DECISIONS OF THE WEEK ENDED OCTOBER 30, 2020

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

Two interesting decisions from the Circuit this week addressed the authority of a district court to reduce a sentence under the First Step Act: the precedential decision in Echeverry, which addressed eligibility in the face of a mandatory minimum sentence resulting from multiple controlled substances, and the summary order in Ortiz, which addressed the district court’s discretion where a defendant is eligible for resentencing.

There was relative quiet in the New York State courts this week, with the exception of AD1 reversals in Banyan and McCray. In typical AD1 style, the decisions say as little as possible on two apparently important issues: the limitations on the justified use of force to resist an overly aggressive arrest in Banyan; and the predicate a defendant challenging his conviction on ineffectiveness grounds must establish to warrant a hearing in McCray.

Second Circuit

In United States v. Echeverry, CA2 affirmed the order of SDNY Judge Gregory H. Woods that denied defendant’s motion for a sentence reduction under the First Step Act. The defendant had argued that because he pleaded guilty to an offense—conspiracy to distribute, and to possess with intent to distribute, crack cocaine—the penalties for which were altered by the Fair Sentencing Act, the district court had the authority to reduce his sentence. CA2, however, agreed with the district court that it did not have the authority to reduce defendant’s sentence, where, as here, the defendant pleaded guilty to distributing, and possessing with intent to distribute, crack cocaine, cocaine, and heroin, because the Fair Sentencing Act did not alter the mandatory minimum sentences triggered by the quantities of heroin and cocaine charged, and defendant’s sentence could not have been lower than the 120 months he received.

Defendant was indicted for the distribution, and possession with intent to distribute, of 315 grams of heroin in 2004. He later attended a series of proffer sessions in which he disclosed his extensive background in drug trafficking and his involvement attempting to collect a drug debt that resulted in the discharge of a firearm. Entering into a cooperation agreement, he waived indictment and, in 2005, pleaded guilty to a two-count information. Count one charged him with conspiring to distribute and possess with the intent to distribute (a) five or more kilograms of cocaine, (b) one or more kilograms of heroin, and (c) 50 or more grams of cocaine base. Count two charged him with aiding and abetting the use, carrying, and discharge of a firearm during and in relation to a drug-trafficking offense. He was released on bail so that he could continue his cooperation.

In 2007, he was arrested for the possession and sale of a controlled substance in New York. In 2010, the district court sentenced defendant to a term of 240 months’ imprisonment—120 months for each count of the information—and a term of five years’ supervised release. CA2 affirmed the conviction and sentence.

In 2019, defendant filed a motion asking that his sentence be reduced under the First Step Act. The district court denied relief on the ground that defendant had pleaded guilty to conspiracy to distribute cocaine and heroin in quantities that required the imposition of a 10-year mandatory minimum sentence, and his sentence could not have been lower if the Fair Sentencing Act had been in effect. CA2 agreed.

The First Step Act permits a district court to reduce a sentence only to the extent that the sentence could have been lower “if sections 2 and 3 of the Fair Sentencing Act … were in effect at the time the covered offense was committed.” Because count one of the superseding information charged two non-crack-cocaine offenses that each carried a mandatory minimum sentence of 120 months’ imprisonment, CA2 found that defendant was ineligible for relief under the First Step Act.

CA2’s decision can be found here.

In United States v. Clarke, CA2 affirmed defendant’s EDNY convictions for possession, receipt, and transportation of child pornography, and the 120-month prison term imposed by now-deceased Judge Arthur Spatt. CA2 rejected defendant’s challenges to: (1) the evidence and jury instructions underpinning his conviction on the transportation counts; (2) the district court’s denial of discovery of the government’s law enforcement software used to identify him and to download child pornography from his computer; and (3) the procedural and substantive reasonableness of his sentence.

In 2015, federal agents were investigating child pornography crimes on Long Island. Using software developed for law enforcement called “Torrential Downpour,” the agents sought to identify people who were sharing files known to contain child pornography on the BitTorrent peer-to-peer file sharing network. The investigation revealed hundreds of illicit files that were downloaded using an IP address that they traced to defendant’s home. On that basis, the agents obtained a warrant to search defendant’s home, where, on his computer, they found thousands of images and videos depicting the sexual exploitation of minors. Defendant had been downloading child pornography since at least 2012, using uTorrent, a program that runs on the BitTorrent peer-to-peer file sharing network. A peer-to-peer network allows a user to download files directly from the computers of other users in the network. To facilitate faster downloads, a peer-to-peer program often downloads fragments of the desired file from many different computers on the network. By using such a program to obtain the files of others on the network, a user makes it possible for others to obtain his files. On uTorrent, as on most BitTorrent programs, any file a user has downloaded to his computer is automatically accessible to others on the network when the user’s computer is connected to the Internet.

