Ed Sapone’s DECISIONS OF THE WEEK – December 27, 2019

| Dec 27, 2019 | Ed Sapone’s Decisions of the Week

It was an unexpectedly busy holiday week in the Second Circuit and the state appellate courts.

In the Circuit, in addition to a very lengthy opinion in Campo Flores that must have kept Judge Kearse’s clerks busy for months, an interesting summary order in Swinton tasked WDNY with answering the question of whether attempt crimes should be considered predicate offenses under the career offender guideline—§ 4B1.1 & .2.

In the state appellate courts there were reversals in all four departments. Particularly interesting was AD2’s reversal in Melamed, which was similar to AD1’s recent reversal in Thompson, both recognizing the potential for overbreadth in warrants that authorize the search of phones, computers, and other digital devices. Both cases rely largely on federal case law and, hopefully, show a growing awareness in the state courts of the danger of these all-encompassing warrants.

Second Circuit

On Friday, in United States v. Campo Flores, in an extremely comprehensive opinion written by Judge Amalya L. Kearse, CA2 affirmed defendants’ SDNY convictions for conspiracy to import cocaine, before Judge Paul A. Crotty. CA2 rejected defendants’ contentions that: (1) the evidence was insufficient to establish their knowledge that the cocaine was to be imported into the US, and that the court erred by instructing the jury that the knowledge element could be satisfied on the basis of conscious avoidance; (2) the government failed to meet its burden with regard to the entrapment defense; (3) the court abused its discretion in various evidentiary rulings, including the admission of lay opinion testimony identifying a substance as cocaine, the admission of government agents’ interpretations of certain statements made by defendants, and the admission, on direct examination, of a government agent’s written notes and reports as his prior consistent statements as to defendants’ post-arrest statements; and (4) their sentences were improperly enhanced under Guidelines § 2D1.1(b)(3)(A), applicable when private aircraft “was used” to import drugs, because the conspiracy was thwarted prior to the transport of any narcotics.

The events at issue had their origin in the efforts of Campo and Flores, nephews of Cilia Flores, the First Lady of Venezuela, to obtain large quantities of cocaine from a Colombian supplier, and then ship the cocaine from Venezuela to drug traffickers in Honduras. According to Campo, who, from an early age was raised by Cilia Flores and sometimes referred to her as his mother, defendants sought to raise $20 million in drug proceeds to fund Cilia Flores’s 2015 campaign for

a position in the Venezuelan National Assembly. The DEA learned of their efforts and infiltrated defendants’ discussions.

Defendants’ principal evidentiary challenge was that the district court erred in (a) allowing the notes of Gonzalez—the DEA agent who coordinated much of the operations—as to defendants’ post-arrest statements to be admitted during his direct examination, (b) allowing Santos-Pena, a former DEA informant, to testify that a sample substance proffered by Campo was cocaine, and (c) allowing Gonzalez and Santos-Pena to testify as to how they had interpreted certain of defendants’ statements.

CA2 rejected defendants’ challenge to the admission of Gonzalez’s note. CA2 found that the notes were not hearsay because, pursuant to Fed. R. Evid. 801(d)(1)(B), Gonzalez testified and was subject to cross-examination, and the defense had, in their opening statements, raised an implicit charge that Gonzalez had a motive to fabricate and his claimed memory of the statements should not have been trusted. CA2 found that the notes were a proper response to defendants’ attacks on Gonzalez’ credibility and memory, and not hearsay under Rule 801’s definition.

CA2 rejected defendants’ challenge to Santos-Pena’s lay testimony that a sample presented to defendants at a Venezuela meeting was cocaine, finding that, given his familiarity with cocaine, Santos-Pena could testify as a lay witness as to his own conclusions and not as an expert.

CA2 also rejected defendants’ challenges to Gonzalez and Santos-Pena’s testimony interpreting defendant’s statements because, while the witnesses’ interpretations were not essential to enable the jury to have a clear understanding of what was said, they were “helpful,” and that was enough to make them admissible.

As to the sufficiency of the evidence establishing that defendants knew the cocaine would be imported into the US, CA2 found that, although the mere fact that defendants knew cocaine flown to Honduras would likely end up in the US was not enough to establish knowledge, repeated mentions of trafficking drugs into the US made on recorded conversations was sufficient to establish knowledge. According to CA2, a conscious-avoidance instruction was appropriate, because a juror could have rationally concluded that, if in fact defendants did not actually know their cocaine was to be sent to the US, they deliberately avoided knowing it.

CA2 rejected defendants’ entrapment challenge, as well. Because there was ample evidence that defendants had long been involved in drug trafficking well before being contacted by anyone in the US government, defendants’ predisposition to commit the crime was adequately established. More, defendants’ “ready willingness” to commit the charged crime showed predisposition.

Finally, CA2 rejected defendants’ sentence challenge, in particular, their challenge to the SOC two-step enhancement for use of an aircraft to import a controlled substance, which defendants contended did not apply because the conspiracy never reached the stage of using an aircraft. Because the conspiracy anticipated the use of an aircraft, that was enough to warrant the enhancement.

CA2’s decision can be found here.

On Monday, in United States v. Smith, CA2 affirmed defendant’s EDNY attempted export of defense articles without a license conviction, before Judge Jack B. Weinstein, rejecting defendant’s contention that the statutory and regulatory scheme under which he was convicted infringed on protected speech in a manner that violated the First Amendment.

