Friday, November 11, 2016

People v Catu does not apply retroactively

Early last week the Court of Appeals reversed a decision of the First Department which held that the rule of law announced in People v Catu applies retroactively to pre-Catu convictions (People v Smith, 132 AD3d 511 [1st Dept 2015]) -- a decision I had labeled a "huge success for the criminal defense bar" in an October blog post.

In People v Catu, the New York Court of Appeals held that the court must advise a defendant of the post-release supervision (PRS) component of his conviction before accepting a guilty plea, and that a defendant who was not so advised is entitled to reversal of the conviction and automatic vacatur of the plea without being required to demonstrate that he would not have pleaded guilty had he been aware of the PRS component (4 NY3d 242 [2005]).

Unfortunately, the Court, with Justice Rivera dissenting, reversed the First Department's decision and held that Catu does not apply retroactively in enhanced sentence proceedings under either federal or state retroactivity principles (2016 NY Slip Op 07106 [Nov 1 2016]).  Read the full decision here.

 

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.

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.

Trial Objections Checklist

Attached below is a checklist of trial objections prepared by Jill Paperno, First Assistant Public Defender and author of Representing the Accused: A Practical Guide to Criminal Defense

 

Trial Objections Checklist

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.