Defendant challenged the proof of the transportation conviction in three ways: (1) he argued that the government did not adduce sufficient evidence that he knew he was making child pornography files available to other users on BitTorrent; (2) he argued that the district court erred in refusing his request to instruct the jury that, to establish defendant’s guilt for knowingly transporting child pornography, the government needed to prove that he “actively intended” to transport the files; and (3) he argued that a government agent’s action in downloading a computer file, which the defendant had placed in a folder on his computer that was accessible to other users of a peer-to-peer file sharing network, did not constitute “transport[ing]” by the defendant within the meaning of 18 U.S.C. § 2252(a)(1).

CA2 rejected each challenge. First, CA2 found that the evidence was sufficient to establish that defendant knew that his files could be downloaded by others. Second, CA2 found that the court’s instruction accurately represented the law; the court instructed the jury that the government needed to prove beyond a reasonable doubt that the defendant “knowingly transported a visual depiction in interstate or foreign commerce,” and that “transportation . . . includes knowingly making child pornography files available to others via the internet or file sharing.” The charge thus included a requirement of intention to transport and was consistent with the charge requested by the defendant. The law did not support defendant’s argument that the instruction needed to include the adverb “actively.” Third, CA2 found that defendant, by knowingly and intentionally joining the file-sharing network, downloading files from the computers of other network users to his own, storing those files in a folder that was shared with other network users, and maintaining his folder’s connection to the network, defendant himself performed actions that would constitute knowing transportation of the files when, as anticipated, another user of the file-sharing network caused the files to be downloaded and sent from defendant’s computer to the other user’s computer.

CA2 also found that it was not an abuse of discretion to deny defendant’s request for production of the government’s Torrential Downpour software and its source code. Ordinarily, when a defendant’s guilt is predicated on the government offering proof that a government agent downloaded files from the defendant’s computer, information about the program by which the downloading was accomplished is likely to be “material to preparing the defense” and therefore subject to disclosure under Fed. R. Crim. P. 16(a)(1)(E)(i), so as to enable the defendant to challenge the government’s proof. The government opposed disclosure here because access to the material withheld would have enabled traffickers in child pornography to avoid detection by altering or avoiding the files that law enforcement was searching for. It would also enable those seeking child pornography to find those files that had been identified by the government. CA2 chose not to reach the question of whether the government’s reasons for withholding disclosure outweighed defendant’s need for disclosure because, even assuming a violation of defendant’s entitlement to discovery, defendant did not demonstrate that he suffered prejudice.

Finally, CA2 also found defendant’s sentence procedurally and substantively reasonable. CA2 found that the district court had accurately calculated the Guidelines range and, finding it excessive, as is often the case in child pornography cases, departed downward from it.

CA2’s decision can be found here.

In United States v. Gammal, in a summary order, CA2 affirmed defendant’s SDNY convictions for providing material support to a foreign terrorist organization and conspiring to do the same, in violation of 18 U.S.C. § 2339B; aiding and abetting the receipt of military-type training from a foreign terrorist organization, in violation of 18 U.S.C. §§ 2339D and 2; and conspiring to have another person receive military-type training from a foreign terrorist organization, in violation of 18 U.S.C. §§ 371 and 2339D, and the aggregate 144-month sentence imposed by Judge Edgardo Ramos.

CA2 principally rejected defendant’s claim that the district court erred in admitting records relating to his Facebook account obtained pursuant to search warrant. These records presented information about defendant’s Facebook messages, such as metadata showing the sender, recipient, and the time and date sent, as well as a data field with the notation “DELETED,” which reflected whether a message had been marked for deletion. The information was similar to other Facebook records, which were obtained pursuant to separate warrants and which were admitted as Facebook’s business records.

CA2 found that the records were properly authenticated under Rule 901 because there was sufficient evidence from which a reasonable jury could conclude that they were authentic. CA2 also concluded that the records were properly admitted under the business records exception to the hearsay rule because the Facebook custodian was knowledgeable about Facebook’s data-collection and other record-keeping processes and therefore was qualified to testify about the records at issue.

CA2’s decision can be found here.

In United States v. Ortiz, in a summary order, CA2 affirmed SDNY Judge Denny Chin’s denial of defendant’s motion for a reduced sentence under the First Step Act finding that, although defendant was eligible for a reduced sentence, the district court did not abuse its discretion in denying his motion.

In 2009, defendant pleaded guilty to conspiring to distribute and possess with intent to distribute between 150 and 500 grams of crack cocaine, which, at that time, carried a mandatory minimum sentence of 10 years. At sentencing, the district court determined that defendant’s Guidelines range was 168 to 210 months of imprisonment and sentenced defendant at the bottom of that range. Approximately 18 months later, the Fair Sentencing Act went into effect, which prospectively increased the drug amounts needed to trigger certain mandatory minimum sentences for crack cocaine offenses. Consistent with that policy change, the Sentencing Commission made several amendments to the Guidelines over the following years, lowering the proposed sentences for crack cocaine offenses. In 2018, Congress passed the First Step Act, which made the Fair Sentencing Act retroactively applicable to defendant and others similarly situated.

