Deference to Prosecutorial Discretion- Is the Supreme Court signaling a Doctrinal Change?

by Soma Sengupta

Does the Supreme Court’s recent decision in Bond v US, and its questions during oral arguments in Yates v US signal a new doctrine to strengthen judicial restraints on the combination of the vast reach and severity of federal criminal law and the breadth of prosecutorial discretion? As in the Court’s buildup to the Booker decision curbing the impact of the federal sentencing guidelines, the activity in these cases may presage a doctrinal revision by the Court as to statutory reach, as interpreted by prosecutors.

Bond v US
Carol Ann Bond, in a revenge plot against her husband’s paramour, applied toxic chemicals, some obtained from her chemical manufacturer employer, and some obtained online via Amazon, on the woman’s car, mailbox and door knobs in hopes that she would develop an uncomfortable rash. The victim suffered a minor thumb burn. Bond was charged with a violation of the Chemical Weapons Convention Implementation Act of 1998, a statute enacted to implement a treaty to combat terrorism and the use of weapons of mass destruction. Bond pleaded guilty, reserving her right to assert on appeal that the statute did not reach her conduct. The Supreme Court unanimously reversed her conviction.

The court found that the broad reach of the term “chemical weapon”, defined to include any chemical that “can cause death, temporary incapacitation or permanent harm to humans or animals”, rendered the statute ambiguous. Justice Roberts, writing for the majority, concluded that this broad definition did not “constitute a clear statement that
Congress meant the statute to reach local criminal conduct” and that the court would not accept a reading of a federal chemical weapons statute that would make a violator of a parent who “considers poisoning the [children’s gold]fish with a few drops of vinegar” and “[i]n sum, the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.”

As revelatory were the Chief Justice’s remarks while announcing the opinion. “The federal government decided literally to make a federal case out of it,” he said as chuckles sounded throughout the courtroom. In summarizing his opinion (for six justices), Roberts commented that accepting the federal government’s arguments might sweep in “detergents under the kitchen sink,” “stain removers in the laundry room,” and “drops of vinegar into the goldfish bowl” and that the “minor thumb burn” suffered by Bond’s target was “a two-bit local assault” and a matter for state law enforcement.

Yates v. US
John Yates had ordered his crew to throw 72 red grouper overboard after a Florida official (working on behalf of the federal government) determined that they were smaller than the legal limit. Yates was charged with, among other crimes, violation of 18 U.S.C. §1519, a felony punishable by up to twenty years’ imprisonment. Section 1519 was enacted as part of the Sarbanes-Oxley Act in the aftermath of the Enron scandal, passed to deal with what Congress saw as a profoundly serious problem of corporate fraud. Section 1519, titled “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy,” was described in legislative reports as an “anti-shredding provision” and criminalized “knowing[ly] . . . destroy[ing] any record, document, or tangible object with the intent to impede, obstruct, or influence” a federal investigation, even one that has not yet been officially initiated. Yates was convicted and sentenced to 30 days imprisonment.

