Decided April 18, 2012

Issue: a matter of first impression in the Second Circuit, the propriety of substituting a defendant’s gain for his victims’ losses in calculating restitution under the Mandatory Victim’s Restitution Act.

Holding: The Second Circuit joined several sister circuits in concluding that such a substitution is error, they declined to exercise discretion under Federal Rule of Criminal Procedure 52(b) to notice the error in this case because the defendant failed to object to the restitution calculation before the District Court and did not satisfy his burden of persuading the court that the erroneous restitution order both “affected [his] substantial rights” and “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”

Facts: Zangari worked as a securities broker in the securities-lending departments of, first, Morgan Stanley and, subsequently, Bank of America.  Zangari’s responsibilities included borrowing and loaning securities on behalf of his employers and their clients.

Zangari and a co-worker, Peter Sherlock, agreed to cause Morgan Stanley to enter into stock-loan transactions with two other financial institutions. As a result of those transactions, sham finder’s fees were paid to a straw stock-loan finder operated by Anthony Lupo, an acquaintance of Sherlock’s. Lupo, in turn, paid cash kickbacks to Sherlock and Sherlock paid a portion of these kickbacks to Zangari. The arrangement continued when Zangari moved to Bank of America.

Neither Morgan Stanley nor Bank of America approved the stock-loan transactions that according to the Government, as a result of the fraudulent scheme, Bank of America and Morgan Stanley suffered losses in the form of unrealized profit.

Zangari was eventually arrested, waived indictment and pleaded guilty.  In the PSR report it stated that the loss to Morgan Stanley and Bank of America is the difference between the selling price of the securities and the lower price that was negotiated by the defendants without Morgan Stanley and Bank of America’s authorization.  The PSR went on to state, without explanation, that “it was this difference in price that the defendants gained in kickbacks and bribes.”

The PSR also reported that restitution was required under the MVRA, and concluded that Zangari was “liable for restitution in the amount of $65,600 ($38,800 owed to Morgan Stanley and $26,800 owed to Bank of America).”  It did not include any explanation for this conclusion, except that it was “[p]pursuant to the guidance found in United States v. Liu.  

Prior to sentencing, Zangari’s attorney submitted a list of objections. The list did not contain any objection to the PSR’s restitution calculation.  Zangari failed on multiple occasions to alert the District Court to any potential error in the restitution calculation.

The District Court entered judgment and restitution in the amount of $65,600. Zangari filed a notice of appeal. He argued for the first time on appeal that restitution was improper because the victims of his fraud suffered no loss.

Legal Analysis:

The District Court Erred in Ordering Restitution in the Amount of the Defendant’s Gain Rather than the Amount of the Victims’ Loss

Federal courts have no inherent power to order restitution, which is traditionally a civil remedy. See United States v. Reifler, 446 F.3d 65, 127, 137 (2d Cir.2006). A sentencing court’s power to order restitution, therefore, depends upon, and is necessarily circumscribed by, statute. See United States v. Elkin, 731 F.2d 1005, 1010–11 (2d Cir.1984),

As relevant here, the MVRA applies to “an offense against property under this title, … including any offense committed by fraud or deceit,” 18 U.S.C. § 3663A(c)(1)(A)(ii), “in which an identifiable victim or victims has suffered a … pecuniary loss,” id. § 3663A(c)(1)(B). In such a case, a sentencing court “shall order, in addition to … any other penalty authorized by law, that the defendant make restitution to the victim of the offense.” Id. § 3663A(a)(1).

A Restitution Order under the MVRA May Not Substitute the Defendants’ Gain for the Victims’ Losses

Because “the purpose of restitution is essentially compensatory,” Boccagna, 450 F.3d at 115, and because the MVRA itself limits restitution to “the full amount of each victim’s loss,” 18 U.S.C. § 3664(f)(1)(A), a restitution order must be tied to the victim’s actual, provable, loss. See United States v. Marino, 654 F.3d 310, 319–20 (2d Cir.2011) (“[R]estitution is authorized only for losses that [were] … directly caused by the conduct composing the offense of conviction and only for the victim’s actual loss.” Boccagna, 450 F.3d at 119 (“Criminal restitution … is not concerned with a victim’s disappointed expectations but only with his actual loss.” The Government bears the burden of proving a victim’s actual loss by a preponderance of the evidence. 18 U.S.C. § 3664(e).

In this case, in ordering restitution, the District Court relied on the PSR prepared by the probation officer, which stated that the loss to the victims had not been calculated because it was “amorphous.” The PSR therefore substituted Zangari’s gain from unlawful kickbacks in the place of the victims’ losses. Assuming that the victims’ actual losses “reasonably [could ]not be determined,” this substitution was permissible for purposes of calculating Zangari’s adjusted offense level under § 2B1.1 of the Guidelines. See USSG § 2B1.1, application n. 3(B) (“The court shall use the gain that resulted from the offense as an alternative measure of loss only if there is a loss but it reasonably cannot be determined.”). However, the PSR proceeded to employ the same substitution for purposes of calculating restitution. There is no provision in the Guidelines or in the MVRA itself that allows the defendant’s gain to be substituted for the victim’s loss for purposes of calculating restitution.

We have not yet had occasion to address the precise question of whether a defendant’s gain may stand in as a proxy for his victim’s loss for restitution purposes. Several of our sister circuits have addressed the issue, however, and all have agreed that “a defendant’s gain cannot be used as a proxy for actual loss.” United States v. Harvey, 532 F.3d 326, 340 (4th Cir.2008).8 We now join these courts and hold that a sentencing court ordering restitution under the MVRA may not substitute a defendant’s ill-gotten gains for the victim’s actual loss.

The MVRA, unlike Guideline § 2B1.1, does not allow a sentencing court to substitute gain for loss. It prescribes, in 18 U.S.C. § 3664(d), several measures that the court may take to determine restitution in hard cases. The court may, for example: “require additional documentation or hear testimony,” 18 U.S.C. § 3664(d)(4); allow additional time “for the final determination of the victim’s losses, not to exceed 90 days after the sentencing,” id. § 3664(d)(5); and “refer any issue arising in connection with a proposed order of restitution to a magistrate judge or special master for proposed findings of fact and recommendation as to disposition,” id. § 3664(d)(6). Ultimately, if the court finds that “complex issues of fact related to the cause or amount of the victim’s losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process,” then the court may, in the exercise of its sound discretion, decide not to order restitution at all. 18 U.S.C. § 3663A(c)(3)(B)

There Was No Direct Correlation between the Victims’ Losses and the Defendant’s Gain

To be sure, there may be cases where there is a direct correlation between gain and loss, such that the defendant’s gain can act as a measure of—as opposed to a substitute for—the victim’s loss. But this is not such a case, given the nature of the transactions at issue. Any loss to the identified victims in this case could only have come in the form of opportunity cost.

In short, based on the information provided in the PSR, whether the identified victims, Morgan Stanley and Bank of America, were borrowers or lenders in the subject transactions, their losses are not equivalent to the sham finder’s fees paid by Paloma and SASI to Clinton Management—let alone the kickbacks that Clinton Management in turn paid to Zangari and his coconspirators.9 Therefore, this is not a case in which a direct correlation exists between the victims’ losses and the defendant’s gain such that the latter can be used as a measure of the former.

