Basing a Term of Supervised Release on the Need for Retribution Is Plain Error

Burden and a co-defendant were both convicted after a jury trial of, among other things, racketeering, violent crimes in aid of racketeering, and a cocaine conspiracy. Both were sentenced to life imprisonment. After exhausting their direct appeals, both brought habeas petitions to vacate their convictions pursuant to 28 U.S.C. § 2255. Each then entered into a “Stipulation for Resentencing” with the government where they agreed to withdraw the habeas petitions in exchange for being resentenced based on a Guidelines range of 262-365 months’ imprisonment. The district court the resentenced each to 365 months’ imprisonment and a life term of supervised release.

The defendants appealed and argued that the district court first erred by not advising them that they faced terms of supervised release and then also failed to adequately explain the decision to impose life terms of supervised release. In response, the government claimed that the appeals were barred by an appellate waiver provision in the resentencing stipulations. The relevant language stated that if the district court imposed “an incarceration term within the agreed-upon guideline range of 262-365 months’ incarceration,” the defendants waived the right to appeal or collaterally attack any claimed error in connection with the resentencing.

In United States v. Burden, (2d Cir. June 19, 2017), the Circuit found that the waivers were valid and the district court’s failure to advise the defendants regarding supervised release was not plain error. However, the Circuit also concluded that the language of the waivers did not encompass the imposition of supervised release, and the district court committed plain error by apparently relying on retribution as a basis for imposing the life term. As such, the Circuit vacated and remanded for resentencing as to the terms of supervised release.

Second Circuit Vacates Conviction Because of Error Admitting Hearsay Evidence of Threats Against Witness

Cummings was charged with conspiracy and multiple narcotics, murder, and firearm offenses. During the trial one of the government’s witnesses testified that Cummings had threatened him because he was a cooperating witness. Cummings was convicted and sentenced to 75 years’ imprisonment.

On appeal it was argued that the testimony was inadmissible hearsay because an examination of the record showed the witness actually stated he did not hear the threats personally. In United States v. Cummings, 858 F.3d 763 (2d Cir. 2017), the Second Circuit agreed and found  the evidence  so “toxic” that there was no way to conclude it did not influence the jury. As a result, the court vacated the convictions and remanded for a new trial.

The Circuit’s opinion provides an excellent analysis of the dangers of hearsay and the prejudice which can result. Please check back soon as I will be posting a more comprehensive discussion of the case.

(Disclosure: I represented Cummings on appeal but not at the initial trial)

AG Sessions Directs Federal Prosecutors to Pursue Most Severe Charges and Sentences Available

As detailed in this press release, Attorney General Jeff Sessions has directed federal prosecutors to “charge and pursue the most serious, readily provable offense,” which are the offenses “that carry the most substantial guidelines sentence, including mandatory minimum sentences.”

The letter also states that “any decision to vary from the policy [including recommending a sentence outside the guidelines range] must be approved by a United  States Attorney or Assistant Attorney General, or a supervisor designated by the United States Attorney or Assistant Attorney General, and the reasoning must be documented in the file.”

Specifically, this directive is aimed at Eric Holder’s 2013 “Smart on Crime” initiative, which instructed prosecutors to use their individual judgment about which charges to bring in certain cases where a mandatory minimum sentence would be triggered by drug type and quantity. That initiative also stated that, in cases where the guidelines range exceeded a mandatory minimum, “prosecutors should consider whether a below-guidelines sentence was sufficient.”

Nobody likes mandatory minimum sentences – not defense attorneys, prosecutors, judges, or the public. And it is hard to see how this policy is anything more than a way to increase the number of people going to prison and the length of their sentences regardless of the individual circumstances of their case.

Second Circuit Remands for Consideration of Whether the Sentencing Guidelines Produce Unfair Sentencing Ranges for Financial Crimes

In United States v. Murshed, two defendants were convicted of financial offenses involving the Supplemental Nutrition Assistance program. When calculating the Sentencing Guidelines ranges the base offense levels for both defendants tripled because of the amount of loss attributable to each (under U.S.S.G. § 2B1.1, the base offense level was 6 but increased to 18 for one defendant and 16 for the other).

Because the Sentencing Commission had assigned a “rather low base offense level” for fraud offenses and then “increased it significantly by a loss enhancement,” the sentencing judge was entitled to consider that fact alone as a basis for a non-Guidelines sentence.

So, while specifically stating that it was not declaring any error in the sentences imposed, the Court remanded for the sentencing judge to consider the impact of the loss enhancement as a reason for imposing a non-Guidelines sentence.

