Thursday, August 25th, 2016

Follow up on third opinion from August 24, 2016

Note, this is a follow up on the third of three opinions issued yesterday that we blogged about; see original teaser post here.

Hobbs Act robbery (the interstate commerce element); Rule 16 violation (late disclosure of defendant’s statement); defense counsel’s summation comment (case agent is an interested witness); sequestration of a witness (the case agent).

United States v. Hisan Lee, et al., Nos.11-2539; 11-2543; 11-2834; 11-4068 (Aug. 24, 2016) (Circuit Judges: Cabranes, Pooler, and Lynch).

A) A robbery that affects the “intrastate” sale of marijuana satisfies the interstate commerce element of Hobbs Act robbery (18 USC § 1951)

The defendants were part of a group (called the DeKalb Avenue Crew) that robbed dealers of cocaine and marijuana. Relying on the Circuit’s prior caselaw, the several defendants argued that evidence of an effect on interstate commerce was insufficient “because there was no evidence that any marijuana involved in the robberies derived from interstate commerce[.]” Op. at 11.

The Panel holds that the Circuit’s prior law — requiring some evidence of an interstate nexus when the targeted drug is marijuana — has been “abrogated” by the Supreme Court’s decision in Taylor v. United States, 136  S.Ct. 2074 (2016). Under Taylor, “a robber who affects or attempts to affect even the intrastate sale of marijuana grown within the State affects or attempts to affect commerce over which the United States has jurisdiction.” Taylor. 136 S. Ct. at 2080; Op. at 7-8, 11.  Thus, even a purely local activity involving marijuana sales falls within the class of activities that have a substantial effect on interstate commerce. Op. at 12.

“Applying Taylor,” the Panel holds that the evidence was sufficient on the interstate commerce element of the Hobbs Act counts “because, in each instance, the target was a marijuana dealer’s marijuana or marijuana proceeds (or, in one instance, cocaine or cocaine proceeds).” Op. 13. A footnote to the Opinion states: “This opinion has been circulated to all the judges of the Court prior to filing.” Id., n. 2.

B)  Late disclosure of a defendant’s statement (Fed.R.Crim.P. 16 )

During the trial — at pages 4214-4215 of the trial transcript — the case agent claimed to remember an additional statement from defendant Levar Gayle. Op. at 27. The purported statement was admitted at trial.

On appeal, the government did “not contest that the failure to disclose the statement in advance of trial violated Rule 16.” Op. at 30 [footnote omitted]. But it claimed the statement was not intentionally suppressed.  Op. at 31. The Circuit stated that, even under the government’s account — that the failure occurred because the agent had forgotten the statement and it had not been written down anywhere — its conduct “was at best negligent.” Op. at 31.

The Circuit concluded, however, that the district court’s decision to allow the statement’s admission into evidence was not an abuse of discretion, and that Gayle had not been substantially prejudiced by the admission of the statement. Op. at 29-36.

N.B. As a point of practice, Rule 16 requires the government to disclose, on the defendant’s request, the defendant’s statements made “in response to interrogation.” Fed.R.Crim.P. 16(a)(1)(A).  The Circuit notes that Gayle’s statement “as described by [the agent] was spontaneous, and not in response to interrogation by a government agent.” The Circuit stated that because the government did “not argue that it was therefore not required to disclose the statement,” it was not addressing the issue. Op. at 30, n. 7. So don’t assume that a Rule 16 request alone ensures that defense counsel has been given supposed “spontaneous” statements.

C) Restriction on the defense summation

Defendant Gayle argued he was unfairly prevented from arguing that the case agent was an interested witness, because the district court sustained an objection to counsel’s summation comment that the case agent’s “job is to obtain a conviction of the defendants on trial.” Op. at 37. The Circuit appeared to accept that counsel could appropriately argue that the case agent was an “interested witness.” But it concluded that the comment to which the objection was sustained “was not an argument that the agent was an interested witness, but rather was the inaccurate statement that a law enforcement officer’s job is ‘to obtain a conviction of the defendants on trial.’” Op. at 37.

D) Case agent’s exemption from witness sequestration

Defendant Gayle argued that the court erroneously denied his request that the case agent by sequestered during the trial: under Fed.R.Evid. 615, a court, at a party’s request, “must order witnesses excluded so that they cannot hear other witnesses’s testimony.”  The Circuit states that the case agent can come under the exception in Rule 615(b) for an officer or employee designated as the “representative” “of a party that is not a natural person.”  Thus, a district court has “discretion to exempt the government’s chief investigative agent from sequestration, and it is well settled that such an exemption is proper under Rule 615(b), deeming the agent-witness a ‘representative’ of the government.” Op. at 38-39 (citation & internal quotation marks omitted).

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