Tag Archives: federal criminal appeals

RICO Racketeering Conspiracy: How Specific Must a Jury’s Verdict be? No Need To Name Racketeering Acts Says The First Circuit.

Published By Stephen Preziosi

United States v. Leoner-Aguirre
No. 18-1333
First Circuit Court of Appeals
Decided: September 20, 2019

ISSUE

Withdrawing From a Racketeering Conspiracy: Incarceration Doesn’t Count

  • Whether the incarceration of a defendant constitutes a withdrawal from a RICO conspiracy.

HOLDING

  • The Court held that the jury is not required to state in its verdict which specific racketeering acts the defendant committed. The Court relied on Salinas v. United States, 522 U.S. 52 (1997), which overruled United States v. Ramirez-Rivera 800 F.3d 1, 18 (1st Cir. 2015). Thus, while there was a long list of alleged acts that Mr. Aguirre was accused of such as murder, attempted murder, robbery etc. It was not necessary for the jury to specify which acts they found the defendant to have committed. 
  • The Court held that imprisonment has no bearing on whether a defendant has withdrawn from a racketeering conspiracy nor does ceasing to participate in a conspiracy mean a defendant has withdrawn. To withdraw from a RICO conspiracy, a conspirator must act affirmatively. Typical demonstrations of withdrawal include a “full confession or communication of abandonment to one’s co-conspirators.”

What is Required in a Jury’s Verdict to Convict a Defendant of RICO or Racketeering Conspiracy?

FACTS

Rafael Leoner-Aguirre was a member of the El Salvador based gang “MS-13,” which also operates in the United States. In 2017, a grand jury indicted Aguirre for a conspiracy under the RICO Act (Racketeer Influenced and Corrupt Organizations). Allegations against Aguirre under the RICO conspiracy included attempted murder, robbery, and drug trafficking. A jury found Aguirre guilty of RICO conspiracy and he was sentenced to 228 months in prison with three years of supervised release.

Before his trial, Aguirre urged the district court to instruct the jury to specify which acts it found Aguirre had committed in order to convict him of RICO conspiracy. The district court denied his motion, and Aguirre appealed to the First Circuit.

ANALYSIS

No Findings of Specific Acts of RICO Conspiracy from the Jury are Necessary in a Jury’s Verdict

Aguirre’s argument that the jury must specify which racketeering acts Aguirre committed to convict him of RICO conspiracy relies on the First Circuit’s ruling in United States v. Ramirez-Rivera 800 F.3d 1, 18 (1st Cir. 2015). However, the Court found that the Supreme Court’s decision in Salinas v. United States, 522 U.S. 52 (1997) contradicts the case on which the Ramirez-Rivera decision relies. Aguirre’s argument, therefore, fails since the Supreme Court’s decision overrules the underlying case in Ramirez-Rivera.

Incarceration Does Not Constitute Withdrawal from a RICO Conspiracy

As to the withdrawal issue, the First Circuit held that a defendant convicted of RICO conspiracy does not withdraw from a conspiracy just because he has entered prison. On the contrary, the Court found there was sufficient evidence to determine that Aguirre continued to actively participate in the conspiracy while incarcerated. As the Court pointed out, “ . . . mere cessation of activity in furtherance of the conspiracy does not constitute withdrawal.” Instead, the defendant must demonstrate he has affirmatively withdrawn from the RICO conspiracy. Although the Court provided no specific rule, it held that affirmative withdrawal from a conspiracy typically “requires either a full confession to authorities or a communication by the accused to his co-conspirators that he has abandoned the enterprise and its goals . . .”

Unconstitutional Federal Statute Calls Supreme Court to Protect Sixth Amendment Right to Trial by Jury

Published By Stephen Preziosi

United States v. Haymond

No. 17-1672

U.S. Supreme Court

Decided: June 26, 2019

ISSUE

Whether 18 U.S.C. §3583(k)’s requirement that a district court impose a mandatory minimum prison sentence by a preponderance of the evidence for certain offenses committed during supervised release violates the constitution’s guarantee of a trial by jury. 

