DECISIONS OF THE WEEK ENDED DECEMBER 18, 2020

On Behalf of | Feb 2, 2021 | Ed Sapone’s Decisions of the Week

A quiet pre-holiday week in the Federal and State appellate courts. While CA2 released a number of summary orders, there was no relief for defendants, with the exception of a stricken supervised-release condition in Olmeda.

In the NY courts, the only decisions of note were the Court of Appeals’ decisions in J.L. and Williams, where the Court addressed the circumstances in which a defendant is entitled to a temporary and lawful possession charge.

Second Circuit

United States v. Olmeda, in a summary order, CA2 affirmed the 151-month sentence imposed by SDNY Judge Richard M. Berman following defendant’s guilty plea to three counts of being a felon in possession of a firearm, and three counts of possession of unregistered firearms. The case had been previously remanded following CA2’s decision in United States v. Olmeda, 894 F.3d 89 (2d Cir. 2018), in which CA2 had directed the district court to more fully consider the impact of sentencing Guideline § 5G1.3 in light of defendant’s subsequently imposed state court sentence. CA2 did, however, vacate that part of the sentence that imposed a supervised-release condition which delegated too much authority to defendant’s probation officer.

CA2 found that the district court did not abuse its discretion when it imposed defendant’s federal sentence consecutive to defendant’s NY state sentence. The district court considered the Guidelines recommendation in § 5G1.3 that a federal sentence be imposed concurrently to an undischarged state sentence for an offense that is relevant conduct to the federal offense. The court, nonetheless, was reasonable in concluding that the factors of 18 U.S.C. § 3553(a) instead favored a consecutive sentence. CA2 found that the district court reasonably emphasized public safety concerns, given defendant’s history of unlawfully possessing and using weapons, and the circumstances of his offense. The within-guidelines term of 151 months’ incarceration was substantively reasonable given the seriousness of the offense. CA2 found that, on the facts of the case — including those concerning defendant’s dangerousness that were not addressed in the state case — the decision to impose the sentence consecutively to the undischarged state term resulted in an appropriate sentence “located within the range of permissible decisions.”

But, CA2 found that a supervised-release condition imposing substance abuse treatment “if the probation officer determine[s] that it is necessary” impermissibly delegated judicial authority to the probation officer. Although the district court may delegate authority over the details of supervised release to a probation officer, it may not delegate “authority which would make a defendant’s liberty itself contingent on a probation officer’s exercise of discretion.” Thus, CA2 struck the substance-abuse-treatment condition.

CA2’s decision can be found here.

In United States v. Powell, in a summary order, CA2 affirmed defendant’s EDNY convictions for one count of conspiracy to commit wire fraud and seven counts of substantive wire fraud, in connection with a scheme to defraud beneficiaries of the U.S. Department of Veterans Affairs. CA2 also affirmed the 15-month sentence imposed by Judge Brian M. Cogan and the $48,548.51 in restitution defendant was ordered to pay under the Mandatory Victims Restitution Act (MVRA).

CA2 rejected defendant’s challenges to loss calculations made during the sentencing by the district court. CA2 approved the district court’s conclusion that the loss amount attributable to defendant was greater than $40,000, which yielded a six-level enhancement to the offense level. An addendum to the PSR had calculated a loss amount of $46,989.51, which included: (1) the amount of veterans benefits that co-conspirators re-routed into Netspend accounts for which cards were mailed to defendant or that were accessed by defendant’s cell phone number ($38,624.19), and (2) the amount of veterans benefits that were deposited into other bank accounts defendant controlled ($8,365.32). CA2 found that the district court’s loss calculation constituted a “reasonable estimate of the loss given the available information.”

CA2’s decision can be found here.

In United States v. Garcia-Hernandez, in a summary order, CA2 affirmed defendant’s SDNY convictions for possessing heroin with intent to distribute, and the mandatory minimum ten-year sentenced imposed by Judge Vincent L. Briccetti. In doing so, CA2 rejected defendant’s contention that his guilty plea was unknowing and involuntary.

CA2 found that defendant had failed to establish that the district court’s acceptance of his plea was plain error. The record showed that the district court fairly communicated, and defendant fully understood, that the mandatory ten-year sentence “was the actual and inevitable sentence.” At the plea allocution, the district court outlined the possible penalties that the charged offense carried, including a “mandatory minimum term of ten years imprisonment,” and defendant unambiguously confirmed that he understood those penalties.

CA2’s decision can be found here.

New York Court of Appeals

In People v. J.L. and People v. Williams, NYCA addressed the circumstances under which a court is required to instruct the jury on the temporary and lawful possession of a weapon defense.