During oral arguments, the questions came hard and fast at Assistant Solicitor General Martinez. Justice Antonin Scalia noted that although Yates had only received a sentence of 30 days, he could have gotten 20 years, asking, “What kind of a mad prosecutor would…risk sending him up for 20 years?” and “Is this the same guy that brought the prosecution in Bond last term?” Justice Ruth Bader Ginsburg asked whether the Department of Justice gives federal prosecutors any guidance on what charges they should bring in a case like this. A similar statute, carrying only a five-year maximum sentence, would also apply to Yates’s case, she noted. Martinez’s response – that a manual instructs federal prosecutors to bring the charges that are most severe – drew this remark from Justice Scalia: “Well, if that’s going to be the Justice Department’s position, then we’re going to have to be much more careful about how extensive statutes are. I mean, if you’re saying we’re always going to prosecute the most severe, I’m going to be very careful about how severe I make statutes… Or how much coverage I give to severe statutes.” Mr. Martinez attempted to explain the Government’s view of the gravity of the crime, saying that Mr. Yates had disobeyed an express instruction by a law enforcement official to preserve evidence and concocted a convoluted cover-up. Justice Roberts responded “You make him sound like a mob boss or something. I mean, he was caught ” at which point he was interrupted by laughter. Roberts continued “The fish were how many inches short of permitted were the fish?” Mr. Martinez responded “The fish were it varied fish by fish, Your Honor”, drawing more laughter. In response to Mr. Martinez’ statement that the Government does not prosecute every fish disposal case, Justice Roberts commented “but the point is that you could, and the point is that once you can, every time you get somebody who is throwing fish overboard, you can go to him and say: Look, if we prosecute you you’re facing 20 years, so why don’t you plead to a year, or something like that. It’s an extraordinary leverage that the broadest interpretation of this statute would give Federal prosecutors.” Justice Samuel Alito said that government counsel was “really asking the Court to swallow something that is pretty hard to swallow,” that a statute with a potential 20-year sentence could apply “in really trivial matters” and that Justice Department policy was that it “has to be applied in every one of those crazy little cases.” When government counsel explained that the policy to charge the most serious offense applies only once the decision is made to charge at all, Justice Anthony Kennedy responded that government counsel’s position nevertheless meant that the concept of prosecutorial discretion had no substance and that the Court perhaps should no longer defer to the concept of “prosecutorial discretion” if it was open to use as in this case. Justice Breyer ruminated on the possibility of 20 years punishment for kicking down an ember to disguise an illegal campfire, or for disposing an illegally picked flower in a state park.

Conclusion
If the Supreme Court is troubled by the unfettered exercise of prosecutorial discretion in the context of broad criminal statutes, it is not alone. Eighteen criminal law professors filed an amici brief in support of Yates, as did former congressman Michael G. Oxley, co-author of the Sarbanes-Oxley Act, the Chamber of Commerce, the National Association of Criminal Defense Lawyers, and many others. In 2013, Congress held hearings titled “Over-Criminalization of Conduct/Over-Federalization of Criminal Law”and “Reining in Overcriminalization”.

Much of the amici briefs urged a return to the doctrine of strict construction of criminal statutes, and Justice Scalia’s comments seem to endorse that view. In any event, the rein-in of unfettered prosecutorial discretion in interpreting broadly phrased statutes might be appearing, or re-appearing soon at a courtroom near you in New York. In December, the Second Circuit delivered a stunning rejection of Government insider trading theories in US v. Newman and Chiasson, theories that has been chugging along nicely and yielding, until recently, a perfect record of convictions. First, the Court, in ruling, stated “[t]he Government’s overreliance on our prior dicta merely highlights the doctrinal novelty of its recent insider trading prosecutions, which are increasingly targeted at remote tippees many levels removed from corporate insiders.” (Emphasis Added). Notice the phrase “its recent insider trading prosecutions.” Not “this case.” Moreover, the Court did not limit its analysis or holding to whether Newman or Chiasson knew of benefits received by tippers. It analyzed the term “benefit” and found “This standard, although permissive, does not suggest that the Government may prove the receipt of a personal benefit by the mere fact of a friendship, particularly of a casual or social nature. If that were true, and the Government was allowed to meet its burden by proving that two individuals were alumni of the same school or attended the same church, the personal benefit requirement would be a nullity. To the extent Dirks suggests that a personal benefit may be inferred from a personal relationship between the tipper and tippee, where the tippee’s trades “resemble trading by the insider himself followed by a gift of the profits to the recipient,” we hold that such an inference is impermissible in the absence of proof of a meaningfully close personal relationship that generates an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature. In other words, as Judge Walker noted in Jiau, this requires evidence of “a relationship between the insider and the recipient that suggests a quid pro quo from the latter, or an intention to benefit the [latter].””

