• government breached plea agreement

    Post-Incarceration Supervised Release Tolled During Pre-Conviction Detention

    Published By Stephen Preziosi

    Mont v. United States
    No. 17-8995
    U.S. Supreme Court
    Decided: June 3, 2019

    Issue

    Whether a convicted criminal’s period of supervised release is tolled during pretrial detention for a new criminal offense.

    Holding

    The U.S. Supreme Court held that pretrial incarceration later credited as time served for a new conviction is imprisonment in connection with a new conviction and thus tolls the supervised release term under §3624(e), even if the court does not make the tolling calculation until after the conviction. 

    Facts of the Case

    While serving a 5-year term of supervised release following a federal prison sentence, petitioner Mont was arrested on state drug charges. At that time, about nine months of supervised release remained. 

    Eventually, Mont pled guilty to state charges and admitted to violating his federal supervised release conditions. The state court sentenced Mont to six years’ imprisonment and a few days later the District Court issued a warrant for the supervised release violations after previously declining to do so. By the time Mont was sentenced on the state charges, the original term of his supervised release had expired. Mont argued the District Court had no jurisdiction over him because the federal warrant was issued after his supervised release was set to expire.

    The District Court rejected Mont’s argument, ruling that it had jurisdiction under 18 USC §3583(i), and sentenced Mont to an additional 42 months in prison. The Sixth Circuit affirmed the District Court’s decision but on grounds that Mont’s supervised release period had been tolled under §3624(e) while Mont was incarcerated while awaiting sentencing. The U.S. Supreme Court granted certiorari. 

    Court’s Analysis

    18 U.S.C. §3624(e), under which the District Court based its decision provides:

    “. . . A term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.”

    The Supreme Court has previously recognized that the phrase “in connection with” bears a broad interpretation. See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 85 (2006). The Court holds that pretrial detention of a conviction is “in connection with” the conviction. Had Congress intended to preclude pretrial detention, the Court reasoned, it would have used language such as “following a conviction” or “after a conviction.” The use of the language “in connection with a conviction” assumes pretrial incarceration. 

    Moreover, the Court recognizes supervised release as a means to facilitate a “transition to community life.” United States v. Johnson, 529 U.S. 53, 59-60 (2000). Therefore, according to the Court, incarceration should not substitute supervised released and, in this case, Mont’s pretrial detention should not be credited toward his remaining supervised release. Instead, Mont’s supervised release should be tolled as per Congress’s original intent. If supervised release were not tolled, the ultimate purpose of supervised release would be frustrated. By tolling the supervised release by his pretrial detention, the District Court ensures Mont serves five years as a transitional period into a law-abiding life.

  • Intent for “Remaining-in” Burglary Extends Beyond the Doorway

    Published By Stephen Preziosi

    Quarles v. United States

    No. 17-778

    U.S. Supreme Court

    Decided June 10, 2019

    ISSUE

    Whether “remaining-in” burglary occurs only if a person has the intent to commit a crime at the exact moment he or she first unlawfully remains in a building or structure, or whether it occurs when a person forms the intent to commit a crime at any time while unlawfully remaining in a building or structure.

    HOLDING

    The U.S. Supreme Court held that “remaining-in” burglary occurs when the defendant forms the intent to commit a crime at any time while unlawfully remaining in the building or structure.

    FACTS OF THE CASE

    Petitioner Quarles pled guilty to being a felon in possession of a firearm under 18 USC § 992(g)(1) and qualified for enhanced sentencing–a 15 year minimum–under the Armed Career Criminal Act (ACCA) because he had three prior “violent felony” convictions under §924(e). 

    However, during sentencing, Quarles claimed one of his three prior felony convictions, third degree home invasion, did not qualify as burglary, a violent felony under §924(e), and thus he was not subject to enhanced sentencing. Quarles argued that the Michigan statute, under which he was convicted, was broader than the generic definition of burglary set forth by the Supreme Court’s decision in Taylor v. United States, 495 U.S. 575.

    The District Court rejected Quarles’ argument and sentenced him to 17 years in prison. The Sixth Circuit affirmed the District Court’s decision and the U.S. Supreme Court granted Quarles certiorari.


