• Miranda Warnings and FRCP Rule 16: Government’s Misrepresentation Prevents Motion To Suppress And Mandates New Trial

    Published By Stephen Preziosi

    FRCP   Rule 16: Government’s Misrepresentation Prevents Motion To Suppress And Mandates New Trial

    United States of America v. Vinas

    2018 WL6381164

    United States Court of Appeals – 2nd Circuit

    Decided on December 6th, 2018

    Appeals to the Second Circuit

    Federal Appeals Lawyer in New York, Connecticut, Vermont 

    ISSUE

    Whether the defendant is entitled to a new trial where the Government inaccurately portrayed how a pre-arrest statement was obtained from the defendant where the statement was made to four federal officers at the airport in a search room prior to defendant being Mirandized and the misrepresentation prevented the defendant from making a motion to suppress the statement pursuant to Federal Rules of Criminal Procedure Rule 16. 

    HOLDING

    The Courts held that a new trial is warranted because the Government inaccurately portrayed how a pre-arrest statement was obtained denying defendant the opportunity to make a suppression motion.  Rule16(a)(1)(A) requires the government to disclose the substance not only of the incriminating post-arrest oral statements which it intends to use at trial, but also the substance of the defendant’s response to any Miranda warnings which preceded the statements.

    FACTS OF THE CASE

    On November 15, 2015 defendantFrancis Patino Vinas arrived at JFK airport after a five-day trip to the Dominican Republic.  He approachedCustoms Control Point and present his suitcase and backpack for inspection where he was selected for further inspection and was referred to the BaggageInspection Area, where United States Customs and Border Protection (“CBP”) officer Francisco Santos inspected the contents of his suitcase.

    Officer Santos took Vinas into a private room (the“Search Room”) where he and three other armed CBP officers asked Vinas where he had gotten the bottle of Mamajuana. Vinas replied that he had bought the bottle at a store outside the airport in the Dominican Republic.  Officer Santos discovered further evidence of tampering and broke the bottom on the bottle, spilling the contents of the bottle into the bag.  Various “blue oblong objects” were observed  blue objects in the bag and cut it open, revealing a white powdery substance that was later revealed to be cocaine. 

    Vinas was placed under arrest. Prior to being Mirandized  and during the initial inspection of his luggage by U.S. Customs and Border Protection officers, Vinas stated, in sum and substance, that he purchased the bottle of “Mamajuana” at a store in theDominican Republic. He was later advised of his Miranda Rights and he waived those rights.  

    Vinas was indicted for importing cocaine.  The Government produced discovery pursuant to Rule 16 of the Federal Rules of Criminal Procedure, which included Vinas’ signed Miranda waiver and a document describing Vinas’ statements that he had been given the bottle of Mamajuana by Chelo. 

    Prior to trial, the Government made a supplemental production of Rule 16 material. The Government’s disclosure stated: During the initial inspection of his luggage by U.S. Customs and Border Protection officers, Vinas stated, in sum and substance, that he purchased the bottle of “Mamajuana” at a store in the Dominican Republic. The defense did not move to suppress this statement before trial because they were unaware that the statement was given pre-Miranda. 

     The only issue at trial was whether Vinas knew that the Mamajuana bottle contained cocaine.  During the Government’s opening statement, they described the expected testimony given by Officer Santos which stated that after Vinas was taken to “a private search room,” he claimed to have purchased the Mamajuana bottle at a store in the Dominican Republic (the “Store Statement”).  Defense counsel immediately notified the district court that, until the Government’s opening, they were unaware that Vinas purportedly made the Store Statement in the Search Room in the presence of four armed CBP officers, prior to receiving Miranda warnings. 

    Defense counsel argued that he would have moved before trial to suppress the Store Statement if he had known about the factual context.  Despite this, the district court allowed the Government to proceed with Officer Santos’ direct testimony, the aforementioned Store Statement and simply assured the defense counsel that they would have the opportunity to make any necessary motion.  During the initial and rebuttal summations, the Government mentioned the Store Statement Vinas made in the Search Room nine times and made it central to their argument that Venus was aware he was importing cocaine. 