Accordingly, we hold that it was error for the District Court to order restitution in the amount of Zangari’sgain rather than the victims’ actual losses.

Though the District Court’s Error was “Plain,” We Decline to Exercise Our Discretion to “Correct” the Error

Federal Rule of Criminal Procedure 52(b) provides appellate courts with a “limited power to correct errors that were forfeited because [they were] not timely raised in [the] district court.” United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)

Decided February 9, 2012 New York Court of Appeals.  

Issue: Whether there was legally sufficient evidence to convict under the new health care fraud statute Penal Law article 177 et seq.

Held: The Court of Appeals concluded that defendant’s convictions were supported by legally sufficient evidence.

Facts:  The New York City Police Department conducted a joint undercover investigation of NYC Pharmacy, Inc., based on information that prescription drugs were being sold at that location without prescriptions.  An NYPD undercover police officer made seven visits to the pharmacy where he posed as a customer and received pills from defendant or another pharmacy employee. Defendant was arrested and charged with health care fraud in the fourth degree, grand larceny in the third degree and four counts of criminal diversion of prescription medications in the fourth degree.

Gomez visited the pharmacy four times. For each of these visits, he used a manufactured Medicaid benefits card.  Gomez was also supplied with prescriptions for Arroyo which were purportedly signed by a doctor. Prescriptions were generated by the Medicaid Fraud unit for this investigation. During each visit, Gomez handed defendant the Medicaid card and prescription(s) and defendant checked the Medicaid database where he found Arroyo’s name; Gomez then asked to be given Amitriptyline and Clonidine, in varying amounts, instead of the drugs listed in the prescriptions; defendant gave Gomez pills that were not consistent with the prescription, but billed Medicaid in accordance with the prescriptions.

Gomez never identified himself or provided identification to defendant during any of the transactions. Although Gomez counted and vouchered the pills he received after each of the seven visits to NYC Pharmacy, none of them were ever subjected to laboratory analysis.

At the conclusion of the prosecution’s case and again at the close of all proof, defendant, pursuant to CPL 290.10, moved for a trial order of dismissal on the grounds that: the evidence adduced at trial was legally insufficient.

Legal Analysis: In a legal sufficiency inquiry, the Court of Appeals’ role is limited to determining whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”.

Where the evidence adduced at trial establishes “‘any valid line of reasoning and permissible inferences [that] could lead a rational person’ to convict, then the conviction survives a sufficiency review”. “A sufficiency inquiry requires a court to marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof”

To establish health care fraud in the fourth degree, the People must prove that the defendant, ”with intent to defraud a health care plan . . . knowingly and willfully provide[d] materially false information . . . for the purpose of requesting payment from a health plan for a health care item or service and, as a result of such information, the [defendant] or another person receive[d] payment in an amount [to which the defendant or another] [was] not entitled,” and “the payment wrongfully received . . . from a single health plan in a period of not more than a year exceed[ed] [$3,000] in the aggregate”

Further, grand larceny in the third degree is made out when the People prove that the defendant stole property and that the value of the property exceeds $3,000.

The People presented sufficient evidence for a jury to rationally conclude that the pink and orange pills dispensed to Gomez were different from the drugs listed on the prescriptions presented to defendant and that defendant knowingly and willfully provided materially false information to Medicaid.

Defendant consistently gave Gomez what Gomez asked for, rather than what was prescribed—in the light most favorable to the people, a jury could reasonably infer that the pills were not Sustiva and that Ivonne Arroyo would not be the recipient of the medication, and therefore that defendant knowingly and willfully provided materially false information to Medicaid.

New York Court of Appeals 2012 NY Slip Op 02247

Decided March 27, 2012.  

Issue: Whether the prosecution can dismiss a count in an indictment over the defendant’s objection.

Held:  A prosecutor does not have the unilateral power to dismiss a count of a grand jury indictment over a defendant’s objection. Whether such a count should be dismissed at the prosecutor’s request is an issue to be decided by the court in its discretion.

Facts: In 2004, defendant drove his pickup truck into a police officer. A grand jury indicted him for several crimes, including first degree assault. Defendant was convicted but the Appellate Division ordered a new trial on the first degree assault and first degree vehicular assault counts, holding that they required inconsistent mental states and should have been submitted to the jury in the alternative.

At the second trial, before jury selection, the prosecutor announced to the judge: “The People do intend to withdraw the second count of the indictment and proceed solely on the Assault in the First Degree count.” Defense counsel objected, and the prosecutor replied tersely: “I believe the People can choose what charges to go forward on, and we’re doing so.” The court agreed. Defendant was convicted of second degree assault as a lesser included offense of first degree assault. The appellate Division affirmed, we now reverse and order a new trial.

Legal Analysis: Usually, of course, a defendant is happy to have a charge against him dismissed, and it is the People who oppose dismissal. But a role reversal can occur when a defendant, not optimistic about the likelihood of acquittal, wants the jury to have a chance to compromise or exercise mercy by convicting him of a lesser crime (see People v Leon, 7 NY3d 109, 113-114 [2006]). This line of thinking often leads defendants to request submission of a lesser included offense, in addition to the offense charged in the indictment, and the defendant is entitled to have such an offense submitted “if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater”

Here, the crime that defendant wanted the jury to consider, and the People did not, was not a lesser included offense, but one of the offenses for which defendant was indicted. The People argue that they have discretion to withdraw such a count. We disagree: the discretion is the trial courts, not the People’s.

CPL 210.40 (3), which says:

“An order dismissing an indictment in the interest of justice may be issued upon motion of the people or of the court itself as well as upon that of the defendant. Upon issuing such an order, the court must set forth its reasons therefor upon the record.”

The People could have moved for dismissal in the interest of justice under CPL 210.40 (3), or the court could have exercised its discretion under CPL 300.40 (6) (a) to withdraw a count from the jury when “[t]he people consent that it not be submitted”.

People v. Martin F. Horn,

Decided March 22, 2012 by New York Court of Appeals

Issue: whether CPL 520.10 (2) (b) prohibits a court from designating only one form of bail.

Holding:  the Court of Appeals held that Criminal Procedure Law § 520.10(2)(b) prohibits a court from fixing only one form of bail.

Facts: McManus was on parole in January 2009 when he was arrested for arson. Bail was set at $5,000, cash or bond, which McManus posted. McManus subsequently violated the order of protection by verbally abusing the victim and twice threatening him with weapons (a screwdriver and what appeared to be a handgun). At his arraignment on the new charges, bail was set at $1,500 for each incident, cash or bond. Because the Division of Parole filed a violation warrant with the Department of Corrections, McManus was not released on bail after arraignment.

McManus was later indicted for two counts of arson in the third degree, four counts of aggravated harassment in the second degree, two counts of criminal mischief in the fourth degree and one count of assault in the third degree. Supreme Court ordered that bail be set at $20,000, “cash only.”

When the Division of Parole lifted its hold on McManus, he tried to secure a bail bond but was unable to do so because the court had designated bail as cash only. This prompted McManus to seek alteration of the bail ruling, arguing that setting one form of bail — such as cash-only bail — is prohibited under CPL 520.10 (2) (b), which he claimed requires a court to set a second permissible form of bail. Supreme Court disagreed and adhered to the $20,000 cash bail order.

