• Sentencing Guidelines: District courts possess broad discretion in imposing conditions of supervised release.

    Published By Stephen Preziosi

     

    United States v. Betts

    886 F.3d 198 (2d Cir. 2018)

    Second Circuit Court of Appeals

    Decided on March 28, 2018

    District courts possess broad discretion in imposing conditions of supervised release. A district court’s discretion to impose special conditions of supervised release is not untrammeled, and Court of Appeals will carefully scrutinize unusual and severe conditions.

    Issue: Whether the (newly) imposed sentence of four years of supervised release is substantively unreasonable and whether the District Court erred in imposing a special conditions relating to alcohol and drugs.

    Holding: The Court of Appeals for the Second Circuit held that the imposition of an additional four years of supervised release was not substantively unreasonable and the District Court did not err in imposing a special condition requiring Betts to submit a periodic drug test. However, the Court held that a total ban on alcohol was not reasonably related to the nature and circumstances of Betts’ offense.

    Facts: Defendant Betts was sentenced to ten months’ imprisonment and four years of supervised release with special conditions. The sentence at issue stems from violations committed while Betts was already on supervised release from another conviction (conspiracy to commit bank fraud). The original sentence imposed for the bank fraud conviction was 24 months in prison, followed by five years of supervised release.

    The more recent violations included two arrests for driving without a license and failure to make required restitution payments. In addition, Betts later admitted to failing to notify his probation officer within 72 hours of being arrested. Betts pleaded guilty to failing to notify his probation officer and was subjected to a maximum term of five years of supervised release. The District Court ordered Betts to refrain completely from consumption of alcohol while under supervision. The Court also required periodic drug testing from Betts, emphasizing a zero-tolerance order on the use of any drugs at all.

    On appeal, Betts argued that the sentence of four years of supervised release was substantively unreasonable and that the District Court erred in imposing the special conditions involving drugs and alcohol.

    Analysis: The Second Circuit reviewed Betts’ sentence for substantive reasonableness under a deferential abuse of discretion standard. Under that standard, a sentence is only unreasonable if it “cannot be located within the range of permissible decision.” United States v. Bonilla, 618 F.3d 102, 108 (2d Cir. 2010).

    Betts presented this Court with three reasons as to why his sentence was substantively unreasonable: 1) his violation was not sufficiently egregious to warrant an additional four years of supervised release; 2) the District Court abused its discretion when it sentenced him to a term at the upper end of the applicable Guidelines range; 3) the District Court erred in discrediting defense counsel’s mitigation arguments.

    The Court found Betts’ “insufficiently egregious” argument unpersuasive. Since the District Court made a careful assessment of the factual basis for Betts’ violation as well as his personal history and character, the Court’s imposition of four years of supervision was not an abuse of discretion. Among other factors, the District Court considered Betts’ repeated failure to make restitution payments and the fact that he escaped from supervision after his most recent arrest.

    Unconvinced, again, by Betts’ next argument, the Second Circuit concluded that sentencing Betts at the upper end of the applicable Guidelines range was not an abuse of discretion. Both the imposed term of imprisonment and the term of supervised release were within the Guidelines range and Betts’ sentence fell within the broad range of reasonable sentences given his behavior while on supervised release.

    Last, the Court rejected Betts’ argument that the District Court erred in discrediting some of defense counsel’s mitigation arguments. The Court noted that at sentencing, defense counsel brought before the District Court claims that Betts was taking serious steps toward better behavior. However, the District Court was not convinced because Betts’ actions contradicted these statements. Thus, the District Court’s decision was not an abuse of discretion because it properly weighed the evidence.

    While the Second Circuit was unmoved by Betts’ initial claims of abuses of discretion, it saw merit in Betts’ ‘special conditions’ argument. A sentencing court may impose special conditions that are reasonably related to “the nature and circumstances of the offense and the history and characteristics of the defendant” ; “the need for the sentence imposed to afford adequate deterrence to criminal conduct” ; “the need to protect the public from further crimes of the defendant” ; and “the need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner,” and which “involve no greater deprivation of liberty than is reasonably necessary” for these purposes. U.S. Sentencing Guidelines § 5D1.3(b); see also United States v. Myers, 426 F.3d 117, 123-25 (2d Circ. 2005).

