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Missing Texts, Unfair Trial: Second Circuit Remands Case for Possible Brady Violations and Sentencing Irregularities

In United States v. Djibo, the Second Circuit vacated and remanded a judgment of conviction entered in the Eastern District of New York (Johnson, J.) following the defendant’s trial on charges arising from an international heroin-smuggling conspiracy.  In a summary order by Judges Sack, Hall, and Droney, the Circuit concluded that errors had affected both the trial and the sentencing, and reassigned the case to a new judge on remand.

The Circuit first concluded that the district court had abused its discretion in certain pre- and post-trial rulings, and that the defendant, a Mr. Adamou Djibo, may have been prejudicially deprived of his right to review exculpatory evidence as a result.  The panel noted that the Government had not produced its key witness’s cellphone records—which amounted to over 8,000 pages of material including emails and text messages, mostly in Swahili—until the eve of trial.  When Djibo requested a short adjournment of trial so he could review the records, the district court allowed him only one day.  After Djibo was convicted, his counsel requested resources under the Criminal Justice Act (“CJA”) to retain a Swahili translator for the records so that he could use them to support his Rule 33 motion for a new trial.  The district court, however, never made any ruling on that application. 

On appeal, the panel agreed with Djibo that this sequence of events may have deprived him of his Brady rights, though it could not determine that with certainty because the records remained untranslated.  It also agreed with Djibo that the district court’s failure to rule on the CJA application constituted an abuse of discretion.  Accordingly, it remanded “for the district court to provide Djibo resources for a Swahili translator, reasonable time to accomplish a thorough review of the records with the assistance of the translator, and the opportunity, if he then chooses, to renew his Rule 33 motion” for a new trial based on a Brady violation.  The issue of how and when to authorize the expenditure of CJA funds for investigators and translators is being taken up by the Ad Hoc Committee to Review the Criminal Justice Act Program, which is chaired by Judge Kathleen Cardone of the Western District of Texas.  It is possible that the Committee will offer some recommendations about how the current process might be improved.

The panel also found that the district court had committed errors when imposing Djibo’s sentence.  First, it concluded that the district court’s Order of Forfeiture had purported to hold Djibo jointly and severally liable for both his own conduct and that of his co-conspirators, a practice that is foreclosed by the Supreme Court’s recent decision in Honeycutt v. United States, 137 S. Ct. 1626 (2017), which makes clear that orders of forfeiture must be limited to the defendant’s personal ill-gotten gains.  (Here is a more comprehensive discussion of the Honeycutt decision and its implications.)  This is the second time in the past month that the Circuit has reversed a forfeiture order on this basis (see our discussion of the first such case here). 

Second, it determined that the district court’s sentence of 293 months’ imprisonment was “procedurally unreasonable,” because the district court had failed to make clear either its initial Guidelines calculation or the basis for any departures from that calculation.  Among other defects in this regard, it noted that the district court had purported to adopt the Presentence Investigation Report (“PSR”) sentencing recommendation in full, but then had departed from the Guidelines range set forth in the PSR with no explanation.  The Court stressed the usefulness of the district court’s explanation in “decipher[ing] what factors contributed to the district court’s departure from the Guidelines,” citing to United States v. Dorvee, 616 F.3d 174, 180 (2d Cir. 2010) (requiring a “sufficiently compelling” justification to support “the degree of the variance”).

In light of all these issues, not only did the panel remand for further proceedings and potential renewal of the motion for new trial, but it also granted the defendant’s application to have the case assigned to a new judge.  Although the panel did not conclude that the district court had acted with any “bias or prejudice,” it concluded that the various “irregularities” that had occurred in the district court warranted reassignment to “preserv[e] the appearance of fairness.”  This is typical of the cases in which the court elects to reassign a matter on remand.  It is ordinarily not based on actual bias, and the distinguished district judge here showed no bias.  Still, the Court felt it better for all concerned to allow a different member of the bench to see this prosecution to completion.  See, e.g., Cullen v. United States (reassigning to a different judge owing to a concern that a member of the public unaware of the district judge’s “deserved reputation for fairness[] would wonder whether the Judge had permitted his prior ruling to influence his second decision”).

Read more coverage of the Second Circuit’s recent decisions relating to criminal Trials and Sentencing.  

-By Jane Metcalf and Harry Sandick