Saturday, February 28, 2015

A Rose By Any Other Name

by William T. Easton, a/k/a "Bill", a/k/a "Billy"

In recent years our firm has noted the prosecution’s increased use of monikers or “a/k/a”s in the captions of indictments, especially for those defendants charged federally with gang-associated offenses such as Racketeer Influenced and Corrupt Organization (RICO) crimes, CCE (Continued Criminal Enterprise) crimes, and defendants charged state-side with gang-related offenses.       

Oddly, this firm has not detected a similar increase in our white collar practice, even in conspiracy cases involving multiple defendants.  Thus, a defendant in a white collar case who is widely known as “Chip,” “the Chipster” or “Biff” will usually be indicted under his or her own proper name, while a “blue collar” defendant who has a nickname of “Money,” “Killer” or “Smooth” will usually be indicted with his moniker included prominently in the caption of the indictment.

This misuse of a nickname should be resisted by motion. As a threshold, you should draw the distinction between an alias and a “street name” (or a nickname). The former is an official use of an assumed name often to evade detection or escape responsibility. The reference to the use of an alias should be viewed as a prior “bad act” under either People v. Sandoval, 34 NY 2d 371 (1974), or People v. Molineux ,168 NY 264 (1901) and subjected to the usual procedural and substantive  protections of these doctrines. New York Law is surprisingly good in this area. See People v. Walker, 83 2d 455 (1994); People v. Butler, 138 A.D.2d 615 (2d Dept. 1988). As such, the prosecution should not be permitted to short cut the process by simply appending the alias to the indictment. See People v. Klukofsky, 201 Misc 457 (1951).

Just as pernicious, however, is the use of the “street name”--an unofficial moniker--which you should also move to strike. The motion should be in two parts. First, you should move to strike the nickname or alias from the indictment as surplusage, or alternatively request the Court  not to read it to the jury. There is no reason to read the caption of the indictment including the moniker to the jury.  Most trial courts will agree with you on this, especially when accompanied by a modest concession that you will not assert a defense that a person other than the defendant who has the “street name” of your client committed the offense, not your client. See People v. Bellamy, 26 AD 3d 638 (3rd Dept. 2006).

Second, you should bar reference to the moniker itself, and relatedly the prosecution’s misuse of it either during cross examination or summation.  The prosecution almost always tries to make the street name an indicator of your client’s character or community reputation (usually for violence, dishonesty or criminality). In United States v. Farmer, 583 F.3d 131 (2d Cir 2009), the Second Circuit reversed a federal attempted murder conviction and roundly condemned this practice. In Farmer, the prosecutor indicted the homicide defendant and included the moniker “Murder” in the indictment and copiously referred to the street name in summation. The Second Circuit ruled:
 a potentially prejudicial nickname should not be used in a manner beyond the scope of its proper admission that invites unfair prejudice. Federal Rule of Evidence 404(a) provides (with exceptions not applicable here) that “[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.” It is the ethical obligation of the prosecutor, and the legal obligation of the court, to ensure that this rule is observed....In this case, the prosecutors, in their addresses to the jury, invited prejudice by repeatedly emphasizing Farmer's nickname in a manner designed to suggest that he was known by his associates as a murderer and that he acted in accordance with that propensity in carrying out the acts charged in the indictment. This abuse of Farmer's nickname entitles Farmer to a new trial...
Thus, in almost all cases, you should move to strike a “street name” from the caption of the indictment and take steps to further ensure that the prosecution does not attempt to use the street name for purposes of showing reputation or propensity.  Farmer is strong support for such motion.

Wednesday, February 18, 2015

Once Again: Statutory Language Cannot Be Simply Ignored By Prosecutors

The New York Court of Appeals, in People v Brumfield (2015 NY Slip Op 01377 [2/17/15]), affirmed the holding of the Appellate Division, Fourth Department (109 AD3d 1105 [4th Dept 9/27/13]), that the District Attorney cannot condition a defendant' right to testify at the grand jury on the defendant's willingness to sign a waiver form that waives more rights than required by CPL 190.45 and 190.50.

