New and Noteworthy Criminal Law News

From New York and Around the Country

Second Circuit Upholds Constitutionality of New York State’s Persistent Felony Offender Sentencing Scheme

In Portalatin v. Graham, __ F.3d __, 2010 WL 4055571 (2d Cir. Oct. 18, 2010)(en banc), the Second Circuit, in a 9-3 split, held that the New York State courts did not unreasonably apply Supreme Court precedent when finding that the New York State Persistent Felony Offender sentencing statute (PFO) was Constitutional.

The majority relied heavily on the standard of review, noting that Federal Courts are “bound by [the New York State Court of Appeals’s] construction of New York law in conducting our analysis” and that New York courts have “interpreted the statute to authorize [the increased] sentence based on the defendant’s predicate felony convictions alone.”

As summed up by the majority, “the PFO statute — as interpreted by the New York Court of Appeals — creates a recidivist sentencing scheme in which the only factual predicates necessary to impose the enhanced sentence relate to the defendant’s criminal history. Unlike in Blakely and Cunningham, recidivism findings are the touchstone: the predicate felonies alone expand the indeterminate sentencing range within which the judge has the discretion to operate, and that discretion is cabined only by an assessment of defendant’s criminal history.”

The dissent argued that the majority opinion showed “only that the PFO statute can be applied in a constitutional manner,” but not that it actually was (or continues to be). Further, the dissent noted that the arguments relied on by the majority (regarding the maximum sentence for Apprendi purposes) were the same ones rejected in Blakely and Cunningham.

Just How Pervasive is Prosecutorial Misconduct?

USA TODAY has an important story about misconduct by federal prosecutors. The article is based on an examination of 201 cases in which district court judges found that prosecutors violated laws or ethics rules – such as hiding evidence, lying to judges and juries, and breaching plea agreements.

The Department of Justice won’t disclose whether any prosecutors have been punished as a result of internal ethics investigations, citing privacy rights. However, the DOJ’s attitude might be illustrated by its handling of two federal prosecutors who failed to disclose impeachment evidence about a key government witness. The Seventh Circuit Court of Appeals concluded that the prosecutors “deliberately misled the court and defense counsel.” The DOJ’s response: each prosecutor was suspended for one day.

District Court’s Refusal to Consider 5k Letter or 3553 Factors at Sentencing Renders Appellate Waiver Unenforceable and Results in Remand to a New Judge

In United States v. Woltman, 10-413-cr (2d Cir. July 6, 2010), the Second Circuit found an appellate waiver contained in a plea agreement unenforceable, vacated the sentence, and remanded the case to a new judge.

Woltman pled guilty pursuant to a plea agreement which included a provision whereby he waived his right to appeal any sentence of 27 months’ imprisonment or less – the top of the advisory Guidelines range estimated in that agreement. Then, after signing that agreement but before sentencing, Woltman cooperated with the government and a 5K1.1 letter was filed. Both sides then urged the district court (Judge Platt) to impose a sentence below the advisory Guidelines range. However, the district court refused to consider the 5K1.1 letter, concluding that the plea agreement controlled, and that, “in urging consideration of the 5K1.1 letter, the parties were improperly attempting to repudiate or modify the Agreement – and repeatedly rebuked them for doing so.”

Basically, “the district court believed that because of the appeal waiver, any sentence at or below 27 months was appropriate, regardless of whether or how the 5K1.1 letter and the 3553(a) factors – if considered – would bear on the sentence.”

The district court sentenced Woltman to 18 months and he appealed. The government then moved to dismiss the appeal based on the appellate waiver.

The Circuit stated that it would “not enforce an appeal waiver where – as here – the sentencing decision was reached in a manner that the plea agreement did not anticipate” or “where the sentencing court failed to enunciate any rationale for the defendant’s sentence, this amounting to an abdication of judicial responsibility.” It then described the refusal to consider the 5K1.1 letter and 3553(a) factors as “an error categorically different from a misapplication of a guideline, or a mistake of law, or a dubious finding of fact.”

