Tagged: criminal defense

U.S. Sentencing Commission Approves Amendment to Federal Sentencing Guidelines

The United States Sentencing Commission has recently approved an amendment to the Federal Sentencing Guidelines, “Drugs Minus Two,” which would reduce the sentencing guideline levels applicable to most federal drug trafficking offenses. Specifically, the amendment works to lower the base offense levels in the Drug Quantity Table prescribed under §2D1.1(c)(1) of the Federal Sentencing Guidelines Manual, which may ultimately result in a lower guideline sentencing range for many defendants sentenced under federal trafficking penalties.

The Sentencing Commission has voted to apply the amendment retroactively after determining that “setting the base offense levels above mandatory minimum penalties is no longer necessary and that a reduction would be an appropriate step toward alleviating the overcapacity of the federal prisons.” The Commission’s proposal was consistent with its obligation to formulate guidelines to “minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons. 28 U.S.C. § 994(g).

According to the Commission, there are an “estimated 46,000 offenders that may benefit from retroactive application of Amendment 782 subject to the limitation in §1B1.10 (e), and the average sentence reduction would be approximately 18 percent.”

The Chair of the Sentencing Commission, Judge Patti B. Saris, stated that “the amendment received unanimous support from Commissioners because it is a measured approach. It reduces prison costs and populations and responds to statutory and guidelines changes since the drug guidelines were initially developed, while safeguarding public safety.”

The amendment will likely go into retroactive effect beginning November 1, 2015, unless Congress disapproves of the amendment. Congress has until November 1, 2014 to make its decision. If upheld, federal prisoners may begin to petition the courts pursuant to 18 U.S.C. § 3582 (C) (2) seeking a sentencing modification based upon the new guideline ranges.


Federal Prosecutors Encroach Upon Attorney-Client Communications

The protection of the attorney-client privilege has become less sacrosanct in our criminal justice system. Government practices to encroach upon the attorney-client relationship have become more invasive and widespread than ever before. For example, the prison email system has become a blueprint for maximizing the government’s leverage in interfering with one’s right to counsel and to deviously induce waivers of the attorney-client privilege.

Recently, a Federal Court in Brooklyn (EDNY) has upheld the troubling practice of federal prosecutors searching for incriminating evidence (i.e. admissions) by reading emails between defendants and their attorneys sent through the prison email system (“TRULINCS”). The government had claimed that the practice of reading all inmate emails was solely the result of a lack of financial funding, and the Federal Bureau of Prisons (“FBOP”) cannot afford to incorporate a screening system that would separate inmate emails to attorneys. Prosecutors failed to mention, however, that federal inmates must actually pay to use the prison’s email and telephone systems, and that the recipients of such communications must be pre-approved by the FBOP. The FBOP generally creates a list of approved contacts for each inmate, and maintains a copy of such list within its database. The list not only identifies each of the inmate’s approved contacts, but also notes each contact’s relationship with the inmate (i.e. Spouse, Friend, Attorney).

Nevertheless, the Court found that federal prosecutors could legally review inmate emails with lawyers, because federal inmates receive prior warning that their communications will not be treated as privileged and must accept those terms prior to using the email system provided by the FBOP. The Court also noted that the FBOP’s failure to provide a privileged form of email communication does not infringe upon an inmate’s right to counsel, since inmates could still privately access their attorney through other forms of communication.  The Court observed that inmates are provided sufficient alternative means to engage in privileged communications with lawyers by phone calls, mail, and in-person visits.

What the Court’s opinion fails to appreciate, however, is that email communication is the most efficient and viable form of communication used by lawyers in the twenty-first century. The suggestion that inmates could use other forms of communication to contact lawyers in the federal system is simply fantastical, especially for inmates seeking to access their lawyers for post-conviction matters.

Indeed, email communication may be the only viable way for an inmate to effectively communicate with a lawyer, since the FBOP designates inmates to be housed throughout the nation without regard to the jurisdictional location of their conviction. In post-conviction matters, attorneys may be required to travel across the country in order to conduct a legal visit with a client, which may pose significant financial and practical burdens on both the inmate and the attorney’s law practice. Likewise, the FBOP mailing system inherently poses significant delays in the transmission of communications (i.e. prison mailbox rule), and prison counselors usually require an attorney to provide notice weeks in advance before even approving an inmate’s request for either a legal visit or legal telephone call.

