Wednesday, August 31, 2016
Guest Blogger: Rory K. Little (Joseph W. Cotchett Professor of Law, U.C. Hastings College of Law)
Almost all of the Court’s October arguments will be in criminal cases
In a somewhat unprecedented calendaring wrinkle, the entire first week of oral arguments at the Supreme Court this coming Term, and 7 of the 8 cases to be argued in all of October, are criminal-law-based cases. This is probably not intentional, but rather reflects hesitancy in certiorari consideration last Spring by an evenly-divided eight-Justice Court.
Although the Court normally opens with oral arguments on “the first Monday in October,” this Term, due to Rosh Hashanah, the Court will only issue Orders on that day. Then on Tuesday, October 4 the Court will open its argument Term by hearing two cases; and on Wednesday, three. Three of these five arguments are pure criminal cases; the other two are “civil” but arise directly from criminal prosecutions.
The next Monday, October 10, is the Columbus Day holiday, and Wednesday is Yom Kippur. So the only argument day that week will be Tuesday October 11, when the Court will hear three cases. Two of those are criminal (discussed below), and the third is Samsung v. Apple, October’s only completely non-criminal case (described briefly in the next paragraph).
That’s it for October -- eight cases which, given the Court’s slow pace in granting certiorari until late June, were all that could be fully briefed and ready for argument that “speedily.”
The lone civil case set for argument in October, Samsung Electronics v. Apple, is a “big” IP case, presenting an important question about the extent of damages available for patent infringement when the infringed patented design applies only to a “component” of a product. Oral arguments will be presented by two well-known Supreme Court “heavy-hitters” -- Kathleen Sullivan for Samsung, and William Lee for Apple.
Otherwise, the Court’s entire argument focus in October will be on criminal matters. Below are short (and undoubtedly simplified) summaries of the seven criminal cases set for argument in October, presented in the order they will be heard.
- Bravo-Fernandez v. United States (argument on Oct. 4): A somewhat complicated Double Jeopardy question, which invokes a favorite old chestnut of law professors, Ashe v. Swenson, and the “collateral estoppel” effects of related prosecutions. When jury convictions have been vacated on appeal, is retrial on those counts barred by (perhaps inconsistent) acquittals that were returned on other counts? Arguing: former Assistant to the U.S. Solicitor General Lisa Blatt (for Bravo) and Elizabeth Prelogar from the current U.S. Solicitor General’s office. (Specific arguing counsel have not yet been officially identified by the Court; these summaries present my best guesses as to arguing counsel.)
- Shaw v. United States (argument on Oct. 4): Does subsection (1) of the federal bank fraud statute require the government to prove that the defendant intended to obtain “bank-owned” property, as opposed to fraudulently obtaining assets of a customer that are held by the bank? The case is a follow-on from the Court’s 2014 decision in Loughrin v. United States. Arguing: Deputy Federal public Defender Koren Bell of Los Angeles (for Shaw); and Anthony Yang from the current U.S. Solicitor General’s office.
- Salman v. United States (argument on Oct. 5): An important insider trading case. Is the Second Circuit’s groundbreaking 2014 decision in United States v. Newman correct in holding that the government must prove “at least a potential gain [to the tipper] of a pecuniary or similarly valuable nature;” and if so, does the gift of a “tip” to a close friend or relative satisfy this “personal benefit” requirement (derived from Dirks v. SEC, 1983)? Arguing: Alexandra Shapiro of New York (for Salman), and Deputy U.S. Solicitor General Michael Dreeben.
- Buck v. Davis (argument on Oct. 5): The case presents a technical procedural question arising from a decidedly un-technical incident of racial bias in a death penalty case. Buck’s defense counsel actually elicited “expert” testimony at sentencing that Buck was more likely to be dangerous in the future because he is black – Texas now concedes that such generic race-based testimony is “always inappropriate.” So, did the Fifth Circuit erroneously deny a Certificate of Appealability from the district court’s denial of federal habeas corpus? Such a Certificate is a statutory prerequisite to allow review of Buck’s habeas corpus claim on the merits. This same case previously attracted the Court’s attention in 2011, when the Court denied certiorari at an earlier stage and five Justices joined two opinions: three Justices concurring in, and two dissenting from, the denial of certiorari. Arguing: Christina Swarns of the NAACP Legal Defense & Education Fund (for Buck); and someone from the Texas Attorney General’s office.
