Mintz Law Wed, 28 Jun 2017 15:15:12 +0000 en-US hourly 1 Basing a Term of Supervised Release on the Need for Retribution Is Plain Error Tue, 20 Jun 2017 15:06:27 +0000 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 Sat, 10 Jun 2017 14:14:49 +0000 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 Fri, 12 May 2017 14:42:35 +0000 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 Mon, 05 Dec 2016 18:22:26 +0000 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 Thu, 11 Aug 2016 14:40:04 +0000 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” Wed, 04 May 2016 13:46:39 +0000 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 Wed, 25 Jun 2014 15:18:24 +0000 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 Fri, 15 Mar 2013 15:23:56 +0000 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 Mon, 04 Mar 2013 17:36:21 +0000 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 Fri, 07 Dec 2012 16:39:25 +0000 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.”