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

June 20, 2017 by Marshall A. Mintz · Leave a Comment 

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

June 10, 2017 by Marshall A. Mintz · Leave a Comment 

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

May 12, 2017 by Marshall A. Mintz · Leave a Comment 

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

December 5, 2016 by Marshall A. Mintz · Leave a Comment 

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.

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

June 25, 2014 by Marshall A. Mintz · Leave a Comment 

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.”

Who Doesn’t Love Statistics? UPDATED

March 4, 2013 by Marshall A. Mintz · Leave a Comment 

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.

UPDATE:

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.

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

June 20, 2011 by Marshall A. Mintz · Leave a Comment 

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

March 15, 2011 by Marshall A. Mintz · Leave a Comment 

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.

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

October 18, 2010 by Marshall A. Mintz · Leave a Comment 

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?

September 23, 2010 by Marshall A. Mintz · Leave a Comment 

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.