- Manuel v. City of Joliet (argument on Oct. 5): It is complicated to even briefly describe what question this case presents. In a §1983 civil rights complaint, filed after criminal charges against him were dropped, Manuel alleged that he was held in jail for 47 days based on false reports made by the police. Among other things he claimed damages for “malicious prosecution” after the institution of “legal process” -- and to avoid dismissal under a statute of limitations, Manuel argued that he could not legally file that claim until the prosecution against him had terminated in his favor. The central question presented is whether the Fourth Amendment, or the Due Process Clause, governs such a claim. Many federal Circuits have said Fourth Amendment, while the Seventh Circuit here said Due Process. This same question was debated, but not resolved by a majority, in Albright v. Oliver (1994) (a plurality said Fourth Amendment; Justice Kennedy joined by Thomas said Due Process), and oral argument will likely focus on the intricacies and subsequents Court statements about Albright. However, the briefs filed so far also suggest that the parties disagree about a number of preliminary wrinkles, which could sidetrack the Court at argument. Arguing: Stanley Eisenhammer of Arlington Heights, Illinois (or possibly Professor Jeff Fisher of Stanford, see the next case) for Manuel; Michael Scodro of Chicago’s Jenner & Block (and former Illinois Solicitor General and Justice O’Connor clerk) for the City of Joliet; and Assistant to the U.S. Solicitor General Ilana Eisenstein for the United States as Amicus..
- Pena-Rodriguez v. Colorado (argument on Oct. 11): After Pena-Rodriguez was convicted of three sexual assault misdemeanors, two jurors reported that during deliberations, another juror had made a number of racist statements against “Mexicans.” The question is whether the Sixth Amendment right to an “impartial jury” requires that such reports of “racial bias” during criminal jury deliberations be considered, despite Colorado’s (and many other jurisdictions’) “no impeachment” rule that generally bars use of evidence about things said or done inside the jury room to impeach a verdict. Something like this question was left open by the 2014 decision in Warger v. Shauers. Arguing: Jeff Fisher of Stanford Law School, for Pena-Rodriquez; Frederick Yarger, Solicitor General of Colorado; and Assistant to the U.S. Solicitor General Rachel Kovner afor the United States as Amicus.
- Manrique v. United States (argument Oct. 11): Is a notice of appeal -- filed after sentence and judgment (including a general restitution obligation) is imposed, but before restitution is precisely determined -- sufficient to challenge the details of the restitution award? Arguing: Paul Rashkind, Assistant Federal Public Defender in Miami (for Manrique); and Allon Kedem from the U.S. Solicitor General’s office.
* * * * *
So stay tuned for an almost “all criminal, all the time” month of arguments at the nation’s Highest Court! (And if you really want an earful, attend the “UC Hastings Annual Supreme Court Review & Preview” panel discussion, in San Francisco at Hastings on September 26, 2016.)
Tuesday, August 30, 2016
The Supreme Court decision in McDonnell v United States, decided June 27, has given several politicians whose corruption convictions are on appeal both a cause for optimism and freedom on bail pending appeal. Last week SDNY District Judge Valerie Caproni granted former New York Assembly Speaker Silver's request for bail pending appeal on the grounds that there was a "substantial question" whether the court's instruction defining "official act" passed muster in light of the narrow definition of that term announced in the later Supreme Court decision.
Judge Caproni made it clear that she had little doubt about Silver's guilt of the major accusations against him, stating, "There is no question that Silver took a number of official acts - most obviously passing legislation and approving state grants and tax-exempt financing - as part of a quid pro quo scheme." These acts would clearly fall within the Supreme Court definition of "official act." But the judge recognized that there were other acts committed by Silver that were presented to the jury by the government, such as holding a meeting or arranging an internship, that might not fall within the narrow Supreme Court definition of "official acts." The jury was thus presented with instructions which may have permitted it to find Silver guilty for actions that were not criminal even if bought and paid for.