See also the New York Court of Appeals: In People v. Golb, it found New York’s aggravated harassment statute unconstitutionally vague and overbroad, citing People v. Dietz for the proposition that “any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence”. The prosecution had argued that any written communication that annoys, as long as annoyance is intended, constitutes violation of this criminal statute, even those via a third party. Judge Piggott asked “So if …you get some college kid who write – – – who e-mails the girlfriend of his roommate saying, you know, he really is a useless person. Is that aggravated harassment with respect to the victim?” ADA Rivellese of the NYDA asserted that it was. The Court ruled “[t]he statute criminalizes, in broad strokes, any communication that has the intent to annoy. Like the harassment statute at issue in Dietze, no fair reading of this statute’s unqualified terms supports or even suggests the constitutionally necessary limitations on its scope.” Moreover, the Court rejected the prosecution’s argument that violating terms of use of a computer constitutes violation of Penal Code §156.05, which criminalizes the knowing use of a computer without authorization. During oral arguments, Judge Smith asked whether the prosecution’s definition of the reach of this statute encompassed accessing Facebook via an office computer where employees are not permitted to access Facebook. ADA Rivellese asserted that it did. The Court vacated Mr. Golb’s conviction on this count.

These examples are not exhaustive.

People v. Misaiah Hymes: New York Appellate Division, Fourth Department holds that 24 hour notice, counsel withdrawal, renders notice of Grand Jury presentment unreasonable under CPL §190.50.

by Soma Sengupta

Misaiah Hymes appealed from a judgment convicting him upon a jury verdict of burglary in the second degree. Mr. Hymes had moved to dismiss the indictment in his case pursuant to CPL 210.20 (1)(c) on the ground that he was denied his right to testify before the grand jury. Mr. Hymes and his counsel were notified by the prosecutor at arraignment on the felony complaint that the matter would be presented to the grand jury the next morning, in less than 24 hours. Later that day, defense counsel notified the court that he could no longer represent defendant due to a conflict of interest. The following morning, after the grand jury voted to indict, Mr. Hymes was assigned new counsel. Defense counsel objected to the short notice of the grand jury proceeding and gave the prosecutor written notice of Mr. Hymes’ intent to testify. The prosecutor offered Mr. Hymes the opportunity to testify before the grand jury before it filed the indictment, but refused his request to testify before a different grand jury.

A unanimous Fourth Department panel agreed with Mr. Hymes “that County Court erred in denying his motion to dismiss the indictment pursuant to CPL 210.20(1)(c) because he was denied his right to testify before the grand jury” and that he had not been given “reasonable time to exercise his right to appear as a witness”. The Court noted that while CPL §190.50 (5) (a) does not mandate a specific time period for notice, “‘reasonable time’ must be accorded to allow a defendant an opportunity to consult with counsel and decide whether to testify before a [g]rand [j]ury”. The Court concluded that ”[u]nder “the particular facts” of this case, including the less than 24 hours’ notice of the grand jury proceeding and assigned counsel’s withdrawal from representation”, that Mr. Hymes “did not have reasonable time to consult with counsel and decide whether to testify before the case was presented to the grand jury”.

Timothy Donaher, Public Defendr appeared for Mr. Hynes. Robert J. Shoemaker appeared for Rochester District Attorney Sandra Doorley.

People v. Griffin: Court of Appeals Unanimously Holds that Right to Counsel Trumps Guilty Plea.

by Soma Sengupta

In a powerful affirmation of the right to counsel, the New York Court of Appeals overturned a conviction predicated upon a guilty plea where the defendant’s attorney from the Legal Aid Society was removed after he requested a 10-day adjournment, and an 18-b attorney was substituted.

Anthony Griffin was charged with holding up two Starbucks coffee shops in Manhattan. As a predicate felon, Mr. Griffin was potentially facing a life sentence for robbery.

Over the first five months after the February 2006 arraignment on charges of attempted robbery and robbery, there were multiple adjournments, with 15 appearances attended by a total of ten different assistant district attorneys (ADAs), and assigned counsel, the Legal Aid Society. The case was adjourned for various reasons, ranging from Mr. Griffin’s request to file pre-trial motions, to the People’s application for additional time to interview witnesses who were material to the prosecution’s direct case. Justice Scherer also accommodated the People’s requests for adjournments related to the reassignment of a new ADA, and the reassigned ADA’s lack of preparation six weeks after reassignment because he “ha[d] not had an opportunity yet to meet with all the witnesses on the pattern robberies since the case was reassigned to him.”

