Friday, October 14, 2016



DOES THE USE OF A CLOSED FILE SHARING PROGRAM IN A DISTRIBUTION OF CHILD PORNOGRAPHY PROSECUTION SUPPORT THE IMPOSITION OF A FIVE LEVEL ENHANCEMENT UNDER U.S.S.G. §2G2.2(b)(3)(B) FOR THE RECEIPT, OR EXPECTATION OF RECEIPT, OF A THING OF VALUE?

By Mark D. Hosken, Supervisory Assistant Federal Public Defender

The United States Sentencing Guidelines (USSG) include enhanced punishment for those individuals convicted of a child pornography offense involving distribution.  An increase of five levels is applied if the offense involved distribution of the images for receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain. [USSG §2G2.2(b)(3)(B).]
Previous decisions held the expectation of receiving something of value must be contextual.  One might use a file sharing program that enabled free access to files.  Those files were free to view.  There was no sharing for valuable consideration as required under §2G2.2(b)(3)(B).  That might be considered simple distribution.  Without proof that a defendant and another specifically agree to share files on a return promise to share files, there could be no transaction for valuable consideration.  See, United States v. Spriggs, 666 F.3d 1284 (11th Cir. 2012). See also, United States v. Reingold, 731 F.3d 204, 228-230 (2d. Cir 2013), (file sharing can constitute simple distribution under §2G2.2(b)(3)(F) for a +2 level enhancement.)
Recently, the Second Circuit Court of Appeals held that the +5 level enhancement applies when the government advances specific, individualized evidence that the defendant provided access to his collection of child pornography to another person in expectation that the other would provide similar access to other child pornography files. 
In United States v. Bennett, (Docket No.15-0024-cr, decided October 6, 2016), the panel rejected the defendant’s argument that his Guidelines should be increased only by the +2 level enhancement [§2G2.2(b)(3)(F)] because he did nothing “more than simple file sharing.” The court focused on additional facts that supported the application of the enhancement.  The defendant belonged to a closed file sharing network, GigaTribe.  The forensic examination of the defendant’s computer established he had shared his password 221 times with 174 different users on GigaTribe.  The court cited numerous examples of those exchanges wherein the defendant would offer to trade his password for another’s password. This trading permitted each user to access the other’s otherwise inaccessible image files.  This was sufficient for the court to conclude this exchange of passwords after a brief discussion of the user’s interests warranted the +5 level enhancement as it was “distribution for the receipt, expectation of receipt, of a thing of value.”
The Second Circuit rejected a bright line rule that would require all GigaTribe users receive a +5 level enhancement.  Rather, the panel discussed today’s technology.  Some file-sharing programs permit the user to restrict access to their files through password protection.  Others that maintain a password may make their password generally available as a gift rather than as consideration as part of an exchange.  Though many defendants may exchange files on a file-sharing network in hopes of receiving other files in return that does not establish it occurs in every case.  Thus, the appellate court requires the sentencing judge to determine whether the defendant expected to receive access to other individuals’ child pornography files in exchange for his own files.  Here, that was established by Bennett’s conduct in offering his password to other users in exchange for their passwords so he could access other images of child pornography.
Traditional file sharing via peer-to-peer networks is usually considered a distribution other than for something of value.  This frequently results in the application of a +2 level enhancement to the defendant’s sentencing guideline calculations per §2G2.2(b)(3)(F).  Now, the +5 level enhancement under §2G2.2(b)(3)(B) will be applied in those prosecutions in which evidence establishes the defendant provided access to his collection of child pornography to another user with the expectation that the user would provide similar access to other child pornography files. 

