DECISIONS OF THE WEEK ENDED OCTOBER 16, 2020

| Oct 16, 2020 | Ed Sapone’s Decisions of the Week

While CA2 released no precedential decisions this week, its summary decision in Brettschneider is worth a read, as a cautionary tale. There, CA2 affirmed the convictions of two former criminal defense attorneys who overstepped in their advocacy on behalf of their clients.

In the state courts, NYCA released its first significant decision of the fall term in Hardy, where the Court considered not only the powers of a court to amend an accusatory instrument to correct errors, but also what issues survive a guilty plea.

Second Circuit

In United States v. Clark, in a summary order, CA2 affirmed defendant’s convictions, following a guilty plea before EDNY Judge Margo K. Brodie, for Hobbs Act robbery and possessing and brandishing a firearm in furtherance of a crime of violence (18 USC §924(c)). CA2 rejected defendant’s contentions that: (1) the district court failed to determine that there was a factual basis for his guilty plea as to both counts; (2) the district court failed to inform him of the nature of either charge he pleaded guilty to; and (3) he received ineffective assistance of counsel during and after the plea proceedings.

CA2 found that there was an adequate basis for the §924(c) plea under Rule 11 because defendant admitted that he participated in an armed robbery of a Staten Island bagel store and that he knew that his accomplice would brandish a gun and had brandished a gun. Defendant challenged the Hobbs Act robbery plea, contending that there were no facts establishing its interstate commerce element. CA2 disagreed, finding that the parties had stipulated that the store robbed by defendants was engaged in interstate commerce, and the district court was permitted to rely on that stipulation.

CA2 found it was a closer question on the issue of whether the district court had adequately informed defendant about the nature of aiding and abetting liability for the §924(c) violation. The court had not told defendant the basic elements of aiding-and-abetting liability, and did not mention that aiding-and-abetting liability for a §924(c) violation required advance knowledge that a gun would be used at a time when defendant had a realistic opportunity to quit the crime. Although the district court had inadequately advised defendant of these issues, CA2, nonetheless, found the error harmless, because defendant did not demonstrate that he would not have entered the plea if he’d been properly advised.

Finally, CA2 found that the ineffective assistance of counsel claim could not be evaluated on direct appeal, leaving it to defendant to raise in a collateral proceeding.

CA2’s decision can be found here.

In United States v. Machia, in a summary order, CA2 remanded defendant’s appeal for further proceedings on the question of whether the 360-month sentence imposed following defendant’s conviction for sexual exploitation of a minor for the purpose of producing child pornography was affected by counsel’s failure to object to a Guidelines miscalculation.

At sentencing following defendant’s guilty plea, defense counsel argued that the correct offense level was 40, resulting in a guidelines range of 292–365 months’ imprisonment, capped at the 30-year statutory maximum as set forth in § 2251(a). The district court agreed and sentenced defendant to the statutory maximum of 360 months’ imprisonment, a sentence within the guidelines range for a defendant with an offense level of 40 and a criminal history category of I. On appeal, both parties agreed that calculating defendant’s offense level as 40 was wrong because it failed to include a three-level reduction for acceptance of responsibility. They further agreed that defendant’s correct offense level was 37, which yielded a Guidelines range of 210–262 months of imprisonment.

The government also conceded that counsel’s performance was deficient under Strickland, but argued that defendant could not show that she suffered prejudice as a result of her counsel’s contribution to the district court’s error because the district court had stated on the record that it would impose the 360-month sentence regardless of any potential Guidelines miscalculation.

CA2 found, however, that the district court had not adequately explained the grounds for its apparent determination that an upward variance of 98-150 months from the correct Guidelines range to the statutory maximum was warranted. It remanded to give the court the opportunity to more fully explain its reasons.

CA2’s decision can be found here.

In United States v. Brettschneider, in a summary order, CA2 affirmed the convictions of defendants Brettschneider and Scarpa, two attorneys who were charged with engaging in separate criminal conspiracies with a common mutual associate, following separate jury trials in EDNY before Judge Carol Bagley Amon. Brettschneider was convicted of conspiracy to make and making false statements in violation of 18 U.S.C. §§ 371 and 1001(a)(2). Scarpa was convicted of conspiracy to use and use of interstate facilities in aid of racketeering in violation of 18 U.S.C. §§ 371 and 1952(a)(3)(A). The district court sentenced Brettschneider principally to four years of probation, and Scarpa principally to thirty months of imprisonment.