McManus then commenced this CPLR article 70 proceeding for a writ of habeas corpus. A different Justice dismissed the petition, concluding that CPL 520.10 (2) does not preclude a judge from setting a single form of bail (The Appellate Division affirmed for the same reason.

Legal Analysis:  Section 520.10 of the Criminal Procedure Law delineates the authorized forms of bail and the methods by which bail may be set by a court. Nine categories of bail are permitted under subdivision (1) of the statute: (1) cash; (2) an insurance company bail bond; (3) a secured surety bond; (4) a secured appearance bond; (5) a partially-secured surety bond; (6) a partially-secured appearance bond; (7) an unsecured surety bond; (8) an unsecured appearance bond; and (9) by posting bail with a credit card or similar device

Subdivision (2) of the statute specifies two distinct “methods of fixing bail.” The first option permits a court to “designate the amount of the bail without designating the form or forms in which it may be posted” — in such instance, the court merely declares a monetary sum. If this occurs, the accused can post either an unsecured surety bond or an unsecured appearance bond .  The second option states that a “court may direct that the bail be posted in any one of two or more of the forms specified in subdivision one, designated in the alternative, and may designate different amounts varying with the forms”.

Inclusion of the word “may” in both subdivisions was the simplest way for the Legislature to codify the two permissible methods for fixing bail: under subdivision (2) (a), a court may order a specific amount of bail without stating any particular bail form (in which case the accused may choose either an unsecured surety bond or an unsecured appearance bond); or, under subdivision (2) (b), a court may specify the forms of bail but the defendant is entitled to at least two alternative choices. The Legislature could not have used the word “must” in either provision because that would have defeated the court’s discretion to choose between the two options for fixing bail.

Providing flexible bail alternatives to pretrial detainees — who are presumptively innocent until proven guilty beyond a reasonable doubt — is consistent with the underlying purpose of article 520. The legislation was intended to reform the restrictive bail scheme that existed in the former Code of Criminal Procedure in order to improve the availability of pretrial release (see e.g. Bellamy v Judges in N.Y. City Crim. Ct., 41 AD2d 196, 202 [1st Dept 1973], affd 32 NY2d 886 [1973]; Mem of Commission on Revision of the Penal Law and Criminal Code, Bill Jacket, L 1970, ch 996, at 10). Subsequent amendments further loosened those strictures (see Preiser, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 520.10, at 51).

CPL 520.10 (2) (b) imposes no undue restriction on a court that believes a substantial personal undertaking “is necessary to secure [the defendant's] court attendance” in future proceedings (CPL 510.30 [2] [a]). Here, the bail court evidently decided that $20,000 cash bail was warranted because McManus had flouted a judicial directive by repeatedly engaging in criminal conduct toward the subject of the temporary order of protection.

A judge could reasonably conclude that a person who has already violated a judicial edict is more likely to ignore another command — such as an instruction to appear in court — and therefore impose stricter bail to encourage compliance with the court’s mandates. If a court believes that $20,000 cash bail is an effective method to achieve this objective, CPL 510.20 (2) (b) allows it to be ordered along with a second type of bail that, in effect, may be virtually indistinguishable from the cash option. For instance, the judge could order as an alternative a $200,000 partially-secured appearance bond requiring a monetary deposit of 10% (see CPL 500.10 [18]), or a $20,000 secured appearance bond that could be satisfied with (among other things) $20,000 in cash (see CPL 500.10 [17] [a]). Hence, there does not appear to have been a compelling need for the Legislature to authorize a single form of bail in CPL 510.20 (2) (b).

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

United States vs. Brown, Jan. 5, 2011. 629 F.3d 290

Issue: Whether the district court erred by failing to treat two prior drug convictions as a single Armed Career Criminal Act (“ACCA”) predicate offense under the ACCA, see 18 U.S.C. § 924(e)(2)(A). And whether the District Court erred when it treated the assault charge as a violent felony for sentencing purposes under the ACCA.

Holding: The Second Circuit Court of Appeals held that the district court committed no error when it held that Defendant’s two prior Connecticut drug offenses were separate offenses under Armed Career Criminal Act, and defendant’s prior Connecticut assault offense was a “violent felony” under Armed Career Criminal Act.

Facts: Brown was arrested after he sold a confidential informant a handgun and a half-ounce of cocaine base. Brown pleaded guilty pursuant to a plea agreement to the first count of that indictment, which charged him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Brown and the government disagreed about whether Brown’s prior convictions subjected him to the ACCA’s mandatory minimum sentence, and this issue remained contested at sentencing.

First, Brown pleaded guilty to two counts of “assault on a peace officer” Brown admitted to “assault[ing] the guards,” id. at 70, and the court accepted his plea. Brown was sentenced to two on current terms of seven years’ imprisonment.

Second, Brown pleaded guilty to “sale of hallucinogen/narcotic” he had twenty-nine rocks of crack cocaine concealed in his pants.

Third, Brown pleaded guilty to another drug violation as well as to a charge of criminal possession of a pistol.

These offenses took place while Brown was awaiting sentencing for the prior violation. Brown was sentenced on the charges arising from both the May and November 2000 arrests to concurrent terms of ten years’ imprisonment, with execution suspended with three years left to serve, and three years’ probation.

Legal Analysis: The district court found that Brown’s criminal history subjected him to an enhanced sentence under the Armed Career Criminal Act (“ACCA”), 18

U.S.C. § 924(e), and sentenced him principally to 180 months’ imprisonment, the minimum sentence provided by that statute.

Brown claimed that the district court improperly counted two of his prior drug convictions as separate ACCA predicate offenses. And he contends that the district court erred by treating his prior conviction for assaulting two corrections officers as a “violent felony” within the meaning of the ACCA.

The Court addressed the defendant’s challenges to the district court’s finding that these prior convictions justified an enhanced sentence pursuant to the Armed Career Criminal Act, which requires that persons who are convicted of violating 18 U.S.C.§ 922(g) and who “ha[ve] three previous convictions … for a violent felony or a serious drug offense, or both, committed on occasions different from one another” be sentenced to at least fifteen years’ imprisonment. 18 U.S.C.§ 924(e)(1).

The Circuit Court reviewed de novo questions of law relating to a district court’s application of the ACCA, but applied clear error review to a district court’s factual findings regarding the nature of a prior offense. See United States. Rosa, 507 F.3d 142, 151 & n. 8 (2d Cir.2007); United States v. Houman, 234 F.3d 825, 827 (2d Cir.2000).

This argument is addressed to the ACCA’s requirement that two offenses must be “committed on occasions different from one another” in order to be counted as separate ACCA predicate convictions. Id. § 924(e)(1).

Prior cases have held that “two convictions arise from conduct committed on different occasions if they do not stem [ ] from the same criminal episode.” United States v. Daye, 571 F.3d 225, 237 (2d Cir.2009) (alteration in original) (quoting United States v. Rideout,3 F.3d 32, 34 (2d Cir.1993)) “Considerations relevant to this determination include whether the victims of the two crimes were different, whether the crimes were committed at different locations, and whether the crimes were separated by the passage of time.”   The Court concluded that two breaking-and-entering convictions were properly treated as separate for purposes of the ACCA when these convictions were “for offenses committed against different victims separated by at least twenty to thirty minutes and twelve to thirteen miles.”