HOLDING

The U.S. Supreme Court held that the 5-year mandatory minimum sentence under 18 U.S.C. §3583(k) is unconstitutional unless the charges can be proven by a jury beyond a reasonable doubt.

FACTS OF THE CASE

Haymond was found guilty of possessing child pornography by a jury and was sentenced to 38 months in prison followed by 10 years of supervised release. During his supervised release, the government discovered what appeared to be child pornography on Haymond’s phone. As a result of the violation, the government sought additional incarceration for Haymond.

A district judge found that Haymond knowingly possessed the images depicting child pornography by a proponderence of the evidence. Under 18 U.S.C. §3583(k) of the Sentencing Reform Act of 1984, a judge is required to impose a minimum prison sentence of five years where a defendant has violated supervised release by committing certain offenses. Relevant to this case, one of those listed offenses is possession of child pornography. Although reluctant to do so, the district judge imposed the mandatory 5-year sentence.

The Tenth Circuit found that §3583(k) violated the Fifth and Sixth Amendments, acknowledging that while a jury previously convicted Haymond by a reasonable doubt resulting in a 0-10 year sentence, §3583(k) allowed Haymond to face a higher mandatory minimum only by a judge’s finding of a preponderance of the evidence. This, the Tenth Circuit held, violated Haymond’s constitutional right to a trial by jury. Haymond was resentenced without regard to §3583(k)’s provisions, and the U.S. Supreme Court was asked to resolve the question of the statute’s constitutionality.

COURT’S ANALYSIS

The Fifth and Sixth Amendment guarantee the accused the right to a trial by an impartial jury and due process of law in criminal proceedings in the United States. A jury’s finding of guilt must also be proven beyond a reasonable doubt.

Only after a jury finds a defendant guilty of an offense beyond a reasonable doubt may the judge impose a penalty within the range allowed for that offense. The Supreme Court recognizes that “even when judges [enjoy] discretion to adjust a sentence based on judge-found aggravating or mitigating facts, they [cannot] ‘swell the penalty above what the law [provides] for the acts charged.’” 588 U.S. ___ (2019) quoting Apprendi v. New Jersey, 530 U.S. 466 at 519 (Thomas, J., concurring). 

Here, §3583(k) permits just that. Only as a result of the district judge’s finding of the defendant’s guilt by a preponderance of the evidence is the five-year mandatory minimum imposed. Contrary to the government’s argument, this new sentence was not authorized by the jury’s verdict.

The Supreme Court  already held a similar statutory scheme allowing judges to impose sentences above the allowed maximum unconstitutional. In Apprendi v. New Jersey, a judge sought to impose a longer sentence than the prescribed maximum after a jury trial pursuant to a statute that permitted him to do so under a preponderance of the evidence standard. The Court held this scheme unconstitutional and later applied the same rule when it held a similar sentence enhancement unconstitutional in Alleyne v. United States, 570 U.S. 466.

Section 3583(k) essentially permits district courts to impose a new and potentially harsher punishment for a new offense. By allowing a judge to increase “‘the legally prescribed range of allowable sentences’ [is] in violation of the Fifth and Sixth Amendments.” 588 U.S. ___ (2019) (quoting Alleyne at 115). The Supreme Court vacated Haymond’s judgment, holding §3583(k) unconstitutional.

Separate Sovereigns Doctrine: State and Federal Prosecutions for Same Conduct Deemed Constitutional

Published By Stephen Preziosi

Gamble v. United States
No. 17-646
U.S. Supreme Court
Decided: June 17, 2019

ISSUE

Whether the separate sovereigns doctrine or dual sovereigns doctrine is unconstitutional under the Double Jeopardy Clause of the Fifth Amendment where the federal government charges a defendant with a federal offense for possession of a weapon when the defendant has already pleaded guilty to a State Penal Law offense stemming from possession of the same weapon.     

