Ed Sapone’s DECISIONS OF THE WEEK -December 13th

| Dec 13, 2019 | Ed Sapone’s Decisions of the Week

Although there were four precedential decisions in the Circuit this week, they were relatively routine, with the exception of a reversal on a government appeal in Lett. There, EDNY Judge Margo K. Brodie dismissed an indictment apparently out of frustration by the government’s effort to circumvent her order releasing defendant on bail. Notwithstanding the order, the government ultimately caused defendant’s detention by subjecting him to an ICE hold.

There were also a few reversals in AD1 and AD2, including a rare reversal in AD1 for on-the-record ineffectiveness in Camacho.

Second Circuit

In United States v. Kosic, CA2 granted defendant’s in forma pauperis (IFP) application, resolving the open issue that no threshold showing of the merits of an appeal is required before a defendant can obtain IFP status and counsel to represent him on his direct appeal.

Defendant pleaded guilty while represented by retained counsel to conspiracy to distribute and possess with intent to distribute controlled substances. He was sentenced to 150 months of imprisonment and he timely appealed. Retained trial counsel asked to be relieved and sought appointment of CJA counsel, stating that defendant could not afford a lawyer. Retained counsel explained that his representation was limited to the district court proceedings, and that he charged him “at a much lower rate than the case required.”

Defendant filed motions in the Circuit for IFP status, for retained counsel to be removed, and for appointment of CJA counsel. He also submitted affidavits showing that he had no income and no assets.

Because defendant had not been granted IFP status below, the IFP motion was transferred to the district court for determination in the first instance. Judge Paul A. Crotty denied the motion, determining that, “[p]ursuant to 28 U.S.C. § 1915(a)(3), . . . any appeal would be frivolous and not taken in good faith.”

CA2 found that, in a criminal case, no consideration of the merits was appropriate before granting IFP relief and assigning counsel. This case presented what CA2 described as the “relatively rare occurrence” in which a defendant retains counsel at the trial level but cannot afford counsel on appeal. (For what it’s worth, I don’t think that’s rare.) Had defendant had CJA counsel below, he would have automatically had counsel assigned to his appeal, without a consideration of the merits of that appeal. There was no reason to depart from that rule here.

CA2’s decision can be found here.

In Estremera v. United States, CA2 affirmed the Connecticut District Court’s denial of defendant’s motion to vacate, set aside, or correct his sentence, pursuant to §2255. CA2 rejected defendant’s contention that his Connecticut state convictions for first- and second-degree robbery did not categorically qualify as violent felonies under the force clause of the Armed Career Criminal Act, and that its 15-year minimum did not apply.

Defendant was found guilty of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The indictment identified three prior Connecticut state convictions: (1) first degree robbery and attempted robbery, (2) second degree robbery and conspiracy to commit robbery, and (3) conspiracy to distribute more than five grams of cocaine. Based on these three prior convictions, the district court concluded that defendant fell within the ambit of the ACCA, which provides for a 15‐year mandatory minimum sentence “[i]n the case of a person who . . . has three previous convictions . . . for a violent felony or serious drug offense, or both ….” CA2 affirmed. United States v. Estremera, 282 F. App’x 935, 939 (2d Cir. 2008).

Following the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated the residual clause of the ACCA’s definition of “violent felony,” defendant filed a § 2255 challenging the sentence, which the district court denied.

CA2 found that its prior decision in Shabazz v. United States, 912 F.3d 73 (2d Cir. 2019) resolved the issue, because it held that Connecticut’s simple robbery statute qualified as a violent felony under the ACCA’s force clause. Because the statutes under which defendant here was convicted require that he have committed simple robbery, the convictions were for crimes of violence.

CA2’s decision can be found here.

In United States v. Pugh, CA2 amended its prior August 29, 2019 decision that had affirmed defendant’s EDNY convictions for attempting to provide material support to a foreign terrorist organization and obstruction of justice, but vacated the aggregate 240-month sentence imposed by Judge Nicholas G. Garaufis. CA2 agreed with defendant that the sentence was procedurally unreasonable because the judge failed to sufficiently articulate his reasons for imposing the maximum available sentence.

The amended opinion was materially unchanged from the initial August 2019 decision. It once again vacated the aggregate 240-month sentence because Judge Garaufis did not adequately explain the need for consecutive sentences. The sole change was a factual correction that seemingly did not impact the merits: the criminal conduct occurred in Egypt, not Turkey.

The opinion was perhaps most notable for Judge Calabresi’s concurring opinion, in which he emphasized the dangerous risks posed by charging obstruction of justice. The statutory maximum sentence for the serious main crime of the defendant’s attempt to join ISIS was 15 years. By charging obstruction, the government empowered the sentencing judge to more than double that sentence for conduct that amounted to destroying some USB drives and deleting some meaningless files. We don’t expect that a sentencing judge who uses his power to max out a defendant with a 15-year sentence on a serious charge will then use his power to max him out with 20 years on a

much less serious obstruction charge, and then run the sentences consecutively. But the latter charge with its 20-year potential invites such a danger.

CA2’s decision can be found here.

In United States v. Lett, CA2 vacated the order of EDNY Judge Margo K. Brodie, which had dismissed an indictment charging him with importing cocaine and possessing cocaine with intent to distribute, on the grounds that his subsequent detention by ICE after he was released pretrial, violated the Bail Reform Act. CA2 found that, notwithstanding a district court’s release order pursuant to the BRA, the government has the authority under the Immigration and Nationality Act to detain a criminal defendant who is an alien in the course of an administrative removal proceeding.