Notably, there appears to be a split amongst the courts in Brooklyn as to whether the government’s unfettered practice of reading attorney-client emails over “TRULINCS” can continue to occur. In a Medicare Fraud prosecution, Federal Judge Dora Irizarry of the Eastern District of New York ordered the government to refrain from reading the defendant’s prison emails with his attorneys. Judge Irizarry rejected the government’s claim that it was too expensive or burdensome for the FBOP to separate emails, noting that the practice was truly controlled by the government’s interest in gaining an adversarial advantage:

That’s hogwash… You’re going to tell me you don’t want to know what your adversary’s strategy is? What kind of a litigator are you then? Give me a break.”

In the end, allowing the government to review communications between inmates and their lawyers is a destructive and unethical practice. There is simply no justification for allowing this dangerous practice to continue, and the feeble excuses offered by federal prosecutors are simply unavailing. Unfortunately, the government’s encroachment upon attorney-client communications diminishes a criminal defense lawyer’s ability to provide effective representation. Indeed, a inmate’s ability to engage in the continuous flow of privileged communications with an attorney is paramount to the development of the attorney-client relationship, and the cornerstone to the lawyer’s ability to provide effective representation in both pre-trial proceedings and post-conviction matters.

It is to be hoped that the government’s position will at least remain consistent when astute criminal defense lawyers begin seeking the disclosure of all prison email communications between the prosecution’s cooperating witnesses and their lawyers, federal attorneys, and FBI Agents in either pre-trial discovery motions or by Freedom of Information requests.  Only time will tell whether federal prosecutors truly believe that prison emails between an inmate and an attorney can never be protected by the attorney-client privilege, and will freely accede to defense requests under its Brady and Giglio obligation. 


NY Court of Appeals Issues a Ruling on Depraved Indifference Murder

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

Reviewing a case of egregious recklessness that caused the death of an innocent victim, a 5-2 majority of the Court of Appeals reversed a conviction for depraved indifference murder and cautioned that efforts to prosecute a defendant on this charge must “fit within the narrow category of cases wherein the facts evince a defendant’s utter disregard for human life.”

In April 2009, Jose Maldonado hot-wired and stole a minivan in the Greenpoint section of Brooklyn. In a determined effort to avoid capture by police pursuing him through streets in a mixed residential and commercial area, during a five-minute period Maldonado greatly exceeded the speed limit, drove through several red lights, repeatedly swerved into opposing traffic lanes, and repeatedly drove the wrong way on one-way streets. After one pedestrian narrowly managed to dive away to escape being struck by the van, which did not brake, Maldonado drove, again without braking, into another pedestrian, Violet Kryzak (aged 37), who was crossing Manhattan Avenue with the traffic light in her favor. The van’s windshield on the passenger side showed signs of impact with Ms. Kryzak’s body.

Maldonado said he thought he “hit the girl in the hand or something.” Apparently, it was not her hand that he smashed into because impact with the stolen van, which witnesses estimated to be going at least 70 mph, catapulted Ms. Kryzak’s body into the air, to land more than 160 feet from the point of collision. Without stopping to seek help for Kryzak (who died at the scene), Maldonado continued his effort to avoid capture, speeding north in a southbound lane with the van’s windshield caved in on the passenger side. Apparently realizing shortly afterwards that he could not escape with the van, he crashed it into a car, got out, and ran away. This last attempt to avoid capture was unavailing, thanks to civilians who grabbed him and held him for the police.

Among other charges, the prosecutor sought to convict Maldonado for second-degree murder, pursuant to N.Y. Penal Law § 125.25 (2), on the basis that Maldonado recklessly created a grave risk of death to another person and caused such death in circumstances that evinced his depraved indifference to human life [DIM]. A jury unanimously agreed, and the Appellate Division unanimously affirmed the conviction.  It held that the evidence was legally sufficient to support defendant’s conviction for depraved indifference murder and that, upon independent review, the conviction was not against the weight of the evidence.

