Ed Sapone’s DECISIONS OF THE WEEK -NOVEMBER 29, 2019

| Nov 29, 2019 | Ed Sapone’s Decisions of the Week

In an otherwise quiet holiday-shortened week, the Circuit held, in an interesting summary order in Rosario, that the defendant’s guilty plea to possessing a firearm in furtherance of a drug-distribution conspiracy in violation of § 924(c)(1)(A) was not factually supported.

A few interesting decisions from the New York Court of Appeals, in particular Rouse, where NYCA held, among other things, that a finding by a judge in a prior proceeding that a police officer was incredible could be used during cross examination in a subsequent proceeding. NYCA has shown surprising unanimity when it comes to the broad scope of cross examination of law enforcement.

Second Circuit

In United States v. Williams, CA2 affirmed defendant’s WDNY convictions for arson and possession of an unregistered Molotov cocktail, rejecting defendant’s contentions that the court’s instructions allowed the jury to find that defendant attempted to commit a reckless arson, which is an impossible crime, and that the court overstated his criminal history at sentencing.

Defendant was accused of setting fire to a convenience store in Rochester, NY. Surveillance footage showed a man breaking the glass front door with a tire iron and tossing two lit Molotov cocktails through the opening. Defendant was tracked down because of his involvement in a previous arson at the same store and because a surveillance video showed a car matching one belonging to defendant’s girlfriend leaving the scene.

Defendant contended that the district court committed plain error because its jury instructions on arson and attempted arson articulated a “legally incoherent” theory of liability, suggesting that the jury could convict defendant of attempted arson with

a reckless mental state. A defendant cannot attempt to commit an unintentional crime. CA2 disagreed with defendant, finding that the district court’s instruction that the government must prove that the defendant intended to commit the charged crime was consistent with intentional arson and not reckless arson. In any event, CA2 found that defendant was not prejudiced by the instruction, because the evidence of a completed arson was overwhelming.

Defendant also argued that the district court overstated his criminal history at sentencing, because it included his conviction for falsely reporting an incident in the third degree under New York Penal Law § 240.50. The guidelines exclude from consideration the offense of providing false information to a police officer. See guidelines § 4A1.2(c)(1). However, the majority found it unnecessary to decide whether this was error, because, even if that conviction were excluded, defendant’s criminal history category—and therefore his recommended Guidelines range—would not have changed.

Judge Guido Calabresi concurred in the result, but wrote separately to address whether the Circuit’s “due deference” standard was still appropriate when reviewing district court fact-finding about the particular characteristics of a defendant or his offense, in light of the Supreme Court’s 2005 decision in United States v. Booker, 543 U.S. 220, 245.

Judge Michael H. Park also concurred in the result, explaining that he would have affirmed the district court’s inclusion of defendant’s prior conviction in his criminal history at sentencing, because defendant’s particular conduct that led to the false reporting conviction would not have been excluded from consideration under the guidelines.

The Circuit’s decision can be found here.

In United States v. Simels, in a summary order, CA2 affirmed EDNY Judge Pamela K. Chen’s denial of defendant’s motion to reduce his sentence under 18 USC § 3582(c)(2) and guidelines amendment 782. Although amendment 782 lowered defendant’s base-offense level, that change did not alter his total offense level and his applicable guideline range.

Defendant, a former defense attorney, represented Shaheed Khan in proceedings where Khan was ultimately indicted for, among other things, engaging in a conspiracy to import 150 kilograms and more of cocaine. Defendant was charged

with, among other things, conspiring to influence and prevent the testimony of witnesses at Khan’s trial. He was convicted of conspiracy to obstruct justice and other crimes. Because defendant’s offense involved obstructing Khan’s prosecution, the base-offense level, which the sentencing court used to calculate his sentence, was based on Khan’s drug charge.

In denying defendant’s motion for a sentence reduction, CA2 found that the district court properly held that Amendment 782’s reduction of defendant’s initial offense level by two levels did not alter his total offense level and applicable Guidelines range. The sentencing court, in calculating defendant’s Guidelines range, started with a base offense level of 38 under guidelines § 2D1.1 which corresponded to Khan’s underlying offense of conspiring to import 150 kilograms and more of cocaine. The court then subtracted six levels, as required by the obstruction guideline (see § 2J1.2(c)), resulting in an offense level of 32. However, because the base-offense level for obstructing the investigation or prosecution of a criminal offense is capped at 30 (see § 2X3.1(a)(3)(A)), 30 became the base-offense level to which the enhancements for defendant’s managerial role in the offense and testifying falsely at trial were added, resulting in a total offense level of 35. With a criminal history category of I, the Guidelines range was 168 to 210 months. Defendant had been sentenced to 168 months’ imprisonment.

Amendment 782 lowered the initial base-offense level related to Khan’s underlying criminal activity from 38 to 36, after which six levels were subtracted per § 2J1.2(c), resulting in a base offense level of 30 – the same base offense level as the sentencing court’s calculation pursuant to § 2X3.1(a)(3)(A). Adding the applicable enhancements, defendant’s total offense level remained at 35 and his Guidelines range remained unchanged. He was, therefore, ineligible for a sentence reduction.

The Circuit’s decision can be found here.

In United States v. Rosario, in a summary order, CA2 vacated defendant’s NDNY conviction of possessing a firearm in furtherance of a narcotics conspiracy in violation of 18 USC § 924(c)(1)(A), finding that the factual basis for the plea was inadequate.