    The jury convicted Vinas on both counts of the Indictment.  After his conviction, he moved for a new trial, arguing that the Government’s Rule 16 disclosure regarding Vinas’ Store Statement misled the defense into forgoing a pretrial motion to suppress that statement.  The district court denied Vinas’ motion.   

    COURT’S ANALYSIS

    The Courts held that a new trial is warranted because the Government inaccurately portrayed how a pre-arrest statement was obtained by federal authorities in violation of Rule 16 (a)(1)(A)therefore denying the defendant the opportunity to make a suppression motion.  Rule 16(a)(1)(A) states:

    Upon a defendant’s request, the government must disclose to the defendant the substance of any relevant oral statement made by the defendant, before or after arrest, in response to interrogation by a person that defendant knew was a government agent if the government intends to use the statement at trial.  Fed. R. Crim. P. 16(a)(1)(A). 

    The district court was in error when they concluded that the Government complied with the requirements of Rule 16 because they relied on the reasoning that this Court rejected in United States v. McElroy, 697 F.2d 459(2d Cir. 1982). 

    In McElroy, before trial, the Government responded to the defendant’s request for Rule 16 materials by producing a post-arrest statement by the defendant in which the defendant claimed that he was present at the transaction only out of concern for the safety of an accomplice, which the Government said the defendant “volunteered” to a DEA agent. During the trial, however, it arose that prior to making this statement, the defendant chose to remain silent and meet with an attorney before being questioned further, invoking his Miranda right.  Afterward, the defendant initiated a conversation with a DEA agent and was read his Miranda rights a second time which he chose to waive and proceeded to making the inculpatory statement at issue.  The Court held that the Government violated Rule 16(a)(1)(A) and reversed the defendant’s conviction because they failed to disclose the defendant’s initial oral invocation of his Miranda rights.

    The Second Circuit rejected the district court’s determination that the Government properly disclosed the Store Statement under Rule 16 since “nothing was concealed,” or “withheld.” because it was established in McElroy that “Rule16(a)(1)(A) requires the government to disclose the substance not only of the incriminating post-arrest oral statements which it intends to use at trial, but also the substance of the defendant’s response to any Miranda warnings which preceded the statements.” 697 F.2d at 464. Like in McElroy, theGovernment’s disclosure in this case offered a precise summary of the defendant’s alleged statement, coupled with a misleading depiction of the circumstances under which the defendant supposedly made it and therefore, misinformed defense counsel about the possible grounds for suppression.

  • Sentence Reduction Pursuant to Rule 35(b) and the 3553(a) Factors

    Published By Stephen Preziosi

    Sentence Reduction Pursuant to Rule 35(b) and the 3553(a) Factors

    October 16th, 2018

    USA v. KATSMAN

    16-2583-cr

    United States Court of Appeals for the Second Circuit

    Also See: Appeal After Plea and Sentence 

    Writ of Habeas Corpus

    Writ of Errors Coram Nobis 

     

    ISSUE 1) Whether the district court is allowed to deny the government’s motion pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure for a reduction of sentence where the courts determined that the defendant provided substantial assistance in an ongoing matter and reaped the benefits of his cooperation in said matter dealing with SDNY. 2) Whether the factors in 18 U.S.C. §3553(a) should be a used in determining the reduction of a sentence pursuant to a motion under Rule 35(b) where the defendant was offered a plea deal in exchange for substantial assistance in an ongoing matter that the defendant had previously participated in.

    HOLDING

    1) The Second Circuit held that the district court may deny the government’s motion pursuant to Rule 35(b), such motions are to be decided in two steps: first, the lower court must determine whether the defendant, in fact, provided substantial assistance; Second, if so, it must then determine what, if any, sentence reduction is warranted.  2) The Second Circuit held that the factors under 18 U.S.C. §3553(a) may be used in determining the sentence reduction because it directly relates to step two in determining whether to reduce the defendant’s sentence in light of his cooperation.

     

    FACTS OF THE CASE

    On November 17, 2010, Katsman pled guilty in the EDNY for charges related to a fraudulent check-cashing scheme and was sentenced to 84 months imprisonment. He moved to withdraw his guilty plea or for resentencing before a different judge. His motion to withdraw was denied and his resentencing resulted in a total of 120 months’ imprisonment.