Maldonado sought review by the Court of Appeals. Maldonado’s appellate counsel conceded that Maldonado’s conduct was reckless but argued that it did not meet the requirements for DIM established in the Court’s recent precedents.

On July 1, 2014, a majority of the Court agreed. Quoting one of its precedents, the Court stated that “a depraved and utterly indifferent actor is someone who does not care if another is injured or killed” by his reckless conduct. The Court held that “assuming the People proffered evidence indicating that defendant was aware of and disregarded the substantial risk of injury or death caused by his driving, they failed to submit evidence establishing that defendant did not care whether grievous harm resulted.”

Despite applying the applicable standard to review the record in the light most favorable to the prosecution, the Court found that “defendant sought to mitigate the consequences of his reckless driving” by at times swerving to avoid crashing into other vehicles. The Court credited defendant for such “conscious avoidance of risk,” which it stated was “the antithesis of a complete disregard for the safety of others.” The Court found that, despite the fatal collision with Violet Kryzak, the purpose of Maldonado’s extremely dangerous driving tactics was simply “to speed his flight and to avoid crashing into other vehicles or pedestrians.” According to the Court’s review, the record showed “no indication that [Maldonado’s] conduct … was motivated solely by his intent to evade capture, regardless of the risk to human life.” Therefore, the Court ordered that, given Maldonado’s “conscious avoidance of risk” during his concededly reckless driving in a desperate effort to avoid capture for his crimes, his killing of Violet Kryzak rendered him guilty only of second-degree manslaughter.

In a dissenting opinion joined by Judge Graffeo, Judge Pigott noted that after Maldonado narrowly avoided collision with one pedestrian and then struck and killed Ms. Kryzak, he did not cease his reckless conduct “when he had the opportunity to display that he cared whether or not he might strike a pedestrian.” Applying the required standard of review, Judge Pigott stated that there was “a valid line of reasoning and permissible inferences from which a rational jury” could find that defendant “simply did not care whether or not a pedestrian died,” thus demonstrating not just extreme recklessness but also “utter indifference to the value of human life.”


New York Court of Appeals Issues a Divided Ruling on a Statutory Presumption of Unlawful Intent

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

In a June 26, 2014 decision, the New York Court of Appeals unanimously held that the evidence at trial supported Appellant Oliverio Galindo’s conviction for possession of a loaded firearm outside his home or place of business, pursuant to Penal Law § 265.03(3). But the Court was divided, 5-2, on whether his conviction pursuant to Penal Law § 265.03(1)(b) for possession of a loaded firearm with the intent to use it unlawfully against another person was in accordance with law.

Critical to this issue was Penal Law § 265.15(4), which states that “[t]he possession by any person of any … weapon … is presumptive evidence of intent to use the same unlawfully against another.” This presumption is permissive, not mandatory. But if the prosecution establishes the predicate fact (weapon possession), the presumed fact (unlawful intent) becomes part of the prosecution’s prima facie case, which the jury may rely on, with consideration of any rebuttal by the defense.

It was undisputed that on a public street Galindo shot his cousin in the leg. But the evidence regarding Galindo’s intent in regard to this shooting was much less clear. The defense did not present evidence, but argued that the statutory presumption of unlawful intent was rebutted through testimony presented by a prosecution witness who reported that Galindo told him that Galindo shot his cousin accidentally (i.e., not with unlawful intent).

Because Galindo challenged his intent-related conviction as insufficiently supported by the evidence (and not as violating due process), the Court reviewed the evidence in a light most favorable to the People. The majority interpreted the statutes as not requiring the People “to prove that defendant specifically intended to use the gun unlawfully against [his cousin] or any particular person.” The majority thus held that even if the evidence “may have suggested that defendant did not intend to use the gun unlawfully against [his cousin], it was not inconsistent with the inference that he intended to use the gun unlawfully against someone other than his cousin.” (emphasis in original). Therefore, the evidence relating to Galindo’s shooting of his cousin (whether unlawful or accidental) was essentially immaterial, except that it established the predicate fact of weapon possession, which then permitted the jury to presume Galindo’s intent to use the gun unlawfully against anyone, whether identified at trial or not.