CA2 rejected defendant Brettschneider’s contentions that the district court: (1) erred in denying his motions to set aside the verdict pursuant to Federal Rules of Criminal Procedure 29 and 33; and (2) constructively amended the indictment. CA2 rejected defendant Scarpa’s arguments that: (1) his conviction was not supported by substantial evidence; and (2) the district court erred when it admitted evidence related to a witness in a separate trial. CA2 also rejected defendants’ common argument that the court erroneously denied their motion to suppress wiretap evidence.

Brettschneider was convicted of making, and conspiring to make, false statements to the BOP on behalf of a client who was convicted of narcotics trafficking. The government charged that Brettschneider recruited a co-defendant, his paralegal and a certified drug counselor, to write a false letter regarding his client’s purported history of substance abuse in an effort to get him into the RDAP program.

CA2 rejected defendant’s argument that the false statements in the letter written on his client’s behalf were insufficient to establish materiality, a necessary element of the substantive charge of making false statements. Where, as here, an inmate’s presentence report does not indicate substance abuse in the relevant period, BOP may consider records such as a letter from a drug counselor verifying treatment. Here, BOP in fact reviewed the letter. Therefore, CA2 found that the letter was intrinsically capable of influencing BOP’s decision regarding admission to RDAP. Accordingly, the jury did not act irrationally when it found that the element of materiality was satisfied.

CA2 also found that the district court’s instructions did not amount to a constructive amendment of the indictment. CA2 found that the revised instruction, that “[a] fact is material if it has a natural tendency to influence or is capable of influencing the government’s decisions or activities,” sharpened but did not expand the definition it had previously approved — “[a] fact is material if it was capable of influencing the government’s decisions or activities,” and brought it into line with the definition articulated by Supreme Court in United States v. Gaudin, 515 U.S. 506 (1995).

According to CA2, the district court properly denied suppression of the wiretap evidence. Both defendants argued that the initial wiretap application failed to satisfy the necessity requirement. CA2 found that there was no requirement that authorities “exhaust” normal investigative techniques before resorting to a wiretap, only that agents inform the authorizing judicial officer of the nature and progress of the investigation and of the difficulties inherent in the use of normal law enforcement methods. That was satisfied here.

Scarpa was convicted of using, and conspiring to use, interstate facilities in aid of racketeering in violation of the Travel Act. The government charged that Scarpa, while representing Ross in a state murder trial, conspired to bribe Cherry, a witness in the Ross trial, into testifying falsely. Under the plan, Cherry, already serving a lengthy prison sentence, would receive assistance with appeals and reputational benefits within the prison system, and, in return, would falsely testify that Ross did not participate in the murder of Williams, one of the two murder victims at issue in the Ross trial, and that Cherry alone killed Williams.

Rejecting Scarpa’s legal insufficiency claim, CA2 found that the government presented sufficient evidence to convince a rational juror that Scarpa had offered to provide Cherry a benefit in return for his false testimony. The evidence included, for example, intercepted communications in which Scarpa discussed “a bunch of stuff” that Cherry wanted, and that Cherry was willing to do “whatever” Scarpa needed, and however Scarpa wanted to “play it.” Other intercepted communications detailed specific benefits that Cherry would receive, such as help with his appeals and reputational benefits inside the prison system. The evidence also showed that following these communications, Cherry perjured himself to exonerate Ross regarding Williams’ murder.

CA2 rejected Scarpa’s contention that the district court abused its discretion in admitting into evidence the calls and text messages relating to efforts by Scarpa to intimidate and falsely discredit another witness — Anderson — during the Ross trial. It found that Scarpa’s efforts to improperly influence Anderson’s witness testimony were substantially similar to efforts — and could strengthen an inference of their intent — to also improperly influence Cherry’s witness testimony at the very same trial. The district court’s finding that Scarpa’s efforts to improperly influence Anderson’s witness testimony were relevant to proving Scarpa’s intent to improperly influence Cherry’s testimony was neither arbitrary nor irrational. Likewise, the district court did not abuse its discretion in finding that the evidence was relevant in informing the jury “of the background of the conspiracy,” in “complet[ing] the story of the crimes,” and “explain[ing] to the jury how the illegal relationship between the participants in the crime developed.”