Here, while Brown was sentenced for the two drug offenses on the same day, the conduct underlying these offenses was separated by several months, involved distinct arrests, and took place at different locations. The Court affirmed the district court’s conclusion that these two offenses were “committed on occasions different from one another” and therefore were properly counted as two separate ACCA-qualifying convictions.

Brown also challenges his conviction for assaulting corrections officers as a “violent felony” under the ACCA. “We review de novo the District Court’s conclusion that a prior offense is a violent felony.”

The ACCA defines the term “violent felony” to mean: any crime punishable by imprisonment for a term exceeding one year … that—

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

In considering whether a particular offense qualifies as a violent felony under the ACCA’s residual clause The inquiry is framed “in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion,” Not every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury before the offense can be deemed a violent felony,”  

The Second Circuit held that whether an offense qualifies as a conviction for a violent felony under the ACCA’s residual clause has two separate aspects.

First, ask whether the offense is similar “in kind” to the enumerated offenses that precede the residual clause—i.e., burglary, arson, extortion, and the use of explosives—in that the offense in question “typically involve[s] purposeful, violent, and aggressive conduct.”

Second, ask whether the offense is similar ‘in degree of risk posed’ to those enumerated offenses.” Compare the degree of risk posed by the offense of conviction to that presented by the enumerated felonies. The Supreme Court has framed this inquiry as “whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.” Here, a conviction for assaulting an employee of the department of correction requires that the victim suffer physical injury. Because this offense involves the certainty of “injury to another,” it follows that this second prong of the “violent felony” analysis was satisfied.

For the foregoing reasons, the Second Circuit concluded that Brown’s conviction for assault of corrections officers qualifies as a violent felony under the ACCA and that his two drug convictions qualify as separate “serious drug offense[s]” thereunder. The district court therefore did not err in imposing an enhanced sentence pursuant to the ACCA.

Second Circuit Court of Appeals  

Issue: Whether there existed a sufficient factual basis under FRCP Rule 11(b)(3) for the District Court to take a plea from defendant.

Holding: The case was remanded to the District Court and the Second Circuit held that to establish the factual basis required by Rule 11, the district court may rely on representations of “the defendant, of the attorneys for the government and the defense, [or] of the presentence report when one is available’, and indeed may use “whatever means is appropriate in a specific case”.

But it is error for the court to find that a factual basis exists when the defendant actively contest a fact constituting an element of the offense in the absence of circumstances warranting the conclusion that the defendant’s protestations are “unworthy of belief”. Under Rule 11, moreover, the court must “assure it self…that the conduct to which the defendant admits is in fact an offense under the statutory provision under which it is pleading guilty”. In doing so, it is “essential…that the court determine by some means that the defendant actually understands the nature of the charges”.

Facts: Culbertson pleaded guilty to four counts of a multi-count superseding indictment, including a charge of conspiracy to import 100 grams or more of heroin and five kilograms or more of cocaine and was sentenced to 120 months. Because there was an inadequate factual basis for Culbertson’s guilty plea with respect to the quantity of drugs for which he was responsible, we remand to the District Court with instructions to vacate the judgment of conviction.

Culbertson’s conviction arose from his plea of guilty to four counts of an eleven-count superseding indictment, including a count of conspiracy to import 100 grams or more of heroine and five kilograms or more of cocaine, in violation of 21 U.S.S. §§ 963, 960(B)(1)(ii), and 960(b)(2)(A), and 18 U.S.C. §§ 3551 et  seq. The District Court sentenced him principally to a term of imprisonment of 120 months. On appeal, Culbertson makes two arguments. First, he argues that the District Court erred in accepting his guilty plea without first “determine [ing] that there [was] a factual basis for the plea”. Fed. R. Crim. P. 11(b)(3).Second. Culbertson argues that he was deprived of his Sixth Amendment right to counsel because the District Court denied his motion to substitute counsel and his “standby counsel” during the plea rendered ineffective assistance. We conclude that Culbertson’s plea failed to satisfy the requirements of Rule 11(b)(3) of the Federal Rules of Criminal Procedure.

The agent learned of Culbertson’s involvement in that ring on January 9, 2008, when his girlfriend, Patricia Lancaster, arrived at John F. Kennedy International Airport. Lancaster’s suitcase contained just over ten kilograms (10,369 grams) of cocaine and about 909 grams of heroin. Lancaster was arrested and immediately started to cooperate.

Under the agents’ supervision, Lancaster called Culbertson and asked that he pick her up, as no one had met her at the airport. Culbertson responded that he would meet Lancaster at the airport because her luggage contained a “product” that needed to be retrieved. Then agent arrested Culbertson as soon as he arrived.

The indictment charged Culbertson with (1) conspiring to import and importing five kilograms or more of cocaine and 100 grams or more of heroin, principally in violation of 21 U.S.C. §§ 963,960(b)(1)(B)(ii), and 960(b)(2)(A) (Counts one and five); and (2) conspiring and attempting to posses with intent to distribute the same amount of cocaine and heroin, principally in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(ii)(II), and 841(B)(1)(B)(i) (Counts Two and Seven).

Culbertson’s fourth appointed, attorney of record, reported that he and Culbertson had argued over his refusal to file a “frivolous motion” and that Culbertson had fired him. Culbertson complained: “I can’t get my lawyer to do anything for me, and I don’t know that law”. The District Court responded as follows:

This is what I am going to do. Mr. Lashley, you are the fourth lawyer. I am not going to relieve you. Mr. Culbertson will be trying this case or handling this case himself, pro se. You will be standby counsel to assist him should he need assistance but anything else he will do himself. I am not in the business of providing free lawyers to defendant at his particular whim.

When Culbertson protested that he did not want to proceed pro se and that he “need [ed] help”, the District Court responded that he was “on [his] own’, but also told him, “If you need help and you want to call Mr. Lashley, you are free to do so”. Culbertson later filed a pro se “Motion for Appointment of Counsel,” in which he asserted that each of his lawyers has been unfit and that he was incapable of representing himself. The District Court denied the motion. The court observed that Culbertson was set to proceed pro se at trial, and sought to clarify Lashley’s role as “standby counsel”.

Culbertson responded, “I don’t want to go pro se. I don’t want Mr. Lashley because he’s not doing anything for me”, and “I’m asking the court for a lawyer”. The District Court Confirmed that Lashley would serve as standby counsel at trail if Culbertson wished, but that Culbertson was otherwise “on [his] own”. Again, Culbertson protested that he did not want to proceed pro se because he did not “know how to do a trail from beginning to end”.

On January 21, 2009, the District Court held another conference, which culminated in Culbertson’s guilty plea. The District Court briefly adjourned the conference to permit Culbertson, Lashley, and the Government to continue discussing a possible disposition. When the parties returned, Lashley stated that Culbertson wished to plea guilty to all the counts against him in the superseding indictment, although no formal plea agreement had been reached and the Government had not delivered a letter pursuant to United States v. Pimentel, 932 F.2d 1029 )2d Cir. 1991).

