Tagged: appeal

Mens Rea: Does “Deliberate Indifference” Satisfy the Requirement of Knowledge?

Can indifference, even if deliberate, satisfy a criminal statute’s requirement of knowledge? This is the issue raised by the defendant in United States v. Clay, in which a petition for rehearing and rehearing en banc is presently pending. The defendants in Clay were prosecuted  under 18 U.S.C. § 1347(a), which states, in relevant part:

(a) Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice—
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody of control of, any health care benefit program,

in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both. If the violation results in serious bodily injury (as defined in section 1365 of this title), such person shall be fined under this title or imprisoned not more than 20 years, or both; and if the violation results in death, such person shall be fined under this title, or imprisoned for any term of years or for life, or both.

(b) With respect to violations of this section, a person need not have actual knowledge of this section or specific intent to commit a violation of this section. 

At trial, the court charged that the defendants could be found guilty based on “deliberate indifference.” The defendant were convicted and the conviction was affirmed by the Eleventh Circuit. See the Brief for Amici Curiae NACDL, Twelve Criminal and Business Law Professors, the Washington Legal Foundation and the Cato Institute listed below.

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NYCA Addresses the Mode of Proceedings Error Doctrine

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

The “mode of proceedings error” doctrine created by the NY Court of Appeals recognizes that some errors committed by a criminal trial court are so harmful to the integrity of the process that they are subject to appellate review even if defense counsel did not lodge an objection. The doctrine’s procedural safeguard is powerful because when it is held to apply, harmless error analysis is barred and the conviction must be reversed.

In a decision issued on June 7, 2016, the Court of Appeals had to determine whether a trial court committed such error when it accepted a jury’s guilty verdict on a charge of first-degree gang assault before the court had responded to certain notes from the jury requesting review of a court instruction and of testimony by a witness. On appeal, a divided panel of the Fourth Department found this to be a mode of proceedings error requiring reversal and a new trial. People v. Mack, 117 A.D. 3d 1450,  984 N.Y.S.2d 768 (App. Div. 4th Dep’t 2014). The People sought review by the Court of Appeals.

At issue was NY Criminal Procedure Law § 310.30’s requirement that a trial court receiving a note from a deliberating jury must provide counsel with notice of the content of the note and provide a meaningful response to the jury. Also at issue was the scope of the Court’s precedents in cases such as People v. O’Rama, 78 N.Y.2d 270, 579 N.E.2d 189, 574 N.Y.S.2d 159 (1991), in which the Court applied the mode of proceedings doctrine in the context of a court’s response or failure to respond to juror requests for further instruction.

In People v. Mack, it was undisputed that the trial court fulfilled its responsibility to inform counsel of the contents of the jury’s notes. The Court’s precedents also made clear that a court’s failure in that responsibility would constitute a mode of proceedings error. Six judges of the Court of Appeals considered that the issue presented was a new one: whether a mode of proceedings error was committed by a trial court that, although properly informing counsel of the content of jury notes, erred by not providing a response to the jury before accepting the verdict.

A 6-1 majority of the Court found against the defendant. The majority’s review of the Court’s precedents persuaded it that in the juror note context the mode of proceedings doctrine did not apply when, as in this case, defense counsel had sufficient notice, information, and opportunity to lodge an objection. In the majority’s view, the powerful force of the doctrine should not be deployed in such circumstances and where the thought of its applicability might provide perverse incentives to defense counsel to forego objecting.

Judge Rivera authored a forceful dissent. She disagreed with the majority’s statement that the issue presented was novel. In her view, a proper reading of the Court’s precedents indicated that the trial court committed a mode of proceedings error when it defaulted on its “core responsibility under CPL § 310.30” by accepting the jury’s verdict without first responding to its questions “or without alternatively asking the jurors whether they had withdrawn their requests.” With respect to the majority’s comment about perverse incentives, Judge Rivera argued that

[d]efendant’s preference or acquiescence is irrelevant because the duty [to comply with CPL § 310.30] works on the court, not the defendant.

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Supreme Court Remands Case for Re-sentencing on Batson Violation

On May 23, 206, the Supreme Court decided Foster v. Chatman, No. 14-8349 (U.S. 2016), a thirty-year old death penalty case raising Batson claims of racial selection of the trial jury. The court remanded the case, presumably for a new trial. You can read an analysis by Professor Bennett Gershman in his latest titled How Prosecutors Get Rid of Black Jurors

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#SCOTUS Enlarges Review of Use of Incorrect Guidelines Range as #PlainError

Last week, in Molina-Martinez v. United States, the Supreme Court rejected a narrow interpretation of the plain error doctrine that would require a defendant sentenced under the wrong guideline range, but whose sentence would have been within the proper range, to show “additional evidence” beyond the plain error, that the error violated his substantial rights.

In Molina-Martinez, the defendant pled guilty to a crime that appeared to have a guidelines range of 77-96 months and he was sentenced to 77 months. On appeal, he argued for the first time that the  District Court miscalculated his Guidelines range, which should have been 70 to 87 months. The Fifth Circuit agreed but held that the defendant could not satisfy the plain error requirement (F.R.Cr.P. Rule 52(b) – an obvious error that affects “substantial rights.”).  It reasoned that a defendant whose sentence falls within what would have been the correct Guidelines range must, on appeal, produce “additional evidence” to establish beyond the mistake itself to show that the error affected his sentence.  Based on earlier Fifth Circuit caselaw, if a defendant’s ultimate sentence falls within what would have been the correct guidelines range, the defendant must identify “additional evidence” to make that showing.

