumstances here—where the extremely vague, generic description of a ‘black [man in] a black jacket’ is used to justify pursuit of the companion of someone matching that description—this Court would be ignoring an extraordinary interference with a citizen’s right to be left alone. The majority also found that the defendant’s spontaneous disposal of the gun as he ran from the police was a product of the police illegality.

Justice Tom and Richter separately dissented, and would have upheld the police officers’ actions.

The First Department’s decision can be found here.

Appellate Division, Second Department

On Wednesday (3/6), in People v. Lugo, the Second Department vacated the $73,000 imposed on defendant by Orange County Court, following a guilty plea to assault in the first degree. AD2 concluded that the trial court’s summary assessment of restitution, absent a proper factual record from which the amount of medical expenses actually incurred by the victim could be inferred, was improper.

The Second Department’s decision can be found here.

In People v. Maiwandi, the Second Department reversed defendant’s Queens County third degree possession conviction. AD2 found that the court erroneously denied his motion to suppress physical evidence, agreeing with defendant that the testimony of the officers at the suppression hearing had been “patently tailored to meet constitutional objections.”

An officer testified at the suppression hearing that he was parked in his unmarked police vehicle, approximately 1½ car lengths in front of the defendant’s vehicle, which was parked on the street. The defendant was seated in the driver’s seat and a woman was seated in the front passenger seat. Looking through his rearview mirror and the defendant’s front windshield, the officer claimed that he could view the defendant and the woman from the “middle of the stomach up.” He further testified that he saw the defendant pass the woman an object that was white and rectangular with a “blue strip,”

that the package was eight inches long by two inches wide, and that based on the packaging, he believed the object was the prescription drug, Suboxone. When asked how high the defendant held the object when he passed it to the woman, the officer testified, “[e]nough for public view.”

The Second Department found that the officer’s claim that he observed the alleged transaction through his rearview mirror with sufficient clarity to see that the object passed between the occupants of the car was Suboxone strained credulity and defied common sense. Common experience dictated that the dashboard of the defendant’s vehicle would have obscured the officer’s view of a hand-to-hand transaction between the defendant and the front-seat passenger. The officer’s testimony that the transaction occurred at a height sufficient for “public view” lacked credibility and suggested that his testimony was tailored to meet constitutional objections.

The Second Department’s decision can be found here.

Appellate Division, Third Department

On Thursday (3/7), in People v. Rosario, the Third Department reversed Sullivan Supreme Court Justice Stephan G. Schick’s summary denial of defendant’s CPL 440.10 motion to vacate his 2004 conviction. The defendant had pled guilty plea to, among other charges, course of sexual conduct against a child in the first degree. AD3 agreed that, because defendant was represented on this case by Justice Schick when he was Chief Assistant and Director of the Legal Aid Panel, the court had no jurisdiction to decide the motion. AD3 remitted to Supreme Court for reconsideration of the motion before another justice.

The Third 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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