Before proceeding with the plea, the Government confirmed that Culbertson had reserved his rights to an evidentiary hearing regarding drug quantity. The Government then proffered that his proof against Culbertson consisted principally of an audio recording of Culbertson speaking by phone with Lancaster about importing the drugs in her suitcase, which included over one hundred grams of heroin and over five kilograms of cocaine. Culbertson allocated that he had recruited Lancaster to bring narcotics into the United States from Trinidad. After the allocution, the District Court asked Culbertson whether he knew that Lancaster was “coming into this country with narcotics”, and Culbertson responded, “Yes. We made an agreement for three kilos of cocaine”.

After describing the charges against Culbertson without further mentioning drug quantity or advising Culbertson of the elements of each charge, the District Court accepted Culbertson’s plea. Prior to his plea, Culbertson had requested a Fatico hearing to determine the amount of cocaine for which he was responsible. After the plea, the Government responded that, for sentencing purpose, it would rely solely on the five-kilogram minimum weight necessary to trigger the ten-year mandatory minimum sentence, rendering a Fatico hearing unnecessary. “The District Court denied the request for a Fatico hearing as “moot in light of the government’s response”.

Before sentencing, Culbertson filed a pro se motion to withdraw his guilty plea, arguing, amongst other things, that he had entered the plea under pressure and that he had been unconstitutionally denied the assistance of counsel during his plea proceeding. Culbertson also filed a pro se motion requesting that the District Court impose a sentence below the ten-year statutory minimum because he was responsible for only three, not five kilograms of cocaine. Under the Controlled Substances Act, a plea to three kilograms of cocaine would have triggered only five-year mandatory minimum sentence. At Culbertson’s sentencing, the District Court accepted the presentence report’s calculation that Culbertson’s Guidelines range was 57 to 71 months. However, having determined that Culbertson was subject to a ten-year mandatory minimum sentence because his offense involved at least five kilograms of cocaine, the court concluded that it was without authority to impose a lesser sentence.

Legal Analysis: “We review for …abuse of discretion a district court’s decision that a defendant’s factual admission support conviction on the charge to which he has pleaded guilty”. United States v. Adams, 448 F. 3d 492, 498 (2d Cir. 2006). In the wake of Apprendi v. New Jersey, 530 U.S. 466 (2000), however, we recognized that “a defendant cannot be convicted on an aggravated [drug] offense unless the statutory drug quantity is proved to a jury or admitted by the defendant”. United States v. Gonzalez, 420 F. 3d 111, 124 (2d Cir. 2005).

We have previously held that in order to provide a factual basis for a plea to a drug conspiracy charge under 21 U.S.C. §§ 841 (b)(1)(A), an allocution must establish that the “drug type and quantity were at least reasonably foreseeable to the co-conspirator defendant”. In United States v. Gonzalez, Gonzalez the defendant, “specifically declined to plead guilty to conspiring to distribute the charged fifty grams or more of crack, explaining…that he had never intended to sell the informant a kilogram of real crack”, but had intended to sell only a counterfeit substance. We held “that Gonzalez’s failure to admit – indeed, his explicit challenge to – the statutorily prescribed quantity meant that his plea did not provide the court with an adequate factual basis to enter judgment against him on the charged crime”, and we remanded to the district court with instructions to vacate the judgment of conviction.

In United States v. Adams, we considered another Rule 11(b)(3) challenge to a plea by a defendant who allocated that he had participated in a scheme to “transport eight-five to ninety pounds of marijuana,” but who was ultimately convicted of conspiring to transport five kilograms or more of cocaine. We never the less concluded that there was an insufficient factual basis for plea and that the district court had “failed to elicit an admission that [the defendant] actually knew he was conspiring to distribute at least five kilograms of cocaine,” because Adams had “insisted that he knew of and agreed to only a marijuana conspiracy.” Conviction under 21 U.S.C. § 986, which, like 21 U.S.C. § 846, requires a showing that the defendant “knew of his co-conspirator’s illicit activities or [that] the activities were reasonably foreseeable by him.”

It is true that, to establish the factual basis required by Rule 11, the district court may rely on representations of “the defendant, of the attorneys for the government and the defense, [or] of the presentence report when one is available’, and indeed may use “whatever means is appropriate in a specific case”. But it is error for the court to find that a factual basis exists when the defendant actively contest a fact constituting an element of the offense in the absence of circumstances warranting the conclusion that the defendant’s protestations are “unworthy of belief”. Under Rule 11, moreover, the court must “assure it self…that the conduct to which the defendant admits is in fact an offense under the statutory provision under which it is pleading guilty”. In doing so, it is “essential…that the court determine by some means that the defendant actually understands the nature of the charges”.

The Government submits, Culbertson should be held responsible for the actual amount of cocaine found in Lancaster’s suitcase – an amount that it claims he never disputed. This argument is unpersuasive for two reasons. First, Culbertson appears to have challenged the actual amount of cocaine in Lancaster’s suitcase, as well as his knowledge of that amount. Indeed, insisted that Lancaster plea reflected that she had only three kilograms of cocaine. Second, the records belies the government’s contention that Culbertosn personally and directly particioated in the drug transaction.

In Andino, withheld that the Government need not “proof scienter as to drug type or quantity when a defendant personally and directly participates in a drug transaction underlining a conspiracy charge”. We concluded that a defendant to retrieved a package containing drugs  addressed to him and transported it to another building has personally and directly participated in that transaction and could be sentenced based on the type and quantity of drugs in the package, even if those were not reasonably for foreseeable to him.

Here, Culbertson recruited Lancaster to transport cocaine from Trinidad, but there is not evidence that he actually handled the cocaine or was involved beyond the recruitment. Moreover, the District Court found that Culbertson was entitled to a significant downward adjustment under the Sentencing Guidelines for playing a “minimum role” in the offense. This adjustment is available only to “a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant”, U.S.C.G. § 3B1.2(a) (commentary n.3(A)). That finding indicates that Culbertson role was far from direct.

We turn to whether the “variance from the requirements of” Rule 11 constituted “harmless error” or instead “affect[ed] substantial rights”. Fed. R. Crim. P. 11(h).

“[T]he kinds of Rule 11 violations that can properly be considered harmless error are ‘fairly limited.” In Gonzalez, we described drug quantity as “presumptively significantly” because of its “potential impact on any term of incarceration, both in terms of the statutory minimum and the Sentencing Guidelines”. 420 F.3d at 132, 133. We explained that drug quantity is particularly significant when “[t]he record plainly demonstrates that” it is “the only fact [the defendant] wished to contest with respect to the charged conspiracy”. Id. at 132 – 33. after Gonzalez, we made the following pronouncement:

 A lack of factual basis for a plea is a substantial defect calling into Question the validity of the plea. ‘Such defects are not technical, but are so fundamental as to cast serious doubt under voluntariness of The plea,’ and required reversal and remand so that the defendant may Plea anew or stand trail.

Culbertson clearly disputed the Government’s proffer regarding drug quantity. As evidenced by his request for a fatico hearing, we therefore remand to the District Court with instructions to vacate the judgment of conviction. The able and experienced District Judge may well have been right to decline to appoint new counsel. In doing so, however, the District Judge failed to inform Culbertson of the consequences of waving his rights under Sixth Amendment and proceeding pro se. Although a district court may, “under certain circumstances, require the defendant to select from a limited set of options a course of conduct regarding his representation”, McKee, 649 F.2d at 931, it must “strive for a full calm discussion with the defendant in order to satisfy itself that he has the requisite capacity to understand and sufficient knowledge to make a rational choice.”

