Category: Sixth Amendment
In United States v. Arrington, 17-4092-cr (October 18, 2019) (Lynch, Lohier, Judge Brian M. Cogan of the United States District Court for the Eastern District of New York, sitting by designation), the Second Circuit vacated Defendant-Appellant Roderick Arrington’s convictions for murder in aid of racketeering and related convictions, and remanded for a new trial, holding that he was not provided with adequate information prior to waiving his attorney’s actual conflict of interest. While defendants should have their counsel of choice, and have the right to waive most conflicts of interest, the defendant needs to have sufficient information and independent advice to make a knowing and intelligent waiver of the right to conflict-free counsel. The Court of Appeals has long policed the boundaries of this issue and Arrington will give courts and counsel further guidance about how to approach these notoriously tricky Sixth Amendment questions.
In United States v. O’Brien, the Second Circuit (Kearse, Livingston, Carney) affirmed the conviction of Michael O’Brien for importing and possessing with intent to distribute methylone and anabolic steroids. The Court held that (1) the District Court properly denied O’Brien’s suppression motion based on the fact that he was experiencing drug withdrawal symptoms at the time of his arrest, (2) the evidence at trial was sufficient to sustain O’Brien’s conviction, and (3) O’Brien failed to timely raise his defense that methylone was designated as a controlled substance through an unconstitutional delegation of Congressional legislative authority to the Attorney General and the DEA.
Circuit Affirms Conviction of Al Qaeda Member Who Claimed He Was Denied His Right to Self-Representation
On April 24, 2019, the Second Circuit issued a per curiam decision in United States v. Hausa (Kearse, Jacobs, and Hall) affirming the conviction of Ibrahim Hausa—a member of Al Qaeda known as Spin Ghul (the “White Rose”)—on charges related to his participation in attacks on United States and coalition forces in Afghanistan, which resulted in the deaths of two U.S. soldiers.
In United States v. Holcombe, 16-1429-cr, the Second Circuit (Jacobs, Leval, Lohier) resolved three open issues involving a conviction for failing to register pursuant to the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250(a). First, the Court held that the interstate travel offense at issue “began” in the state the defendant left, New York, and thus venue in SDNY was proper. Second, the Court held that any potential vagueness in a 30-day window for updating registration did not render defendant’s conviction here void for vagueness given the passage of at least 18 months. Last, the Court rejected defendant’s claim that the SORNA registration requirement violated his constitutional right to travel.
In a short summary order issued on February 9, 2018, in the case of United States v. Muir, 17-150, the Second Circuit affirmed a sentence and reminded everyone that nothing about Apprendi, Booker and their progeny changes the rule that existed even prior to the Sentencing Reform Act: uncharged and acquitted conduct can be relied upon by the district court at sentencing. This is not a violation of either the Due Process Clause or the Double Jeopardy Clause of the Fifth Amendment, nor does it violate the Sixth Amendment’s guarantee of the right to trial by jury. So long as the court finds that the relevant facts are proved by a preponderance of the evidence and do not increase either the statutory minimum or maximum sentence, there is no violation of law.
Joseph Tigano’s Ticking Clock: Circuit Reverses Conviction of Defendant Forced to Wait Seven Years for Trial
On November 15, 2017, the Second Circuit reversed by summary order the conviction of Joseph Tigano III on drug charges, determining that he had been deprived of his Sixth Amendment right to a speedy trial and indicating that an opinion would follow. This week, the court issued its opinion, detailing the “exceptional facts” that had culminated in a nearly seven-year lapse between Mr. Tigano’s arrest and his trial, despite his repeated invocation of his right to a speedy trial. Indeed, the Court stated that the pretrial detention here “appears to be the longest ever experienced by a defendant in a speedy trial case in the Second Circuit.” The Court held that that length of time, combined with other relevant factors, compelled the conclusion that his Sixth Amendment rights had been violated. Judge Pooler authored the opinion, and was joined by Judge Winter and Judge Walker.
In a summary order on January 2, 2018 in United States v. Reyes, the Court (Winter, Lynch, Droney) vacated and remanded a life sentence as procedurally unreasonable on the ground that the district court failed to properly apply a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The decision reiterates that a three-level reduction is mandatory under certain circumstances if the district court has already imposed a two-level reduction, and that the government must formally move for a three-level reduction in order to bind the court’s hands. The third point of acceptance of responsibility under the Guidelines is not a matter of grace or kindness by the district court. When a defendant is entitled to receive the third point, the district court is obliged to award it.
On Tuesday in Washington v. Griffin, 15-3831-pr (Katzmann, Kearse, Livingston), the Second Circuit affirmed the denial of a petition for a writ of habeas corpus on a Confrontation Clause challenge. At issue was whether it was proper for the New York trial court to admit DNA profile evidence without affording the petitioner, Kenneth Washington, the opportunity to cross-examine the analysts who tested his DNA. This case illustrates the special challenges faced by habeas petitioners where, as in the Confrontation Clause context, Supreme Court precedent is developing and fractured. It also reflects the Circuit’s uncertainty about the state of the law in light of a series of Supreme Court precedents. This line of authority began in 2004 with Crawford v. Washington, 541 U.S. 36 (2004), which stated a definitive rule that out-of-court statements that were “testimonial” could only be offered so long as the witness was available for cross-examination, and has continued through Williams v. Illinois, 132 S. Ct. 2221 (2012), which is far more ambiguous due to the absence of a majority opinion.
In United States v. Lyle, 15-958-cr (Raggi, Chin, Lohier), the Second Circuit covered an array of criminal procedure issues—including the Fourth Amendment concerns associated with rental car searches, proffer agreement waivers, and the admissibility of a co-defendant’s confession—in the course of affirming the defendants’ narcotics conspiracy convictions. Lyle leaves unresolved the issue of whether an unauthorized driver ever has a reasonable expectation of privacy in a rental car. It does provide, however, an important reminder of the potential pitfalls of proffer agreements and the challenges that arise when trying multiple defendants together.
Closing the Courtroom? Second Circuit Reluctantly Approves, Reminds Lower Courts to Create a Clear Record
In Moss v. Colvin, 15-2272, the Second Circuit (Katzmann, Wesley, Carney) issued a per curiam decision affirming the denial by the U.S. District Court for the Southern District of New York (Crotty, J.) of the petitioner’s writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d) (“AEDPA”). Despite the affirmance based on procedural grounds, the decision serves as a good reminder to lower courts to create a clear record when weighing a potential courtroom closure.
In Alleyne v. United States, 133 S. Ct. 2151 (2013), the U.S. Supreme Court held that the Sixth Amendment requires that any fact that increase the mandatory minimum penalty for a crime must be submitted to the jury and found beyond a reasonable doubt. Id. at 2155. Alleyne, however, noted in a footnote that it was not “revisit[ing]” the exception to this general rule for the fact of a prior conviction. Id. at 2160, n.1. Recently, in United States v. Anthony Boykin et al., Nos. 14-851-cr & 14-1033-cr (Walker J., Calabresi, J., Hall, J.), the Second Circuit also declined to revisit that exception. Although there is a certain logic to extending Apprendi v. New Jersey, 530 U.S. 466 (2000), to the fact of a prior conviction—so that any fact that increases the minimum or maximum sentence faced by a defendant must be put to the jury—this exception contained in Apprendi continues to endure.