As discussed in a post after the Appellate Division's decision, one would think that the proposition that District Attorney cannot ignore or flaunt unambiguous statutory language is not a remarkable proposition. Indeed, as attorneys who prosecute others for acting as though adherence to the the strict requirements of law is only optional, one would think that prosecutors would be sticklers for compliance with statutory language. As detailed below, however, the Monroe County District Attorney's office apparently believed that it could ignore the statutory provisions regarding a defendant's right to testify at the grand jury and instead, unilaterally impose its own set of requirements and conditions for a defendant's right to testify. Even worse, trial judges, and many defense attorneys in Monroe County acquiesced in this lawless deprivation of defendants' rights. 

The Criminal Procedure Law provides that a defendant had a right to testify at a grand jury if a defendant serves upon the People a notice of his intent to testify before the grand jury, appears at the appropriate time and place, and signs and submits to the grand jury "a waiver of immunity pursuant to [CPL] 190.45," the defendant "must be permitted to testify before the grand jury" (CPL 190.50 [5] [b]). CPL 190.45 (1) provides that a waiver of immunity "is a written instrument" in which a person who is to testify before the grand jury stipulates that he or she "waives [the] privilege against self-incrimination and any possible or prospective immunity to which he [or she] would otherwise become entitled, pursuant to [CPL] 190.40, as a result of giving evidence in such proceeding."

The Monroe County District Attorney has a waiver of immunity form that added six paragraphs of waiver of rights not set forth in the statute.  Included in this form are paragraphs in which the defendant states (1) that he understands "that the possible questioning before the Grand Jury will not be limited to any specific subjects, matters or area of conduct; (2) that he understands that by signing the form he gives "up all immunity and privilege to which [he] would otherwise have been entitled under the provisions of the United States Constitution, the Constitution of the State of New York, as well as any applicable statutory provisions"; and (3) he does "consent and agree tot he use of any testimony given by me before the Grand Jury or evidence hereby produced by me upon any investigation, hearing, trial, prosecution, or proceeding."

There is nothing illegal with the prosecutor seeking to have defendants waive additional rights. But it is difficult to understand why the defendant would want to sign that form when there is nothing offered to the defendant in exchange for giving up additional rights. Yet, most attorneys in Monroe County acquiesced to this request and had their clients sign the Monroe County District Attorney's form.

On attorney who resisted was Assistant Monroe County Public Defender John Bradley, who saw no reason for his client to waive more that the statute requires and who did not believe that the prosecutor could ignore that statute and unilaterally impose additional conditions before his client could testify. His client, Mr. Brumfield, agreed. So when the ADA presented  Mr. Brumfield with the Monroe County District Attorney's waiver of immunity form containing language not required by statute, Brumfield deleted that language from the form and then signed the amended form before a notary public.

Despite Mr.Brumfield having fully complied with the statutory conditions for him to testify at the grand jury, the ADA refused to permit Mr. Brumfield to testify before the grand jury.  Mr. Brumfield then moved to dismiss the indictment obtained against him on the ground that his right to testify at the grand jury had been violated.Seems like a fairly easy motion pursuant to CPL 190.50 [5] [c]. Disappointingly, however, the trial court judge, denied the motion finding that  the signed waiver of Brumfield's privilege against self-incrimination and any immunity to which he would otherwise be entitled pursuant to CPL 190.40 was not a valid waiver.

This decision was first reversed on appeal by the Appellate Division, Fourth Department,  which held that
the paragraphs in the waiver of immunity form that defendant left intact stated that defendant waived his privilege against self-incrimination and any immunity to which he would otherwise be entitled pursuant to CPL 190.40. Thus, defendant signed a waiver of immunity form that complied with the requirements of CPL 190.45 (1) and was therefore required to be permitted to testify before the grand jury (see CPL 190.50 [5] [b]). It is well settled that a defendant's statutory right to testify before the grand jury " must be scrupulously protected' " (People v Smith, 87 NY2d 715, 721, quoting People v Corrigan, 80 NY2d 326, 332). We conclude that, because defendant complied with the requirements of CPL 190.50 (5) but was nevertheless denied his right to testify before the grand jury, the court erred in denying defendant's motion to dismiss the indictment. We therefore reverse the judgment of conviction, grant the motion, and dismiss the indictment...
 This week, the Court of Appeals affirmed thsi holding, writing that 
Defendant's statutory right to testify before the grand jury was violated. This right "'must be scrupulously protected'"(People v Smith , 87 NY2d 715, 721 [1996], quoting People v Corrigan , 80 NY2d 326, 332 [1992]). Even with the deletions made by defendant, he complied with the waiver of immunity as required under CPL 190.45; that is, he left intact the provisions that stated he waived his privilege against self-incrimination and any immunity to which he [*3]would be entitled. Defendant was only required to meet the requirements of the statute, and nothing more to make a valid written waiver of immunity. The statute is clear, straightforward and concise. When a defendant meets the waiver of immunity requirements of CPL 190.45, he or she must be permitted to testify.
It should be noted that there is nothing in this decision which precludes the District Attorney from continuing to use the form. seeking to have defendants waive more rights than required by statute.. Hopefully, however, attorneys  will  no longer agree to sign this waiver form now that defendants who refuse to sign the form will no longer be penalized.