The Circuit also took the rarely used step of remanding the case to a different judge, citing the “scorn with which Judge Platt approached the matters pertaining to sentencing,” as well as “Judge Platt’s pattern of errors regarding 5K1.1 letters.”

Why the government would actively seek dismissal based on these facts is a mystery. The inflexible manner in which the government approaches this issue is part of the reason that defense attorneys are so concerned about the inclusion of waiver provisions in plea agreements.

§ 2254 Petition Addressing Resentencing Is Not Second or Successive, Even If Prior Petition Was Filed

In Magwood v. Patterson, the United States Supreme Court held that a when a defendant files a § 2254 Petition which is granted, a subsequent § 2254 Petition challenging the new sentence is not “second or successive,” and therefore not subject to the constraints of § 2244(b) — which requires, among other things, leave from the Court of Appeals.

The Court held that the subsequent Petition was the first application challenging the new judgment, noting that the errors alleged were new — even those errors which could have been brought in the initial § 2254 Petition.

Conspiracy Conviction Vacated Where Evidence Did Not Show Defendant Knew the Precise Nature of Contraband He Received

In United States v. Torres, 09-17710-cr (2d Cir. May 5, 2010), the defendant had been convicted after trial of conspiring to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. sec. 846.

In reversing that conviction, the Court found that the evidence was sufficient to permit the jury to find beyond a reasonable doubt that there existed a conspiracy for the distribution of cocaine and that the defendant was most likely aware that the packages which were sent to him contained contraband.  However, the Court could not locate in the record any evidence which showed that the defendant knew the packages contained narcotics.  As such, the evidence was  insufficient for the jury to find that the defendant had knowledge of the purposes of the conspiracy of which he was accused.

In sum, “proof that the defendant engaged in suspicious behavior, without proof that he had knowledge that his conduct involved narcotics, is not enough to support his conviction for conspiracy to traffic in narcotics.”

New Trial Ordered Where District Court Forced Defendant to Represent Himself

In United States v. Venable, 2010 WL 1474348 (4th Cir. April 14, 2010), the Fourth Circuit ordered a new trial because the district court forced the defendant to proceed pro se, even though the defendant did not waive his right to counsel – or wish to do so.

After being indicted, Venable had counsel appointed under the Criminal Justice Act.  However, during the first few weeks of the case Venable was not happy with that attorney and asked the district court to appoint new counsel.  The district court refused, ordering Venable to proceed pro se and directing the CJA attorney to act as standby counsel.  Throughout the case, Venable inststed that he had never wished to act as his own counsel.  After a trial during which “Venable constantly expressed his confusion,” he was found guilty and sentenced to sixty months’ imprisonment.

“Although a defendant may waive his right to counsel, the courts entertain every reasonable presumption against the waiver of this fundamental constitutional right.” United States v. Johnson, 659 F.2d 415, 416 (4th Cir. 1981).  With respect to Venable, the Fourth Circuit found that “[n]othing in the record could be construed as a voluntary waiver,” and that “[e]ven if he had expressed a desire to represent himself, such waiver would not have been knowingly and intelligently made because the court failed to inform [him] of his options or conduct any inquiry” into the waiver.  As such, the district court “violated Venable’s Sixth Amendment right to counsel in forcing him to proceed pro se in the absence of a valid waiver.”

Appellate Counsel’s Failure to Raise a Meritorious Claim Leads to Habeas Relief

In Ramchair v. Conway, 08-2004-pr (2d Cir. April 2, 2010), the Second Circuit found that appellate counsel’s failure to raise a claim that the trial court erred in denying a motion for a mistrial rose to the level of constitutional ineffectiveness, and that the New York Court of Appeals’ decision to the contrary was an unreasonable application of clearly established Supreme Court precedent.

The Second Circuit noted that evidence adduced in the district court (in the form of testimony from appellate counsel) established that the failure to raise the claim was not a strategic decision, but based on a mistaken belief that the claim had not been preserved.  Because the arguments raised by appellate counsel were “extremely weak” while the one omitted was “particularly strong,” the representation fell below the standards of reasonably competent performance.