18 USC 3143(b)(1) allows a convicted defendant to be granted bail pending appeal if, inter alia, there is "a substantial question of law or fact likely to result in (i) reversal [or] (ii) an order for a new trial...." Finding the existence of a "substantial question," despite the literal language of the statute, does not mean that the judge believes there is a likelihood of reversal, only that if there were a substantial question which if decided in the defendant's favor would bring such relief. United States v. Miller, 750 F2d 19 (3d Cir 1985). Appellate courts deal with a lot of "substantial questions" that have led to bail pending appeal, but rarely reverse trial convictions.
Here, it appears that under the instructions it was given, the jury could have convicted Silver based on acts not within the statute as limited by the Supreme Court.. But that is not the end of the analysis. The appellate court will also consider, and the decision is likely to turn on, whether the evidence is considered so strong that the jury would have undoubtedly convicted Silver under a proper charge - in other words, whether the erroneous instruction constituted "harmless error."
I hesitate to predict the outcome of the appeal. Cases of political figures, as demonstrated by McDonnell, are scrutinized by appellate courts more carefully than, for instance, cases of drug dealers. I believe it is likely, and will appear likely to the appellate court, that Silver would have been convicted upon a proper instruction. How likely is the issue. Is it so likely that the court will find the error "harmless?" What is "harmless error' is in many ways just a visceral judgment by the judges putting themselves in the role of jurors. Harmless error analysis, thus, arguably deprives an accused of his basic constitutional right to a determination by a properly-instructed jury of peers and I believe should be applied rarely.
Other factors the appellate court will probably consider include whether the defense proposed an instruction in accord with the standard set forth in McDonnell, and whether the defense specifically objected to the definition given by the trial court as too broad. Another factor that may conceivably affect the decision, although unlikely to be mentioned, is whether the judges believe the 12-year prison sentence imposed on the 72-year old Silver is excessive. And, of course, there may be other, unrelated issues raised. In any case, based on the "official act" issue issue alone, a reversal will likely not give Silver a dismissal, but only a new trial, presumably with proper jury instructions.
One lesson that lawyers - both prosecutors and defense lawyers - might learn from this situation is to be aware and up-to-date on cases for which the Supreme Court has granted cert and, if any concern issues that might arise in a pending case, to craft requests to charge in anticipation of the possible result of the Supreme Court case. Another lesson - for judges and prosecutors more than defense lawyers - is to adjourn a pending case that might be affected by a pending Supreme Court case until after that decision. A third lesson - for prosecutors - is to analyze all aspects of their prospective case and discard legally or factually questionable ones when there are strong aspects.
Monday, August 29, 2016
Things are getting personal in U.S. v. Annappareddy. I posted here last week about this District of Maryland case in which the Government ultimately admitted to having presented false evidence to the trial jury, and grudgingly joined Defendant's new trial motion--granted the next day by Judge George Russell. Now the Government has admitted to "disposal" of certain documents while defendant's New Trial Motion was pending in March 2015. Annappareddy's current trial team was not notified of the disposal until August 19, 2016, and claims, in Defendant's Motion for Extension of Time to File Motions In Limine, that some of the destroyed documents were exculpatory in nature. No court order authorized the destruction at the time it was accomplished.
The DOD/OIG Evidence Review Disposal Sheet from March 11, 2015 states that AUSA Sandy Wilkinson determined that the items in question "were not used as exhibits in trial and would not be used in future proceedings against Annaparreddy." In other words, Wilkinson acted unilaterally, apparently consulting no one on the defense team before making her decision. The Government's response to the allegation is a footnote stating in part that "in early March 2015, after the trial, the government began to clean up papers and documents not used from the Washington Blvd collection and store the trial exhibits post- trial. The government began purging the contents of several unused boxes. These were items Defendant and his own attorneys had reviewed at length and were never marked as exhibits or used in any way by them at trial. Yet they couch their complaint again in the most accusatory of tones. "
Well, yes. Destruction of potential evidence prior to final judgment on appeal is quite rare, if not unheard of, in federal criminal practice. That an AUSA would do it on her own is remarkable. The Government's Response to Annappareddy's Motions to Limit Government Evidence complains further that Annappareddy's new lawyers don't play nice in the sandbox, unlike the original trial lawyers--you know, the ones who lost after the Government presented false testimony. That's right, Ms. Wilkinson. Lawyers tend to get angry when false testimony is put in front of the jury and potentially exculpatory evidence is destroyed.