CA2’s decision can be found here.

New York Court of Appeals

In People v. Hardy, NYCA reversed defendant’s Queens County Criminal Court conviction following a guilty plea to criminal contempt in the second degree. In a 4-3 decision, with the majority opinion written by Judge Wilson, NYCA held that it was error for the trial court to correct a clearly erroneous fact contained in the information charging defendant. Judge Garcia dissented in an opinion joined by Chief Judge DiFiore. A separate dissent was authored by Judge Rivera.

In the trial court, defense counsel challenged the factual sufficiency of the accusatory instrument because the date on which defendant was alleged to have violated the order of protection was incorrect. The court responded that the error was clearly just a typographical one, and granted the People’s motion to correct it. Judge Wilson, writing for the majority, held that, although the CPL authorizes such amendments for a select subset of accusatory instruments, including indictments, that subset does not include misdemeanor complaints or informations, for which only the non-factual portion may be amended.

Judges Garcia and DiFiore would have allowed the correction because any objection to the error was forfeited by defendant’s guilty plea, and the court was authorized to make the correction. Judge Rivera would have found only that the correction was authorized, but not that the guilty plea waived defendant’s challenge.

NYCA’s decision can be found here.

Appellate Division, First Department

In People v. Herbin, AD1 affirmed defendant’s New York County conviction for criminal sale of a controlled substance, but vacated the sentence in the interest of justice, finding that it was error for the court to rely on a conviction in sentencing defendant that was subsequently reversed.

AD1’s decision can be found here.

In People v. Anonymous, AD1 affirmed defendant’s New York County convictions for criminal possession of a firearm, unlawfully dealing with a child, and endangering the welfare of a child, but reversed, in the interest of justice, convictions for unlawful possession of ammunition and marijuana.

AD1 found that the ammunition-possession conviction under Administrative Code § 10-131(i)(3) required the People to prove as an element that the defendant was not authorized to possess the pistol within NYC, regardless of whether defendant raised it in the first instance. Since the People did not prove the lack of authorization, the conviction was vacated.

As to the marijuana-possession conviction, AD1 found that the conviction was vacated and dismissed as a matter of law pursuant to CPL 160.50(5), without requiring any action by the court, but vacated it nonetheless.

AD1’s decision can be found here.

In People v. Ford, AD1 reversed defendant’s Bronx County manslaughter 1o conviction, in the interest of justice, finding that the court erroneously rejected the jury’s verdict of guilty on the lesser-included offense of manslaughter 2o as non-unanimous.

With the approval of both the prosecutor and defense counsel, the court rejected a verdict of guilty on the lesser-included offense of manslaughter 2o as non-unanimous, based on a notation on the verdict sheet indicating that the jury’s vote on the count was divided. It did not poll the jury to determine whether the guilty verdict announced in court by the foreperson was unanimous. This reliance on the verdict sheet, instead of the verdict itself, was erroneous. The court should not have rejected the verdict without polling the jury.

AD1’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Denton, AD2 modified defendant’s Nassau County first- and second-degree assault convictions, reducing them to a conviction of assault in the third degree, finding, as it had last year in a codefendant’s appeal in People v. Palant, 176 A.D.3d 872, that there was inadequate proof of serious physical injury.

AD2’s decision can be found here.

In People v. Smith, AD2 modified defendant’s Queens County first-degree burglary and second-degree robbery convictions to second-degree burglary and third-degree robbery, finding that there was insufficient proof that complainant had suffered physical injury.

The complainant stated that her injuries consisted of a laceration on her neck from the defendant pulling off her necklace, and scratches on her wrist from the defendant pulling off her bracelets. Complainant did not go to the hospital and testified that her neck was sore and her wrist felt a little sore and afterwards she had pain in her neck and wrist, although she did not specify when the pain began or its duration. The officer who responded to the scene testified that the complainant had a scratch on her neck. AD2 found that this was insufficient evidence from which a jury could infer that the complainant suffered substantial pain or impairment of her physical condition.

AD2’s decision can be found here.

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