Defendant thereafter brought a motion seeking a reduction in his sentence pursuant to the First Step Act. In doing so, he claimed that retroactive amendments to the Guidelines would now put his sentencing range at 87 to 108 months. CA2 disagreed. In considering a First Step Act motion, a district court must only “take into account Guidelines range changes that result directly from the retroactive application of Sections 2 and 3” of the Fair Sentencing Act. While Sections 2 and 3 of the Fair Sentencing Act reduced defendant’s mandatory minimum sentence from ten years to five, they did not otherwise affect his original Guidelines range of 168 to 210 months. Citing to its decision in United States v. Moore, 975 F.3d 84, 87 (2d Cir. 2020), CA2 reiterated that the Guidelines changes advocated by defendant do not flow directly from Sections 2 and 3 and are therefore not part of a First Step Act Guidelines calculation. Therefore, for purposes of defendant’s motion, his Guidelines range remained 168 to 210 months, and the only change from his original sentencing was that his mandatory minimum was now only 5 years.

This does not mean that a district court cannot consider additional factors. But it is left to the district court’s discretion “what [other] factors are relevant as it determines whether and to what extent to reduce a sentence.” In this context, given a number of factors discussed by the district court, including defendant’s subsequent firearm conviction and poor disciplinary record while incarcerated, the district court did not abuse its discretion in denying resentencing.

CA2’s decision can be found here.

In United States v. Denno, in a summary order, CA2 affirmed defendant’s conviction in NDNY for six counts of distributing, receiving, and possessing child pornography, and the 85-month sentence with 15 years’ supervised release imposed by Judge Thomas J. McAvoy, but vacated the special condition of supervised release that  barred defendant from possessing or viewing sexually explicit material.

Referring to its prior statements that a ban on the possession of otherwise legal adult pornography is an “unusual and severe condition[]” which “merit[s] our close examination.” United States v. Eaglin, 913 F.3d 88, 95 (2d Cir. 2019), and that such conditions were tolerated only in limited circumstances, CA2 found that the district court plainly erred when it failed to explain why a ban on otherwise legal adult pornography was necessary to achieve the goals of sentencing and remanded to the district court for further consideration of whether such a condition is necessary and, if so, to make the requisite detailed factual findings supporting it.

CA2’s decision can be found here.

In United States v. Hunt, in a summary order, CA2 affirmed SDNY Judge P. Kevin Castel’s revocation of defendant’s supervised release, and the 30-month sentence he imposed. CA2 rejected defendant’s contention that the sentence was both procedurally and substantively unreasonable because the district court (1) placed undue weight on the criminal conduct underlying his violation, (2) failed to adequately explain the reasons for the sentence, and (3) did not properly consider mitigating circumstances.

Defendant was convicted in 2007 following his guilty plea to multiple counts of drug trafficking and sentenced to 60 months of incarceration and four years of supervised release. While on supervised release, defendant engaged in further criminal conduct including a 2016 assault in which he slashed a victim’s neck with a knife at the Port Authority bus terminal. This led Judge Castel to impose an above-Guidelines sentence of 30 months of imprisonment.

After stating that it had considered the relevant statutory factors, the district court observed that it was “taking account of the serious breach of trust” reflected by defendant’s latest violation of supervision. The court also noted defendant’s numerous “prior breach[es] of trust” from previous violations of supervised release that included two separate robberies.

Based on this analysis, CA2 found that the district court adequately detailed its reasons for going above the advisory guidelines range of 12 to 18 months’ imprisonment for the violation.

CA2’s decision can be found here.

Appellate Division, First Department

In People v. Banyan, AD1 reversed defendant’s New York County second-degree assault conviction, finding that Supreme Court erred in failing to give a justification instruction. Defendant had argued that he was justified in resisting NYPD’s overly aggressive efforts to place him under arrest, which included the use of Tasers and batons by nine officers, and the injuries suffered by those officers were a result of that justified use of force. AD1 agreed: there was a reasonable view of the evidence that supported defendant’s contention that he was justified.

AD1’s decision can be found here.

In People v. McCray, AD1 reversed the order of Bronx County Supreme Court that had summarily denied defendant’s CPL 440.10 motion to vacate his second-degree murder conviction on ineffective assistance of counsel grounds. Supreme Court Justice Ralph Fabrizio denied defendant’s motion because he found that the trial record was sufficient to permit appellate review (CPL 440.10(2)(b)). AD1 disagreed. The trial record could not address whether counsel’s decisions were legitimate strategy.

AD1’s decision can be found here.

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