A couple of interesting Second Circuit decisions this week, including Balde and Van Der End. In Balde, on rehearing, CA2 granted vacatur of a guilty plea based on an issue that apparently was not even raised in defendant’s initial appeal. Van Der End, one of the “boat cases” often prosecuted in SDNY, addressed the jurisdictional reach of the United States to prosecute defendants for drug crimes committed at sea with no nexus to the United States.
In the state courts there were a handful of reversals on a variety of issues, including two from the First Department involving juror misconduct and defense counsel’s failure to consider immigration status when negotiating a plea.
In United States v. Balde, CA2 vacated defendant’s SDNY conviction for unlawful possession of a firearm by “an alien . . . [who] is illegally or unlawfully in the United States,” following his guilty plea before Judge Katherine P. Failla. CA2 found that, in light of the Supreme Court’s recent decision in Rehaif v. United States, 139 S.Ct. 2191, 2194 (2019), the government must prove not only that the defendant knowingly possessed a firearm, but also that he knew that he was unlawfully in the United States.
In a prior opinion, CA2 rejected defendant’s arguments that: (1) at the time he possessed the firearm, he was not “in” the United States because he had not lawfully “entered” the United States as that term is defined for the purposes of immigration law, and (2) even if he was “in” the United States, he was not present “illegally or unlawfully” because he had been paroled from immigration detention. 927 F.3d 71 (June 13, 2019). CA2 had concluded that, being physically present in the United States without having been paroled into the country or otherwise given a legal status,
defendant was properly considered to be “illegally or unlawfully in the United States” within the meaning of § 922(g)(5)(A).
Eight days after CA2 issued its prior decision, the Supreme Court decided Rehaif, holding that, to obtain a conviction pursuant to 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2), the government must prove that the defendant not only knowingly possessed a firearm, but also knew that he was “illegally or unlawfully in the United States” at the time he possessed the firearm. In light of Rehaif, defendant petitioned for rehearing, arguing that his guilty plea was unknowing, because he was not advised of the additional knowledge requirement announced in Rehaif, and the record did not contain facts sufficient to satisfy that element of the offense. He asserted that, whatever his legal status at the time he possessed the firearm, he did not know at that time that he was in the United States illegally, and that he therefore was not guilty of violating 18 U.S.C. § 922(g)(5)(A).
CA2 agreed. In Rehaif, the Supreme Court “conclude[d] that in a prosecution under 18 USC § 922(g) and § 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” Defendant did not waive his ability to attack the plea under Rehaif, either by pleading guilty generally, or by agreeing to an appellate waiver. CA2 found that it was plain error for the district court to fail to advise defendant that the government would need to establish beyond a reasonable doubt at trial that he knew that he was illegally present in the United States, or to examine the record to determine whether there was a factual basis for finding such knowledge.
Because defendant demonstrated a reasonable probability that he would not have pleaded guilty to violating § 922(g)(5)(A) as interpreted by the Supreme Court in Rehaif, CA2 granted defendant’s petition and withdrew its prior opinion.
The Circuit’s decision can be found here.
In United States v. Van Der End, CA2 affirmed defendant’s SDNY conviction, before Judge Richard J. Sullivan, for engaging in drug-trafficking activity in violation of the Maritime Drug Law Enforcement Act (the “MDLEA”). In doing so, CA2 rejected defendant’s contentions that (1) the government presented insufficient evidence that the vessel in which defendant was found was subject to the jurisdiction of the United States, (2) the Fifth and Sixth Amendments required the district court
to submit that question to a jury rather than decide it for itself, and (3) defendant’s conduct lacked the nexus to the United States that due process requires.
The defendant, a citizen of the Netherlands, was one of three foreign nationals on board the Sunshine, a boat carrying more than 1,000 kilograms of cocaine from Grenada to Canada, when it was stopped by the United States Coast Guard. The Sunshine’s master told the Coast Guard that the boat was registered in St. Vincent and the Grenadines and provided the vessel’s registration information. Coast Guard officers then inquired with St. Vincent authorities about the Sunshine’s registration. St. Vincent authorities communicated to the Coast Guard that the Sunshine’s registration had expired, and that St. Vincent did not consider the Sunshine to be subject to its jurisdiction. The State Department, thereafter, produced a certification proving St. Vincent’s conclusion.
The MDLEA makes it a federal crime to engage in specified drug trafficking activity “[w]hile on board a covered vessel.” A “covered vessel” includes “a vessel subject to the jurisdiction of the United States.” A vessel may be subject to the jurisdiction of the United States if it is “a vessel without nationality.” As relevant here, a vessel is without nationality if “the master or individual in charge makes a claim of registry that is denied by the nation whose registry is claimed.” Jurisdiction of the United States is not an element of the offense. The function of MDLEA’s jurisdictional language “is not to confer subject matter jurisdiction on the federal courts, but rather to specify the reach of the statute beyond the customary borders of the United States.” CA2 found that, under these circumstances, the Sunshine was a vessel without nationality subject to the jurisdiction of the United States.