It isn’t clear from the Second Circuit’s decision whether the sentencing court felt this was not a permissible basis for a non-Guidelines sentence or whether the argument was raised for the first time on appeal.

Appellate Division Vacates Murder Conviction Based on Compelling Prejudice from Joint Trial

In People v. Lessane, the Appellate Division, Second Department vacated the judgment and remanded for a new trial finding that Lessane suffered unreasonable prejudice from being tried jointly with a co-defendant.

Prior to trial, Lessane sought a severance because his defense was in direct conflict with that of his co-defendant. However, the court denied that motion without extensive explanation. During the trial, the co-defendant repeated argued that Lessane was guilty (which would exculpate the co-defendant). Lessane sought a mistrial numerous times, and the trial judge denied each request. The co-defendant was acquitted of all charges and Lessane was convicted of some counts.

In finding that Lessane’s trial rights were violated, the Appellate Division noted that there were “irreconcilable” conflicts between the defenses and that co-defendant’s counsel brought out damaging evidence against Lessane which the prosecutor would not have been able to present. Thus, there was such “compelling prejudice” as to render the trial Constitutionally unfair.

(Disclosure: I represented Lessane on appeal but not at the initial trial)

Conviction under NY Penal Law 265.01 does not require defendant to know that particular knife fits statutory definition of “gravity knife”

In New York, a person is guilty of criminal possession of a weapon in the fourth degree [NY Penal Law 265.01(1)] when : “[h]e or she possesses any . . . gravity knife.” A “gravity knife” is defined as “any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.”

In People v. Parrilla, the Court of Appeals ruled that the statutory language only required a person’s knowing possession of a knife – not that the knife met the definition of “gravity knife” under the statute.

United States Supreme Court Holds Police “Generally May Not” Search Information of Cell Phone Seized from Arrestee

In Riley v. California, decided June 25, 2014, the Supreme Court examined how the ‘search incident to arrest’ doctrine applies to information stored in cellular phone.* The Court first explained that “[d]igital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape.”

Moving on to concerns that evidence might be destroyed, the Court found that “once law enforcement officers have secured a cell phone, there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone.” While the government had argued that a third party could remotely erase the data or security features on the phone could encrypt the contents, the Court concluded that neither problem was “prevalent” and could be addressed in other ways – such as removing the phone’s battery or storing the phone in a room which blocks radio waves. In any event, “[i]f the police are truly confronted with a ‘now or never’ situation, – for example, circumstances suggesting that a defendant’s phone will be the target of an imminent remote-wipe attempt – they may be able to rely on exigent circumstances to search the phone immediately.”

The Court also discussed how cell phones could store many different types of personal data and the amount of storage space meant that the “sum of an individual’s life” could be reconstructed through all of that information. Moreover, this was different than information stored on paper which a person was not likely to always be carrying around.

I highly recommend reading the entire Opinion but will leave you with its closing paragraph:

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.

* The Court also stated that labeling a search incident to arrest as an “exception” to the warrant requirement was “something of misnomer,” as these searches “occur with far greater frequency than searches conducted pursuant to a warrant.”

Expert Witness Precluded from Referring to Ballistics Identification as a Science or Implying Any Degree of Certainty as to Conclusions

In United States v. Dore and Barrett, Docket No. 12 Cr. 45 (RJS) (SDNY), the government sought to have an expert witness testify  that multiple shell casings recovered from the scene of a robbery and a single shell casing recovered at the scene of a subsequent robbery/homicide had all been fired from the same weapon. A hearing pursuant to Daubert v. Merrell Dow Pharamaceuticals, Inc., 509 U.S. 579 (1993) was held based on the defense’s argument that the expected testimony did not meet the threshold of admissibility under Rule 702 of the Federal Rules of Evidence.

In an order dated March 11, 2013, the district court found that the government had not carried its burden to show that ballistics identification is a “science,” and also failed to establish that the expert had a reliable basis for testifying that the ballistics match could be stated with any degree of certainty (“when pressed on the issue, [the witness] admitted that the determination of whether or not a match existed is a subjective determination that the quality and quantity of similar markings on two shell casings is sufficient. He was unable to articulate a definition or standard for measuring ‘sufficiency,’ but, in essence, testified that he ‘knows it when he sees it’ based on his experience and training.”).

Based on those findings, the district court prohibited the witness from referring to his methods as “science or scientific,” or “using language that implies a specific degree of certainty as to his conclusion that there is a match between the shell casings.” Instead, the witness would be limited to explaining how markings are created on shell casings, the methods of comparison he used, and his opinion that the casings all came from the same gun.