Most Courts of Appeals have adopted a less demanding standard under which a district court’s mistaken use off the wrong guidelines rang can itself serve as evidence of an effect on substantial rights, without more. See, e.g., United States v. Sabillon-Umana, 772 F.3d 1328, 1333 (10th Cir. 2014) (application of an erroneous Guidelines range “‘runs the risk of affecting the ultimate sentence regardless of whether the court ultimately imposes a sentence within or outside’” that range) (emphasis added); United States v. Vargem, 747 F.3d 724, 728–29 (9th Cir. 2014); United States v. Story, 503 F.3d 436, 440 (6th Cir. 2007). These courts recognize that, in most cases, when a district court uses an incorrect range, there is a reasonable probability that the defendant’s sentence would have been different without the error. The Supreme Court agreed, and rejected the “additional evidence” requirement for plain error review.

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Recent #NYCA Decisions: Ineffective Assistance of Counsel

The New York Court of Appeals has been busy on the criminal procedure front. Last month it decided several cases, including three that addressed the issue of ineffective assistance of defense counsel. In one, the court held that counsel had been ineffective in failing to move to suppress a gun. In the second and third, the Court held that counsel had not been ineffective in 1) failing to move to reopen a suppression hearing when a detective changed his testimony at trial and 2) failing to object to inflammatory and improper gender based summation comments. The Court essentially found strategic justifications for counsel’s failures, but in split decisions.

In People v. Rashid Bilal, the defendant was charged with Criminal Possession of a Weapon in the Second Degree under N.Y. Penal Law § 265.03(3), based on allegations that he possessed a gun. Without any strategic or other reason, defense counsel failed to move to suppress the gun. The Court held that defense counsel’s failure amounted to ineffective assistance and remanded for a suppression hearing. This is a fairly clear-cut case.

In People v. Roy Gray, where the defendant was charged and convicted of murder in the second degree under N.Y. Penal Law § 125.25(1), the Court reached the opposite conclusion and held that it was not ineffective assistance for the defense lawyer to decline to move to reopen a suppression hearing. Judge Stein, joined by Judge Fahey, dissented.

In Gray, the defendant had moved to suppress three statements: the first, when he had told police he was going to take the blame for the murder because his brother had spent too long in jail, and a second, in writing, after additional Miranda warnings were given, inculpating himself. Both statements were suppressed because of the failure to give adequate Miranda warnings. The People appealed and the Appellate Division reversed, finding that the written statement was admissible because it was attenuated from the initial failure to give adequate Miranda warnings.

At trial, notwithstanding the suppression of the first statement, the defense stipulated that the first statement could be admitted on the theory that it cast doubt on the truthfulness of the written confession. Then, at trial, the detective who had taken the defendant’s statements changed his testimony in a way that raised the issue whether the second statement was a continuation of the first, unlawful interrogation. That is, he testified at trial  for the first time that after the first statement he continued to talk with the defendant for an hour during which time the defendant made a second statement that inculpated him – in substance the same as the subsequent written statement. Even though this testimony would have totally undermined the Appellate Division’s reasoning that the written statement was attenuated from the initial failure to give Miranda warnings, defense counsel did not move to reopen the suppression hearing; instead, he moved to have the detective’s testimony limited to what he had testified to at the hearing – that the first statement was limited to defendant’s intention to falsely confess. The Court recognized that this was a strategic decision, intended to undermine  the impact of the second and written confession, which counsel apparently believed would not be suppressed despite the change in testimony. The Court of Appeals held that this did not constitute ineffectiveness but was instead a reasonable strategic decision.

Judge Stein, in dissent, disagreed. As he saw it, the detective’s altered trial testimony undermined the basis for the Appellate Division’s decision that the second statement was attenuated. Given that the People had stipulated they did not have enough evidence to go forward without the confessions, and given that the People agreed that the written statement “was the culmination of the prior unwarned statements,” the failure to move to reopen the suppression hearing as to the second statement, and the decision to instead rely on the first statement to cast doubt on it – constituted ineffective assistance.

The dissent also disagreed with the majority’s conclusion that defense counsel had not been ineffective in failing to move to reopen because the issue was not a “winning” suppression argument. The dissent agreed that there could be no ineffectiveness where counsel failed to make a motion that has little or no chance of success, here, where “counsel fails to raise a close suppression issue,” that is so important to the proof of his client’s guilt, ineffectiveness is established. It was undisputed that the original Miranda warnings were deficient; there was now new evidence that the police had continued to question the defendant between the first and second statements and that there was “no pronounced break” between the two. Moreover, the decision was not a reasonable strategic one because defense counsel had “nothing to lose and everything to gain” by reopening the suppression hearing. All of the defendant’s statements would have been suppressed.

Finally, in People v. Urselina King, where the main issue argued on appeal concerned whether the court had improperly discharged potential jurors on hardship grounds, the Court affirmed the burglary in the first degree and assault in the second degree convictions under N.Y. Penal Law § 140.30(3) and N.Y. Penal Law § 120.05(2) respectively. With respect to ineffective assistance, the Court held that defense counsel was not ineffective for failing to object to “inflammatory gender-based” statements in the prosecutor’s summation. The effect of the statements was that the viciousness of the attack in question meant it could only have been done by a woman and, at the same time, that the victim, a different kind of woman, was more believable because she filled the “female victim” stereotype. Although finding that this double-barreled gender stereotyping was inflammatory and irrelevant, the majority concluded that the prosecutor’s remarks “were so over the top and ridiculous that defense counsel may very well have made a strategic decision not to object…out of a reasonable belief that the jury would be alienated by the prosecutor’s boorish comments.” The Court concluded that, on the whole, defense counsel rendered effective assistance.

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