“[T]he district court should engage the defendant in an on-the-record discussion to ensure that she fully understands the ramifications of her decision.”). Thus, a defendant who, wisely or not, seeks to represent himself “should be made aware of the dangers and disadvantages of self-representation, so that the records will establish that he knows what he is doing and his choice is made with eyes open.”

Here, notwithstanding Culbertson’s assertions that he was unable to represent himself at trail, the District Court did not apprise him of the consequences of proceeding pro se or assess his capacity to make an informed choice. On remand, if the District Court still finds it appropriate to deny the request for new counsel, Culbertson must be allowed to make his own decision as to whether to proceed pro se or accept his (competent) court-appointed counsel, after a full Faretta hearing. Of course, the District Court retains discretion to appoint new counsel on remand if that is appropriate.

To refresh our recollections, the United States Supreme Court decided Padilla v. Kentucky in March of 2010.  Justice Stevens wrote the majority opinion, which held that where an attorney fails to warn her client about adverse immigration consequences of a plea in a criminal case, this fulfills the first part of the two-part test for ineffective assistance of counsel outlined in Strickland v. Washington.[i]

Here are two important cases that were decided shortly after Padilla.  Although neither of them received equivalent acclaim, they may help to clear the air on the subject of retroactivity of the Padilla rule, and on the issue of applicability of that rule on direct versus collateral review.

In both the case of Santos-Sanchez v. United States, ___U.S.___, 130 S.Ct. 2340, 176 L.Ed.2d 559 (2010) and in Chapa v. United States, ___ U.S.___, 130 S.Ct. 3504, 177 L.Ed.2d 1086 (2010) the Supreme Court vacated the decision of the Fifth Circuit Court of Appeals and remanded the cases to be decided in light of the decision in Padilla.    

In the  Santos-Sanchez case the defendant had been a legal resident of the United States since 2001. He was arrested in 2003 and charged with aiding and abetting the illegal entry of an alien into the US.  He pleaded guilty after consulting with an Assistant Public Defender and was sentenced to one year of probation.   As a result of his guilty plea the Department of Homeland Security found Santos-Sanchez removable because of his plea in the criminal case. 

He filed a Writ of Errors Coram Nobis (collateral review) before a Magistrate Judge in the Southern District of Texas who granted the writ and vacated the conviction; however, the District Court for the Southern District of Texas eventually vacated the Magistrate’s ruling and denied the petition for a Writ of Errors Coram Nobis; Santos-Sanchez appealed.   

The Fifth Circuit Court of Appeals held that deportation is a collateral consequence of the plea in the criminal case and that the defendant’s attorney was, therefore, not obligated to inform him of the immigration consequences of his guilty plea, and his counsel was therefore not ineffective. Santos-Sanchez v. U.S., 548 F.3d 327 (2008).

The U.S. Supreme Court granted certiorari (just one week after Padilla v. Kentucky was decided) and vacated the judgment of the Fifth Circuit and remanded the case with an order that it be re-decided in light of the holding in Padilla v. Kentucky – the Supreme Court’s direction to the Fifth Circuit Court of Appeals was to retroactively apply the Padilla holding in a case that was on collateral review.

Approximately three months after the Supreme Court decided Padilla v. Kentucky they decided the case of Chapa v. United States, ___ U.S.___, 130 S.Ct. 3504, 177 L.Ed.2d 1086 (2010).

In the Chapa case the defendant argued on direct appeal that her plea counsel had failed to warn her that it was a virtual certainty she would be deported because of her plea.  The Fifth Circuit Court of Appeals, citing to its prior decision in Santos-Sanchez, held that counsel was not ineffective in failing to warn his client of the immigration consequences of a plea in a criminal case and affirmed the conviction.

The U.S. Supreme Court granted certiorari and vacated the Fifth Circuit’s judgment and remanded the case for it to be decided in light of the holding of Padilla v. Kentucky, again, directing that the holding in Padilla be applied retroactively to a case that was on direct appellate review. 

In both cases Santos-Sanchez and Chapa, the U.S. Supreme Court found that the holding in Padilla is applicable retroactively, and furthermore, it is applicable on both direct appellate review and on collateral review of criminal cases.

Third Circuit Court of Appeals Decided January 24, 2012

Issue:

1) Whether the waiver of the right to appeal at plea can be considered valid in light of the trial court’s comments at sentencing.

2) Whether the guidelines manual violated the ex post facto clause and was of constitutional dimension.

Holding: We hold, as a result of a statement by the District Court during the plea colloquy, which improvidently expanded Saferstein’s appellate rights, that Saferstein did not waive his right to raise constitutional claims on appeal. We further find that his ex post facto claim is of constitutional moment and meritorious. We will vacate and remand to the District Court for resentencing.

Facts: Neal Saferstein (“Saferstein”) pled guilty in the United States District Court for the Eastern District of Pennsylvania to four federal criminal charges related to a fraudulent business scheme.

In the plea agreement, Saferstein waived his appellate rights subject to several exceptions, including an exception for “the assertion of constitutional claims that the relevant case law holds cannot be waived.

Saferstein now argues on appeal that the District Court (1) violated his due process rights by denying him credit he believes he was due under the United States Sentencing Guidelines (the “Guidelines”) for acceptance of responsibility; (2) denied him his right of allocution at sentencing; and (3) violated his rights under the ex post facto clause.

Saferstein was President, Chief Executive Officer and majority owner of GoInternet, a telemarketing company based in Philadelphia.  GoInternet’s implementation of this business model had several fraudulent aspects. First, the telemarketers frequently failed to disclose the full terms of the agreement.

The plea agreement contained language stipulating that, “as of the date of this agreement, the defendant has demonstrated acceptance of responsibility for his offense” and is therefore “eligible for a 2-level downward adjustment” pursuant to the Guidelines.

It also contained an appellate waiver provision, which provided that Saferstein “voluntarily and expressly waive[d] all rights to appeal or collaterally attack” his conviction, subject to several exceptions. The waiver was “not intended to bar the assertion of constitutional claims that the relevant case law holds cannot be waived.” (Id.) Further, it provided an exception if the government were to appeal Saferstein’s sentence and accepted a small number of enumerated claims that Saferstein would be permitted to raise on appeal: (1) That his sentence exceeded the statutory maximum for that count; (2) That the sentencing judge erroneously departed upward under the Guidelines; or (3) that the sentencing judge imposed an unreasonable sentence above the Guideline range.

During the plea colloquy, the District Court discussed the waiver in detail with Saferstein. The court stated that the waiver “of course, is not intended to bar you [from] raising constitutional claims, and only the Court can decide whether they are constitutional claims or some other kind of claim.

The District Court denied Saferstein credit for acceptance of responsibility. It based this determination on several factors. First, the Court noted that after pleading guilty, Saferstein had failed to expeditiously turn over certain financial and medical reports to the probation office. Second, it determined that a number of his statements during the sentencing hearing “backtrack[ed] on the enormity of his own involvement in the scheme that he is responsible for contriving.

