Tuesday, June 17th, 2014

Court Denies En Banc Review — By One Vote

United States v. Taylor, No. 11-2201-cr(L) (2d Cir. May 23, 2014), available here

The saga of this Hobbs Act prosecution continues. In December 2013, a panel of the Court (Judges Kearse, Jacobs, and Carney) issued an opinion, available here, vacating the three defendants’ convictions relating to a conspiracy to rob a pharmacy in Manhattan. The panel ruled that the post-arrest statements of one of the defendants, Taylor, were not voluntary because he was “largely stupefied” when he made them and because his interrogators took undue advantage of his condition. Because the error was not harmless as to Taylor or as to the other defendants, the Court vacated the convictions of all three defendants. The Court found it unnecessary to decide whether the admission of Taylor’s statements against his co-defendants violated Bruton v. United States, 391 U.S. 123 (1968). 
In March 2014, the panel granted the government’s petition for panel rehearing, withdrew its original opinion, and issued a revised opinion, available here. The new decision once again vacated all three defendants’ convictions, and again found Taylor’s post-arrest statements involuntary. But this time the panel reached the Bruton issue and resolved it in favor of the co-defendants. 
That brings us to the latest development: On May 23, 2014, the Court issued an order denying rehearing en banc. The vote was seven-to-six against en banc review. The seven judges against rehearing were Judges Katzmann, Jacobs, Pooler, Lynch, Chin, Lohier, and Carney. 
The remaining six active judges (Cabranes, Raggi, Wesley, Hall, Livingston, and Droney) dissented from the denial of rehearing en banc. The principal dissent was written by Judge Raggi and joined by the other five dissenters. Judge Cabranes also wrote a separate dissent speaking only for himself.
The dissent’s main contention was that the panel’s conclusion — that Taylor’s post-arrest statements were involuntary — not only defies “common sense,” but also the Supreme Court’s decisions in Dickerson v. United States, 530 U.S. 428 (2000), Colorado v. Connelly, 479 U.S. 157 (1986), and Oregon v. Elstad, 470 U.S. 298 (1985). The dissent further argued that the panel misapplied Bruton in its revised opinion. 
Interestingly, neither of these alleged errors was raised in the government’s rehearing petition. The government’s rehearing petition did not seek en banc review of the panel’s conclusion regarding the involuntariness of Taylor’s post-arrest statements. The sole basis for requesting rehearing was the government’s contention that the panel could not grant a new trial to the co-defendants without finding a Bruton violation, a finding the panel did make in its revised opinion. Nor did the government ever seek rehearing en banc on the ground that the panel misapplied Bruton in its revised opinion.
In any case, without a majority of the active judges favoring en banc review, the panel’s revised opinion stands.
[Disclosure: Federal Defenders of New York, Inc., represents one of the defendants, Samuel Vasquez, in this case.] 
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