Who Doesn’t Love Statistics? UPDATED

According to statistics compiled by the Administrative Office of the United States Courts: during the 12-month period ending March 31, 2011 (the most recent period for which statistics are available), 839 criminal cases were commenced in the Second Circuit, 233 were terminated for procedural reasons, and 606 were decided on the merits. Of the 606 criminal cases decided on the merits, 483 were affirmed, 70 were dismissed, 34 were reversed, and 19 were remanded – yielding a reversal rate of 5.6% (The overall reversal rate for criminal cases in the Circuit courts was also 5.6% – the Seventh Circuit had the highest rate of 12.3% and the Tenth Circuit had the lowest rate of 3.0%).

During that same period, 3,586 new criminal cases were filed in the district courts within the Second Circuit, bringing the total of number of criminal cases pending in those courts to 7,916 – a 2.2% increase from the prior 12-month period.


The numbers for the fiscal year ending September 30, 2012 are out. In that 12-month period: 842 new criminal cases were opened in the Second Circuit, 189 were terminated for procedural reasons, and 563 were decided on the merits. Of those 563 cases decided on the merits, 360 were affirmed, 88 were dismissed, 52 were reversed, and 9 were remanded (54 were disposed of by consolidation) – yielding a reversal rate of 9.2% (The overall reversal rate for criminal cases in the Circuit Courts was 7.0% – the Seventh Circuit again led the way with a rate of 15.8% and the Tenth Circuit dropped even further behind the average to just 1.3%).

Also noteworthy: there were 229,188 representations by counsel under the Criminal Justice Act (assignments for indigent defendants who can’t afford counsel) – an increase of 10% over the prior year.

*      Tables for criminal cases commenced in the district court are no longer being produced.

Applying the “public safety” exception to the Miranda requirements

In United States v. Ferguson, 11-3806 (2d Cir. Dec. 6, 2012), the Court held that the “public safety” exception to the Miranda requirements applied when a police officer has reason to believe that a person may have left a firearm in a public place – thus permitting the officer to interrogate that person an hour or more after arrest.

In New York v. Quarles, 467 U.S. 649 (1984), the Supreme Court explained that “overriding considerations of public safety [may] justify [an] officer’s failure to provide Miranda warnings before he ask[s] questions devoted to  locating [an] abandoned weapon.” Later, in United States v. Estrada, 430 F.3d 606 (2d Cir. 2005), the Second Circuit looked to three factors in making that determination: (1) whether the questioning related to an objectively reasonable need to protect the police or public from an immediate danger, (2) whether an objected observer would believe the questioning was a subterfuge meant to elicit evidence from a suspect, and (3) that the questions were not routinely asked to arrested suspects but instead showed an intent to protect against a perceived danger.

The officer who interrogated Ferguson had previously heard he possessed a firearm and the 911 call reported that a firearm had been fired. But no weapon was recovered when Ferguson was arrested and the officer’s questions were “rationally related to the objective of securing public safety by locating the gun.” Thus, the Court found, the interrogation was within the scope of Estrada.

While recognizing that the passage of time between an arrest and an interrogation may “diminish the immediacy of threat posed by an unaccounted-for firearm,” the Court ultimately concluded that, in this case, it “did not diminish the officers’ objectively reasonable need to protect the public from the realistic possibility that Ferguson had hidden his gun in public, creating an imminent threat to public safety.”

New York Times Editorial on Appellate Waivers

The New York Times printed an editorial discussing the “appellate waiver” provision included in many plea agreements in Federal cases. These provisions state that a defendant will not appeal their sentence if it is within or below the sentencing range estimated at the time of the plea. However, the government often over-estimates the potential sentencing exposure that early in the case. Once the correct sentencing range is determined (which only happens long after the plea is entered), it is not unusual for the waiver provision to preclude an appeal from a sentence much longer than what the defendant ever could have received.

As the Times opined, “Congress gave appeals courts the power to review federal sentences to ensure the government applies the law reasonably and consistently. Without an appeals court’s policing, the odds go up that prosecutors will do neither. Our system of pleas then looks more like a system of railroading.”

Not discussed in that editorial is that these waiver provisions also preclude an appeal when the judge doesn’t follow the law when imposing the sentence. An example can be found in United States v. Bussiereth, where the Second Circuit dismissed the appeal (based on a waiver) even while agreeing that the judge did not comply with the statutory requirements when sentencing Mr. Bussiereth. As the Second Circuit explained: “While Buissereth’s appeal waiver did not relieve the District Court of its responsibility to follow the procedural requirements related to the imposition of a sentence, the appeal waiver does preclude this Court from correcting the errors alleged to have occurred below.”