Wednesday, June 29, 2016

People v Smith, from the Court of Appeals yesterday

by Jill Paperno, First Assistant Public Defender and author of Representing the Accused: A Practical Guide to Criminal Defense
Among some of yesterday’s disappointing Court of Appeals decisions there is one that can be useful to us – People v. Smith, et. al.  The Court recognized that police officers may be cross-examined about their tortious conduct in other situations, as described below.  Sadly, although the Court recognized error on the part of the trial courts in the three joined cases, the Court found errors in two of the three cases were harmless.
In the series of cases decided with Smith, the trial courts had precluded any cross-examination into allegations of a law enforcement officer’s prior misconduct made in an unrelated federal lawsuit.  In other words, the courts barred questioning of officers who were facing Section 1983 or other lawsuits based on allegations that they had violated defendants’ civil rights in other cases through excessive use of force and other misconduct.  Happily (and rightly), the Court of Appeals recognized that police officers should not be subjected to special treatment.  As the Court said in citing past cases, “These cases stand for the unremarkable proposition that law enforcement witnesses should be treated in the same manner as any other prosecution witness for purposes of cross-examination.”  
If you have tried to cross-examine police on allegations they face in civil rights cases, you may have found that a trial court prevented you from crossing if the allegations were merely in a complaint, or if they didn’t allege a type of misconduct related to the misconduct you alleged in your case.  But the Court recognized that these limitations are wrong.
The Court reviewed the importance of cross-exam and impeachment, and noted “It is elementary that ‘(i)impeachment is a particular form of cross-examination whose purpose is, in part, to discredit the witness and to persuade the fact finder that the witness is not being truthful.  One traditional method of accomplishing these ends is to demonstrate through questioning that the witness has been guilty of prior immoral, vicious or criminal conduct bearing on credibility (cite omitted).”
The Court stated, “Our recognition of the relevance of prior bad acts that have been alleged in court filings, but not proven at trial, is consistent with our precedent; we have previously decided that there is no prohibition against cross-examining a witness about bad acts that have never been formally proven at a trial (cite omitted).  Likewise, a police witness’s prior bad act that similarly has not been proven in a criminal prosecution or other court proceeding also can be proper fodder for cross-examination.  Nor do allegations of police misconduct lose their relevance to a police witness’s credibility simply because the alleged bad acts are not regarded in all cases as criminal or immoral…”
The Court continued by noting that if a lawsuit does not result in an adverse finding against an officer, defendants should not be permitted to ask a witness if s/he has been sued, if the case was settled if there was no admission of wrongdoing, or if criminal charges were dismissed.  “However, subject to the trial court’s discretion, defendants should be permitted to ask questions abased on the specific allegations of the lawsuit if the allegations are relevant to the credibility of the witness.”
The Court provides a framework for analysis:  1.  Is there a good faith basis for inquiring (such as the lawsuit); 2.  Specific allegations relevant to the credibility of the officer must be identified; and 3.  the trial judge must exercise discretion in assessing whether inquiry would confuse or mislead the jury or create a substantial risk of undue prejudice to the parties.”  The Court notes that a federal lawsuit alleging tortious conduct by police testifying as prosecution witnesses in the state case provides the good faith basis for raising the issue.
So when you are considering cross-examination of a police officer, don’t forget to check PACER and County Clerk records.  Check the internet.  Be ready with this case when the prosecutor objects or the Court says allegations in a civil suit are not enough.  The trial court may still exercise discretion, but the discretion is not unlimited.

Monday, June 6, 2016

Another Way to Avoid a Mandatory Minimum Without Joining Team America



By Mark D. Hosken, Supervisory AFPD

            Congress enacted terms of imprisonment that prohibit federal court judges from imposing a sentence below the mandatory minimum required by statute. The only exception routinely applied is for those defendants who provide substantial assistance to the government.  The lawmakers limited this exception to prosecutorial applications.  Otherwise, the sentencing court must impose at least the minimum term mandated.

            This exception is applied in those prosecutions where the defendant enters into an agreement with the AUSA to provide substantial assistance.  Assuming that cooperation is provided and found satisfactory by the prosecutor, the government will file an application asking (and permitting) the sentencing court to impose a term less than that minimum mandated term.  Without such motion the court may not avoid the minimum term notwithstanding the remaining sentencing factors unique to the defendant.  Not surprisingly, this prosecutorial empowerment encourages many defendants to join Team America.

