Second Circuit Review
United States v. Lutchman—Appellate waivers, like other contracts, need consideration
In United States v. Lutchman
, 910 F.3d 33 (2d Cir. 2018), the Second Circuit held that an appellate waiver would not be enforced because there was no consideration for the agreement. Applying contract principles, the court concluded that such an agreement is invalid where one of the three core elements of a contract (offer, acceptance and consideration) is missing.
United States v. Vinas—Discovery violation the basis for reversal
In United States v. Vinas
, 910 F.3d 52 (2d Cir. 2018), the Second Circuit reversed a conviction in which the government failed to turn over all aspects of a defendant’s statements to authorities. In Vinas
, the defendant was prosecuted for various drug offenses based on his possession of a bottle of mamajuana (a spiced rum beverage) that in fact concealed a quantity of cocaine. Prior to trial, the government produced a statement by the defendant in which he told customs inspectors that he got the bottle from a store in the Dominican Republic. Thereafter, when questioned further, he told inspectors he got the bottle from a friend. This discrepancy was emphasized by the government to show consciousness of guilt at trial. At trial, the government made the first statement seem like it was made at the “initial” inspection at customs. In actuality, the statement was made after the defendant had been taken to an interview room and was arguably in custody. Because counsel thought the statements had been made out in the open during the primary inspection, he did not move to suppress. Once Vinas’ attorney found out at trial, he objected and moved for a new trial, a motion that was denied.
A divided panel, with Judge Hall dissenting, reversed. Under United States v. McElroy
, 697 F.2d 459, 464 (2d Cir. 1982), the Second Circuit requires that the government “disclose the substance not only of the incriminating post-arrest oral statements which it intends to use at trial, but also the substance of the defendant's responses to any Miranda
warnings which preceded the statements.” This is so even though the government may not intend to use the contents of a Miranda
warning in its case (nor can it under Doyle v. Ohio
, 426 U.S. 610 (1976) (holding that prosecutors are prohibited from referring at trial to a defendant's invocation of Miranda
rights for purposes of impeachment)). The rule set forth in McElroy
arguably expands the government’s Rule 16 obligations because the Rule only requires production of statements that the government intends to use at trial. In Vinas
, however, the Court reaffirmed that the circumstances of the interrogation also must be accurately produced. Otherwise, counsel does not have an opportunity to file a suppression motion.
Notably, the Second Circuit rejected the argument that Vinas was not really prejudiced because he, of course, knew the circumstances of his own statements and could have informed his counsel. Such an argument shifts the government’s Rule 16 burden to the defendant and the Vinas
Court accurately noted that criminal defendants often mistrust their attorneys who they do not choose, believe their attorney will best defend him/her if the attorney is ignorant of certain facts, or simply do not understand the legal significance of certain facts. 910 F.3d at 61 (quoting McElroy
, 697 F.2d at 465). Nor was there a requirement that the Miranda
motion have been likely to be granted. Instead, if the statement was important to the government’s case and the motion was not frivolous, reversal was required.
United States v. Sawyer—Second Circuit panel struggles with child pornography sentence and law of case doctrine.
In United States v. Sawyer
, 907 F.3d 121 (2d Cir. 2018), the Second Circuit affirmed a marginally lower, but still “barbaric” 25-year sentence imposed after remand. Originally, the Court vacated a 30-year sentence for failure to adequately consider certain 18 U.S.C. § 3553(a) factors. United States v. Sawyer
, 672 F. App’x 64-65 (2d Cir. 2016). On remand, the district court expressly disagreed with the Second Circuit’s decision and offered that “surely . . . anyone reviewing the sentence would conclude, as I did, that it was substantively reasonable.” Sawyer
, 907 F.3d at 124. The district court judge did, however, cut the sentence by 5 years for post-offense rehabilitation.
After resentencing, in an opinion authored by Judge Crawford, the Second Circuit originally vacated the new sentence for failure to comply with the Court’s mandate. United States v. Sawyer
, 892 F.3d 558, 559 (2d Cir. 2018). There’s more. Judge Jacobs dissented from the decision and the opinion was withdrawn sua sponte some six weeks later and the sentence affirmed. An opinion affirming the sentence followed some months later, now with Judge Crawford dissenting. United States v. Sawyer
, 907 F.3d 121 (2d Cir. 2018).