     

    In 2013, the FBI and US Attorney approached Katsman about cooperating in a separate case pending in the SDNY regarding a no-fault insurance fraud scheme and various investment frauds. Subsequently, the government entered into a joint EDNY-SDNY cooperation agreement with Katsman; the government agreed to make a Rule 35 motion to reduce his sentencing in EDNY given that he provided substantial assistance in the ongoing matter. In February 2015, Katsman was required to plead guilty to uncharged criminal conduct in SDNY as part of the deal.

    The following year, the US Attorney filed a motion pursuant to Rule 35(b) in the EDNY for resentencing based on his substantial assistance in the prosecutions in the SDNY. While the sentence in the SDNY sentencing was reduced to time served, the district court denied the government’s motion to reduce sentencing in the EDNY. Following Katsman’s initial appeal and remand from the federal court, the district court issued its decision, which is sealed, and a summary of its reasoning.

     

    COURT’S ANALYSIS ON THE USE OF 3553(a) FACTORS IN SENTENCE REDUCTION 

    In this case, the Second Circuit held that in deciding a Rule 35(b) motion, the district court must first determine whether the defendant in fact provided substantial assistance and second, if he did, the court must determine what, if any, reduction in sentence is warranted. The federal court did not accept Katsman’s argument that the district court conflated these discrete steps into one. They determined that the district court fulfilled the requirements of the first step by inferring that Katsman clearly provided substantial assistance when he pleaded guilty to a “uncharged criminal conduct” in the SDNY. They then determined that the district fulfilled the requirements of the second step by explaining that a 120-month sentence, which was the middle of the guidelines range, remains sufficient but not greater than necessary to comply with the purposes of Section 3553(a) because, among other things, Katsman had already received the benefit of his cooperation in the SDNY when the sentence in the SDNY sentencing was reduced to a sentence of time served.

     

    While the federal court has yet to address the role of factors in 18 U.S.C. §3553(a), if any, in sentencing reduction pursuant to a Rule 35(b) motion, the text also does not preclude the district court from considering factors in addition to the defendant’s “substantial assistance” and to what extent. In fact, Rule 35’s use of the word “may” implies discretion and “discretion can best be exercised by considering the various sentencing factors”. The only limitation, however, is found under Rule 35(b) which requires that the defendant provides “substantial assistance if he is to receive any benefit for his cooperation.”

    If the courts were required to resentence a defendant considering only substantial assistance, there would be “too little discretion for the court to exercise” in deciding whether a reduced sentence is “warranted or prudent under the circumstance.” United States v. Manella, 86 F.3d 201, 2014-05 (11th Cir. 1996). A defendant’s circumstances could change after the sentencing in a way that has an effect on the appropriateness of his sentencing. Take, for instance, a defendant with a terminal illness, which may result in a greater reduction, as opposed to a defendant like Katsman who continued to engage in criminal behavior and lied to the courts about it, which would result in a lesser reduction.

  • No Need for Lower Court to Agree with Appellate Court’s Reasoning for Mandate

    Published By Stephen Preziosi

    United States v. Jesse Sawyer

    No. 15-2276-cr

    Second Circuit Court of Appeals

    Decided October 26, 2018

     

    Issue: Whether the resentencing of a defendant by a district judge who refuses to agree with the appellate court’s reasoning for the resentencing, and who reduces the sentence based on a factor not addressed by the appellate court, should be reversed.

     

    Holding: The Second Circuit held that, pursuant to the mandate rule, on remand, the district court is only required to comply with the appellate court’s order; it is not required to agree with the appellate court’s reasoning for the order or to consider the appellate court’s reasoning upon making a decision.

     

    Facts: Defendant Jesse Sawyer pled guilty to two counts of sexual exploitation of children in violation of USC §§ 2251(a) and one count of receipt of child pornography in violation of 18 USC §§ 2252A(a)(2)(A) and 2256(8)(A). Sawyer was sentenced to 30 years in prison. Prior to this appeal, the Second Circuit remanded to the district court for resentencing, given “Sawyer’s harrowing upbringing and comparatively low danger to the community.” Sawyer was resentenced by the district court to 25 years in prison, and Sawyer challenged his new sentence on both reasonableness and “law-of-the-case-grounds.”