Legal Analysis: When “the government invokes an appellate-waiver provision contained in a defendant’s plea agreement, we must determine as a threshold matter whether the appellate waiver prevents us from exercising our jurisdiction to review the merits of the defendant’s appeal.”  We decline to exercise jurisdiction over the appeal where the issues on appeal fall within the scope of the waiver and the defendant knowingly and voluntarily agreed to the waiver, unless “enforcing the waiver would work a miscarriage of justice.

Contract Law – Parole Evidence: The Statements of the Trial Court at Sentencing:

We have not spoken before on the impact of a sentencing court’s oral statement during a plea colloquy on the interpretation of a plea agreement.

It is clear that principles of contract law apply to plea agreements.

“[L]logic indicates that if we may rely on the sentencing court’s statements to eliminate ambiguity prior to accepting a waiver of appellate rights, we must also be prepared to recognize the power of such statements to achieve the opposite effect. If it is reasonable to rely upon the court’s words for clarification, then we cannot expect a defendant to distinguish and disregard those statements of the court that deviate from the language of a particular provision in a lengthy plea agreement.

Because the government exercises tremendous bargaining power during the process of plea negotiation, we construe any ambiguities in the text against the government as drafter.

The parol evidence rule generally mandates that when a written contract is clear and unequivocal, its meaning must be determined by its contents alone.

Regardless of the clarity of a written plea agreement, Rule 11(b) of the Federal Rules of Criminal Procedure obligates a district court, before accepting a plea of guilty, to place the defendant under oath and to address the defendant orally and in open court, informing him of, inter alia, “the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Fed. R. Crim.  P. 11(b)(1)(N). The court must also determine that the defendant understands those terms.

We must find that a statement made by the sentencing court during the colloquy can create ambiguity where none exists in the plain text of the plea agreement.

We construe this ambiguity against the government and interpret the waiver narrowly. Therefore, we shall allow Saferstein to raise constitutional claims on appeal, as the District Court represented during the colloquy that he would be able to do.

The Ex Post Facto Rule, The Grouping Rule and The One Book Rule:

The only issue Saferstein raises which is of constitutional moment is his ex post facto claim.

The mail and wire fraud counts of which he was convicted occurred in December 2002 and June 2003, and the base offense level for fraud under the Guidelines was subsequently increased on November 1, 2003. U.S.S.G.appx. C, amend. 653. Both counts for submitting false tax returns of which Saferstein was convicted occurred after that date.

The Guidelines direct a one-book rule, requiring that a “Guidelines Manual in effect on a particular date shall be applied in its entirety.” U.S.S.G. § 1B1.11(b)(2). When a “defendant is convicted of two offenses, the first committed before, and the second after, a revised edition of the Guidelines Manual became effective, the revised edition of the Guidelines Manual is to be applied to both offenses.” § 1B1.11(b)(3).

Held that the ex post facto clause requires that a sentencing court apply the Guidelines Manual in effect at the time the offense was committed if retroactive application of the later Manual would result in harsher penalties. We have expressly disapproved the one-book rule where it conflicts with the ex post facto clause by resulting in more stringent penalties than were authorized at the time of the offense.

Although our ex post facto concerns are assuaged when counts are properly grouped under § 3D1.2(d) as “continuing, related conduct” and the sentencing court applies the Guidelines Manual relevant to the latest count.

In such a case, the grouping provisions, combined with the one-book rule, place a defendant on notice that a court will sentence him or her under the Guidelines Manual in effect during the commission of his or her last offense in a series of continuous, related offenses.

Here, the sentencing court applied the Guidelines Manual in effect when the false tax returns were submitted to the IRS even though those counts were not grouped with the mail and wire fraud counts. Indeed, the PSR recognized that, pursuant to our decision in United States v. Astorri, 923 F.2d 1052 (3d Cir. 1991), tax fraud counts could not be grouped with fraud on private individuals. In this circumstance, the application of the later edition of the Guidelines Manual did violate the ex post facto clause.

We have also held that when the application of the wrong Guidelines Manual, in violation of the ex post facto clause, results in the use of a higher sentencing range, there is a presumption that the defendant’s substantial rights are affected.

Accordingly, we vacate Saferstein’s sentence and remand to the District Court with instructions to calculate his base offense level in accordance with the Guidelines Manual in effect when the mail and wire fraud counts were committed.

New York Court of Appeals Decided on February 9, 2012 

Issue: What type of information qualifies as a report of a sex crime against a child that will trigger the commencement of the statute of limitations under CPL 30.10 (3) (f), or to state the issue another way - Whether the information that Jane disclosed to the police on November 8, 2002 was a “report” to the authorities that was sufficient to bar the availability of the tolling provision in CPL 30.10 (3) (f) in connection with the indictment against defendant.

Holding: The information Jane shared with the police in November 2002 did not activate the statutes of limitations under CPL 30.10 (3) (f) because she neither identified defendant as the perpetrator nor reported or revealed any of the sex offenses charged in the indictment. Under these facts, the statutes of limitations for the indicted sex crimes did not begin to run until Jane reached 18 years of age in January 2006. The charged sex offenses therefore are not time barred.

Legal Analysis: In New York class B felony sex offenses have no limitations period, all other felonies are covered by a five-year statute of limitations. A two-year window applies to misdemeanors and petty offenses must be prosecuted within one year.

The general rule is that the time period commences when a criminal offense is committed.

CPL 30.10 (3) (f). established that the statute of limitations in a prosecution of a sex offense (other than those that are not subject to any limitations period) committed against a minor does not begin to run “until the child has reached the age of eighteen or the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier”. Although majority age replaced the commission of the crime date as the general starting point for the statute of limitations, a statutory exception starts the clock running sooner. The limitations period is triggered if “the offense is reported” to the police or to the central register for child abuse.

To begin, the text of CPL 30.10 (3) (f) compels us to reject defendant’s argument that Jane’s early statements to the police encompass all three of the time periods designated in the indictment. The statute specifically refers to a report of “the offense”. The only purported crime that Jane discussed with the police in November 2002 was an alleged August 2002 rape by a classmate. Jane did not mention any other sexual conduct occurring either before or after the alleged incident. As a result, the statutes of limitations did not commence on the initial disclosure date — November 8, 2002 — for any of the sex offenses within those two time frames. Rather, the limitations periods for those crimes began to run when Jane turned 18 years old in January 2006.

We next turn to the question of whether Jane’s disclosure to the police in November 2002 constituted a “report” requiring dismissal of the sex offenses occurring during the second time period identified in the indictment. CPL 30.10 does not define the word “reported” so we must apply its ordinary and natural meaning. “Report” is usually defined as describing or giving an account of something. As we have explained, the term “the offense” refers to a discrete criminal act or series of acts that satisfies the elements of a particular penal statute. Combining these definitions, the phrase “the offense is reported” as used in CPL 30.10 (3) (f) would mean a communication that, at a minimum, describes the offender’s criminal conduct and the particular harm that was inflicted on the victim. Information of this nature provides the police with actual notice that a specific criminal offense has occurred, allowing them to conduct a prompt investigation.