HOLDING

The U.S. Supreme Court declined to overturn the separate sovereigns doctrine and held: a) the separate sovereigns doctrine does not implicate the double jeopardy clause and b) the same conduct prosecuted by different sovereigns does not constitute the same offense as in a case of double jeopardy.

FACTS OF THE CASE

In 2015, petitioner Gamble was charged with violating state drug laws and Alabama’s felon in possession of a firearm statute. The federal government stepped in the prosecute Gamble for the same act–felon in possession of a firearm–but under 18 U.S.C. §922(g)(1).

Gamble moved to dismiss, arguing that the federal and state firearm indictments violated the Double Jeopardy Clause under the Fifth Amendment because each indicted him for the same “offence”. The District Court denied Gamble’s motion under the ground that prosecutions by different sovereigns are not prosecutions for the same offense for double jeopardy purposes.

Gamble pled guilty to the federal offense but preserved the right to challenge the denial of his motion to dismiss on double jeopardy grounds. The denial of his subsequent appeal to the Eleventh Circuit again cited the dual-sovereignty doctrine. Gamble asked the Supreme Court to overturn the dual-sovereignty doctrine and the Court granted certiorari.

COURT’S ANALYSIS

The opinion, delivered by Justice Alito, began by addressing the common misconception that the separate sovereigns doctrine is an “exception” to the double jeopardy clause. However, the Court pointed out, the double jeopardy clause “ . . .protects individuals from being put twice in jeopardy ‘for the same offence’, not for the same conduct or actions,” thus removing any relevance between double jeopardy exposure and separate sovereigns prosecution. Grady v. Corbin, 495 U.S. 508, 529 (1990). The separate sovereigns doctrine doesn’t allow for someone to be convicted of the “same offense” because an offense under the federal law and an offense under a state law is not the “same offense.”

The analysis continued by explaining that “offenses” are defined by laws; since sovereigns have their own set of laws, they also have their own set of offenses. In this instance, according to the Court, though Gamble’s conduct–being a felon in possession of a firearm–was indistinguishable, each offense for which Gamble was indicted, as a result of the conduct, were driven by distinct laws of the state of Alabama and the federal government. 

Gamble also urged the Court to consider that the history behind the ratification of the double jeopardy clause is contrary to the Court’s previous rulings, which have continued to uphold the separate sovereigns doctrine. While Gamble argues the Supreme Court should overrule this line of decisions, the Court held that Gamble failed to provide a sufficient reason to do so and his backing of historical evidence was unconvincing. Even if the Court did credit Gamble’s historical argument, they held that a departure from established precedent “demands special justification” that is “something more than ambiguous historical evidence.”

Justice Thomas’ concurring opinion joins in maintaining the separate sovereigns doctrine but departs from the majority in one key part. Stare decisis, according to Justice Thomas, has no place in swaying the opinion of the justices of the Supreme Court of the United States. As Justice Thomas puts it bluntly – “[w]hen faced with a demonstrably erroneous precedent, my rule is simply: We should not follow it.” 

In her dissent, Justice Ginsburg looks at the separate sovereigns doctrine from the point of view of the individual rather than the government. Justice Ginsburg asserts that the Double Jeopardy Clause “safeguards the person and restrains the government.” Allowing the state and federal government to engage in successive prosecutions flies in the face of what Ginsburg claims is the purpose of our system of government–to “operate as a double security for the rights of the people.” She would have the majority hold that the unlike foreign nations, the United States and its constituent states are “parts of one whole” which compose one people, and that the Federal and State Governments should be disabled from accomplishing together what neither government could do alone–prosecute an ordinary citizen twice for the same offense.

Use of Handcuffs During Investigatory Stop Is Not An Arrest

Published By Stephen Preziosi

Use of Handcuffs During Investigatory Stop Is Not An Arrest

United States of America v. Fiseku

17-1222-cr

United States Court of Appeals: Second Circuit

Decided October 4, 2018

ISSUE

Whether an officer’s use of handcuffs in an investigatory detention is unreasonable and provokes a de facto arrest without probable cause in violation of the Fourth Amendment when the officer had a reasonable suspicion to stop the defendant, examined the defendant’s license, patted him down and placed handcuff under the guise of officer safety.    