New York Court of Appeals Invalidates Warrant Which Authorized Search of All Persons Present at the Time of its Execution

In People v. Mothersell, the Court of Appeals addressed the legality of a warrant which authorized the search of all persons present at the time of its execution.  In reversing the lower courts and ordering the indictment dismissed, the Court reiterated that an all-persons-present warrant should only issue after a showing of significant justification.

While The Fourth Amendment to the Federal Constitution as made applicable to the states by the Fourteenth Amendment, and Article I, Section 12 of our New York State Constitution requires that warrants “particularly describ[e] . . . the persons . . . to be seized,” New York States CPL 690.15 (2) states that “[a] search warrant which directs a search of a designated or described place, premises or vehicle, may also direct a search of any person present thereat or therein[.]”

In People v Nieves, 36 NY2d 396 (1975), the Court reasoned that there could be circumstances in which a showing of probable cause to search a place would also afford probable cause to infer that everyone present at the place had upon their persons the items specified in the warrant, and thus, that [CPL 690.15] was capable of application without constitutional offense.  However, the Court described the “severely limited” circumstances which would justify such a warrant, explaining that “[t]he facts made known to the Magistrate and the reasonable inferences to which they give rise, must create a substantial probability that the authorized invasions of privacy will be justified by discovery of the items sought from all persons present when the warrant is executed. If this probability is not present, then each person subject to search must be identified in the warrant and supporting papers by name or sufficient personal description”

But in Mothersell the Court found that no such showing had been made, in the warrant application citing “boilerplate allegations” and a statement by the deponent that, based on her past experience, it is “not uncommon that persons found in the subject residence could reasonably be expected to conceal cocaine.”

Turning to the general concept of an all-persons-present warrant, the Court did not condemn them entirely.  While the Court did note the “utility” of such a warrant, it cautioned that such utility “may not permissibly arise, as it apparently has in practice, from any relaxation of the requirement of probable cause as to each person targeted for
search or seizure.”

Second Circuit Finds NY Persistent Felon Sentencing Scheme Unconstitutional

In a long-awaited decision today (in a case in which I wrote the Amicus brief on behalf of the New York State and National Associations of Criminal Defense Lawyers), the Second Circuit found that New York State’s Persistent Felony Offender Statute (PFO)  is unconstitutional and an unreasonable application of clearly established law.  That decision involves five consolidated cases — Besser v. Walsh, Phillips v. Artus, Portalatin v. Graham, Morris v. Artus, and Washington v. Poole, — all of which involved challenges, pursuant to 28 U.S.C. 2254, to the PFO statute.

The Court began by explaining that “the Sixth Amendment right to a jury trial, applicable to the states as incorporated by the Fourteenth Amendment, prohibits the type of judicial fact-finding resulting in enhanced sentences under New York’s PFO statute. We also hold that this prohibition was not clearly established until Blakely v. Washington, 542 U.S. 296 (2004).”

The New York Sentencing Law

For first and second felony offenders, the existence or non-existence of a prior felony alone 5 determines the applicable sentencing range.  However, under the PFO statute, a defendant who has been previously convicted of two felonies is a “persistent felony offender.”  Under the PFO statute, the sentencing court must make a finding of at least two prior felony convictions, rendering that defendant a PFO and exposing him or her to an enhanced sentence.  After making that finding, the court turns to whether “the history and character of the defendant and the nature and circumstances of his criminal conduct” is such that the PFO should, in the public interest, be given that enhanced sentence.

Prior Judicial Review

The New York Court of Appeals has repeatedly rejected Sixth Amendment challenges to that sentencing scheme, holding that the existence of the prior felonies alone authorizes the enhanced sentence. See People v. Quinones, 906 N.E.2d 1033, 1034 (N.Y. 2009); People v. Rivera, 833 N.E.2d 7 at 195; People v. Rosen, 752 N.E.2d 844, 846 (N.Y. 2001).