On July 10, 2006, when the matter was set for hearing and trial, the ADA stated that the People were not ready and requested yet another adjournment until July 25. Justice Scherer set July 25 as the new date for trial whereupon Mr. Griffin’s counsel informed the court that he was leaving the Legal Aid Society, that he had conferred with the ADA, and that he was requesting a control date in the same week requested by the People so that a new Legal Aid attorney could be reassigned and prepare for trial. Justice Scherer declined the request for a control date, and insisted that an attorney be immediately reassigned to meet with defendant and prepare for trial on July 25.

A supervisor from the Legal Aid Society who was present asked to address the court and argued in support of the request for an adjournment date that would allow for a new Legal Aid attorney to prepare for trial, justifying the request for adjournment based on the complex nature of the case, Mr. Griffin’s status as a mandatory persistent felon, the time spent on ongoing plea negotiations, and the relatively recent resignation by the assigned attorney, which was 10 days ago. He then stated “[w]e’re not going to be ready for trial on the next court date, and if you think that the Legal Aid Society should be relieved, you should do that.” Justice Scherer again rejected the request for an adjournment, and relieved the Legal Aid Society over the supervisor’s objections. Neither the ADA nor Mr. Griffin spoke during this exchange. 18-B counsel was assigned, and the case was subsequently transferred to Justice McLaughlin. Mr. Griffin then pleaded guilty to robbery and attempted robbery in exchange for a sentence of 20 years to life. Almost immediately, he filed two pro se motions seeking to withdraw his plea and have new counsel assigned. Justice McLaughlin denied these motions and sentenced him to two concurrent terms of 20 years to life.

In a 3-2 decision, the First Department reversed the conviction and remanded for further proceedings, holding that Justice Scherer had acted arbitrarily, disparaging the Legal Aid Society while accommodating the People’s numerous requests for adjournments. The Court concluded that the “discharge of defendant’s counsel without consulting defendant was an abuse of discretion and interfered with defendant’s right to counsel”. The People appealed, arguing that Mr. Griffin’s claim was forfeited by his guilty plea, and that the trial court properly invoked its discretion when it removed the Legal Aid Society

The Court of Appeals unanimously agreed with the First Department majority. In language tracking that defining jurisdiction for the purposes of interlocutory appeals, Judge Rivera in her opinion for the Court wrote “[t]he People assert that defendant forfeited his Sixth Amendment claim by pleading guilty. The Appellate Division rejected this argument, as do we…. Not every claim is forfeited by a guilty plea. Claims related to the integrity of the criminal justice system, and “rights of a constitutional dimension that go to the very heart of the process,” survive a guilty plea. The critical distinction is between defects implicating the integrity of the process, which may survive a guilty plea, and less fundamental flaws, such as evidentiary or technical matters, which do not”.

The court distinguished Griffin from People v. Petgen, 55 NY2d 529 (1982): “In Petgen, we found that, as a result of his guilty plea, defendant forfeited his claim that counsel was ineffective where new counsel represented the defendant at the plea, and was aware of the prior attorney’s asserted ineffectiveness. An ineffective assistance of counsel claim is not the legal equivalent to a claim based on deprivation of counsel of choice even though both fall under the umbrella of the Sixth Amendment. Indeed, a counsel of choice violation cannot be cured by new counsel.” The Court further rejected the People’s argument that a plea forfeits a claim concerning the alleged taint of the process caused by the removal of counsel, writing “[i[n contrast to Petgen, where we concluded there was no suggestion that the ineffective assistance of counsel claim infected the plea (id. at 534-535), defendant’s claim that the court interfered with his representation by the Legal Aid Society implicates the plea and the plea bargaining process, a robust process in which Legal Aid was actively engaged immediately prior to removal”.

As to the People’s argument that the trial court properly invoked its discretion in removing the Legal Aid Society, Judge Rivera wrote “[t]he Appellate Division determined that the Legal Aid Society’s request for an adjournment could have and should have been granted. Such adjournments are strictly within the trial court’s discretionary power. Nevertheless, the Appellate Division characterized Supreme Court’s denial as an “improvident exercise of discretion,” thus substituting its own discretion for that of the trial court. We cannot say, on this record, that the Appellate Division abused its discretion, or otherwise committed an error of law”.