    COURT’S ANALYSIS

    The opinion, delivered by Justice Kavanaugh, required the Court to determine whether the Michigan home invasion statute swept too broadly to qualify as generic burglary as set forth by the Supreme Court’s decision in Taylor v. United States. Specifically, this issue called into question whether the intent to commit a crime must take place a) upon first entering or b) at any time the person remains in the building or dwelling to qualify as generic burglary.

    Under the Michigan statute, third degree home invasion occurs when a person “breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a misdemeanor.” Mich. Comp. Laws Ann. §750.110a(4)(a) (West 2004) (emphasis added). In Taylor, the Supreme Court interpreted generic burglary to include “remaining-in” burglary (Taylor at 599), but the question of when the intent must occur remained.

    Quarles argued that the intent to commit a crime must occur at the exact moment a person enters a building illegally to constitute burglary under §924(e). Although the Court agreed with this interpretation, it pointed out that Quarles failed to distinguish between a burglary predicated on unlawful entry and a burglary predicated on unlawful remaining. In the latter category, the Court concluded, intent may be formed at any point a person remains in the dwelling or building–not only upon entering. The Court further determined that to exclude the intent to commit a crime while remaining in the structure for purposes of defining generic burglary “would make little sense in light of Congress’ rationale for specifying burglary as a violent felony.”

    Generic remaining-in burglary, therefore, occurs when intent is formed at any point a person unlawfully remains in a building or structure. The state law in this case substantially corresponded to generic burglary, and Quarles’ conviction qualified as a violent felony under §924(e) for purposes of enhanced sentencing.

  • Fourth Amendment Searches: Reasonable Suspicion and Anonymous 911 Calls

    Published By Stephen Preziosi

    Anonymous Tip Sufficient Indicium of Reliability for Reasonable Suspicion

    United States of America v. Ibrahim McCants

    No. 17-3103

    United States Court of Appeals for the Third Circuit

    Decided April 5th, 2019

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    ISSUE:

    Whether an anonymous 911 tip describing a man wearing a red hat with braids beating up a woman and maybe had a gun, provides a sufficient indica of reliability for reasonable suspicion of ongoing criminal activity allowing the police to conduct a search of a man wearing a red hat and braids in the neighborhood.  

    HOLDING:

    The Court held that the police may conduct brief investigatory stops under Terry v. Ohio,  392 U.S. 1 (1968) if they have reasonable articulable suspicion that criminal activity is afoot.  Such reasonable suspicion requires at least a minimal level of objective justification for making the stop and more than an inchoate and unparticularized suspicion or hunch or criminal activity.

    A caller’s anonymous tip bore sufficient indicia of reliability for the Fourth Amendment’s reasonable suspicion because it provided information helpful to investigations.  The Court has identified five factors that indicate reliability for anonymous tips and they are not all required to deem an anonymous tip reliable.  

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    FACTS OF THE CASE:

    In June of 2015, a woman called 911 to report an ongoing domestic dispute she had been witnessing first hand.  During her call, she described a physical fight between the defendant, Ibrahim McCants, and his girlfriend, stating that he was beating her up really bad, he was wearing a red hat and had braids, and it looked like he had a gun.  She described his appearance, which perfectly matched when the police arrived and engaged with McCants.  They initiated a Terry stop and frisked him because of the nature of the call for service.  During the pat down, they found a loaded handgun and distributable amounts of heroine.  McCants was charged with unlawful possession of a firearm and possession with intent to distribute heroin, and sentenced to 120 months’ imprisonment followed by three years of supervised release. 

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    COURT’S ANAYLSIS:

    The Court held that a caller’s anonymous tip bore sufficient indicia of reliability for the Fourth Amendment’s reasonable suspicion.  The Fourth Amendment prohibits unreasonable searches and seizures.  Searches require warrants supported by probable cause however, an officer may conduct a brief investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968) if they have reasonable articulable suspicion that criminal activity is afoot.  Reasonable articulable suspicion requires at least a minimum level of objective justification for making the stop and more than an undeveloped and unparticularized suspicion or hunch of criminal activity.  Anonymous tips can provide information helpful to investigations and can create reasonable suspicion of ongoing criminal activity.  The Court has identified five factors that indicate reliability for anonymous tips:

    (1) The tip information was relayed from the informant to the officer in a face-to-face interaction such that the officer had an opportunity to appraise the witness’s credibility through observation.

    (2) The person providing the tip can be held responsible if her allegations turn out to be fabricated.