    First, Betts argued that a special condition prohibiting alcohol use is not reasonably related to either his underlying crime or the violation and the ban involves greater deprivation of liberty than necessary. The Second Circuit agreed with Betts and concluded that there was no evidence to suggest that Betts abused alcohol. The District Court also failed to clarify why it imposed this special condition other than the fact that it was not happy with Betts’ behavior. Thus, the Second Circuit vacated the District Court’s special condition ordering Betts to ban “all alcohol use.”

    Betts also urged the Second Circuit to vacate the District Court’s special condition requiring substance abuse testing with “zero tolerance of the use of any drugs at all.” Betts claimed that the ban referred to all drugs, including prescription drugs. However, looking at the entered judgment, the Second Circuit concluded that the actual ban was only meant for controlled substances and not prescription drugs. The Court concluded that such a ban was “entirely appropriate.”

  • government breached plea agreement

    Fourth Amendment Search and Seizure: The Origin of the “Terry Stop” – Temporary Stops and Searches

    Published By Stephen Preziosi

    Terry v. Ohio

    88 S.Ct. 1868

    U.S. Supreme Court

    Decided June 10, 1968

    More information on Federal Appeals and Petitions to the United States Supreme Court 

    Fourth Amendment Search and Seizure: The Origin of the “Terry Stop” – Temporary Stops and Searches

    This week’s Throw-Back-Thursday blog is the case that established the infamous Terry Stop where police were authorized to stop and frisk a suspect when the police believe that there is reasonable suspicion that the person is committing, has committed or is about to commit a crime and the person may be armed.  This case eventually would lead to the recent controversy of “stop and frisk” in many State jurisdictions.

    Issue: Whether a police officer’s “stop and frisk” of an individual violates of the Fourth Amendment of the United States Constitution.

    Holding: The Supreme Court held that when an officer acts “reasonably” in performing a search and seizure, even without probable cause, the search and seizure is not a violation of the Fourth Amendment when the if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person “may be armed and presently dangerous.

    The Stop and Frisk and Arrests of Terry and Chilton

    A detective patrolling downtown Cleveland spotted two men, John Terry and Richard Chilton, on a street corner and suspected that something was amiss based on the behavior of the men. The detective observed Terry and Chilton repeatedly walking back in forth on the same street, pausing to look into the same store window each time they passed by. Suspecting that the men were about to perform a “stick up,” the detective approached Terry and Chilton along with a third man who had met them named Katz, identified himself as an officer, and proceeded to pat down Terry. The detective felt a revolver on Terry’s person and, after leading the three men inside the store, he ordered Terry to remove his coat so he could retrieve the weapon. The officer went on to perform a complete pat down of Terry, Chilton, and Katz. Another revolver was discovered on Chilton’s person and Terry and Chilton were subsequently charged with carrying concealed weapons.

    Fourth Amendment Issue at Trial

    The defense counsel of Terry and Chilton moved to suppress the weapons as evidence, arguing that the seizure violated the Fourth Amendment. The court denied the motion and admitted the revolvers into evidence on the grounds that the detective had reason to believe that Terry and Chilton were acting suspiciously and that because the officer had reason to believe the men might be armed, he was allowed to frisk them for his own safety. After the trial court denied the motion to suppress, Terry and Chilton pled guilty.

    When is a Search or Seizure “Reasonable”?

    Under the U.S. Constitution, the Fourth Amendment provides that citizens have the right against unreasonable searches and seizures by police. While the Court conceded that petitioner Terry was generally entitled to protection under the Fourth Amendment as he walked the streets, the Court questioned whether, under the circumstances as described by the arresting officer, the search and seizure was unreasonable. How, then, the Court questioned, do we know when a search or seizure is reasonable and when a search or seizure violates an individual’s Fourth Amendment rights?