The case is far more involved, and the issues more complex, than I can do justice to here. Annappareddy has moved to dismiss with prejudice and a hearing on that motion is set for September 1. Failing that, the defense wants to limit the Government's evidence at a new trial to the evidence presented at the first trial. One thing absent from the Government's papers that I have had an opportunity to review is any recognition of the emotional, financial, and strategic harm suffered by defendants when the Government screws up, forcing a new trial. It's as if Ms. Wilkinson wants a cookie and a pat on the back for deigning to agree that Reddy Annappareddy gets to go through the whole damn thing again.
Wednesday, August 24, 2016
Criminal defense lawyers in federal courts in this nation on an average plead 35 defendants guilty for every one they take to trial. Accordingly, many criminal defense lawyers are not much more "trial lawyers" than the many big firm "litigators" who have never selected a jury or cross-examined a trial witness. However, one area in which federal defense lawyers have plenty of experience is crafting the expressions of remorse made at sentencing by virtually every criminal defendant (save those who were convicted after trial and intend to appeal and do not wish to make any sort of admission because it might later be used against them). The expression of remorse, a near uniform ritual in every federal sentencing proceeding, is made in order to ensure that the court grant a reduction in the Sentencing Guidelines level of two or three levels for "acceptance of responsibility" (USSG Sec. 3E1.1) and to demonstrate that the defendant is truly sorry and contrite for having committed criminal acts, a factor many judges consider in the sentencing determination.
To be sure, the incantation of remorse is often less than fully sincere, and the defendant is actually only sorry that he was caught and is now facing punishment. An astute defense lawyer will counsel her client that the expression of remorse should reflect his realization of and sorrow for the wrong he has done and harm he has caused to his victims and to society in general, and not only to his family and friends, and not to excuse or justify his acts, or minimize the damage. She will counsel her client not to use weak words like "regret" or stiff ones like "remorseful." Thus, it is difficult for a judge to distinguish the absolutely genuine shame and sorrow some defendants feel from the false impression of remorse others present.
Some judges do suspect or realize that the expression of remorse is not genuinely sincere, but feel that the mere expression of remorse is itself a step forward. Others, while perhaps doubtful of the defendant's sincerity, accept the expression of remorse without comment or much consideration. Some judges accept the apology at face value and credit it. Some few listen carefully and skeptically, and, if they detect a false note, sometimes comment on the defendant's lack of genuine remorse to justify, in part, a severe sentence (which they had probably decided beforehand to impose in any case). I have not heard of a judge who denied an acceptance of responsibility reduction solely because of the defendant's presumed insincerity. (I wonder whether such a determination would be upheld on appeal; I suspect, depending on the facts, that it might.)
Last week, two notable men, presidential candidate Donald Trump and Olympic swimmer Ryan Lochte (neither of course criminal defendants) made widely-publicized "apologies" of sorts. Both "apologies" would trouble a judge considering whether to credit the speakers for "acceptance of responsibility" or genuine remorse.
Mr. Trump. who in the course of his campaign has insulted the parents of a heroic soldier who died in action, a woman Fox television commentator, a federal judge of Mexican ancestry, a U.S. Senator who was a prisoner of war for five years, a disabled reporter, and, generically, Mexicans and Muslims, chose to use the word "regret" rather than "sorry" or "apologize." And his "regret" was for an inadvertent slip of the tongue, rather than a deliberate slur, and without any specificity of what statements he regretted or whom he may have harmed and no direct admission that they did harm anyone. He said, "Sometimes in the heat of debate, and speaking on a multitude of issues, you don't choose the right words or say the right thing. I have done that, and, believe it or not, I regret it, I do regret it, particularly where it may have caused personal pain."