Excellent work by both John Bradley and by Assistant Monroe County Public Defender David  Juergens, who represented Mr. Brumfield on appeal.

Monday, January 26, 2015

Don’t talk to federal agents. Ever.

Regent Law Professor James Duane’s lecture “Don’t Talk To The Police,” outlining why citizens should always exercise their 5th Amendment right to remain silent when questioned by government agents can found here. The proscription in the title or this post is slightly more limited (federal agents) and based not on the Constitution, but on a particular federal statute: 18 USC § 1001.

In New York, for example, the police are permitted to lie to you (“we got your fingerprints on the murder weapon,” “we've got a video of you leaving the 7-11,” “your codefendant is saying it was all you, he didn’t do anything,”) in order to get you to tell the truth, so long as the deception is not so fundamentally unfair as to violate due process by provoking an unreliable confession (People v Hall, 152 AD2d 948 [4th Dept 1989]; People v Tankleff, 199 AD2d 550 [2nd Dept 1993]). 

The fallacy that courts are able to reliably determine where that line is, as shown by the conviction of Mr. Tankleff and other defendants who were coerced into falsely confessing by police use of deception and later exonerated, will be examined in a future post.  

The irony aside, deceiving suspects has been shown to be an effective technique for obtaining both truthful and false confessions (and, as Mr. Tankleff’s case and other wrongful conviction cases demonstrate, juries often can’t tell the difference).  Thus, given the present state of the law, criminal investigators can and do regularly lie to suspects to obtain what are later argued to be truthful confessions or admissions. 

In the case of dealing with federal agents, however, what’s good for the goose will get the gander indicted.  Title 18 USC § 1001 provides, in relevant part, that: 

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully--

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism . . . , imprisoned not more than 8 years, or both.

The act goes on to denote other “special” lies worthy of 8 rather than 5 years, which is just for garden-variety lies. What constitutes a “matter” under this section? A criminal investigation counts (see, United States v Rodgers, 466 US 475 [1984]).  While you might argue that a preliminary investigation is not a “matter,” (see, e.g., United States v Pickett, 353 F3d 62 [D.C. Cir 2004]), whether it was or wasn't a “matter” is probably an argument best avoided altogether.

In short, when a government agent questions a citizen, the citizen may decline to answer the question or answer it honestly but he cannot with impunity knowingly and willfully answer with a falsehood (Bryson v United States, 396 US 64 [1969]).  Who decides whether the citizen’s answer constituted a willful falsehood?  Initially, of course, the government agent that thinks he or she has been lied to and ultimately, maybe, a jury.  This offense is a separately prosecutable charge from the criminal matter being investigated, even if that investigation turns up no criminality.  So, when being questioned by federal law enforcement agents, one might wish to consider that: 



Sunday, December 28, 2014

Police Ignorance Is An Excuse Under Federal, But Not New York, Law



On December 15, 2014, in Heien v. North Carolina, the United States Supreme Court found that a police officer's mistaken belief that the law required two working brake lights, when it only required one, which led to a stop and consent search of a vehicle, was reasonable, and as such, the product of the search would not be suppressed. Sadly, a defendant not trained in the law as a police officer is, who had the mistaken belief that only one light was necessary instead of two, would not be treated as kindly by the courts. The dissent and concurrence discuss whether this will encourage ignorance on the part of the officers. Remember that if you are in a situation in which federal law is bad, argue that New York State's constitution is more protective of rights and make a state constitutional argument.

