United States v. Cossey, no. 09-5170 (Jan. 28, 2011) (child pornography; plain error; remand to different judge). Cossey pled guilty to possessing child pornography and was sentenced to seventy-eight months imprisonment. On appeal, his principal claim was that the sentencing court erred when it relied on its own theory that Cossey was likely to reoffend because he was genetically predisposed to view child pornography. The Second Circuit agreed noting that “here, the sentencing hearing focused nearly entirely on the court’s belief that Cossey could not but return to viewing child pornography because of an as-of-yet undiscovered gene.” Slip Op. at 6. Although Cossey had not preserved this issue, the Second Circuit concluded that the error was plain because “[w]here a district court relies on its own scientific theories of human nature to sentence a defendant, as it does here, a finding of plain error is warranted.” Id. at 7. The case was remanded to a different judge for resentencing because of concerns about Judge Sharpe’s objectivity.
United States v. Johnson, no. 08-4093 (Jan. 28, 2011) (per curiam) (USSG Amendment 706). Johnson and two co-defendants moved to reduce their sentences based on the reduction to the base offense levels applicable to most crack cocaine offenses found in Amendment 706 to the Sentencing Guidelines. The Second Circuit affirmed the district court’s ruling denying the motion. In so doing, the Second Circuit noted that the conspiracy that Johnson and his co-defendants were involved with was responsible for some eighty-eight kilograms of crack cocaine, an amount that made them ineligible for a sentence reduction. Because each individual defendant is responsible for all reasonably foreseeable quantities of drugs distributed by a conspiracy they have joined, the eighty-eight kilogram amount was properly attributable to each defendant.
United States v. Hassock, no. 09-5193 (Jan. 28, 2011) (Search & Seizure (protective sweep)). The government appealed the district court’s suppression of a handgun found in the defendant’s bedroom. On appeal, the Second Circuit affirmed the district court’s decision and concluded that the protective-sweep doctrine recognized in Maryland v. Buie, 494 U.S. 325 (1990), did not support the search. In the present case, the police had gone to the apartment where Hassock was staying with the purpose of conducting a “knock and talk” and with the hopes that this investigation might help them identify Hassock so that, ultimately, they could arrest him. However, when the authorities arrived at the apartment in which Hassock lived, someone other than Hassock answered the door, permitted the officers to enter, and eventually gave them permission to enter and look around. The gun was discovered in Hassock’s bedroom during the search.
The Second Circuit observed that while some circuits have extended the Buie doctrine to non-arrest situations, others have limited the protective sweep doctrine to situations where entry has been made incident to an arrest in the home. In the Second Circuit, the court noted that the Buie doctrine had been extended to cases where “specific, articulable facts giving rise to a reasonable inference of danger may justify a protective sweep in circumstances other than during the in-home execution of an arrest warrant.” Slip Op. at 14 (quoting United States v. Miller, 430 F.3d 93, 100 (2d Cir. 2005)). However, the Second Circuit had limited the extension to cases where officers entered a home “under lawful process.”
Given this standard, the Second Circuit concluded that the protective sweep doctrine could not support the search and seizure of the gun. Thus, although the officers had a legitimate purpose for going to the apartment, once they did not find Hassock, the only reason for the officers’ continued presence was the sweep itself and, absent a lawful purpose, a sweep is a search and a search requires a warrant or consent. Slip Op. at 16 (explaining also at 16-17 that “[t]he original purpose of the “knock and talk” thereupon became an illegitimate search for Hassock incident to no other lawful police conduct, which cannot be characterized as a protective sweep.”). There was no lawful consent, the Second Circuit concluded, because the officers had no reasonable basis to conclude that the person who answered the door had any authority to consent to the search.
United States v. English, nos. 10-3258, -4045 (Jan. 20, 2011) (bail reform act; pretrial detention). The defendants were arrested on various gun and drug charges. The defendants sought release after their arrest, but before an indictment was filed; the request was denied by a magistrate judge. Thereafter, the defendants appealed the denial to a district judge (Mckenna) assigned to hear preliminary criminal matters; this appeal was denied even though the judge determined that the bail conditions were sufficient to address the risk of flight. The defendants also applied for bail to the district judge (McMahon) to whom the case was ultimately assigned; this request was denied as well and the district judge determined that both defendants presented a flight risk and a safety risk.
The Second Circuit affirmed the denial of bail and rejected the claim (among others) that Judge McMahon was bound by Judge McKenna’s determination that the proposed bail conditions addressed the risk of flight. Instead, the Second Circuit explained that 18 U.S.C. § 3145 provided for review of a magistrate judge’s order by a district judge (a judge having original jurisdiction) and for appeal from a district judge to the court of appeals. Section 3145(b) does not, however, permit one district judge to review another district judge’s detention order. Nor was it improper for Judge McMahon to conduct another detention hearing and consider all of the section 3142(g) factors; indeed, the Second Circuit explained, a judge may convene a detention hearing on his or her own initiative pursuant to section 3142(f)(2)(A) whenever he or she perceives a serious risk of flight. On a substantive review of the defendant’s bail applications the Second Circuit concluded that Judge McMahon’s findings as to risk of flight and danger to the community were amply supported by the record.
United States v. Weingarten, no. 09-2043 (Jan. 18, 2011) (foreign commerce clause). Based on years of abuse of his daughter, Weingarten was convicted after a jury trial of transportation of a minor with intent to engage in criminal sexual activity as well as travel with intent to engage in illegal sexual conduct. More specifically, Weingarten was convicted of charges that arose out of abuse that was coincident with his and his daughter’s travel between Israel and New York City, between New York City and Belgium, and between Belgium and Israel.