    When an intrusion occurs without a warrant, courts look to the testimony of the arresting officer to see whether the actions taken were justified and whether the officer’s specific, articulated accounts “taken together with rational inferences from those facts, reasonably warrant the intrusion.” The Court urged lower courts to ask these questions and to require evidence of reasonableness that is based on more than just a “hunch”— evidence that the officer acted in “good faith” would not be enough. The Court held that if mere “good faith” requirement were all that was necessary to determine that the search and seizure was legal, “the protections of the Fourth Amendment would evaporate.”

    Was Terry’s “Stop and Frisk” Reasonable under the Fourth Amendment?

    After establishing that courts must assess the context and facts of a warrantless search or seizure, the Supreme Court was called to determine whether Terry’s “stop and frisk” was unreasonable and in violation of his Fourth Amendment rights. The Court didn’t doubt that Terry was “seized” and subjected to a “search” when the detective patted him down for weapons on the outside of his clothing. However, the question remained: did the circumstances preceding the detective’s “stop and frisk” render his decision to perform the search and seizure reasonable according to the Court’s principles?

    Following its own guidelines, the Court analyzed the facts of Terry’s case and concluded that the detective’s warrantless search and seizure was reasonable. The Court rationalized that because the detective’s observations of Terry and his two companions (pacing up and down the street, continuously stopping in front of the store, etc.) led him to believe Terry and his crew were about to execute a stick-up, the detective acted reasonably. Also noting that the detective initially limited his search to a pat down of the outside clothing, the Court concluded that his decision was a reasonable in order to protect himself and others from possible danger. Subsequently, the Court held that the weapon was properly admitted into evidence.

    The Controversy that Followed

    Since the decision of Terry v. Ohio, controversy over the constitutionality of “stop and frisk” searches has remained prevalent throughout the United States. In 2013, the United States District Court for the Southern District of New York axed the “stop and frisk” policy. That Court held that the “stop and frisk” rule violated the Fourth Amendment, noting that officers too often take advantage of the policy by unfairly target minorities.

     

     

     

  • Indicted to Convicted: Second Circuit Sets Standard for Indictment Amendments and Variances

    Published By Stephen Preziosi

    United States v. Dove

    No. 14-1150-cr

    Second Circuit Court of Appeals

    Decided on March 6, 2018

    Federal Appeals Attorney in the Second Circuit Court of Appeals

    Issue: Whether (1) an indictment is constructively amended where the majority of names of co-conspirators are removed from jury instruction and where the government presents evidence of minimal involvement in the conspiracy on the part of the defendant; (2) whether there is prejudicial variance from an indictment when the evidence at trial demonstrates multiple conspiracies although the indictment charged one large conspiracy; (3) whether the evidence was sufficient to convict the defendant of conspiracy; and (4) whether the district court erred in sentencing the defendant as a career offender based on two New York first and second-degree robbery convictions.

     

    Held: The Second Circuit held that (1) neither the redaction of co-conspirators’ names in jury instruction nor evidence demonstrating the defendant’s minimal involvement constructively amended the indictment; (2) no prejudicial variance from the indictment occurred, even though the government presented evidence of multiple conspiracies; (3) evidence was sufficient to convict the defendant of conspiracy even though evidence only showed the defendant interacted with one co-conspirator; and (4) the defendant was properly sentenced as a career offender.

     

    Facts: Dove was convicted of conspiracy to distribute and possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. § 841(b)(1)(C) and 846. He was also charged with intent to distribute cocaine, in violation of 21 U.S.C § 841(a)(1) but was acquitted of that count.

     

    The government’s primary evidence was testimony of undercover agents and video recordings of Dove participating in a drug transaction. The evidence presented at trial only included interactions between Dove and co-conspirator Ingram, although the indictment charged a six-member conspiracy. Out of the 30 transactions that took place throughout the operation, Dove was only involved in one. At trial, the district court gave jury instructions, in which the names of four of the alleged co-conspirators were redacted, leaving only the names of Dove and Ingram. Dove moved for acquittal and, alternatively, moved to vacate the judgment, claiming that the evidence was insufficient to convict him of conspiracy. The court denied both motions.

     

    At sentencing, the court found that Dove qualified as a career offender under U.S.S.G. § 4B1.1, which resulted in a sentence of 72 months and five years of supervised release. Dove appealed both his conviction and sentence.