    (3) The content of the tip is not information that would be available to any observer. 

    (4) The person providing the information has recently witnessed the alleged criminal activity.

    (5) The tip predicts what will follow, as this provides police the means to test the informant’s knowledge or credibility.

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    While the 911 call here did not present all of the reliability factors, this deficiency does not preclude a finding of reasonable suspicion because a tip does not need to bare all of the indicia, nor any particular indicium, to supply reasonable suspicion.  The tip was sufficiently reliable because it met two of the factors: the informant witnessed the alleged criminal and can be held

    responsible if the allegations turn out to be fabricated. 

    In this case, the caller’s anonymous 911 tip bore sufficient indicia of reliability because the called used the 911 system to report firsthand knowledge of ongoing domestic violence, and the informant gave an accurate description that was quickly confirmed by the police.  This case differs from Florida v J.L., 529 U.S. 266 (2000), which determined that a bare report of an unknown, unaccountable informant who did not explain the bases for their tip lacked sufficient indicia of reliability. 

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    Here, the 911 caller gave a firsthand account of ongoing criminal activity, as well as a highly specific and accurate description of the suspect’s location, clothing and hair.  In Navarette, 572 U.S. 399 – 401,the Court determined that an eyewitness’s firsthand knowledge of ongoing criminality lends significant support to the tip’s reliability and a 911 call bolsters the tip’s credibility because the system is able to identify callers therefore safeguarding against false reports. 

  • government breached plea agreement

    Double Jeopardy Clause and Issue Preclusion: Basic Conspiracy versus RICO Conspiracy

    Published By Stephen Preziosi

    Double Jeopardy Clause and Issue Preclusion: Basic Conspiracy versus RICO Conspiracy

    United States v. Zemlyansky, 908 F.3d 1 (2d Cir. 2018)

    United States Court of Appeals for the Second Circuit

    Decided: November 5th, 2018

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    ISSUE

    Whether the issue-preclusion component of the Double Jeopardy Clause prohibits the Government from predicating a Racketeer Influenced and Corrupt Organization Act (RICO) conspiracy charge based on acts from a previous charge on which the defendant was acquitted.    

    HOLDING

    The Courts held that the issue preclusion component of the Double Jeopardy Clause does not prohibit the Government from using previously acquitted convictions to prove a RICO conspiracy in a second trial when the evidence acquitted was used to prove different, non-precluded conduct.  The Fifth Amendment’s issue-preclusion component of the Double Jeopardy Clause “precludes prosecution of an offense when an issue of ultimate fact or an element essential to conviction has necessarily been determined in favor of the defendant by a valid and final judgment in a prior proceeding. United States v. Cala, 521 F.2d 605, 607–08.  Thus, in order to restrict the use of the earlier acquittals, an essential element of the RICO conspiracy had to have been decided in the defendant’s favor.

    The burden is on the defendant in the second case to establish that the issue he seeks to foreclose from litigation was necessarily deiced in his favor by the prior verdict.        

    FACTS OF THE CASE

    Mikhail Zemlyansky started an investment firm called “Lyons, Ward & Associates” in 2007 which claimed to invest in insurance-settlements he received nearly seven million dollars from investors by guaranteeing an 18% yearly return.  Rather than invest, Zemlyansky embezzled and laundered the money the money.  Zemlyansky paid out small interest payments and issued false account statements in order to carry out the scheme.  Using a model similar to

    “Lyons Ward,”  Zemlyansky started “Rockford Funding Group LLP” in 2009

    where he garnered about ten million dollars in investments. 

    Proceeds were wired to and from shell companies in the United States and overseas. 

    Zemlyansky also operated an illegal, high-stakes poker ring. 

    Zemlyansky and his co-defender Danilovich – who were not medical professionals – owned and controlled over ten medical profession corporations (P.C.s) that fraudulently billed for millions of dollars under New York’s No-Fault comprehensive Motor  Vehicle Reparations Act, N.Y. Ins. Law § 5101 between the years 2009 and 2012.  Both defendants profited from insurance payments, fee-sharing arrangements and kickbacks for referrals.  Much like the aforementioned schemes, profits were, in part, wired to and from shell companies overseas.