And that is why these waivers are so dangerous — sentencing someone to prison should not be a casual affair. Rules should be followed and rights must be protected. But these waiver provisions mean that a judge can disregard almost any laws or procedures without consequence so long as the sentence imposed is within the scope of the waiver provision.

And if we allow that, the integrity of our entire criminal justice system should be questioned.

Effective Assistance of Counsel and Plea Bargaining

In a pair of cases decided on March 21, 2012, the United States Supreme Court addressed the Sixth Amendment right to the effective assistance of counsel as it applies to plea negotiations. In addition to describing the proof necessary to establish a claim of ineffective assistance of counsel relating to plea proceedings, the Court made some notable (although not surprising) observations about the importance of plea bargaining in the criminal justice system.

First, in Missouri v. Frye, the Court explained that “[n]inety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.” Thus, “[i]n today’s criminal justice system . . . the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.” Because guilty pleas are “so central to today’s criminal justice system . . ., defense counsel must meet responsibilities in the plea bargain process to render the adequate assistance of counsel that the Sixth Amendment requires at critical stages of the criminal process.”

The Court then went on to hold that “[a]s a general rule, defense counsel has the duty to communicate formal prosecution offers to accept a plea on terms and conditions that may be favorable to the accused.” If an attorney fails to do so and the plea offer expires or is rejected, a defendant can show prejudice (and establish a Sixth Amendment claim) by demonstrating “a reasonable probability both that they would have accepted the more favorable plea offer had they been afforded effective assistance of counsel and that the plea would have been entered without the prosecution’s canceling it or the trial court’s refusing to accept it.”

Next, in Lafler v. Cooper, the Court addressed the burden for a defendant who is convicted after trial but had rejected a plea offer based on objectively bad advice from counsel. To establish a Sixth Amendment violation, the defendant must prove a reasonable probability that the plea would have been accepted and the sentence would have been less severe than that which was actually imposed.

Boarding a Plane Establishes Venue for Conspiracy to Commit Fraud, Not Substantive Offense

In United States v. Tzolov, 2011 WL 2342629 (2d Cir. June 15, 2007), the Court rejected the government’s argument that venue for a securities fraud prosecution was proper in the Eastern District of New York solely because the defendants traveled through JFK airport on the way to meet with investors. Because all of the fraudulent statements were made elsewhere, the act of boarding a plane was merely a preparatory act and not part of the substantive offense.

However, the Court also found that venue was proper for two counts of conspiring to commit securities fraud. Because the travel allowed the defendants to make false statements to investors in person, the flights were overt acts in furtherance of those conspiracies.

Sentencing Errors Did Not Render Appeal Waiver Unenforceable, But Were Still Errors

In United States v. Buissereth, 09-5358-cr (2d Cir. March 15, 2011) – a case in which I represent the appellant – the Second Circuit found that the district court erred by failing to: rule on the defendant’s objections to the Presentence Investigation Report; rule on numerous arguments for departures or a variance; adopt the findings of the Presentence Report in open court; articulate any consideration of the 3553(a) factors; or, calculate the applicable Guidelines range.

While the Court opined that the sentencing hearing “left much to be desired” because an appellate waiver does not relieve a sentencing court of its responsibility to comply with the procedural requirements for sentencing, it ultimately held that the appellate waiver precluded the Court from correcting the errors and dismissed the appeal.

Tattoos Can Be Testimonial Communications Under the Fifth Amendment

In United States v. Greer, 09-4362-cr, decided February 4, 2011, the Second Circuit held that evidence about a tattoo on Greer’s arm was “testimonial” because it was introduced at trial to show that Greer had a relationship with a person and not just for purposes of identification.

Greer was arrested after police found ammunition in a car they believed Greer had been driving. The car contained documents with Greer’s name on them but had been rented by someone named Tangela. At the time of his arrest, police noted that Greer had the name Tangela tattooed on his arm. At trial, the government had the arresting officer describe Greer’s appearance at the time of arrest – including what Greer’s tattoos said.

Because the government relied on the content of the tattoo to prove a fact, the evidence was “testimonial.” Further because the evidence linked the defendant to the automobile (and the ammunition that was inside of it), it was also incriminating. Thus, its introduction implicated Greer’s Fifth Amendment right against self incrimination.

However, because the tattoo was not compelled by the government, there was no Fifth Amendment violation.

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