The good news is that, as pointed out by Jamie Hobbs of the Monroe County Public Defender's Office, the current New York state case law is the opposite from the decision reached by the Supreme Court. (e.g., People v Smith, 67 AD3d 1392, 1392 [4th Dept 2009] ("Where the officer's belief is based on an erroneous interpretation of law, the stop is illegal at the outset and any further actions by the police as a direct result of the stop are illegal"). Thus, New York attorneys shoud continue to argue that pursuant to the New York Constitution, an officer's mistaken belief is not justification for a bad search.


New York attorneys should remember that, as explained  by the New York Court of Appeals, although the language of the State and Federal constitutional privacy guarantees (US Const 4th Amend; NY Const, art 1, Sec 12) are identical, this Court of Appeals has repeatedly demonstrated a willingness to adopt more protective standards under the State Constitution, 
"when doing so best promotes 'predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens.' " People v. P. J. Video, 68 N.Y.2d 296, 304, 508 N.Y.S.2d 907, 501 N.E.2d 556 [on remand], quoting People v. Johnson, 66 N.Y.2d 398, 407, 497 N.Y.S.2d 618, 488 N.E.2d 439). Accordingly, we have in recent years carved out an independent body of principles to govern citizen-police encounters in a number of specific areas (see, e.g., People v. P. J. Video, supra [warrant application requirements in obscenity cases]; People v. Bigelow, 66 N.Y.2d 417, 497 N.Y.S.2d 630, 488 N.E.2d 451 [declining to follow "good faith" test outlined in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 and Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737]; People v. Johnson, 66 N.Y.2d 398, 497 N.Y.S.2d 618, 488 N.E.2d 439, supra [declining to apply "totality of circumstances" test outlined in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 to warrantless arrests]; People v. Class, 67 N.Y.2d 431, 503 N.Y.S.2d 313, 494 N.E.2d 444 [on remand] [search for vehicle identification number in connection with traffic stop]; People v. Gokey, 60 N.Y.2d 309, 469 N.Y.S.2d 618, 457 N.E.2d 723 [warrantless search incident to arrest]; People v. Belton, 55 N.Y.2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745, supra [search of personal effects within automobile]; People v. Landy, 59 N.Y.2d 369, 465 N.Y.S.2d 857, 452 N.E.2d 1185, [reiterating Elwell rule]; People v. Elwell, 50 N.Y.2d 231, 428 N.Y.S.2d 655, 406 N.E.2d 471, supra [probable cause predicated on informant's tip]; see also, People v. Stith, 69 N.Y.2d 313, 316, n. 514 N.Y.S.2d 201, 506 N.E.2d 911, [exclusionary rule as it pertains to inevitable discovery doctrine] ).  
People v. Torres, 74 NY2d 224, 228, 543 NE2d 61, 63–64 [1989].


 

Which Came First, the Chicken, the Egg, the Search or the Arrest?

by Jill Paperno, Esq., author of Representing the Accused:A Practical Guide to Criminal Defense

When you are handling probable cause hearings in which you are seeking to suppress evidence obtained as a result of a search, you must be acutely aware of the claimed (or potentially claimed) reason for any search, the timing of the arrest and the timing of the search.  If a search is justified as "incident to arrest" you should attempt to elicit testimony from the arresting officer that the arrest had not yet occurred at the time of the search.  If this may be an issue, be really strategic in planning your questions and cross.  Cops don't like to admit that people were under arrest too early in the investigation because they know that there may not have been probable cause at that stage.  
In People v. Graham Reid (2014 NY Slip Op 08759 [NY 12/14/14]), defendant was stopped for traffic violations and the officer's observations led him to believe defendant might have committed a DWI. The officer conducts a search and finds a switchblade knife, for which the defendant is then charged. When questioned by defense counsel about whether defendant was going to be arrested at the stage that the search was being conducted, the officer stated he was not (perhaps because the DWI observations resulted in a test, which resulted in a .0 BAC. and the cop knew that at the time of the hearing). The Court noted it was undisputed that there was PC to arrest for DWI, but the officer had testified he was not arresting for DWI at the time of the search. The search which produced the switchblade was justified by the prosecution as a search incident to arrest, but as the defendant had not yet been arrested, that didn't actually fly. Like chickens.