     

     

    Analysis: Dove argued on appeal that 1) the indictment was constructively amended, 2) the government’s evidence constituted a prejudicial variance from the terms of the indictment, 3) the evidence was insufficient to support Dove’s conviction, and 4) the district court erred in sentencing him as a career offender.

     

    Constructive Amendment of the Indictment

     

    The conspiracy involved six individuals. However, the district court’s jury instructions removed the names of four co-conspirators and the government’s evidence only linked Dove to Ingram and no other co-conspirators. Dove claimed this constructively amended the indictment, but the Second Circuit rejected the argument, holding that neither the jury instructions nor the government’s evidence altered an essential element of the charges in the indictment.

     

    When the charge upon which the defendant is tried differs significantly from the charge for which the grand jury voted, the indictment has been constructively amended. A constructive amendment occurs when an additional element is added or an element essential to the crime charged is altered. United States v. Agrawal, 726 F.3d 235, 259 (2d Cir. 2013).

     

    The Second Circuit first considered whether the names of four co-conspirators, which were removed from the district court’s jury instructions, could have been essential to the charges set forth in the indictment. Pointing to United States v. Harris, 8 F.3d 943, 946 (2d Cir. 1993), in which this Court held that “an individual need not know the identities of all coconspirators in order to be found guilty of being a member of a conspiracy,” the Second Circuit determined that the inclusion of the other co-conspirators’ names was not essential and, thus, did not constructively amend the indictment. In addition, the Court concluded that the names did not constitute a necessary element by setting the minimum size of the conspiracy because the indictment specified that Dove and Ingram conspired “with others.”

     

    The Second Circuit was also unpersuaded by Dove’s argument that the indictment was constructively amended by the government’s evidence at trial. The evidence demonstrated that: Dove participated in one transaction; the transaction was the only one out of the 30 that involved cocaine unlike the others, which involved heroin and pills; there was no evidence linking Dove to other members of the conspiracy besides Ingram; and there was no evidence that investigators were aware of Dove prior to the last day of the conspiracy.

     

    While the Second Circuit conceded that Dove played a minor role in the conspiracy, the Court declined to agree that the evidence resulted in a constructive amendment from the conduct considered by the grand jury. The evidence at trial included Dove’s agreement to sell cocaine and that Ingram had informed the agent that Dove had sources for heroin (in Dove’s presence). The Court determined that this evidence was consistent with the terms of the indictment voted on by the grand jury.

     

    Prejudicial Variance from the Indictment

     

    Dove also argued that the evidence presented at trial, demonstrating multiple conspiracies involving Ingram, resulted in prejudicial variance from the indictment because the indictment alleged a single larger conspiracy. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence at trial proves facts materially different from those alleged in the indictment. Reversal is only warranted for a variance if the defendant shows both: (1) the existence of a variance, and (2) that “substantial prejudice” occurred at trial as a result.

     

    The government did not contest that there was a variance in Dove’s trial. However, the question that remained was whether the variance was prejudicial. Dove argued that he was not given proper notice of the charges against him pursuant to the Grand Jury Clause. However, the Second Circuit pointed out that Dove failed to demonstrate that he met the prejudice factors outlined in United States v. McDermott, 245 F.3d at 139 (2d Cir. 2001). In any event, the Court found that Dove had sufficient notice from the indictment that the government would attempt to prove multiple conspiracies.

     

    Sufficiency of the Evidence

     

    Although the evidence adduced at trial only showed that Dove was involved in “a minimum agreement between Dove and Ingram to engage in transactions,” the Second Circuit determined the evidence was sufficient to convict Dove of conspiracy.

     

    Dove asserted that the evidence was insufficient due to the “buyer-seller” exception, which provides that “the mere purchase and sale of drugs does not, without more, amount to a conspiracy to distribute narcotics.” However, the Court determined that this exception was inapplicable in Dove’s case because the evidence demonstrated that Dove and Ingram: (1) enjoyed mutual trust and extensive cooperation; (2) had a history of standardized dealings in wholesale quantities of heroin; and (3) were planning future sales of wholesale quantities of heroin plainly not intended for personal use.

