Ed Sapone’s DECISIONS OF THE WEEK -September 12, 2019

| Sep 12, 2019 | Ed Sapone’s Decisions of the Week

The Second Circuit returned to its mid-season pace, but this week’s opinions and summary
orders offered no relief for criminal defendants, minus one exception. The Doe decision, an
interesting one, recognizes and explains the right of a defendant to appeal the denial of a Rule
35(b) motion for a resentencing.
In the State appellate courts, the New York Court of Appeals released its first decision of the
season in Monforte, and several defendants got relief in the appellate divisions.
Second Circuit
On Monday, in United States v. Doe, the Circuit affirmed EDNY Judge Sterling Johnson, Jr.’s
denial of the government’s Rule 35(b)(2)(B) motion to resentence defendant based on his
substantial assistance to the government. While the Circuit agreed with defendant that it had
jurisdiction over the appeal, in a sealed summary order, it affirmed on the merits the denial of the
Rule 35.
By way of background, defendant pleaded guilty to a wire fraud conspiracy. He began to
cooperate with the government before he was sentenced and continued to cooperate after
sentencing. The government moved for a sentence reduction on the grounds that he provided
substantial assistance in the prosecution of others. Judge Johnson took the unusual step of
denying the government’s motion.
On appeal, defendant argued that the district court violated his due process rights by failing to
conduct a proper Rule 35 inquiry. Johnson recognized that defendant had cooperated, and that
he, of course, had the authority to reduce the sentence, but he declined to reduce because he was
“not impressed” with defendant’s cooperation.
Although the government believed that defendant was entitled to a sentence reduction, and it was
the government’s motion that Judge Johnson had denied, on appeal the government argued that
the Circuit lacked jurisdiction over the appeal. The government claimed that a defendantʹs appeal
from a disposition of a Rule 35(b) motion exists, ʺif at all,ʺ under 18 U.S.C. § 3742(a). The
government contended that defendant’s arguments do not provide a proper basis under that
statute for an appeal. In the alternative, the government argued that the appeal failed on the
merits.
A defendant may appeal from a district courtʹs decision on a Rule 35(b) motion pursuant to 18
U.S.C. § 3742(a), which confers limited appellate jurisdiction over appeals of ʺotherwise final
sentences.ʺ Under § 3742(a), a defendant may appeal an ʺotherwise final sentence[]ʺ if the
sentence imposed was: ʺ(1) in violation of the law; (2) a misapplication of the Guidelines; (3) an
upward departure from the Guidelines; or (4) a plainly unreasonable penalty for an offense not
included in the Guidelines.ʺ
The Circuit previously had held that it did not have appellate jurisdiction under § 3742(a) to hear
a defendantʹs appeal of the ʺextentʺ of a sentencing reduction on a Rule 35(b) motion. United
States v. Doe, 93 F.3d 67, 68 (2d Cir. 1996). In United States v. Gangi, 45 F.3d 28, 31 (2d Cir.
1995), however, it had reached the merits of an appeal challenging a Rule 35(b) sentencing
decision on procedural due process grounds.
The government argued that: (1) the constitutional right to due process is not implicated by a
Rule 35 motion, and (2) there can be no due process violation because Rule 35(b) allows a
sentence only to be reduced. More, the government argued that, because no set of facts would
mandate a favorable decision in a Rule 35 proceeding, post‐conviction proceedings, like Rule
35(b) proceedings, are not constitutionally compelled.
The Circuit disagreed. It ruled that, while ʺa prisonerʹs right to due process is not parallel to a
trial right,ʺ a prisoner still has some right to due process that ʺmust be analyzed in light of the
fact that he has already been found guilty at a fair trial, and has only a limited interest in postconviction relief.ʺ A defendant is entitled to have the district court exercise its discretion on
whether to grant a Rule 35 motion based on accurate information. Due process dictates that a
ruling on a Rule 35 motion must be based on accurate facts, and a right to appeal is necessary to
vindicate that right. So, too, is a defendant entitled to appeal a ruling based on a violation of the
law.
On the merits, however, the Circuit found that the district court had followed the law and
accurately assessed the facts.
The Circuit’s decision can be found here.
On Thursday, in United States v. Johnson, the Circuit affirmed defendant’s EDNY wire fraud
conviction before Judge Nicholas G. Garaufis. The Circuit rejected defendant’s contention that
the evidence was insufficient because it was based on two unsupported legal theories.
Defendant, the former global head of the foreign exchange trading desk at HSBC, was convicted
by a jury of wire fraud and conspiracy to commit wire fraud in connection with a foreign
currency exchange transaction with Cairn Energy. At trial and on appeal, the government argued
that defendant could be convicted on either of two theories of criminal liability: (1)
misappropriation of the confidential information of Cairn in breach of a duty of trust and
confidence owed to Cairn; or (2) denial of Cairn’s right to control its assets by depriving it of
information necessary to make discretionary economic decisions

