United States v. Dugan, No. 10-4248-cr (2d Cir. December 5, 2011, Walker, Katzmann, Wesley, CJJ) (per curiam) rejected the defendants’ claim that they were entitled to a jury trial for violating the Freedom of Access to Clinic Entrances Act, an offense with a maximum possible prison term of six months’ imprisonment and a maximum fine of $10,000. The circuit held that the fine amount did not make this otherwise petty offense “serious” for the purposes of the Sixth Amendment right to a jury trial, even though it is possible that a very large maximum fine might implicate the Sixth Amendment.
Wednesday, January 4th, 2012
Several Interesting per curiams rounded out 2011:
In United States v. Steppello, No. 10-4527-cr (2d Cir. December 23, 2011) (Jacobs, Cabranes, Wesley, CJJ) (per curiam) the court reversed a Northern District order granting suppression of cocaine seized from the defendant’s person when arrested, and, later, from his home pursuant to a search warrant, and his post-arrest statements. The district court had found that the initial arrest of the defendant was not supported by probable cause, and that everything else was a tainted fruit. But the circuit found “significant errors” in the district court’s assessment of the evidence. First, it “failed to examine the totality of the circumstances, and instead, considered individual facts in isolation.” Second, the court “failed to evaluate the facts in light of the training and experience of the arresting agents.” The district court also erred in discounting the reliability of information provided by an otherwise untested informant and in so doing “employed an incorrect legal standard.” The informant was a participant in the crime, gave the information to the agents in person after they had caught him red-handed and hence “was motivated to be truthful to receive leniency.” His information was also “specific and corroborated.”
The circuit also, interestingly, remanded to a different judge. This judge had made nearly identical errors in an earlier case, which resulted in a published opinion reversing him. And yet, when the government pointed out that opinion in a motion to reconsider, the district court “denied the motion without comment.” These circumstances “might reasonably cause an objective observed to question” the judge’s “impartiality.”
In Rivera v. Cuomo, No. 10-221-pr (2d Cir. December 16, 2011) (McLaughlin, Pooler, Parker, CJJ) (per curiam), the court did a highly unusual about-face. Back in August, the same panel granted Rivera’s habeas corpus petition, holding that the district court, which denied relief, had erred in its application of New York State “depraved indifference” law, and that the evidence was legally insufficient. With this per curiam, on the state’s petition for rehearing, the panel “after much reflection,” changed its mind. A supervening Supreme Court case, Cavazos v. Smith, 132 S.Ct. 2, 5 (2011), stressed the federal courts’ obligation to defer to state courts and juries in habeas cases. Here, the panel, looking at the state court outcome with greater deference, concluded that the evidence, while “slim,” was sufficient.
United States v. Leon, No. 10-4090 (2d Cir. November 23, 2011) (Jacobs, Wesley, CJJ, Sullivan, DJ) (per curiam) closed an open question on an interesting, if infrequently occurring, supervised release question. On September 13, 1994, Congress enacted 18 U.S.C. § 3583(h), which expressly authorizes district courts to impose a new term of supervised release to follow the prison sentence imposed on a supervised release violation. For old-law cases, like this one, the authority to impose post-imprisonment supervised release on a supervised release violation is governed by Johnson v. United States, 529 U.S. 694 (2000). Johnson held that, while there is no statutory authority for a new term of post-imprisonment supervision in old-law cases, some supervised release can still be imposed because the remainder of the original term of supervised release survives its revocation. Here, despite the language of Johnson, the circuit upheld a post-imprisonment term of supervised release that was longer than the remainder of the original term. The court relied on the “clear import” of the old-law statute, which was to “deny credit with respect to the entire term of supervised release regardless of how the court allocates that term between imprisonment and supervised release.” It also relied on the one of “purposes of release on supervision,” which is to keep an eye on defendants who need supervision the most. To the circuit, a defendant who has violated the terms of his supervision clearly needs supervision: “no prisoner needs it more than one who has already tried it and failed.”