            Recently, a district court judge in the WDNY applied another exception that did not require the defendant to cooperate.

            The defendant was in primary state custody serving a state term of 30 months resulting from his guilty plea to Rape 3rd.  The federal government determined that further punishment was warranted as the defendant videotaped the underlying sex act with the minor.  The defendant was indicted and brought to federal court on a writ.  The defendant decided to plead guilty to the federal offense (Production of Child Pornography). That conviction carried a mandated minimum term of at least 15 years up to a maximum term of 30 years. Though the federal sentencing guidelines recommended a term between 151 months and 188 months, the mandatory minimum trumped the guidelines increasing that range from 180 to 188 months. Absent a government application for a reduction based on cooperation, the defendant could not receive less than 15 years.

            In the instant case, the defendant had served approximately 22 months on his state sentence before he appeared before the federal sentencing judge.  Though the sentencing judge would impose a concurrent sentence, the federal law does not permit a relation back to the beginning of the 22 month state term.  A federal concurrent sentence looks forward from the date of the imposition of that sentence.  The defendant would not receive concurrent credit towards his federal sentence for those 22 months already served in primary state custody.  The goal was to provide authority to the sentencing judge that would permit the piercing of the mandatory minimum term.

            Relevant conduct is frequently relied upon in federal sentencing practice. It is defined in the United States Sentencing Guidelines as other conduct not necessarily prosecuted but part of the criminal acts or omissions that occurred during the commission of the offense of federal criminal conviction (USSG § 1B1.3).  Here, the conduct supporting the Rape 3rd conviction was integral to the Production of Child Pornography. Thus, it was properly considered relevant conduct.

            The federal sentencing guidelines include a provision which directs the sentencing court to reduce the federal prison term found applicable by the amount of prison time served on the state crime determined to be relevant conduct [USSG § 5G1.3 (b)].  For example, if the appropriate federal term was determined to be 188 months, the court must reduce by 22 months and impose a sentence of 166 months. The question arose whether that credit found in the federal sentencing guidelines must be equally applied to the application of a mandatory minimum sentence.

            United States v. Rivers, 329 F.3d 119 (2d Cir. 2003), provides direct authority for that application. The district court judge determined that 64 months was the appropriate term for a federal drug offense that carried a 60 month mandatory minimum term. The court ruled the federal term should be served concurrently with the state sentence being served.  The judge reduced the 64 month term by the 18 months already served in state custody. The resulting federal sentence imposed was 46 months.  The Second Circuit affirmed and rejected the government's claim that the sentencing court was not empowered to sentence below the mandatory minimum.  The panel held, "[s]o long as the total period of incarceration, after the adjustment, is equal or greater than the statutory minimum, the statutory dictate has been observed and its purpose accomplished."  Id. at 122.  Whether the calculation was called a credit under the federal sentencing guidelines or an adjustment, “this linguistic variance is a distinction without a difference.” Id. at 122.

            In the instant case, the federal court judge decided that 188 months was the appropriate sentence.  That term was above the minimum sentence mandated for the conviction of Production of Child Pornography.  Based on the application of the Rivers' principle, the judge applied a 22 month adjustment to that term based on the previously served state time. The resulting sentence imposed was 166 months to be served concurrently with the unexpired state term.  The sentencing court was authorized and required to adjust the term to reflect the state term served.  Here, the mandatory minimum term was properly adjusted without the defendant being required to join Team America.

Tuesday, April 19, 2016

Door Opening



by Jill Paperno,

“Knock, knock.”
“Who’s there?”
           As defense attorneys we often face (and dread) the claim that we have somehow “opened the door” to previously excluded evidence during a hearing or trial. 

