Wednesday, December 11th, 2019

The Second Circuit issues an amended opinion in United States v. Pugh, No. 17-1889-cr, __F.3d__, 2019 WL 6708812 (Dec. 10, 2019) (“Pugh II”), a material support to terrorism case. As in the initial opinion — that was discussed in this blog on Sept. 3, 2019 — the Circuit affirms the convictions, but vacates consecutive prison sentences (totaling 420 months) as procedurally unreasonable because of the inadequate statement of reasons for the sentences.

Yesterday, the Circuit issued an amended opinion in United States v. Pugh. The initial decision issued on August 29, 2019 (United States v. Pugh, 937 F.3d 108) and was discussed in this blog. See infra, posting of Sept. 3, 2019.

The Amended Opinion reaches the same results as the initial opinion. The Circuit  (1) rules against the defendant on the marital communications privilege, Pugh II, 2019 WL 6708812 at *2-*4 ; (2) finds sufficient evidence of an “attempt” to provide material support to a foreign terrorist organization (18 U.S.C. § 2339B(a)(1)), id. at *4-*6; and (3) finds sufficient evidence of obstruction and attempted obstruction of an “official proceeding” (18 U.S.C. §§ 1512(c)(1),  (c)(2)), id. at *6-*7 ; but (4) vacates consecutive sentences totaling 420 months’ imprisonment because of the inadequacy of the Judge’s explanation for the consecutive sentences. Id. at *8-*12.

The Amended Opinion corrected an apparent factual error that didn’t impact the result. (The alleged obstructive conduct occurred at an airport in Cairo, Egypt, not Istanbul, Turkey). And there are changes in the Court’s discussion of the insufficiency of the district court’s statement of reasons. Pugh  II, 2019 WL 6708812 at *8-*12. But the Circuit again finds a procedural error because of the district court’s inadequate statement of reasons, and it remands for resentencing. Id. at *12. The Circuit also again emphasizes that “the district court must impose a sentence that is sufficient, but not greater than necessary, to fulfill the purposes of sentencing.” Id. at *12.  And “ if the court determines that a lower sentence will be just as effective as a higher sentence, it must choose the lower sentence.” Id.

Judge Calabresi again writes a strong concurring opinion concerning the dangers posed by the government’s over-charging defendants by filing obstruction of justice charges under 18 U.S.C. § 1512(c).  Pugh II, id. at *12 -*13 (Calabresi, J. , concurring).

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