"THE COURT: At that point, were you going to arrest him?
"THE WITNESS: No.
"THE COURT: You weren't?
"THE WITNESS: No."
***
"THE COURT: So it's only because you ultimately found the switchblade that you arrested him?
"THE WITNESS: Yes, ma'am.

On this record the Court held that the search of a driver could not be justified as "incident" to the driver's arrest:"although probable cause to arrest the driver existed before the search, the driver would not have been arrested if the search had not produced evidence of a crime."

Saturday, December 13, 2014

Commencement of Counsel Upon Requests on Behalf of Indigents Being Questioned by Police



by 
Jill Paperno, Esq., 
author of  

And justice for all!

During a week when many of us are questioning the criminal justice system's handling of cases, I wanted to share one case reflecting that our continued struggle to eliminate disparities in how defendants are treated can pay off.

In People v. Rankin, a case in which Judge John DeMarco presided in Monroe County Court, Rochester New York, the question of whether an indigent defendant had the same right to counsel as one who could afford to retain was answered.  The decision, which can be found here - http://www.nycourts.gov/reporter/3dseries/2014/2014_24363.htm - though focusing largely on New York law, addressed principles applicable to indigent defense throughout the country.
(Full disclosure - I am a public defender employed by the office originally involved in this case. Mr. Rankin was successfully represented on this issue by Lawrence Kasperek, of Easton Thompson Kasperek Shiffrin LLP., whose arguments persuaded the court).

There are times that the Public Defender's office is contacted by friends or family members seeking representation for a loved one who has just been arrested and taken for questioning.  Sometimes individuals under investigation walk into the office seeking assistance.  While the County Law of New York provides guidance for how attorneys are appointed to indigent defendants once charges are filed, the pre-charge process is somewhat murkier.  So individual judges assigned to the court part that handles bail review, warrants and other criminal matters not assigned to a particular judge are often involved in appointing counsel in these cases. Some immediately appoint, while others may require affidavits and orders, all during those critical minutes and hours of interrogation.  Some judges, perhaps on the bench or otherwise unavailable, when in this part, may be difficult to reach as the clock ticks away.

Recognizing the importance of representation at those critical early stages, Judge DeMarco held that:
Effective assistance of counsel for indigent individuals demands the absence of suspect distinctions regarding the obtainment of counsel. Indeed, the American Bar Association (ABA) recommends that counsel be provided as soon as practicably possible after someone is taken into custody (see ABA Standards for Criminal Justice, Providing Defense Services, standard 5-6.1 [3d ed 1992], available at http://www.americanbar.org/publications/criminal_justice_section _archive/crimjust_standards_defsvcs_blk.html). Similarly, the New York State Bar Association (NYSBA) recommends that indigent individuals be afforded "early entry of representation" whenever counsel is requested for an indigent party under investigation or in custody (see NYSBA Revised Standards for Providing Mandated Representation, standard B-1 at 5 [2010], available at https://www.ils.ny.gov/files/Revised%20Standards%20For%20Providing%20 Mandated%20Representation.pdf). While the NYSBA states that the initial eligibility determinations shall be decided by the court (see id. standard C-3 at 6), they also declare that the "[p]rovision of counsel shall not be delayed while a person's eligibility...is being determined or verified" (id. standard C-5). These standards, applicable to all attorneys tasked with representing indigent individuals, demonstrate, objectively, that effective representation for indigent individuals entails representation without delay pending the judge's eligibility determination. The Court is not maintaining that a judge's order of appointment is without purpose or a practice that should be dispensed with. The Court is simply saying that there is no scenario under which indigent individuals would not be afforded an impaired quality of representation where the Public Defender's function as counsel is effectively disabled pending receipt of a judge's order of appointment. An overtechnical application of this measure, as urged by the People, would sanction the sort of "mechanical" requirement eschewed by the Court of Appeals in Grice, supra, in subversion of the right to counsel (see Grice, 100 NY2d at 323).

Wednesday, December 10, 2014

What does a Mandate and Remand for Re-Sentencing from the Second Circuit really mean?