           Sometimes we recognize we did it inadvertently as testimony begins in response to a question.  Sometimes the hungry grin of opposing counsel tips us off.  Sometimes we are blindsided by a claim that we opened a door that we believed had remained firmly locked.  As we elicit testimony at trial, and have so many considerations, there are times we do forget certain possible ramifications of testimony.  But our error may harm our clients, so if this does happen, it is important to be aware of the law that limits the harm of the opened door (at least to some extent). 

           Generally, the concept is that we have introduced testimony or evidence that creates some type of inaccurate impression or misrepresentation that can only be cured by admitting the formerly excluded evidence.  But opening the door does not mean that every piece of negative information against your client or case automatically comes in.  Instead, there must be an analysis.  

           In People v. Melendez, 55 NY2d 445, the Court of Appeals addressed the issue of opened doors in a murder case.  The Court noted:

The extent of redirect examination is, for the most part, governed by the sound discretion of the trial court. (cites omitted).  Where, however, the opposing party "opens the door" on cross-examination to matters not touched upon during the direct examination, a party has the right on redirect "to explain, clarify and fully elicit [the] question only partially examined" on cross-examination. ( cites omitted).   
The "opening the door" theory has been recognized in a variety of situations. For example, apparent inconsistencies or contradictions in a witness' statements or acts brought out on cross-examination to discredit his testimony may be reconciled on redirect by relating to the jury the relevant surrounding circumstances. ( cites omitted).  Similarly, where cross-examination raises the inference that the witness' testimony was the product of a recent fabrication, a party on redirect can refute this allegation either by introducing consistent statements made by the witness at a time when there was no motive to lie or by having the witness explain why the information was not disclosed earlier. (Cites omitted.) In addition, in situations where only a part of a statement has been brought out on cross-examination,   the other parts may be introduced on redirect examination for the purpose of explaining or clarifying the statement. (Cites omitted.)   

The "opening the door" theory must necessarily be approached on a case-by-case basis. As a result, this principle is not readily amenable to any prescribed set of rules. (See McCormick, Evidence [2d ed], § 57.) Nonetheless, it does have its limitations. By simply broaching a new issue on cross-examination, a party does not thereby run the risk that all evidence, no matter how remote or tangential to the subject matter opened up, will be brought out on redirect. Rather, the trial court must limit the inquiry on redirect to the "subject-matter of the cross-examination [which] [bears] upon the question at issue." (Cites omitted.)   Moreover, the court should only allow so much additional evidence to be introduced on redirect as is necessary to "meet what has been brought out in the meantime upon the cross-examination." (Emphasis added, cites omitted.)  The "opening the door" theory does not provide an independent basis for introducing new evidence on redirect; nor does it afford a party the opportunity to place evidence before the jury that should have been brought out on direct examination. The principle merely allows a party to explain or clarify on redirect matters that have been put in issue for the first time on cross-examination, and the trial court should normally "exclude all evidence which has not been made necessary by the opponent's case in reply." (6 Wigmore, § 1873, p 672 [emphasis in original].) 

           Importantly, the Melendez Court recognized that before a Court admits evidence in response to a claim that a door was opened, the Court must engage in an analysis. The trial court must limit the questioning by opposing counsel to “the subject matter of  (in that case) the cross-examination” relating to the question at issue.  And the Court must limit the additional evidence to only what is necessary to respond to the testimony that was deemed to have opened the door.  Furthermore, the theory does not independently make inadmissible evidence admissible.

           In People v. Massie, the Court again considered the “open the door” concept.   The Court concluded the trial court had not erred in permitting evidence relating to identification to be admitted once the defense offered

           The Court noted that the “open the door” concept applied to areas beyond cross-examination, stating, “While Melendez discussed only the issue of when cross-examination questions open the door to redirect examination, we have employed a similar analysis in deciding other "opening the door" issues. For example, in People v Rojas, 97 N.Y.2d 32, (2001), we held that the door was opened to evidence of a prior alleged crime by the defendant, a prison inmate, when he tried to show that his placement in segregation within the prison was a harsh and unjustifiable punishment that led to the conduct for which he was on trial. These cases establish that a trial court should decide "door-opening" issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression. (Emphasis added.)