Considered in this manner, the information that Jane provided to the police in November 2002 certainly was a “report” but the operative question is, a report of what? The “report” provision triggering the five- and two-year statutes of limitations for sex offenses under CPL 30.10 (3) (f) would have applied only to the incident that was directly derived from the[*7]information obtained from Jane the manner, time and place that she was supposedly sexually assaulted. Since no information linked defendant to the circumstances of the reported crime, we hold that the People were entitled to apply CPL 30.10 (3) (f) and, contrary to the dissent’s conclusion, the statutes of limitations for the indicted sex offenses in the second charged time period did not commence until Jane became 18 years of age.

In our view, this meaning of the phrase “the offense is reported” is consistent with the legislative history and purpose of CPL 30.10 (3) (f). The statute was based on a societal acknowledgment that victims of childhood sexual abuse who do not (or, indeed, who cannot) disclose such acts while they are minors should be given a reasonable period of time after becoming adults to divulge the abuse they suffered. Based on the ordinary meaning of the terms used in CPL 30.10 (3) (f), the legislative history of the statute and its overarching purpose, it is clear that the drafters established the age of 18 as the operative date of the limitations periods unless the police or statewide abuse register receive earlier actual notice that a child has been sexually victimized. We therefore believe that the extension of the limitations periods for sex crimes against children under CPL 30.10 (3) (f) is best accomplished by recognizing that the reporting requirement should be interpreted to cover only the specific criminal acts that are disclosed in a communication. Consequently, we hold that the triggering “report” required under the statutory exception refers to a communication that, at a minimum, describes the offender’s alleged criminal conduct and the harm inflicted on the victim.

In sum, the information Jane shared with the police in November 2002 did not activate the statutes of limitations under CPL 30.10 (3) (f) because she neither identified defendant as the perpetrator nor reported or revealed any of the sex offenses charged in the indictment. Under these facts, the statutes of limitations for the indicted sex crimes did not begin to run until Jane reached 18 years of age in January 2006. The charged sex offenses therefore are not time barred.

Next, we address the timeliness of those charges and the applicability of another tolling provision — CPL 30.10 (4) (a) (ii) — which may apply to any crime subject to a limitations period. It excludes any periods of time following the commission of an offense if “the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence.” We have explained that this statute covers cases where the police are unable to identify the perpetrator of a crime despite the exercise of reasonable diligence or have identified the perpetrator but cannot find him after a diligent investigation. Police knowledge that a crime was committed is a necessary prerequisite to the statute’s application. Subdivision (4) (a) (ii) therefore operates in a manner that is [*8] quite different than subdivision (3) (f) — it excludes time only if the police are aware of a particular crime, whereas subdivision (3) (f) stops the limitations clock if the police do not know that a child has been the victim of a sex offense.

Because the police did not learn about the non-sex crimes charged in the indictment until Jane revealed her allegations in December 2007, we conclude that CPL 30.10 (4) (a) (ii) did not toll the time between the alleged commission of the offenses and Jane’s disclosure. Consequently, the one- and two-year limitations periods that apply to the indictment’s non-sexual misdemeanors and petty offenses began to run when those crimes purportedly happened in 2002, hence the timeliness for prosecution of those crimes expired in 2003 and 2004, respectively, well before the accusatory instrument was issued in this case. We agree with the Appellate Division that the non-sexual misdemeanors and petty offenses must be dismissed.

Facts: The child at issue in this case, was 14 years old when she underwent a medical examination in November 2002 that revealed she was 12 weeks pregnant, at first; Jane denied that she had been sexually active. She later claimed that she had been raped in August 2002 at school by a classmate.

Jane eventually told the investigating police officers that she had consensual, unprotected intercourse with a 14-year-old boy. After she gave the police a written retraction of the rape accusation, the case was closed.

Jane turned 18 years of age in January 2006. Over a year later, when she was 19 years old, Jane informed the police that she had been sexually assaulted years earlier by her step-grandfather, defendant Santos Quinto. Defendant was charged in a felony complaint with rape and related offenses.

Jane subsequently testified before a grand jury that defendant had raped her on three different occasions in 2002 in the Brooklyn home where they resided: She also explained that she had kept the sexual assaults and pregnancy a secret from everyone because defendant warned her not to say anything and she was afraid of him.

Defendant was indicted for three counts of second-degree rape; one count of third-degree rape; three counts of sexual misconduct; three counts of endangering the welfare of a child; three counts of third-degree sexual abuse; one count of third-degree menacing; and three counts of second-degree harassment. He moved to dismiss the indictment in its entirety, contending that the statutes of limitations for all of the charged offenses had expired. Defendant asserted that the limitations periods began to run under CPL 30.10 (3) (f) when Jane informed the police in November 2002 that she had been raped by a classmate.

Supreme Court agreed with defendant and dismissed the indictment, concluding that Jane had “reported” the crimes to the police in November 2002.

The Appellate Division modified by reinstating the felony and misdemeanor sex offenses. The court determined that Jane had not made a “report” related to defendant’s alleged sex crimes in November 2002, which [*5] meant that the limitations periods for the sex offenses did not begin to run until Jane turned 18 in January 2006. With regard to the non-sex offenses, however, the Appellate Division ruled that they were barred because the statutes of limitations for those offenses had expired and the “continuously unknown and continuously unascertainable whereabouts” tolling provision in CPL 30.10 (4) (a) (ii) was not applicable under the facts presented.

]]> http://www.newyorkappellatelawyer.com/the-statute-of-limitations-in-criminal-cases-regarding-sex-crimes-against-minors/feed/ 0 http://www.newyorkappellatelawyer.com/sixth-amendment-confrontation-clause-physical-gestures-as-testimony/ http://www.newyorkappellatelawyer.com/sixth-amendment-confrontation-clause-physical-gestures-as-testimony/#comments Mon, 20 Feb 2012 18:11:58 +0000 Stephen http://www.newyorkappellatelawyer.com/?p=1203 Continue reading →]]> People v. Porco 2011 NY Slip Op 07255

New York Court of Appeals decided on October 18, 2011 

Issue: Whether the Sixth Amendment right to confrontation was violated when the trial court admitted testimony that the defendant’s mother nodded affirmatively when asked by the police if the defendant was the person who assaulted her.

Holding: Trial errors resulting in violation of a criminal defendant’s Sixth Amendment right to confrontation are considered harmless when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict.

Facts: The evidence at trial included, among many other things, video recordings from traffic cameras. Expert testimony DNA profile matched the profile from a sample extracted from a toll ticket handed out at the thruway.

There was also considerable evidence that defendant repeatedly lied to his parents about his mounting financial and academic problems, and that his parents had caught on.

The evidence of this staged break-in was unique and highly probative of defendant’s identity as the perpetrator of the crimes for which he was being tried, where the family home was likewise staged to make it appear as though his parents had been victimized by a stranger. The alarm had, in fact, been turned off by someone who knew the master code.

Legal Analysis: The Court of Appeals affirmed the conviction because of the overwhelming evidence of the defendant’s guilt.  Interestingly, the Court did not address whether or not the physical gesture (the head nod) by the mother was testimonial.  One is left to assume that the Court of Appeals considered this testimonial evidence because it was given in response to questions by the police.

This case is a perfect example of the Court’s application of Harmless Error Analysis when considering the Sixth Amendment Right to Confrontation.  The ultimate holding was that there was so much evidence of the defendant’s guilt that the admission of the gesture by his mother (no doubt a communication to the police) was harmless error in that it would not have effected the jury’s verdict either way.