     

    Each of Sawyer’s sexual exploitation charges carried a fifteen-year mandatory minimum and 30-year maximum sentence. The receipt of child pornography count carried a mandatory minimum of five years in prison and a maximum of 20 years. The combined maximum sentence, therefore, was 80 years in prison.

     

    The presentence report and defendant’s sentencing memorandum described Sawyer’s horrific upbringing, which consisted of continuous sexual and physical abuse. Although the sentencing judge acknowledged Sawyer’s “nightmarish” childhood—or, rather, the “childhood that never was”—she found that it could not excuse his actions.

     

    On the first appeal, the Second Circuit concluded that Sawyer’s original 30-year sentence had been substantially unreasonable. The Court considered the nature and extent of Sawyer’s crimes, which did not rise to the level of “extreme and heinous criminal behavior” like sexual assault, for which a 30-year sentence would have been more appropriate. In addition, the Second Circuit found that the district court “failed to give appropriate weight to a factor listed in Section 3553(a)”: the history and characteristics of the defendant.

     

    At Sawyer’s resentencing in 2017, the district judge clearly expressed her disagreement with the Second Circuit’s conclusion and, in her view, the original sentence remained substantively reasonable. Based on Sawyer’s post-sentencing rehabilitative efforts alone, the judge reduced Sawyer’s sentence by five years.

     

    Court’s Analysis: When an issue is resolved on appeal, on remand, the district court is prohibited from ignoring or rejecting the appellate court’s determination. See Burrell v. United States, 467 F.3d 160, 165 (2d Cir. 2006). This rule, known as the “mandate rule” requires district courts to comply with the Second Circuit’s holdings on the case.

     

    Although the Second Circuit acknowledged the district court’s disagreement with the Court’s reasoning, it concluded that, nevertheless, the district court judge’s reduction of five years was substantial. The Court determined that its mandate did not prevent the district court from disagreeing with the Second Circuit’s reasoning, nor did it require the district court to consider the sentencing factors in the way that the Second Circuit would have done. Instead, the district court was only required to sentence the defendant “within the (elastic) bounds of reasonableness.”

     

    Whether the district court agrees with the appellate court’s ruling is, thus, essentially irrelevant, as long as the court has complied with the mandate. Indeed, “the mandate rule only ‘compels compliance.’” See United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001).

     

    Although the Second Circuit determined that it could not bring itself “to call [the sentence] shocking under governing law,” it still recognized the sentence as “barbaric” yet declined to remand for resentencing.

     

    Chief District Judge Geoffrey Crawford dissented. He concluded that on remand, instead of relying on the Second Circuit’s ruling, the district court simply “changed the subject” by reducing the sentence by relying on a reason unaddressed by the Second Circuit. Judge Crawford noted that the new sentence “still fails to take into proper consideration the two § 3553(a) factors” the Court had addressed as the basis for reversal. Noting that the panel here identified the district court’s refusal to properly weigh these factors as significant substantive errors, Judge Crawford concluded that the “errors continue to form the primary basis for the new sentence.”

     

     

     

  • Sentence Reduction and Rule 35(b) Motions and the 3553(a) Factors

    Published By Stephen Preziosi

    USA v. KATSMAN

    16-2583-cr

    United States Court of Appeals for the Second Circuit

    Decided on October 10, 2018

     

    ISSUE

    ONE Whether the district court is allowed to deny the government’s motion pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure for a reduction of sentence where the courts determined that the defendant provided substantial assistance in an ongoing matter and reaped the benefits of his cooperation in said matter dealing with SDNY. TWO Whether the factors in 18 U.S.C. §3553(a) should be a used in determining the reduction of a sentence pursuant to a motion under Rule 35(b) where the defendant was offered a plea deal in exchange for substantial assistance in an ongoing matter that the defendant had previously participated in.