     

    Career Offender Designation

     

    Finally, the Second Circuit held that Dove was properly sentenced as a career offender. Dove argued that his New York convictions for first and second-degree robbery were inappropriately categorized as crimes of violence under the Career Offender Guidelines. However, recent Second Circuit case law renders Dove’s New York robbery convictions violent within the meaning of U.S.S.G. § 4B1.1.

  • Throw-Back-Thursday: The Fifth Amendment’s Right to Remain Silent and Miranda v. Arizona

    Published By Stephen Preziosi

    Miranda v. Arizona

    86 S.Ct 1602

    US Supreme Court

    Decided June 13, 1966

     

    Throw-Back-Thursdays wouldn’t be complete without this great Supreme Court classic: The most recognizable legal incantation known throughout the country: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney.” derives from the landmark case known as Miranda v. Arizona. It is so often repeated on television, in the movies, and in real life that it has become part of our culture. The right not to incriminate oneself (often referred to as the right to remain silent) stems from the Fifth Amendment to our Constitution. But how and when were law enforcement officers required to recite the Miranda warnings to arrestees? The birth of the iconic Miranda rights dates back to 1966, when the Supreme Court made a landmark decision in Miranda v. Arizona.

    Ernesto Miranda and the Story Behind the Miranda Rights

    Three years prior to the Supreme Court’s decision, Ernesto Miranda was arrested in Phoenix, Arizona after law enforcement connected him to a kidnapping and rape. The officers questioned him for two hours until Miranda signed a confession. Miranda was never informed of his Sixth Amendment right to an attorney, nor was he informed of the Fifth Amendment’s protection against self-incrimination.

    At trial, Miranda’s lawyer, Alvin Moore, objected when prosecutors attempted to offer his written confession as evidence. Moore argued that Miranda’s confession could not have been voluntary because he was never informed of his rights and that the confession should be precluded from being introduced as evidence. The judge overruled Moore’s objection and Miranda was convicted of the rape and kidnapping charges. Moore appealed to the Arizona Supreme Court but the conviction was affirmed. The Arizona Supreme Court’s decision relied heavily on the notion that Miranda did not take the initiative to request an attorney himself.

    The Decision of the U.S. Supreme Court

    Justice Earl Warren delivered the 5-4 majority opinion, with Justices Harlan and White dissenting and Justice Clark concurring and dissenting in part. The Court ruled that the prosecution may not use statements made by an individual during custodial interrogation unless certain safeguards were followed. This decision guaranteed that individuals received notice that they had a right, under the Fifth Amendment, against self-incrimination—a notice that became known as Miranda warnings.

    Throughout the decision, the Court highlighted the importance of the Fifth Amendment right against self-incrimination, noting that “the current practice of incommunicado interrogation is at odds with one of our Nation’s most cherished principles—that the individual may not incriminate himself.” Another crucial observation made by the Court was that police officers have the advantage during custodial interrogation and that the liberty of the individual being interrogated is often compromised because of this position of power.

    Previously, courts had to decide whether defendants understood their constitutional rights on a case-by-case basis. Because the right against self-incrimination was so essential to the justice system, the Court held that this methodology was not enough. In an effort ensure all defendants understand their fundamental constitutional rights upon being arrested and before being interrogated in custody, the Supreme Court held that police must make defendants aware of these rights. From that point on, law enforcement was required to warn defendants of the following: 1) the right to remain silent; 2) that anything they say may be used against them in court; 3) the right to an attorney, either retained by them or appointed by the court; and 4) that they may waive these rights, but they retain the right to ask for an attorney any time during the interrogation, at which point the interrogation can only continue in the presence of a lawyer.

    Notably, this decision was quite controversial, which isn’t surprising considering the 5-4 split. Those who criticized the decision argued that the new guidelines would weaken law enforcement’s ability to catch criminals. Even as late as 2000, the Supreme Court was given the opportunity to overrule Miranda v. Arizona, but the majority concluded that the Miranda warnings have “become part of our national culture” and refused to overrule the decision.