Defendant pleaded guilty to attempted export of defense articles without a license, after federal agents at JFK Airport, on two separate occasions, discovered handgun parts in luggage he had checked in connection with outgoing international flights. He was permitted to argue on appeal that the statutory and regulatory scheme under which he was convicted infringed on protected speech in a manner that was substantially overbroad, in violation of the First Amendment. Defendant did not contend that his attempts to transport gun parts in his checked luggage was expressive in its nature or purpose. CA2 found that, by bringing only a facial challenge that took issue with aspects of the regulations that were unrelated to his indictment and conviction, he effectively conceded that the prohibition of his own conduct alone presented no First Amendment issue. Defendant’s challenge related primarily to regulations that prohibited the export of “technical data” as a defense article. Because defendant was not charged with having violated the specific statutory provisions that limited the export of technical data, he had no standing to challenge those provisions as overbroad.

CA2’s decision can be found here.

On Monday, in United States v. Swinton, in a summary order, CA2 affirmed in part and vacated in part, defendant’s WDNY convictions for possession of cocaine with intent to distribute, use of premises to manufacture, distribute and use controlled substances, possession of firearms in furtherance of drug trafficking crimes, and being a felon in possession of a firearm. CA2 rejected defendant’s pro se challenges to the conviction, but found potential merit to his sentence challenge.

As to his sentence, defendant argued, among other things, that his 1999 New York conviction for attempted criminal sale of a controlled substance in the third degree should not be considered a predicate controlled-substance offense under the career offender guideline—§4B1.1 & -.2. CA2 stated that whether an attempt crime fits the guidelines definition of a controlled-substance offense was an open question in this Circuit. Several circuits, including the Sixth, and D.C. Circuit, have held that it does not. See United States v. Havis, 927 F.3d 382, 387 (6th Cir. 2019) (en banc); see alsoUnited States v. Winstead, 890 F.3d 1082, 1090-92 (D.C. Cir. 2018).

As the Sixth Circuit stated in Havis, the plain language of Guidelines § 4B1.2(b) says nothing about attempt crimes. But the commentary states that “‘Crime of violence’ and ‘controlled substance offense’ include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” See USSG § 4B1.2(b) cmt. n.1

Because neither the district court nor the parties had fully addressed this issue, CA2 remanded for resentencing with the direction that the district court consider whether, in light of the concerns addressed in Havis and Winstead, the career offender guideline properly applied.

CA2’s decision can be found here.

Appellate Division, First Department

On Thursday, in People v. Zi, AD1 reversed defendant’s New York County first-degree grand larceny convictions, finding that Judge Laura Ward did not conduct a sufficiently thorough pro se colloquy before allowing the defendant to represent himself at trial, where there were red flags indicating that defendant might have been suffering from a serious mental illness that affected his competency to waive counsel.

AD1’s decision can be found here.

In People v. Burgess, AD1 reversed defendant’s New York County first-degree criminal possession of a forged instrument conviction, finding that Judge Charles Solomon at the suppression hearing, and Judge Ruth Pickholz at a bench trial, erroneously denied defendant’s request to cross-examine a police officer about Smith materials, i.e., allegations in a civil lawsuit against the officer relevant to his credibility. See People v. Smith, 27 N.Y.3d 652 (2016).

AD1’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Melamed, AD2 reversed defendant’s Kings County grand larceny and residential mortgage fraud convictions, finding that the search warrant obtained by the Office of the Attorney General to search the premises from which the defendant operated two businesses was overbroad. The items permitted to be searched and seized included: corporate documents; employment records, employee lists, and employment contracts; all calendar books, appointment books, and address books; all computers, computer hard drives, and computer files stored on other media; and all bank, tax and financial records. The warrant did not name or specify any particular crime or offense to which the search was related, and did not incorporate the affidavit by reference.

AD2 found that the warrant, even though it complied with CPL 690.45 was precisely the kind of general warrant that the Federal and NY State Constitutions prohibit.

AD2’s decision can be found here.

Appellate Division, Third Department

On Thursday, in People v. Gillette, AD3 reversed defendant’s Cortland County convictions for the unlawful manufacture of methamphetamine in the third degree and related charges, finding that the evidence was insufficient. Although two active one-pot meth labs were discovered in an apartment, and defendant, along with five others were seen exiting that apartment when the fire department arrived there, there was insufficient evidence that defendant constructively possessed

the requisite items with unlawful intent. Here, the absence of evidence came in handy for defendant: he did not live in the apartment or have keys to it; the apartment was leased to two of the others leaving when the fire department arrived; and other evidence showed defendant was a guest there.

AD3’s decision can be found here.

Appellate Division, Fourth Department

On Friday, in People v. Nelson, AD4 modified defendant’s Monroe County conviction, reducing his gang assault in the first degree conviction to gang assault in the second degree, finding that the evidence was insufficient to establish that defendant shared his codefendant’s intent to cause serious physical injury to their victim. According to a testifying witness, the knife used by the codefendant was not visible during the assault, and defendant had given the knife to the codefendant before they knew that the victim was in the area. Both the testifying witness and defendant asked the codefendant following the assault why he had used the knife against the victim. The evidence further established that defendant specifically told the codefendant immediately after the assault that he had not given the codefendant the knife to be used in such a manner.

Because the evidence supported the lesser offense of second-degree gang assault, AD4 modified the conviction and remanded for resentencing.

AD4’s decision can be found here.

In People v. Lawhorn, AD4 reversed defendant’s Monroe County first-degree robbery conviction, finding that the court committed reversible error when it negotiated and entered into a plea agreement with a codefendant, requiring him to testify against defendant in exchange for a more favorable sentence. By assuming the function of an interested party and deviating from its own role as a neutral arbiter, the trial court denied defendant his due process right to a fair trial in a fair tribunal.

AD4’s decision can be found here.

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