In Williams, defendant was charged with several counts of attempted murder, assault, and criminal possession of a weapon in the second degree after he shot an acquaintance, Leon Carson, as well as a bystander, in the lobby of a large apartment building. Viewed in the light most favorable to defendant, the evidence established that, on the day of the shooting, defendant was visiting the apartment of a friend, known as “Foe.” As defendant left the building, he saw Carson standing outside with another man. Defendant and Carson, along with Carson’s brother, had a history of violent confrontations. More specifically, defendant had been shot by Carson’s brother on two separate occasions approximately five years earlier, and defendant knew that Carson believed him to be the perpetrator of a shooting the same year that left Carson, himself, wounded.

Defendant testified that, when he was exiting the building, he saw Carson outside and observed Carson pull a gun out of his pocket. Defendant retreated back through the lobby, and returned to Foe’s apartment on an upper floor, where he told Foe that Carson was outside with another man in a blue coat, and that Carson had “pulled a gun.” Although defendant asked Foe to call the police, hoping that their presence might prompt Carson to leave the area, Foe refused. When Foe’s partner requested that defendant leave, Foe grabbed a loaded gun, “cocked it,” and “put it on his waist,” telling defendant that he would walk him out to his car. Foe and defendant descended the stairwell to the lobby. Looking into the lobby, Foe saw a man in a blue jacket and relayed his presence to defendant. Foe then handed the gun to defendant, who accepted it without objection, and instructed defendant to walk behind him.

Approximately seven minutes after seeing Carson outside the building, defendant exited the stairwell into the lobby with the gun in his hand. As defendant stepped toward the building exit just a few feet away, he saw Carson down a nearby hallway. According to defendant, Carson had his hand in his pocket and lifted it upward, as if he was going to fire a gun. In response, defendant “just blacked out” and “started shooting,” ultimately firing five shots across the lobby—striking Carson three times and also hitting a bystander—before running out of the building. Once outside, defendant handed the gun back to Foe and fled.

Based on this record, NYCA rejected defendant’s argument that he was entitled to the temporary and lawful possession charge because he took possession of the weapon with the intent to use it only in self-defense and because his eventual firing of the gun was justified. The court unanimously (albeit with separate concurrences by Judges Rivera and Wilson), held that no reasonable view of the evidence presented at trial supported a conclusion that defendant’s initial possession of the firearm in question was innocent or excusable.

In J.L., defendant was tried on charges of criminal possession of a weapon and unlawful possession of marihuana. He was 17 years old when he was arrested and held liable for constructive possession of a gun based on his dominion and control over the bedroom where the gun was found. Defendant maintained that he did not live in the apartment where the gun was found and was a temporary guest with no prior knowledge of the gun, and that he discovered it unintentionally moments after being shot.

Defendant testified that he was randomly shot in the neck and chest while sitting in the kitchen of the basement apartment where he was planning to spend the night after his aunt put him out of her home for fighting with his brother. While he was in the kitchen smoking marihuana with the person whose apartment it was, defendant heard three gunshots. When he realized that he had been shot in the neck and was bleeding, he ran to the back bedroom where he would be staying to look for a towel. It was his first time in the room and, in an open drawer, he saw what he later told the police appeared to be a gun but denied picking it up. After he found a towel on top of the dresser, he went upstairs and told a neighbor to call 911.

During a search of the apartment, one of the officers followed a trail of blood into the back bedroom, where he found a MAC 11 submachine gun in an open drawer, as well as three small bags of marihuana on top of another dresser. A photograph admitted into evidence showed the gun on top of an envelope which was addressed to defendant at a different location and had the words “Important Insurance Documents Enclosed” printed on it.

The prosecutor did not present any evidence as to who was renting or living in the apartment or whether the police had made any efforts to locate the person who had supposedly rented the room to defendant for the night. Nor was there evidence disputing defendant’s statements to the police that he lived with his aunt.

No fingerprints were recovered from any of the weapons, but a criminalist testified that she determined defendant was one of at least two people who contributed DNA to samples taken from the MAC 11. However, she could not say where defendant’s DNA was found on the gun or when or how it had gotten there. She also testified that there was no way to determine the exact source of DNA and that, although she did not specifically test for the presence of blood on the MAC 11, it was possible that defendant’s blood dripped onto the gun or that the DNA was transferred there by a third party.

Based on the trial evidence, defendant requested that the court charge the jury on voluntary possession of the gun. The trial court, believing the instruction would be more confusing than helpful, denied the charge.

In a 4-3 decision, with Judge Rivera writing for the majority, and Chief Judge DiFiore writing for the dissent, NYCA held that the trial court erroneously denied defendant’s request to instruct the jury on voluntary possession because there was a reasonable view of the evidence that, to the extent defendant possessed a weapon at all, such possession was not voluntary. Judge DiFiore would have held that the view of the evidence embraced by the majority to support its conclusion that defendant was entitled to a jury charge on the legal definition of a voluntary act in the context of a possessory crime was “contrived and unreasonable.”

NYCA’s decision in Williams can be found here, and J.L.here.

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