For its part, the Second Circuit has twice held that the New York Court of Appeals did not unreasonably apply either Apprendi v. New Jersey, 530 U.S. 466 (2000), or the Supreme Court’s later decision in Ring v. Arizona, 536 U.S. 584 (2002). See Brown v. Miller, 451 F.3d 54, 56-57 (2d Cir. 2006).

The Current Decision

However, today’s decision explains that whatever doubt may have existed about the constitutionality of the NY statute was laid to rest by Blakely.  Blakely, the Court explained, clarified Apprendi by making it unambiguously clear that any fact (other than a prior conviction), no matter how generalized or amorphous, that increases a sentence for a specific crime beyond the statutory maximum must be found by a jury.

In sum, the Court explained, the PFO statute cannot be squared with the statement by Justice Ginsburg in her opinion for the Court in Cunningham v. California, 127 S. Ct. 856 (2007): “If the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.”

In setting Blakely as the tipping point, the Court stated that “the legal rule invoked by petitioners was not clearly established until Blakely clarified Apprendi.”  As such, only those convictions which became final after the Blakely decision will be subject to review.

The Remedy

With respect to the petitioners in the consolidated cases which the Court decided, it remanded for hearings to determine whether application of the statute “had [a] substantial and injurious effect or influence” on each sentence.  Brecht v. Abrahamson, 507 U.S. 619 (1993).


The Second Circuit granted the State’s petition for rehearing en banc.  The case will be heard on July 9.

Revoking Supervised Release After It’s Over

In United States v. Janiver, 08-5978-cr (2d Cir. March 25, 2010), the Court reversed a revocation of supervised release, holding that the district court lacked jurisdiction because no warrant or summons was issued before the end of the supervised release term.

18 U.S.C. § 3583(i) provides that “The power of the court to revoke a term of supervised release for violation of a condition of supervised release . . . extends beyond the expiration of the term of supervised release for any period reasonably necessary for the adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.

In Janiver, the district court had ordered a warrant prior to the end of the term of supervised release.  However, “[b]y its own terms, the order does not issue a warrant; it directs someone else to issue one.”  It wasn’t until two days later that the warrant actually issued, and at that point the term of supervised release had expired.  “Had the probation officer here simply taken the trouble to walk the signed form from the judge to the clerk’s office,” the Court explained, “nothing prevented the warrant from being issued on the same day . . . the issuance of the warrant [was] ordered.”  As such, “under the plain terms of the governing statute the district court lacked power to revoke the supervised release term after its expiration based on Janvier’s last-minute violation of the conditions of his release.”

Prosecutorial Misconduct With No Consequences

In United States v. Spivak, 08-6091-cr (2d Cir. March 18, 2010), the defendant was convicted of two counts of distribution and five counts of possession of child pornography.  On appeal, Spivak argued that the government allowed one of its witnesses to testify falsely and made improper comments during summation.

With respect to the witnesses testimony, the Court reiterated that “ prosecutor has a fundamental obligation to ensure that the testimony he elicits is true.”  Citing, Shih Wei Su v. Filion, 335 F.3d 119, 126-27 (2d Cir. 2003).  As such,“allowing the government’s witness to testify falsely in a material way, albeit unknowingly, constituted severe misconduct,” and “eliciting false testimony that Spivack was a pedophile was outrageous.”  Despite that conclusion, the Court found no prejudice – citing the severity of the misconduct, the curative measure taken, and the strength of the government’s case.

The Court was also concerned with the government’s references to Lolita during closing arguments, calling the “problematic” because there was no rational explanation for them “other than to inflame the jury.”  Citing United States v. Modica, 663 F.2d 1173 (2d Cir. 1981).  However, the Court went on to find the comments, “although regrettable” were not “sufficiently egregious to amount to a denial of Spivack’s due process rights.”

Second Circuit Rejects Government’s Attempt to Avoid Briefing

In United States v. Davis, 2010 WL 890709 (2d Cir. March 15, 2010), the Second Circuit did not take kindly to the government’s attempt to avoid briefing an appeal by claiming that the appellant “failed to raise any non-frivolous issues  on appeal.” The case is addressed by my friend JaneAnne Murray in her New York Federal Criminal Practice blog, and she summarizes it well.