And, while CA2 found that a MDLEA defendant does not ordinarily waive his or her ability to challenge the sufficiency of the government’s evidence regarding whether a vessel is subject to the jurisdiction of the United States by pleading guilty, that does not mean that a MDLEA defendant who enters an unconditional guilty plea retains the right to challenge all aspects of the government’s evidence. Here, for example, CA2 was satisfied that there was a sufficient factual basis for defendant’s plea such that he waived his right to challenge the district court’s determination that the vessel was subject to the jurisdiction of the United States.
Defendant’s argument that the district court was required to submit to a jury the question of whether the Sunshine was subject to the jurisdiction of the United States, similarly failed because, by pleading guilty, defendant waived his right to a jury trial.
Finally, CA2 rejected defendant’s contention that his prosecution violated the Due Process Clause because there was no nexus between the offense conduct and the United States. CA2 held, as a matter of first impression, that due process does not require that there be a nexus between the United States and MDLEA violations that transpire on a vessel without nationality. When a vessel is subject to the jurisdiction of another nation, a person trafficking drugs on board “would have a legitimate expectation that because he has subjected himself to the laws of one nation, other nations will not be entitled to exercise jurisdiction without some nexus.” The same is not true when “a defendant attempts to avoid the law of all nations by travelling on a stateless vessel.”
The Circuit’s decision can be found here.
In United States v. Ruff, in a summary order, CA2 affirmed in part, and vacated in part, defendant’s NDNY conviction for eight counts of distributing child pornography, and the sentence of 120 months in prison and 20 years of supervised release. CA2 agreed with defendant that the special condition which required that he notify future employers of the nature of his conviction and the fact that it was facilitated by the use of a computer, was unwarranted because there was no evidence that defendant had ever used a workplace computer to access child pornography, and defendant had only ever held employment in the food services industry.
The Circuit’s decision can be found here.
Appellate Division, First Department
In People v. Richards, AD1 vacated defendant’s Bronx County robbery conviction, finding that the court had erroneously denied his CPL § 440.10 motion to vacate his conviction, based on the ineffective assistance of counsel, following a factual hearing.
AD1 found that defendant, a non-citizen, was denied the effective assistance of counsel because his attorney had no strategic reason for failing to seek a sentence that would have resulted in the same aggregate amount of prison time, but would have resulted in no mandatory immigration consequences. AD1 held that counsel is ineffective not only when they fail to advise a defendant about the immigration consequences of a plea, but also when they fail to consider the immigration consequences of a sentence when negotiating a guilty plea.
AD1’s decision can be found here.
In People v. McGregor, AD1 vacated defendant’s New York County attempted murder conviction, finding that Supreme Court had abused its discretion in denying defendant’s post-verdict CPL § 330.30 motion to vacate. AD1found juror misconduct after defendant showed that a juror had sought to develop a relationship with a prosecution witness, during jury deliberations, who was a member of a gang that was a rival to the gang in which defendant was a member.
AD1’s decision can be found here.
Appellate Division, Second Department
In People v. Buyund, AD2 found that defendant’s Kings County conviction for burglary in the first degree as a sexually motivated felony did not make him registerable as a sex offender. AD2 found that the statutory text of Correction Law § 168-a(2)(a), limited the sexually motivated felonies under Penal law § 130.91 which are registerable under SORA to those specifically enumerated in subparagraphs (i) and (ii) of Correction Law § 168-a(2)(a). Since burglary in the first degree under Penal Law § 140.30 is not one of the Penal Law sections listed in subparaghraphs (i) and (ii) of Correction Law § 168-a(2)(a), defendant was not convicted of a sex offense under SORA and could not be required to register as a sex offender.
AD2’s decision can be found here.
Appellate Division, Fourth Department
In People v. St. Denis, AD4 reversed defendant’s Ontario County attempted second degree assault conviction, finding that the superior court information and waiver of indictment were invalid because the waiver did not contain the approximate time of the offense, and substantial compliance was not sufficient.
AD4’s decision can be found here.
In People v. Williams, AD4 reversed defendant’s Erie County weapon possession conviction, finding that County Court erroneously denied defendant’s suppression motion. Police received information from an anonymous 911 call that drugs were being sold out of a vehicle. The officer arrived on the scene and observed a legally parked vehicle matching the description given by the anonymous caller and further observed defendant in a fully reclined position in the driver’s seat. The officer parked his patrol car alongside defendant’s vehicle in such a manner as to prevent defendant from driving away and, as the People stipulated in their post-hearing memorandum, the officer thereby effectively seized the vehicle.
AD4 agreed with defendant that the police lacked reasonable suspicion to justify the initial seizure, and thus County Court erred in refusing to suppress the tangible property subsequently seized.
AD4’s decision can be found here