HOLDING

The Second Circuit Court of Appeals held that under unusual circumstances, such as those observed in this case, an officer’s use of handcuffs during an investigatory detention does not result in a de facto arrest under the Fourth Amendment.  The officers acted reasonably during the late-night investigatory stop in restraining Fiseku and two other individuals in handcuffs before the officers developed probable cause to arrest because 1) The officer was outnumbered before backup arrived. 2) The driver of the vehicle lied about the car’s transmission and potentially lied about harboring two additional people. 3) The officer did not know if the defendants could reach their weapons.

FACTS OF THE CASE

In September 2014 at about 1:15 AM, Sergeant Vincent Gruppuso pulled up to a white Nissan Pathfinder and engaged in a short discussion with the driver, later identified as Sefedin Jajaga.  He explained that the Pathfinder was stopped on a dirt pull-off because the car was having transmission problems and he was waiting for a friend who agreed to bring a tow truck.  While driving off, Gruppuso found the situation to be dubious because he knew of a vacant home for sale nearby that would be a prime target for… burglary.  He decided to go back and check on the vehicle only to find the Pathfinder driving on a nearby street only five minutes after the driver claimed to have transmission problems.  Gruppuso followed the car to a parking lot near the highway.

Gruppuso entered the parking lot, and observed the Pathfinder parked in the far corner of the lot, surrounded by trees.  He parked nearby and saw three men in the vicinity of the Pathfinder: Jajaga in the driver’s seat, a second man, named Hughes, in the passenger seat and a third man, named Fiseku, walking around the rear of the vehicle.  At 1:25 AM, Gruppuso radioed for additional units to join him in the parking lot.  By the time additional officers arrived, Gruppuso had already begun questioning Fiseku: examining his driver’s license, patting him down and placing him in handcuffs.  Together, the three officers directed Jajaga and Hughes to exit the Pathfinder, then patted them down and handcuffed them as well.  The three men were handcuffed under the guise of officer safety. 

The officers explained to the men that they were being detained; they were not told they were under arrest nor were they read their Miranda Rights while the officers investigated their suspicious behavior.  The defendants were separated for individual questioning and, with consent, Gruppuso searched the Pathfinder where he recovered the following items: baseball caps, a sweatshirt, a badge, a stun gun, a BB gun replicating a Colt .45 pistol, a blank pistol replicating a .25 automatic, flashlights, walkie talkies, gloves, a screw driver and duct tape. After the search was complete, officers were concerned about a potential home invasion, so they requested additional units to canvas the area. 

In September 2015, Fiseku and Jajaga moved to suppress physical evidence recovered from the vehicle and statements made to the officers during the stop, arguing both points under the Fourth and Fifth Amendments.  In December 2015, the District Court entered an order granting in part and denying in part the suppression motion. The court rejected the defendant’s claim that there was a de facto arrest without probable cause in violation of the Fourth Amendment and reasoned that the officer’s conduct, including the handcuffs, was reasonable in light of the circumstances.  The court granted the motion to suppress the defendants’ statements because the defendants were subjected to interrogation without being read their Miranda rights.  They did, however, reject the defendants’ request to suppress physical evidence because Jajaga’s consent to search the vehicle was voluntary and freely given.

COURT’S ANALYSIS

The Second Circuit Court of Appeals held that under unusual circumstances an officer’s use of handcuffs does not result in a de facto arrest under the Fourth Amendment.  In the Fourth Amendment there is a defined right to be free from unreasonable searches and seizures however, an officer’s decision to briefly restrain a suspect in handcuffs is reasonable if it ensures the officers’ safety.   The U.S. Constitution intends for reasonableness to mean a balancing of particular need to search or seize against the privacy interests invaded by such actions.