Defendant delivered cocaine to a co-conspirator at a house in Syracuse. Agents watching the house observed a van parked nearby and obtained a GPS warrant to track the van. About a month later, agents executed a search warrant at defendant’s nearby home. They found over $10,000 in cash and a key to the van, which was

parked in front of the house, and was registered to a company owned by defendant’s fiancé. Defendant offered that a gun in the van was his.

After entering a plea to possessing a firearm in furtherance of a narcotics conspiracy, defendant submitted a pro se letter asking to withdraw his plea because it was not supported by sufficient evidence. He later filed a formal motion to withdraw. He argued that there was insufficient evidence to support the “in furtherance” element.

CA2 agreed. It held that the evidence established, at most, that defendant possessed the gun during the time that he was engaged in a narcotics conspiracy; that he stored it in a locked van parked near his home; that the same van had also been parked near the site of his drug-trafficking activity more than a month before; and that his reason for possessing the gun was for protection. Because the evidence in the record at the time of the change-of-plea hearing established only that defendant possessed the gun while simultaneously engaging in a narcotics conspiracy, the record lacked a factual basis for the “specific nexus” between the gun and the narcotics offense that would be required to support a plea to possession “in furtherance of” such an offense.

The Circuit’s decision can be found here.

In United States v. Khan, in a summary order, CA2 affirmed defendants’ SDNY convictions for conspiracy to import one kilogram and more of heroin into the US, the 180-month sentence imposed by Judge Kimba M. Wood upon defendant Khan, and the 133-month sentence imposed upon defendant Said. CA2 rejected defendant Khan’s contention that the district court erroneously applied a three-level role enhancement and defendant Said’s contention that he was eligible for relief under the “safety valve” provision of the Guidelines.

As for Khan’s claim, a defendant may be subject to a three-level role enhancement if the defendant is a manager or supervisor and the criminal activity involves five or more participants or is otherwise extensive. CA2 found that the district court appropriately concluded that Khan was the manager or supervisor of at least one other participant and that the conspiracy involved the participation of at least six named individuals and was otherwise extensive as it involved a complex, international, drug‐trafficking organization.

As for Said, the “safety valve” provision of 18 U.S.C. § 3553(f) and guidelines § 5C1.2, allows a court to sentence a defendant “without regard to any minimum statutory sentence.” To qualify for safety valve relief, a defendant must satisfy five

criteria, including that “the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.” CA2 rejected Said’s argument that the district court erred in finding that he had failed to satisfy this criteria. CA2 found that Judge Wood was entitled to reject Said’s uncorroborated claims regarding his lack of intent, especially because they conflicted with contemporaneous undercover recordings and Defendant Khan’s post-arrest proffer statements. Judge Wood also had the opportunity to observe Said’s testimony at the Fatico hearing, and was well situated to make a credibility determination.

The Circuit’s decision can be found here.

New York Court of Appeals

In People v. Rouse, NYCA unanimously reversed defendant’s attempted murder conviction, holding that Bronx Supreme Court abused its discretion as a matter of law and committed reversible error when it refused to allow defendant to cross-examine the two police officers central to this case in two specific areas involving officer dishonesty. In People v. Smith, 27 N.Y.3d 652 (2016), NYCA had held that, much to the surprise of judges and prosecutors in NYC, police officers should be treated in the same manner as any other non-defendant witness when it comes to cross examination. Building on Smith, here, NYCA held that it was error not to allow defense counsel to cross (1) an officer about his lies to a federal prosecutor about his role in a ticket-fixing scheme, and (2) two testifying officers about prior judicial determinations by federal judges that the officers were incredible.

NYCA’s decision can be found here.

In People v. Thomas, NYCA held, in three consolidated cases, that an invalid written appeal waiver does not, by itself, render an otherwise valid oral waiver of the right to appeal ineffective. NYCA affirmed one waiver, but found the other two invalid. In each of the three cases the written appeal waivers were invalid because they overstated the scope of the waiver. In Thomas, for example, the written waiver drafted by the Bronx District Attorney’s Office stated that the defendant was waiving his right to file a notice of appeal, something not permitted by New York or Federal constitutional law. Yet, NYCA found that, if the oral waiver between the court and

defendant otherwise established that defendant knew the rights he was waiving, the invalid written waiver did not vitiate the valid oral waiver.

In separate opinions, Judge Rivera would have found the erroneous written waiver sufficient to invalidate the oral waiver; Judge Wilson would have ruled that all appeal waivers are invalid because they have proven to be unworkable, and Judge Garcia would have found all three of the oral waivers adequate.

On the merits in People v. Lang, NYCA held that the absence of the approximate time of an offense in an otherwise valid waiver of indictment did not invalidate a guilty plea to an otherwise lawful superior court information. Lang overrules precedent in the Third and Fourth Department’s which has long required strict compliance with CPL 195.20, that by its express language required that the waiver state the date, approximate time and place of the specific offense for which defendant was being held for grand jury action.

NYCA’s decision can be found here.

In People v. Li, NYCA held that a physician can be guilty of reckless manslaughter for prescribing unnecessarily high doses of opioids and other controlled substances for pain. A 1972 Second Department decision, People v. Pinckney, 38 A.D.2d 217, affirmed by NYCA without opinion, 32 N.Y.2d 749 (1973), had previously held that a physician could not be prosecuted for homicide for over-prescribing dangerous drugs, because the Penal Law already provided penalties for the sale of dangerous drugs.

Judge Wilson, in dissent, would have applied Pinckney because of the chilling affect a potential homicide prosecution might have on physicians when prescribing medications.

NYCA’s decision can be found here.

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