People v. Massie, 2 N.Y.3d 179, 184 (N.Y. 2004).


           In 2012 the Court of Appeals considered whether evidence that violated a defendant’s right of confrontation could be admitted at trial if the defense opened the door, concluding that it could.  The Court stated,

As the People concede, the admission of the testimony that a nontestifying eyewitness told the police who had been present at the murder violated the Confrontation Clause, unless the door was opened to that testimony by the defense counsel's questioning of witnesses. The question then becomes whether a defendant can open the door to testimony that would otherwise violate his Confrontation Clause rights. Several United States Courts of Appeals have held that  "a defendant can open the door to the admission of evidence otherwise barred by the Confrontation Clause" (cites omitted).  We agree with this consensus.

If evidence barred under the Confrontation Clause were inadmissible irrespective of a defendant's actions at trial, then a defendant could attempt to delude a jury "by selectively revealing only those details of a testimonial statement that are potentially helpful to the defense, while concealing from the jury other details that would tend to explain the portions introduced and place them in context"(cite omitted). A defendant could do so with the secure knowledge that the concealed parts would not be admissible under the Confrontation Clause. To avoid such unfairness and to preserve the truth-seeking goals of our courts (cite omitted), we hold that the admission of testimony that violates the Confrontation Clause may be proper if the defendant opened the door to its admission.

Often, defense counsel face the claim that if we deny allegations in a case, such allegations are claims of “recent fabrication” and the defense has opened the door to prior consistent statements.  It is important to read the evidentiary foundation for introduction of such evidence, but to also be aware that not every defense that a complainant has made false claims is a claim of recent fabrication.  In People v. Rosario, 17 NY3d 501, the Court of Appeals addressed this issue in the context of a sex offense trial:

The People single out defense counsel's use of the word "story," claiming that she suggested a recent fabrication by "discuss[ing] in detail the events of [June 24, 2005] and . . . telling the jury that the 'story' began after the police found [complainant] that day." Fabrication may have been an obvious (indeed, the only) defense here, as is often the case where a claim of sexual abuse is contested. But we cannot say that any remarks made by defense counsel in her opening statement created a misleading impression that opened the door for the People to elicit evidence of the note in their direct case (see Massie, 2 NY3d at 184 ["(A) trial  court should decide ‘door opening’ issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression"])

People v Rosario, 17 N.Y.3d 501, 514  (N.Y. 2011).

           In a decision that should concern defense counsel, People v. Blair, 94 AD3d 1403, the Fourth Department affirmed defendant’s conviction, finding that the redirect examination of a witness was proper because the defense only partially explored an issue on cross-examination.

Defendant further contends that the court abused its discretion in overruling defense counsel's objection concerning the scope of the redirect examination of a witness by the People. That contention lacks merit, inasmuch as defendant opened the door to the redirect examination by only partially exploring on cross-examination the issue whether the witness and defendant had engaged in criminal activity together in the past, rendering further examination and clarification on that issue appropriate

People v Blair, 94 A.D.3d 1403, 1404, (4th Dep't 2012).

           Of course, it is best to try to anticipate what evidence or line of questions might be considered “door opening”, but if we slip, we must make sure to require the court to adhere to the evidentiary rules – generally, analyzing whether the door-opening evidence was misleading and to what extent, adhering to the rule that legally inadmissible evidence doesn’t necessarily become admissible (but see Reid), ensuring that the evidence should be only what is necessary to respond to the opening of the door, and exercising discretion, which I believe requires a test of probative value versus prejudicial effect.  If the Court fails to do this, I would suggest that you consider making a mistrial motion at the time the evidence is admitted.