Second Circuit Updates – April 15, 2016

No published opinions today, only two summary orders: a direct appeal and a collateral (§2255) challenge.

UNITED STATES v. JAMES PASS, No. 15-1446-CR (Summary Order of April 15,  2016)(Kearse, Cabranes, and Chin).  This summary affirmance is interesting for the Circuit’s  criticisms of how the  judge conducted this sentencing in the E.D.N.Y.

Defendant Pass claims three categories of errors occurred at his E.D.N.Y. sentencing.  He claims the district court  (1) committed several procedural errors; (2) erroneously allowed him to proceed pro se; and (3) abused its discretion in refusing to adjourn the sentencing. Although the Circuit affirmed the top-of-the-range 71-month sentence (for a felon-in-possession conviction),  it expressed concern about the judge’s handling of the sentencing.

1. Procedural reasonableness of the sentencing.  The defendant claims that the judge failed a) to calculate the Guidelines range; b) to rule on objections to the presentence report;  c) to consider the statutory sentencing factors (18 U.S.C. §3553(a)); and d) to adequately explain the chosen sentence, “including the special condition of curfew for six months” of the term of supervised release. (emphasis added).  The Circuit reviewed these claims under the plain error standard because there had been no objection below.The Circuit was critical of the sentencing proceeding.  It stated: “it would have been preferable for the district court to have provided a fuller discussion of some of the issues at sentencing.” And “it would have been preferable for the district court to have explicitly adopted a Guidelines calculation and ruled on any objections[.]” The Circuit also noted the district court “did not give specific reasons for imposing a curfew” as a special condition of supervision, “and again it would have been preferable for it to have done so[.]”  (emphasis added).The Circuit concluded that the record was nevertheless sufficiently satisfactory concerning the questions of whether the judge considered the parties’ arguments and the §3553(a) factors.  Regarding the imposition of the “curfew” condition, the Circuit concluded — in the absence of any stated reasons from the judge — that “reasons were evident from the record” because Pass had “an extensive criminal history that included nighttime criminal activity and arrests, and …had failed to comply with a curfew in the past.”

2. Pass’s representation at sentencing: Pass’s claim that the judge erroneously permitted him to proceed pro se was belied by the record, the Circuit stated, because “[i]n fact, three lawyers were present at sentencing.” (But why were 3 lawyers present for an indigent person who was being provided counsel under the CJA act? partial explanation below).

3. The judge’s refusal to adjourn the sentencing: The Circuit expressly states that, “in our view, Pass’s request for an adjournment was not unreasonable.”

The Circuit notes that the judge had appointed a second attorney to represent Pass and “[t]here was a lack of clarity as to the role of” this second attorney (“Attorney 2”),  because the judge “had appointed her to represent Pass and refused to grant [Attorney 1’s] request to be relieved.” (This explains why 2 of the 3 lawyers were present at sentencing). Moreover, Attorney 2 had not been able to meet with Pass before the sentencing. “And Pass claimed at sentencing that he had not been able to review the PSR with his attorneys.”

The Circuit indicates that the judge should have granted the adjournment: “In light of these circumstances, it would have been advisable for the district court to have allowed a brief adjournment or even a short recess for counsel to consult with Pass about these matters.”(emphasis added).   The Court, however, concluded that the district court “did not abuse its discretion” because the case had been pending for more than a year, and Pass had some responsibility for the delay since he had twice refused to appear in court, vacillated for four months about whether to proceed pro se, and refused to meet with counsel as sentencing approached.

KEVIN ALLER v. UNITED STATES, No.  15-2050-pr  (Summary Order of April 15, 2016) (Sack,  Raggi,  and Droney)

This is an appeal from the denial of a petition for habeas corpus relief under 28 U.S.C. § 2255.  The direct appeal was affirmed in United States v. McAllister, 112 F.App’x  771 (2d Cir. 2004).   Aller had been convicted by a jury, in 2003, of conspiracy to commit murder in aid of racketereering ( 18 U.S.C. § 1959(a)); racketeering conspiracy (18 U.S.C. § 1962(c) and (d)),  the “RICO” act);  and participation in a drug distribution conspiracy (21 U.S.C. § 846).

The issues —  under the certificate of appealability issued by the district court —  were both ineffective assistance of counsel (“IAC”) claims.  The question was whether counsel was constitutionally ineffective for failing to seek a jury instruction requiring “unanimity” (1) about the particular “motive” for the §1959(a) crime; and (2)  about the specific predicate underlying the §1962(d) (RICO) offense.

The Circuit reviewed the heavy burden defendants face in presenting IAC claims, and  concluded Aller did not meet this burden.

1. Counsel’s  failure (in 2003) to request a unanimity charge on the particular §1959(a)  motive:  Section 1959(a) conditions the crime on the defendant’s intent to (i) receive something of value from, (ii) gain entrance to, or (iii) maintain or increase his or her position within a racketeering enterprise.  The Circuit stated that no case law, not then or now,  exists for the proposition that §1959(a) motives are elements of separate crimes requiring unanimity about “any single motive in particular.”  This circumstance “forecloses a conclusion that counsel’s failure to seek a unanimity instruction was objectively unreasonable.”  The Circuit’s view is that an attorney’s not pursuing an issue that has not yet been squarely decided by precedent cannot be objectively unreasonable.

2. Counsel’s  failure to request (in 2003) a unanimity charge on the specific predicates defendant agreed to commit during  the racketeering conspiracy (§1962(d)):  The Circuit again relies on the “absence of clear authority” for the instruction petitioner is arguing for, and the “‘unsettled state of  the law on this issue” at the time of trial (in 2003), to defeat petitioner’s IAC claim. (And, in any event, a review of the jury’s verdict shows that “the unanimity [Aller] argues is required was, in fact, present.)  The Circuit also notes, in a footnote, that in  2011 it rendered a decision stating that a district court’s instruction “‘requiring unanimity as to the types of predicate racketeering acts that the defendants agreed to commit’” without requiring a finding of specific predicate acts “resulted in no constitutional error.” (Summary Order at -45 n. 2)(emphasis in original)(quoting United States Applins, 637 F.3d 59, 81-82 (2d Cir. 2011)).