Generally, an arrest must be supported by probable cause; however, an officer may conduct a brief investigatory detention, commonly known as a Terry stop, as long as the officer has reasonable suspicion that the person to be detained is committing or has committed a criminal offense. Yet even a proper investigatory stop can ripen into a de facto arrest that must be based on probable cause. In considering a claim of de facto arrest, the courts consider the following facts:

(1) the length of time involved in the stop; (2) its public or private setting; (3) the number of participating law enforcement officers; (4) the risk of danger presented by the person stopped; and (5) the display or use of physical force against the person stopped, including firearms, handcuffs, and leg irons.

The courts cautioned in United States v. Newton, 369 F.3d 659, 674 (2d Cir. 2004) that no one of these factors is determinative.  But to satisfy the reasonableness standard, officers conducting stops on less than probable cause must employ the least intrusive means reasonably available to affect their legitimate investigative purposes.

According to the court, this case presented unusual circumstances where an officer was able to handcuff a suspect without transforming a Terry v. Ohio,392 U.S. 1stop into an arrest.  Gruppuso had reason to believe that Jajaga lied about why he was stopped on a dirt pull-off when only five minutes after their initial interaction Gruppuso saw the Pathfinder drive into the dark parking lot surrounded by trees because it was highly improbable that Jajaga managed to start the car only moments after claiming the transmission of the car was broken.  Gruppuso’s suspicions were reasonably heightened when there were two additional passengers, Hughes and Fiseku, that he did not know of during the initial interaction with Jajaga.  Given the aforementioned observations and the fact that Gruppuso arrived in the parking lot only moments after the Pathfinder, it is reasonable for Gruppuso to have inferred that either Hughes and Fiseku were hiding in the car during the interaction or they had been waiting for Jajaga in the parking lot.  In either scenario, the court determined that in this setting, a reasonably cautious officer in Gruppuso’s position would have objective grounds to suspect that the three men were about to commit a crime, or that they had recently done so. 

In the time it took for two additional officers to arrive, Gruppuso didn’t find any weapons or contraband on Fiseku’s person during the pat down but, the Supreme Court expressly recognized that suspects may injure police officers and others by virtue of their access to weapons, even though they themselves may not be armed.  The Michigan v. Long, 463 U.S. 1032, 1048 (1983) Court went on to explain that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.  Additional suspects Jajaga and Hughes were still seated in the Pathfinder when Gruppuso handcuffed Fiseku, where weapons could have been placed within reach.  Additionally, in the dark, surrounded by trees, Gruppuso couldn’t feasibly conduct a protective sweep to check for secreted weapons or additional associates while monitoring three suspects, who the District Court described as ‘muscular men’

Handcuffs are generally seen as a hallmark of a formal arrest. Newton, 369 F.3d at 676 yet, the courts recognize that regardless of whether probable cause to arrest exists, a law enforcement agent, faced with the possibility of danger, has a right to take reasonable steps to protect himself. Sensing the conflict between the two principles, the courts elaborate that the Fourth Amendment will occasionally permit handcuffs in a Terry stop if the police have a reasonable basis to think that the person detained poses a present physical threat and that handcuffing is  the least intrusive means to protect against that threat. United States v Bailey, 743 F.3d 322 (2d Cir. 2014). 

Fiseku prompts the courts to consider United States v. Bailey, where, on appeal, the courts found that there was a violation of the Fourth Amendment when the officers handcuffed the suspects because the record indicated no physical threat or other factors that would justify the handcuffing of these two men.  Conversely, Gruppuso was not looking to identify the men like in the Bailey case; he simply stumbled upon a suspicious scenario in the middle of the night in a secluded, wooded location.  His goal was to either confirm or deny his suspicion that they had committed, or were poised to commit, a home invasion or some other crime.  The likelihood of criminal activity increased the risk that one or more suspects had access to a weapon or might attempt to flee; therefore, Guppuso had to make the decision to best protect himself and the community, acting in the face of uncertainty about how many associates might be present, what sort of criminal activity they might be involved in, or whether any of them might have access to a weapon.