Defendant was arrested at JFK Airport after US Customs and Border Protection (CBP) allegedly found two kilograms of cocaine in his suitcase. CBP paroled him into the US for criminal prosecution and transferred him to the custody of the Bureau of Prisons. The government filed a criminal complaint charging him with importing cocaine. The same day, a magistrate judge ordered that he be detained pending trial pursuant to the BRA, but granted leave to renew his bail application at a later date. Meanwhile, ICE lodged an immigration detainer against him. A grand jury later indicted defendant for importing cocaine and possessing cocaine with intent to distribute.

At a later status conference, defendant renewed his bail application. Over the government’s objection, the judge ordered his release. The government did not appeal. Rather than release defendant, BOP transferred custody to ICE, which initiated removal proceedings, serving him with a notice to appear, and alleging that he was an inadmissible alien subject to removal as a controlled substance trafficker.

Defendant then moved to dismiss the indictment arguing that his continued detention by ICE violated the BRA. The district court concluded that under the BRA the government had to either prosecute defendant criminally or proceed with deportation proceedings, not both, and dismissed the indictment with prejudice.

CA2 found that there was no conflict between the detention‐and‐release provisions of the two statutes. The government’s authority to detain an alien pursuant to the Immigration and Naturalization Act does not disappear merely because the U.S. Marshal cannot detain him under the BRA pending his criminal trial.” A district court’s conclusion that a person is not a flight risk or a danger to the community under the BRA has no bearing on whether that individual can demonstrate that he is “clearly and beyond a doubt entitled to be admitted” to the United States.

CA2’s decision can be found here.

In United States v. Hilliard, in a summary order, CA2 affirmed defendant’s conviction for conspiring to distribute 100 grams or more of heroin and the 108-month sentence imposed by SDNY Judge Vincent L. Briccetti. CA2 rejected defendant’s contention that the district court’s failure to exclude evidence of 12 controlled purchases of heroin from a cooperating witness resulted in a prejudicial variance between the indictment and proof at trial and a constructive amendment of the indictment.

CA2 found that there was no constructive amendment, because the evidence of the 12 purchases was direct evidence of the charged conspiracy and was encompassed by the plain terms of the indictment. That the evidence of the sales was not part of the evidence before the grand jury did not affect this conclusion.

CA2 also rejected defendant’s claim that the district court erred by declining to apply a two-level adjustment for acceptance of responsibility under Guidelines § 3E1.1(a). Although the adjustment can apply in “rare situations” after a trial, the determination must then “be based primarily upon pre-trial statements and conduct.” Here, although defendant admitted at trial to selling drugs, the district court correctly found that he had not clearly accepted responsibility for his participation in a conspiracy to distribute 100 grams or more of heroin before or during trial.

CA2’s decision can be found here.

Appellate Division, First Department

On Thursday, in People v. Camacho, AD1 reversed defendant’s New York County third-degree robbery and grand larceny convictions, finding that that he was denied the effective assistance of counsel when his trial counsel failed to make a timely request to submit petit larceny as a lesser-included offense.

While the defense conceded that defendant stole a cell phone, it denied that any force was used. Nevertheless, at the charge conference prior to jury deliberations, defense counsel failed to ask for submission of the charge of petit larceny. Trial counsel realized during deliberations that the charge wasn’t requested. Counsel admitted to having been “remiss” in failing to make a timely request.

AD1 found that “counsel could not have been employing an all-or-nothing strategy as to the robbery as argued by the People. This strategy would have made no sense, because the defense was conceding that defendant was guilty of petit larceny as to the other incidents and was already inviting convictions of several misdemeanors.”

It doesn’t matter in light of the reversal, but is worth mentioning anyway that the verdict convicting defendant of robbery wasn’t against the weight of the evidence. Further, there was a reasonable view of the evidence to support a theory that defendant committed petit larceny. And the evidence of forcible stealing, notwithstanding that defendant displayed a knife and the victim felt threatened, was not so overwhelming so as to render futile a request for a petit larceny instruction.

AD1 also reversed the grand larceny conviction, which was based on stacking the values of phones taken from two separate stores on two separate days. The People failed to properly aggregate multiple thefts, because they produced no evidence that the phones were owned by the same stores or “owners”. See People v Miller, 145 AD3d 593, 594 (1st Dept 2016) lv denied 29 NY3d 950 (2017). There was no evidence that these stores were owned by the same corporation, as opposed to, for example, dealerships separately owned and authorized to sell AT & T wireless products and services. See Kapoor v AWI Wireless, LLC, 159 AD3d 1027, 1028 (2d Dept 2018).

Given that the record exposed a mistake and not a strategic decision, no CPL 440.10 motion was necessary.

AD1’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Day, AD2 reversed defendant’s Kings County first-degree robbery and assault convictions. AD2 found that the prosecutor’s comments during summation that the defendant’s DNA was found on the weapon used to shoot the victim had no evidentiary support in the record. The remarks, which were promptly objected to by defense counsel, were highly prejudicial and ultimately deprived the defendant of his right to a fair trial, particularly as the Supreme Court refused to give any curative instruction or grant a mistrial based upon the prosecutor’s improper comments.

AD2’s decision can be found here.

In People v. Grant, AD2 vacated, in part, the Nassau County judgment that ordered defendant to make restitution in the sum of $39,374 following his conviction for manslaughter in the second degree and vehicular manslaughter in the second degree. AD2 found that the restitution exceeded the $15,000 limit imposed by Penal Law § 60.27(5), except with the consent of the defendant or in instances where restitution is ordered as a condition of probation or a conditional discharge. AD2 found that the restitution exceeded the statutory limit, because it was not intended to reimburse the victim for the value of property destroyed.

AD2’s decision can be found here.

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