The Davis decision is important because the government’s argument could be read to imply that Davis’s appellate counsel violated Rule 38 of the Federal Rules of Appellate Procedure, which provides for sanctions if the court finds that an appeal is frivolous (as well as various ethical rules which prohibit attorneys from pursuing frivolous issues).

That implication could be the basis for the Second Circuit’s statement that “overreaching attempts to dismiss appeals as frivolous, like excessively zealous claims that adversary counsel should be sanctioned, will not be accorded a friendly reception by this court.”

Paying for Guns with Drugs Establishes Possession of a Firearm in Furtherance of Drug Trafficking

In United States v. Gardner/Gladden, 08-47930-cr (2d Cir. March 10, 2010), appellants challenged the district court’s instruction to the jury that it could find a violation of 18 U.S.C. § 924(c)(1)(A) if it found that the defendants “acquired the firearm by paying for it with drugs involved in the conspiracy.”

In rejecting that challenge, the Court joined the First, Fourth, Sixth, Ninth, and Tenth Circuits and held that when a defendant acquires a firearm using drugs as payment, he possesses that firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A).

Second Circuit allows warrantless search of unhitched trailer under automobile exception to Fourth Amendment’s warrant requirement

In United States v. Navas, 09-1144-cr, the Second Circuit reversed the district court’s finding that the warrantless search of a trailer – which was unhitched from its cab and parked in a warehouse – was prohibited by the Fourth Amendment.

After being tipped off by a confidential informant and obtaining a warrant to track the location of Navas’s cell phone, agents discovered the phone approaching the Bronx and set up surveillance at the Hunts Point Terminal Market. At that point, Navas was seen unloading a tractor trailer with another defendant. The two then drove the tractor trailer to a private warehouse, where they detached the trailer and drove away, leaving the trailer locked inside. They then proceeded to a McDonald’s where they met with several other individuals and were all arrested.

Agents transported everyone back to the warehouse, and, during a pat-down of one of the defendants, found a garage door opener. While that individual claimed the opener was for his home, one of the agents testified that it opened the door to the warehouse when the agent “inadvertently” touched it.

When agents entered the warehouse, they “examined the top of the trailer and observed physical indicia of a secret compartment. The agents then “ripped off the sheet metal roof” of the trailer, discovered 230 kilograms of cocaine, and promptly seized the contraband.

The district court held that the automobile exception to the Fourth Amendment’s warrant requirement,“generally relates to some type of vehicle that is capable of moving on its own,” and “[a] stationary trailer, detached from a tractor cab with its legs dropped, and stored inside a warehouse, is not a vehicle that is readily mobile or in use for transportation.” As such, the district court granted defendants’ suppression motion.

The Second Circuit began its analysis by recognizing that the automobile exception permits law enforcement to conduct a warrantless search of a readily mobile vehicle where there is probable cause to believe that the vehicle contains contraband. See, Pennsylvania v. Labron, 518 U.S. 938, 940 (1996). That exception is based on two rationales: the inherent mobility of a vehicle and the diminished expectation of privacy in their contents. See, e.g., California v. Carney, 471 U.S. 386, 391 (1985); see also United States v. Howard, 489 F.3d 484, 492 (2d Cir. 2007).

The Second Circuit concluded that the trailer was “readily mobile” because “[w]hether a vehicle is ‘readily mobile’ within the meaning of the automobile exception has more to do with the inherent mobility of the vehicle than with the potential for the vehicle to be moved from the jurisdiction, thereby precluding a search.” Citing Howard, 489 F.3d at 493. The Court also found the reduced-privacy rationale to apply “forcefully,” in part because of the myriad state and federal regulations on such trailers.

New York Times Editorial on the Need for Crack Cocaine Sentencing Reform

A recent editorial in the New York Times discusses the need to reform crack cocaine sentencing, and the potential backlash against lawmakers who support it.

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