Judge Pigott, in a dissenting opinion joined by Chief Judge Lippman, concluded that “[g]iven the lack of any evidence, direct or circumstantial, concerning defendant’s intent to use the weapon unlawfully against another, the jury could not have rationally concluded that the defendant’s mere possession of a loaded firearm established his intent to unlawfully use it against another.” (emphasis in original).

Responding to this, the majority said, “[b]ut that is exactly what the Legislature intended Penal Law § 265.15(4) to permit a jury to do: find that a defendant intended to use a weapon unlawfully merely because he or she possessed that weapon.” (emphasis added)

The Galindo majority did not fully address the constitutionality of Penal Law  § 265.15(4) because defendant did not raise this issue on appeal. Nevertheless, both the majority and dissent referenced County Court of Ulster County v. Allen, 442 U.S. 140 (1979), a habeas case in which a sharply divided Supreme Court upheld the constitutionality of another New York statutory presumption. In Allen, the element statutorily permitted to be presumed was possession of a firearm attributed to any and all persons based on the predicate fact that they were occupants of an automobile when a firearm was found in the vehicle.

The Allen majority held that the proper constitutional test requires consideration of whether the fact to be presumed is “more likely than not to flow from” the statutory predicate facts. The majority stated that this standard (lower than beyond a reasonable doubt) is appropriate for permissive presumptions “[a]s long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt.”

The four Allen dissenters found the statutory presumption unconstitutional and stated that “an individual’s mere presence in an automobile where there is a handgun does not even make it ‘more likely than not’ that the individual possesses the weapon.”

In Galindo, the fact permitted to be presumed was intent to use a weapon unlawfully. The Court of Appeals interpreted section 265.15(4) to support a finding of this mens rea element even in cases in which there was no evidence supporting a finding of intent other than the predicate fact of possession.

In light of the above, the Court of Appeals may need to address the constitutionality of Penal Law  § 265.15(4) in a future case.


Case Divides Court on Criminal Defendant’s Right to be Present at All Stages of Trial

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On June 10, the New York Court of Appeals issued a divided opinion in People v. Rivera regarding a criminal defendant’s right to be present during any supplemental instructions the trial court may give to even a single member of the jury. Defendant Rivera was charged with murder and illegal possession of a weapon. While the jury was deliberating, the trial judge informed the attorneys that juror number 11 requested to speak with the court, and the attorneys consented to the judge’s meeting with the juror, with no one else present.

The judge then had a colloquy in the robing room with the juror, who it turned out, wanted further guidance on “imminent danger,” relating to the defendant’s argument that he killed in self-defense. After the colloquy, the judge informed the attorneys and defendant about the meeting and told them that a transcript of the colloquy was available for review. Neither counsel requested a reading of the transcript.

The jury acquitted on the murder charge but found the defendant guilty of the weapons charge. On appeal, the Second Department reversed the conviction on the weapons charge because the defendant was not present during the court’s colloquy with juror number 11.

A majority of the Court of Appeals affirmed the Second Department’s decision and agreed that holding this colloquy in the absence of the defendant was – similar to the recent People v. Walston decision– a violation of CPL § 310.30 and a “mode of proceedings error” that did not require an objection in order to be raised on appeal.

Rivera was a 4-3 decision. Judge Abdus-Salaam wrote an extensive and vigorous dissenting opinion, in which Judges Read and Smith joined. The dissenters opined that, given the facts of the case and the purpose of the presence rule,

the trial court committed a de minimis violation of defendant’s right to be present rather than a mode of proceedings error.

The dissenters cautioned that

[u]nder the majority’s holding, a conscientious defense counsel has every reason to encourage a trial court to conduct insignificant proceedings in the defendant’s absence, knowing that the court’s actions will not meaningfully affect the jury’s consideration of the case and will provide a guaranteed reversal of a conviction on appeal.

The Rivera majority took a strong stand on the “absolute right” of a criminal defendant to be present during all instructions a court provides to the jury. On the other hand, the Rivera dissenters raise the concern that strict application of the “mode of proceedings” doctrine may lead to situations in which defense counsel’s advocacy for the client requires counsel not to object to errors where an objection would otherwise be required.

Rivera and Walston indicate that the Court of Appeals is divided on the scope of CPL § 310.30 and the “mode of proceedings” doctrine. It seems likely that the Court will confront these issues again.