HSBC profited about $7 million on the transaction with Cairn. The government’s primary theory of liability under the wire fraud statute was that defendant had misappropriated Cairn’s confidential information, in breach of a duty of trust and confidence owed to Cairn, by driving up the exchange rate to generate secret profits for HSBC (the misappropriation theory). The jury was instructed that to convict defendant under that theory, defendant and Cairn must have entered into a relationship of “reliance and de facto control and dominance.” Defendant argued that there was insufficient evidence to convict him under the misappropriation theory and under a right‐to‐control theory because Cairn received the benefit of its bargain, and any misrepresentations were immaterial.

The Circuit concluded that there was sufficient evidence to convict defendant on the right‐to‐control theory because a reasonable jury could have concluded that his misrepresentations to Cairn related to the price of the transaction, which was an essential element of the parties’ bargain, and were capable of influencing Cairn’s decision-making. It, therefore, found it unnecessary to reach the misappropriation theory.

The Circuit’s decision can be found here.

On Tuesday, in United States v. Salinas-Garcia, in a summary order, the Circuit affirmed Judge Loretta A. Preska’s denial of defendant’s motion for reconsideration of the denial of his motion for a sentence reduction under § 3582(c)(2). The Circuit found that, although defendant was eligible for resentencing, the court had not abused its discretion in denying the request for resentence, because the court had properly considered the §3553(a)(2)(C) factors, and, in particular, the need to protect the public from any further crimes.

The Circuit’s decision can be found here.

In Spencer v. Capra, in a summary order, the Circuit reversed the order of EDNY Judge Brian M. Cogan that had granted petitioner’s § 2254 habeas petition. The Circuit found that the district court had incorrectly applied the harmless error standard when it concluded that an admitted violation of defendant’s constitutional right to present a defense warranted relief in federal court.

Petitioner was convicted in 2007 of criminal possession of a weapon in the second degree in Queens County Supreme Court. In 2011, AD2 affirmed. In 2012, the NY COA found that Supreme Court had improperly precluded evidence in violation of petitioner’s constitutional right to present a defense, but that the error was harmless. In 2018, Judge Cogan granted petitioner’s habeas petition, finding that the error was not harmless under the U.S. Constitution.

The Circuit disagreed, finding that the district court had improperly applied the AEDPA harmless-error standard. On direct review, Chapman v. California, 386 U.S. 18 (1967), sets forth the standard for determining whether a federal constitutional error is harmless. The standard requires the government “to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” But on collateral review, an error is harmless unless it ‘had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 507 U.S. 619, 631 (1993). A federal court may not award habeas relief under § 2254 unless the state harmlessness determination itself was unreasonable.

The Circuit concluded that, applying this standard, given the strength of the evidence presented at defendant’s trial, fair-minded jurists could disagree that the decisions of the New York Appellate Division and New York Court of Appeals constituted an unreasonable application of federal law. Accordingly it was required to reverse the habeas grant.

The Circuit’s decision can be found here.

In United States v. Petrossi, in a summary order, the Circuit affirmed defendant’s EDNY money laundering and securities and wire fraud convictions before Judge Brian M. Cogan. The Circuit rejected defendant’s contentions that: (1) his conviction was predicated on an invalid fraud-by-omission legal theory; (2) the court erroneously instructed the jury as to willfulness; and (3) the court erroneously admitted evidence of his prior deception of another victim on the ground that the evidence was “inextricably intertwined” with the charged offense; and (4) the court abused its discretion in excluding an exhibit as irrelevant and inadmissible hearsay.