On appeal, the Second Circuit agreed with Weingarten’s claim that travel between two foreign countries, with no territorial nexus to the United States, is not “travel in foreign commerce” as required by 18 U.S.C. § 2423(b). The Second Circuit initially considered whether section 2423(b) is applicable to extraterritorial conduct. The Second Circuit concluded that the presumption against extraterritorial effect was overcome because there was a clear and affirmative indication that Congress intended the provision to criminalize travel in foreign commerce undertaken with the intent to commit sexual acts with minors that would be illegal if committed in the United States. Although section 2423(b) can apply outside the United States, the Second Circuit concluded that travel between two foreign countries, absent some territorial nexus to the United States, is not “travel in foreign commerce” within the meaning of section 2423(b) and 18 U.S.C. § 10. Accordingly, the defendant’s conviction for the abuse arising out of his travel between Belgium and Israel were vacated.
United States v. Brown, no. 09-4991 (Jan. 5, 2011) (per curiam) (ACCA predicate offenses). Brown pled guilty to being a felon-in-possession and on appeal challenged the use of certain of his prior offenses as Armed Career Criminal Act (“ACCA”) predicates. The Second Circuit rejected these claims noting first that the district court had properly treated two prior drug convictions—for which Brown was sentenced on the same day—as two separate offenses because the offenses were committed on two separate days.
Next, the Second Circuit affirmed the district court’s finding that Connecticut’s assaulting-a-public-safety-officer offense was a crime of violence. In so doing, the Second Circuit agreed with the district court’s determination that because the Connecticut statute in question was divisible (i.e., it covered violent and non-violent conduct) it was permissible to look to the record of conviction—in this case the plea transcript—to determine that the conviction was for assaulting a corrections officer. Looking to the Supreme Court’s analysis in Begay v. United States, 553 U.S. 137 (2008), among other cases, the Second Circuit agreed that the offense was a crime of violence.
United States v. Bengis, no. 07-4895 (Jan. 4, 2011) (Mandatory Victims Restitution Act; Victim and Witness Protection Act). In a case involving “an elaborate scheme to illegally harvest large quantities of South Coast and West Coast rock lobsters in South African waters for export to the United States in violation of both South African and U.S. law” the Second Circuit reversed the district court’s determination not to impose a restitution order in favor of South Africa. Slip. Op. at 3.
On appeal, the Second Circuit concluded that the district court erred when it determined that South Africa did not have a property interest in the rock lobsters that were illegally harvested. Instead, the Second Circuit held that the South African government had a property interest because the government was entitled to sieze and sell the lobsters caught in excess of the legal limit. Because the defendants’ scheme deprived the South African government of revenue to which it was entitled, the conduct was an offense against property.
The Second Circuit also concluded that South Africa was a victim within the meaning of the Mandatory Victims Restitution Act and the Victim and Witness Protection Act because—although the defendants had not been convicted of harvesting the lobsters—their conduct was a key part in allowing the illegal harvesting to go undetected, thereby directly harming the South African government. Finally, the Second Circuit disagreed with the district court’s conclusion that the complexity (and corresponding delay) inherent in fashioning a restitution award outweighed the need to provide restitution. Instead, the Second Circuit concluded that one of the proposed restitution methods fit well with the conclusion that the South African government had a property interest in the lobsters caught in excess of the legal limit. Slip Op. at 14 (“Restitution would thus be calculated by multiplying the number of poached lobsters by the corresponding market price”). The Second Circuit found no problem in imposing both a restitution award and a forfeiture award and left it to the district court to determine the mechanics, including whether there should be an offset.
Carvajal v. Artus, no. 09-0826 (Jan. 25, 2011) (habeas corpus; procedural default). Carvajal was convicted in New York state court of narcotics charges (for possession as well as conspiracy) that related to a drug-distribution conspiracy that he ran from California. Although he had visited New York once as part of the conspiracy, Carvajal and the drugs that were seized were physically located in California. Ultimately, the New York courts rejected Carvajal’s claims that the state courts lacked territorial jurisdiction. Instead, the New York courts determined that jurisdiction existed because when he was present in New York in person and by phone, Carvajal engaged in overt acts in further of his co-conspirator’s possession of cocaine in New York. Importantly, Carvajal’s claims were expressed in terms of a state statutory violation and not a federal constitutional violation. For that reason, the Second Circuit concluded that his habeas claims were not fairly presented to the state court and therefore procedurally barred. The Second Circuit concluded that Carvajal’s attorney’s failure to present the claim was not cause to excuse the default and Carvajal did not claim to be actually innocent; accordingly, his application for habeas relief was dismissed.
Langston v. Smith, no. 10-3045 (Jan. 7, 2011) (habeas corpus; sufficiency of evidence). Langston was convicted in New York state court of felony assault, among other offenses. Langston’s conviction arose out an attempt by undercover NYPD detectives to purchase a gun illegally; one NYPD detective was shot during the attempt.
New York’s felony assault statute criminalizes actions taken in the course of and in furtherance of the commission of a felony that causes serious physical injury to a non-participant. Although the government presented evidence that the NYPD detective was shot during the course of what Langston and his associates intended to be a robbery, the jury was instructed that it could convict only if the assault was committed in the course of and in furtherance of the felony of criminal possession of a weapon. Because the case was tried as a botched robbery—and because there was no evidence that Langston and his associates acted in furtherance of their continued possession of the very weapons that they used to ambush the officers—the Second Circuit agreed with the district court that the evidence was constitutionally insufficient and that the state appellate court’s decision to the contrary was an unreasonable application of Jackson v. Virginia, 443 U.S. 307 (1979).
