Tuesday, May 3rd, 2016

Second Circuit affirms above-guideline sentence; declines to consider one IAC claim on direct review, but rejects another where record below was sufficiently developed on the point

In United States v. Pendergrass, 15-1965, the Second Circuit affirmed the conviction of Terrence Pendergrass, a former captain at Rikers Island, on one count of willfully violating the constitutional rights of an inmate, who died following the ingestion of cleaning supplies, by refusing to get him medical attention and prohibiting other guards from getting him medical attention.  Pendergrass raised three issues:  that he received ineffective assistance of counsel at trial, that the District Court improperly instructed the jury regarding willfulness and conscious avoidance, and that his above-guideline sentence was unreasonable.

With respect to the ineffective assistance of counsel claims, the Court declined to consider Pendergrass’s first claim (that Pendergrass’s attorney was ineffective because he failed to call witnesses that would have been material to the defense) because the record with respect to the witnesses’ potential testimony was insufficiently developed to be considered on direct review.  The Court did reach the merits of his second ineffective assistance claim (that his counsel was ineffective because he failed to request a Kastigar hearing during the trial).  Prior to sentencing, Pendergrass’s attorney did request a Kastigar hearing to determine whether the testimony of one government witness was tainted by information that witness had learned during an internal investigation.   The District Court denied the request for a hearing, finding the defense had waived the issue by not raising it earlier, but held that, even if the issue had not been waived, any error in admitting the questioned testimony was harmless beyond a reasonable doubt.  In consequence, the Second Circuit denied this ineffective assistance claim on the merits.

Pendergrass also challenged the District Court’s jury instructions on willfulness and conscious avoidance.  The District Court instructed the jury that to “act willfully” means to “engage in conduct voluntarily and purposely with the intent to do something the law forbids. That is to say with a bad purpose either to disobey or disregard the law,” but did not include language requested by the defense that the act be done with an evil intent.  The Second Circuit held that the use of the work “evil” in the instruction was not required and that the District Court’s willfulness instruction, taken as a whole, was a correct interpretation of the law.  Pendergrass did not challenge the conscious avoidance charge below, so the Second Circuit reviewed that charge for plain error.  Without opining on whether the District Court’s charge was proper, the Second Circuit concluded that any error would not have affected the outcome of the trial or Pendergrass’s substantial rights.

Finally, Pendergrass challenged his above-guidelines sentence as substantively unreasonable.  The District Court calculated his guideline range as 21-27 months but imposed a sentence of 60 months (which the Circuit described as both an upward departure and an upward variance).  The District Court felt the higher sentence was warranted because of Pendergrass’s “indifference and callousness,” the additional needless suffering his failure to act caused, his interference with the attempts of others to get medical attention for the inmate, and his attempt to cover up his actions after the inmate died.  The District Court also cited deterrence as an important factor in the sentence, stating “civil rights cases like this one are difficult to investigate and prosecute” and the above-guideline sentence was necessary to “let it be known that such criminal indifference and cruelty will not be tolerated.”  The Second Circuit concluded that the 60-month sentence was “within the range of permissible decisions” and affirmed.



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