Revoking Supervised Release After It’s Over
March 26, 2010 by Marshall A. Mintz · Leave a Comment
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
March 25, 2010 by Marshall A. Mintz · Leave a Comment
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
March 18, 2010 by Marshall A. Mintz · Leave a Comment
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
March 10, 2010 by Marshall A. Mintz · Leave a Comment
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
March 8, 2010 by Marshall A. Mintz · Leave a Comment
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
March 4, 2010 by Marshall A. Mintz · Leave a Comment
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.
Article on Honest Services Fraud
November 24, 2009 by Marshall A. Mintz · Leave a Comment
The New York Federal Criminal Practice blog featured an article I wrote on a case out of the Eastern District of New York involving a prosecution for honest services fraud. The case presented two interesting issues: (1) what distinguishes bribery/kickback frauds from frauds involving self-dealing; and, (2) when is a statement made by an attorney admissible against his client at trial.
That article can be found here.
Crack guidelines and Equal Protection
October 5, 2009 by Marshall A. Mintz · Leave a Comment
In an unpublished Summary Order, the Second Circuit said, yet again, that the 100-to-1 powder to crack cocaine ratio employed by the Sentencing Guidelines does not violate the Equal Protection Clause of the Fifth Amendment because it is rationally related to the legitimate governmental interest of protecting the public against the greater dangers of crack. Citing, e.g., United States v. Stevens, 19 F.3d 93, 26 97 (2d Cir. 1994) (“[W]e join six other circuits that have similarly held that the Guidelines’ 100 to 1 ratio of powder cocaine to crack cocaine has a rational basis and does not violate equal protection principles.”); United States v. Samas, 561 F.3d 108, 110 (2d Cir. 2009); United States v. Lee, 523 F.3d 104, 106 (2d Cir. 2008) (“It is not apparent to us that the principles set forth in Kimbrough [v. United States, 552 U.S. 85 (2007)] have any application to mandatory minimum sentences imposed by statute.”)
What does this mean? Nothing new. This argument has been made and rejected for years. The real battle now is over revising the Guidelines to use a 1:1 ratio and getting rid of mandatory minimum sentences.