Mr. Lochte, in a television interview and at least one social media post, presented a fictitious account of robbers in police uniforms pulling over a taxi he and fellow swimmers were in and robbing them at gunpoint. This account received widespread publicity (perhaps to Mr. Lochte's surprise)and was a great international embarrassment for Brazil, a country which with its many troubles appeared to have demonstrated competence and provided adequate safety for the Olympics. In fact, as Mr. Lochte's swim team colleagues later admitted, they were drunk, urinated on a wall, and vandalized the gas station, and that the guns were drawn by security guards who demanded they pay compensation for the damage before they left. Faced with the contradictory statements by his colleagues, Mr. Lochte then said, "I want to apologize for my behavior last weekend - for not being more careful and candid in how I described the events of that early morning." He went on to excuse himself even for that minor transgression by seemingly claiming he was victimized: "It's traumatic to be out late with your friends in a foreign country - with a language barrier - and have a stranger point a gun at you and demand money to let you leave." While Mr. Lochte did use the word "apologize," his apology minimized his misbehavior by describing it as lack of carefulness and candor rather than lying, and omitted any mention of the intoxication, urination and vandalism.
Similar "apologies" by criminal defendants would both cause scrutiny and little impress federal sentencing judges. Mr. Trump's was limited by the use of the wishy-washy word "regret." Both Mr. Trump's and Mr. Lochte's played down their own seeming misbehavior. And, both contained defenses or excuses to justify or mitigate the limited degree of impropriety they admitted. Defense lawyers should keep copies of these "apologies" to show their clients how not to do it.
Were Mr. Trump or Mr. Lochte criminal defendants who had offered "apologies," a federal judge might have some difficulty finding, even if they had pleaded guilty, that they had "clearly demonstrate[d] acceptance of responsibility for the offense." USSG Sec. 3E1.1(a).
Tuesday, August 23, 2016
In June 2016, the U.S. District Court for the District of Maryland (Judge George Levi Russell III, presiding) granted Reddy Annappareddy a new trial on the grounds that the prosecutors presented false evidence to the jury at his first trial and that the outcome might have been different without the false evidence. This ruling is part of a remarkable turnaround for Mr. Annappareddy, whose case appeared to be over after the first trial ended in December 2014.
The case is captioned as United States v. Annappareddy, No.1:13-cr-00374 (D. Md.). The prosecutors’ main allegation during the first trial was that Mr. Annappareddy’s chain of pharmacies, known as Pharmacare, committed health care fraud by billing government insurance programs for prescriptions that were never picked up or delivered. The most significant evidence that the prosecutors offered in support of this allegation was a calculation of the purported “loss” from the alleged fraud. Mr. Annappareddy’s current counsel, Mark Schamel and Josh Greenberg of Womble Carlyle, began working on the case in the spring of 2015. In September 2015, they filed a Supplement to the one-and-a-half-page Motion for New Trial filed by Annappareddy's original trial counsel. The Supplement and a Reply in support of it argued, among other things, that the prosecutors presented materially false evidence to the jury on a number of important subjects in violation of the Due Process Clause.
After many months, during which the parties took depositions of trial counsel and Greenberg and Schamel filed extensive additional briefs raising troubling issues, the Court scheduled a hearing for June 3 on Annappareddy's Motion for New Trial. On the afternoon of June 2, the prosecutors filed a letter with the Court conceding that the "inventory analysis" it presented to the jury, in an effort to prove purportedly enormous losses caused by Annappareddy, was in "substantial error", rendering its own evidence "wrong", and violative of Due Process. The Government effectively joined Annappareddy's Motion for New Trial, which was granted the next day by Judge Russell during a status conference.
Judge Russell scheduled a second trial – to last eight weeks, three weeks longer than the first trial – to begin on September 19. Last month, the Court entered an Order denying the Government's motion to delay the second trial. The Order emphasizes that the Court granted a new trial because the prosecutors presented “significant material and false testimony” at the first trial and that the delay they sought “would be fundamentally unfair” to Mr. Annappareddy.
While government admissions of error are always welcome, one of the striking things about this case has been the prosecution's reluctance to admit that the evidence it presented to the jury was not just wrong or in error--it was false.
The defense recently filed a motion calling for dismissal with prejudice. Check this space for further details. The multiple briefs filed by Greenberg and Schamel since they entered their appearances represent outstanding work.
Here are some relevant documents pertaining to the case: a partial transcript from the U.S. v. Annappareddy 6-3-16 Status Conference; Judge Russell's 7-6-16 Order Denying Gov't's Motion for Modification of Trial Schedule; and the Government's Letter to Court Conceding that New Trial is Warranted.