It happens occasionally. The U.S. Second Circuit Court of Appeals issues a Summary Order affirming the judgment of conviction and remanding the matter for re-sentencing only. In the USA v. Dawn White, 13-1041-cr, the Circuit provided the following, REMAND for re-sentencing only, “with directions to the District Court either to make specific findings to support the enhancement under U.S.S.G§2B1.1(b)(11)(C)(I) or to sentence White without regard to that enhancement.” What’s the analysis? 
First, when there is no vacatur of a count of conviction that has altered the “factual mosaic related to” the remaining counts which would compel the sentencing court to reconsider the imposed sentence on the count or counts affected by the vacatur as well as the aggregated sentence the proceeding is not de novo. See, United States v. Quintieri, 396 F3d 1217, 1227-28 (2d Cir. (2002); see also, United States v. Rigas, 585 F3d 108, 118-119 (2d Cir. 2009). The proper procedure was addressed in United States v. Malki, 718 F3d 178 (2d Cir. 2013) as provided below. 
When we overturn a sentence without vacating one or more underlying convictions and remand for re-sentencing, the “default rule” is that the remand is for limited, and not de novo, re-sentencing. United States v. Quintieri, 306 F3d 1217, 1228-29 n. 6 (2d Cir 2002). When  our remand is limited, the mandate rule generally forecloses re-litigation of issues previously waived by the parties or decided by the appellate court. See id., at 1225. Similarly, it “also precludes re-litigation of issues impliedly resolved by the appellate court’s mandate.” Yick Man Mui v. United States, 614 F3d 50, 53 (2d Cir 2010). 
Although a mandate may, of course, call for de novo re-sentencing, thereby allowing parties to reargue issues previously waived or abandoned, a mandate should not be so interpreted unless it clearly says so or our intent that re-sentencing be de novo is evident from “the broader ‘spirit of the mandate.’” United States v. Ben Zvi, 242 F3d 89, 95 (2d Cir 2001)(citations omitted). 
Id., at 182.

What then is a de novo re-sentencing? “[W]hen a (complete) sentence has been vacated, the defendant is placed in the same position as if he had never been sentenced.” See, United States v. Maldonado, 996 F.2d 598, 599 (2d Cir.1993); see also, United States v. Barnes, 948 F.2d 325, 330 (7th Cir.1991); United States v. Schoenhoff, 919 F.2d 936, 938 (5th Cir.1990). This requires, among other things, that the defendant be afforded a right of allocution, viz. that the defendant be permitted “to speak or present any information to mitigate the sentence.” Fed.R.Crim.P. 32(i)(4)(A)(ii); see also, United States v. Margiotti, 85 F.3d 100, 103 (2d Cir.1996). In, U.S. v. Johnson, 387 Fed.Appx. 105 C.A.2 (N.Y.),2010 the Defendant was convicted of murder in the course of a robbery in violation of 18 U.S.C. § 924(j)(1), among other offenses. In 2008, a panel of the Court of Appeals vacated defendant's life sentence and remanded for re-sentencing. See, United States v. Johnson, 273 Fed. Appx. 95, 101 (2d Cir.2008). On remand, the district court declined to conduct a new sentencing hearing and instead issued a new sentencing opinion once again sentencing defendant to life. In spite of defendant's protests, the district court did not allow defendant to be heard prior to imposing sentence. This was reversible error according to the Court of Appeals. Id. at 107. See, United States v. Gonzalez, 529 F.3d 94, 97 (2d Cir.2008); see also, United States v. Muhammad, 478 F.3d 247, 250-51 (4th Cir.2007).
Ah but you say, what of post-sentencing rehabilitation? Surely United States v. Pepper, 131 S.Ct. 1229 must be considered. In Pepper, the Supreme Court held that the District Court at re-sentencing may consider post-sentencing rehabilitation to support a non-guideline sentence. However, regarding limited remand orders, the Supreme Court provided the following in footnote 17:
Of course, we do not mean to imply that a district court must reduce a defendant’s sentence upon any showing of postsentencing rehabilitation. Nor do we mean to preclude courts of appeals from issuing limited remand orders, in appropriate cases, that may render evidence of postsentencing rehabilitation irrelevant in light of the narrow purposes of the remand proceeding. See, e.g., United States v. Bernardo Sanchez, 569 F.3d 995, 1000 (9th Cir. 2009).
Therefore, in cases where the mandate is a limited remand having a very narrow purpose (ie., determining if specific facts support a minimal enhancement) it appears the District Court is not required to consider post-sentence rehabilitation. But try anyway. 
Good Hunting.