The Circuit’s decision can be found here.

On Thursday, in United States v. Calix, in a summary order, the Circuit affirmed defendant’s SDNY bank robbery convictions before Judge Loretta A. Preska. The Circuit rejected defendant’s contentions that: (1) his statutory right to a speedy was twice violated when, prior to trial, more than 70 days elapsed, and the time was not automatically excludable or otherwise justified, because those times were automatically excludable as relating to competency proceedings; (2) his Fifth Amendment right to due process was violated when the district court failed to order a fourth competency evaluation on the eve of trial; and (3) his Sixth Amendment right to an impartial jury was violated when the district court denied his request for a new venire panel after the existing panel heard him making noises in a nearby room.

The Circuit’s decision can be found here.

In United States v. Cannon, in a summary order, the Circuit affirmed defendant’s SDNY conspiracy to distribute cocaine convictions, rejecting his contention that statements that he made at sentencing to Judge William H. Pauley III, undermined the factual basis of his plea.

Rule 11 “requires the court to assure itself simply that the conduct to which the defendant admits is in fact an offense under the statutory provision under which he is pleading guilty.” United States v. Maher, 108 F.3d 1513, 1524 (2d Cir. 1997). To prove a single conspiracy, the government must show that each alleged member agreed to participate in what he knew to be a collective venture directed toward a common goal. The co-conspirators need not have agreed on the details of the conspiracy, so long as they agreed on the essential nature of the plan. In light of these standards, the Circuit found that defendant’s statements during sentencing, among others,

that he did not personally manage certain co-conspirators, and did not personally possess firearms, were insufficient to call the validity of the plea into question.

The Circuit’s decision can be found here.

In United States v. Kerrigan, in a summary order, the Circuit affirmed defendants’ SDNY bank burglary convictions and the sentences imposed by former Judge Katherine B. Forrest. The Circuit rejected various procedural challenges to the sentences, including the denial of downward adjustments for acceptance of responsibility, grouping analysis, and the granting of an upward departure for physical injury to victims.

The Circuit’s decision can be found here.

New York Court of Appeals

In People v. Monforte, in a memorandum decision, the NY COA reversed defendant’s first-degree manslaughter convictions, following a guilty plea. The COA concluded that it was a violation of the State Constitution and the CPL to allow defendant to waive indictment and plead guilty to a superior court information where he had been charged with a class A murder. A defendant who is held for the action of the grand jury on a class A felony punishable by life imprisonment may not waive indictment by the grand jury and agree to be prosecuted for a lesser-included offense to facilitate a plea bargain on the homicide offense.

NYCA’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Copeland, AD2 reversed defendant’s Kings County first-degree murder conviction for an O’Rama error, finding that supreme court erred when it summarized to counsel, rather than read verbatim, two substantive jury notes from deliberating jurors. Reversal was required even though counsel did not ask to read the notes.

AD2’s decision can be found here.

In People v. Perkins, AD2 remitted defendant’s Queens County convictions for possessing a sexual performance by a child, to conduct a hearing on defendant’s CPL § 30.30 motion. AD2 found that it was error to summarily deny defendant’s motion because he’d met his initial burden by alleging that the People failed to declare readiness within the statutory six-month time period, and error to have denied the motion based on the court’s reliance on a clerk’s ambiguous notation purportedly regarding the defendant’s alleged waiver of his CPL 30.30 rights for a relevant time period.

AD2’s decision can be found here.

Appellate Division, Third Department

On Thursday, in People v. Youngs, AD3 reversed some, but not all of defendant’s Madison County sex crimes. AD3 found that the County Court erred when it denied defendant’s request to call a witness who was prepared to testify that she had known the complainant since birth, that they were both members of a large extended family, and that she was aware of the complainant’s bad reputation for truthfulness among that extended family. AD3 found that, because defendant had demonstrated the proper foundation for admission of testimony regarding complainant’s bad reputation for truthfulness, reversal was required.

AD3’s decision can be found here.

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