     

    HOLDING

    ONE The Court held that the district court is allowed to deny the government’s motion pursuant to Rule 35(b) because such motions are to be decided in two steps: first it determines whether the defendant in fact provided substantial assistance; where the defendant pleaded guilty in SDNY with charges solely based on information voluntarily provided during proffer sessions. Second, if so, it must then determine what, if any, reduction in sentence is warranted; where no reduction in sentencing. TWO The Court held that the factors under 18 U.S.C. §3553(a) may be used in determining the reduction of a sentence because it directly effects step two in deciding whether to reduce the defendant’s sentence in light of his cooperation.

     

    FACTS OF THE CASE

    On November 17, 2010, Igor Katsman pled guilty in the EDNY to charges relating to a fraudulent check-cashing scheme and was sentenced to 84 months’ imprisonment. He moved to withdraw his guilty plea or for resentencing before a different judge. Consequently, his motion to withdraw was denied and his resentencing resulted in a total of 120 months’ imprisonment.

     

    In 2013, the FBI and USAO-SDNY approached Katsman about cooperating in a separate case pending in the SDNY regarding a no-fault insurance fraud scheme and various investment frauds. Subsequently, the government entered into a joint EDNY-SDNY cooperation agreement with Katsman, and the government agreed to make a Rule 35 motion to reduce his sentencing in EDNY because he provided substantial assistance in the ongoing matter. In February 2015, Katsman was required to plead guilty to uncharged criminal conduct in SDNY as part of the plea deal.

     

    The following year, the USAO-EDNY filed a motion pursuant to Rule 35(b) in the EDNY for resentencing based on his substantial assistance in the prosecutions in the SDNY. While the 125 years’ imprisonment in the SDNY sentencing was reduced to a sentence of time served, the district court denied the government’s motion to reduce sentencing in the EDNY. Following Katsman’s initial appeal and remand from the federal court, the district court issued its decision and a summary of its reasoning, which is sealed.

     

    COURT’S ANALYSIS

    In this case, the courts find that in deciding a Rule 35(b) motion, the district court must first determine whether the defendant in fact provided substantial assistance and second, if it does, the court must determine what, if any, reduction in sentence is warranted. The federal court did not accept Katsman’s argument that the district court “conflated these discrete steps into one.” They determined that the district court fulfilled the requirements of the first step by inferring that “Katsman clearly provided substantial assistance” when he pleaded guilty to a “uncharged criminal conduct” in the SDNY. They then determined that the district fulfilled the requirements of the second step by explaining that a “120-month sentencing, the middle of the guidelines range, remains sufficient but not greater than necessary to comply with the purposes of Section 3553(a)” D.Ct. Dkt. No. 103 because, among other things, Katsman had already received the benefit of his cooperation in the SDNY when the 125 years’ imprisonment in the SDNY sentencing was reduced to a sentence of time served.

     

    While the federal court has yet to address the role of factors in 18 U.S.C. §3553(a), if any, in sentencing reduction pursuant to a Rule 35(b) motion, the text also does not preclude the district court from considering factors in addition to the defendant’s “substantial assistance” and to what extent. In fact, Rule 35’s use of the word “may” implies discretion and “discretion can best be exercised by considering the various sentencing factors”. The only limitation, however, is found under Rule 35(b) which requires that the defendant provides “substantial assistance if he is to receive any benefit for his cooperation.” Additionally, Section 3553(a) requires that courts “impose a sentence sufficient, but not greater than necessary,” and that they consider the “statutory factors in determining the particular sentence to be imposed.”

     

    If the courts were required to resentence a defendant considering only substantial assistance, there would be “too little discretion for the court to exercise” in deciding whether a reduced sentence is “warranted or prudent under the circumstance.” United States v. Manella, 86 F.3d 201, 2014-05 (11th Cir. 1996). A defendant’s circumstances could change after the sentencing in a way that has an effect on the appropriateness of his sentencing. Take, for instance, a defendant with a terminal illness which may result in a greater reduction. As opposed to a defendant like Katsman who continued to engage in criminal behavior and lied to the courts about it which may result in a smaller reduction. Thus, the Circuit Court found that on a Rule 35(b) motion, the trial court may apply the 3553(a) factors at sentencing.