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.

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.

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.”

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.”

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.

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.”

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).

UPDATE:

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

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.”

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.”

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.”