Although the majority thought it “odd and regrettable” that the district court rejected its opinion, Judges Jacobs and Pooler ultimately affirmed a sentence that they concluded was “barbaric without being all that unusual.” Id
. at 126.
By contrast, Judge Crawford (now dissenting) framed the matter as one of basic court governance: “Following an appellate court’s determination that a sentence is substantively unreasonable because it fails to give weight to specific § 3553(a) factors, is the district court free on remand to take a second look and decline to change its original position?” Id
. at 129 (Crawford, J., dissenting). Judge Crawford thought not: “we have already considered the principal reasons offered at both sentencings and found them to be insufficient to support the original sentence. That sentence has been re-imposed—reduced only by an unrelated factor not previously available. By failing to enforce its original mandate, the majority denies the defendant a sentence that fairly addresses the reasons which we previously identified as critical to a just sentence.” Id
. at 130. Stay tuned, a petition for panel rehearing or rehearing en banc was filed in December.
United States v. Demott—Second Circuit reaffirms limits on background hearsay testimony
In United States v. Demott
, 906 F.3d 231 (2d Cir. 2018), the Second Circuit rejected an as applied vagueness challenge to the Analogue Act, 21 U.S.C. §§ 802(32)(A) and 813. The Court also reiterated that there are limits to the admissibility of background hearsay testimony. In Demott
, a detective described the nature of the information an informant provided that led to his involvement in the case. Id
. at 247. In an earlier case, the Second Circuit explained that the admissibility of background hearsay testimony turns on “whether the probative value of this evidence for its non-hearsay purpose is outweighed by the danger of unfair prejudice resulting from the impermissible hearsay use of the declarant’s statement.” United States v. Reyes,
18 F.3d 65, 70 (2d Cir. 1994). The hearsay testimony in Demott
should not have been admitted because the probative value of the testimony “was practically nil, while the prejudice flowing from the jury’s consideration of the content of the informant’s tip was substantial and obvious.” 906 F.3d at 248.
United States v. Barrett—circuit split deepens on § 924(c)’s residual clause
The Circuits are divided on whether 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague and the Supreme Court will review the issue in United States v. Davis
(18-431). In United States v. Barrett
, 903 F.3d 166 (2d Cir. 2018), the Second Circuit joined those courts that concluded it is not unconstitutional. The Barrett
Court held that § 924(c)(3)(B) is not unconstitutionally vague because “factfinding as to the violent nature of the predicate offense and the risk of physical force in its commission can be made by the trial jury in deciding the defendant’s guilt, thus avoiding both the Sixth Amendment and due process vagueness concerns at issue in Dimaya
.” The Court held that the fact that Barrett’s jury did not make a finding regarding force was harmless error in light of the specific facts of his case. The Circuit further held that a Hobbs Act Robbery conspiracy is a crime of violence because the object of the conspiracy, the Hobbs Act Robbery, is a crime of violence.
United States v. Santillan—Second Circuit upholds extended vehicle stop based on nervousness and vague answers
In United States v. Santillan
, 902 F.3d 49 (2d Cir. 2018), the Second Circuit rejected a claim that officers lacked reasonable suspicion to continue a traffic stop under Rodriguez v. United States
, 135 S.Ct. 1609 (2015) (holding that officers must have reasonable suspicion of criminal activity to prolong a traffic stop beyond the time necessary to deal with any traffic infraction). Although nervousness is an oft-criticized reasonable-suspicion factor, the Santillan
Court held that the officer had reasonable suspicion based on the vehicle occupants’ “nervous behavior, illustrated by their avoidance of eye contact . . . and visibly shaking hands, coupled with their inability to provide a clear answer as to where they had come from.” 902 F.3d at 57.
Judge Pooler dissented from the panel’s reasonable suspicion conclusion because “[t]his case is a clear example of officers acting on a ‘mere hunch.’” Id
. at 63 (Pooler, J., dissenting). Judge Pooler argued that upholding a stop in these circumstances “may winnow the protections of the Fourth Amendment to a near nullity whenever an officer deems an individual simply ‘too nervous.’” Id