    In the first indictment, Zemlyansky, Danilovich and others were charged with nine counts relating to the No-Fault Insurance Organization by a federal grand jury.  The first indictment did not include allegations relating to Lyons Ward or Rockford Group securities fraud scheme, or the Illegal Gambling Ring.  One count of the first indictment charged Zemlyansky with conspiring to participate in the affairs of a RICO enterprise.  The racketeering enterprise was the No-Fault Insurance Organization, and the pattern of racketeering consisted of mail fraud and money laundering.  The first indictment also charged Zemlyansky with eight counts that mirrored the RICO conspiracy’s predicate offenses: On November 13, 2013, the jury acquitted Zemlyansky of the non-RICO conspiracy and substantive counts.  Since the jury was unable to reach a verdict in regard to the RICO conspiracy count, Count One, the District Court declared a mistrial on that count.

    After the mistrial, Zemlyansky was indicted again.  The second indictment charged Zemlyansky with conspiring to violate RICO. Like the racketeering charges in the first indictment, the charges encompassed conduct relating to the No‐Fault Insurance Organization, to Lyons Ward, the Rockford Group and the Illegal Gambling Ring.  The second indictment also charged Zemlyansky with five substantive counts relating to Lyons Ward.  

    Zemlyansky moved to dismiss Count One and to prevent the Government from offering evidence of his involvement in the No‐Fault Insurance Organization to prove that count. He argued under the issue‐preclusion component of the Double Jeopardy Clause that the Government could not offer such evidence because he had been acquitted of that in the previous trial.  The District Court ultimately granted the motion in part, prohibiting the Government from arguing Zemlyansky was guilty of insurance fraud, while allowing evidence of Mr. Zemlyansky’s involvement in the alleged no‐fault scheme insofar as such conduct went to his alleged guilt on the RICO conspiracy charge.

    After a month-long trial, Zemlyansky was convicted of all six counts.  The jury’s decision that Zemlyansky was liable for all five of the RICO conspiracy count’s predicate acts was reflected in the special verdict form.   

    COURT’S ANALYSIS

    The Courts held that the issue-preclusion component of the Double Jeopardy Clause does not prohibit the Government from using acts on which defendant was previously acquitted to prove a RICO conspiracy in a second trial when the evidence acquitted was used to prove different, non-precluded conduct.  The Double Jeopardy Clause was created to protect individuals from being “twice put in jeopardy of life or limb” “for the same offense.”  U.S. Const. Amend. V. In layman terms, after a defendant is tried and found not guilty of a crime, the defendant cannot be tried or punished for the same offense a second time.

    The issue-preclusion component of the Double Jeopardy Clause “precludes prosecution of an offense when an issue of ultimate fact or an element essential to conviction has necessarily been determined in favor of the defendant.   When arguing issue-preclusion in a second case, the burden falls on the defendant to establish that the issue he seeks to foreclose from litigation… was necessarily deemed in his favor by the prior verdict.. 

    The Court disagreed with Zemlyansky’s argument because none of the counts on which he was acquitted in the first trial were necessary components of the RICO conspiracy in the second trial.  The evidence used in the second trial proved different, non-precluded conduct and the Government could reuse this evidence to prove Zemlyansky’s guilt in the second trial.

    The distinction between basic conspiracies and RICO conspiracy charges makes it clear that the acquittal of basic conspiracies do not compel the conclusion that a jury decided an essential element of a RICO conspiracy in Zemlyansky’s favor.  Contrary to the former, a RICO conspiracy does not require that a defendant knowingly agreed to commit a specific crime.  Rather, it is enough that the defendant knowingly agreed to facilitate “the general criminal objective of a jointly undertaken racketeering scheme,” Yannotti, 541 F.3d at 122 and is the extent of the burden on the government in this respect.  The Court, therefore, faced the question of whether a “rational jury” could have acquitted Zemlyansky in the first trial for similar, non-preclusive reasons.

    Upon analyzing the record from the first trial, the Courts determined that a rational jury could have based its acquittal of basic conspiracy on reasons non-essential to proving the later RICO conspiracy.  For one, the first jury could have found a conspiracy by parties other than Zemlyansky to commit insurance-related fraud and agreed to acquit him on that count because he did not “knowingly and intentionally agree to facilitate the particular conspiracy.”  They could have even found that Zemlyansky made a great effort not to agree to facilitate any specific “basic” conspiracies.  Therefore, the second jury was not prohibited from using this element along with others to prove a RICO conspiracy.