Legal Aid attorney Harold Ferguson Jr. represented Mr. Griffin on appeal. Manhattan Assistant District Attorney Sheila O’Shea appeared for the prosecution.

People v. Kenneth Moore: the Court of Appeals holds that presuming waiver from a silent record is impermissible.

by Soma Sengupta

Kenneth Moore was charged with four counts of criminal possession of a controlled substance in the seventh degree. At arraignment, there was a brief discussion between defense counsel, the assistant district attorney and the court concerning the terms of a disposition. Moore then pled guilty to he controlled substance counts and was sentenced. The judge did not address Moore. Moore did not speak. There was no advice on the record of any constitutional rights Moore was waiving by his plea. Moore appealed, claiming his constitutional rights were violated because the record fails to establish his plea was knowing, voluntary and intelligent.

In vacating Moore’s plea, the Court cited People v. Tyrell: “[p]resuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused intelligently and understandingly rejected his constitutional rights. Anything less is not waiver”.

People v. Hector Santiago: The Court of Appeals clarifies applicability of circumstantial evidence charge.

by Soma Sengupta

Hector Santiago was in the front passenger seat of a minivan when it was pulled over during a drug surveillance operation. A third person, the surveillance target, was in the rear seat. Codefendant Andy Alba was the owner and driver of the minivan. After a search in which the front passenger floor mat and carpeting was removed, police discovered a brick of cocaine hidden in a locked compartment under the mat.

At trial, the court instructed the jury on constructive possession (a showing that a defendant exercised dominion and control over the place where contraband was seized or over the person who actually possessed the property means possession) and the automobile presumption (PL §220.25: “The presence of a dangerous drug in an automobile, other than a public omnibus, is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such drug was found”). The court denied Santiago’s request for a circumstantial evidence charge, which is “the facts from which the inference of the defendant’s guilt is drawn must be established with certainty — they must be inconsistent with his innocence and must exclude to a moral certainty every other reasonable hypothesis”‘. Santiago was convicted of criminal possession of a controlled substance in the first degree, and the Appellate Division affirmed, noting that the court properly instructed the jury on constructive possession theory and the automobile presumption “and there was no need for the court to give a circumstantial evidence charge as well”.

Santiago had stipulated that the cocaine weighed more than eight ounces. According to the People, “a circumstantial evidence charge was not required because there was direct proof of several elements of the crime, including the nature and weight of the drugs, and defendant’s immediate proximity to them”, as well as of Santiago’s identity. People’s Response at 19. Moreover, the circumstantial evidence charge’s requirement that the inferences “must be inconsistent with his innocence and must exclude to a moral certainty every other reasonable hypothesis” was met because “[t]he judge specifically instructed the jurors that an inference is a conclusion that follows “naturally and logically” from direct facts they chose to accept”. Id at 20. The People asserted further support for their contention that the charge was unmerited because the court explained that “if the jurors determined that the sky was blue after hearing direct testimony that such was the case, they could infer, without any further testimony, that the sun was out” and “the jury need not be deterred if contrary, but rare, examples existed” and further, “that that the jurors need not be worried that at the “dawn of history along the Nile,” there may have been a day where the sky was blue but the sun was “nowhere to be seen”. According to the People, that “every other reasonable hypothesis” must be excluded was made clear to the jury because “the jury was made aware that any facts that it inferred had to be tightly and logically related to the underlying, directly proven facts” by Justice McLaughlin’s Nile example.

In oral arguments before the Court of Appeals, ADA Fisch Cohen clarified the People’s interpretation of these laws. Asked by Judge Lippman “Counsel, why isn’t the automobile presumption just obviously – – – by nature it’s an inference. Why shouldn’t you be entitled to the charge?” Ms. Cohen responded “Because when you have a presumption, both the legislature and this court has already determined that there was a reasonably high degree of probability that the fact – – – that the inference flows from the fact”. Apparently, according to the NYDA, the beyond reasonable doubt standard can be replaced by pre-determined “reasonably high degree of probability”. Judge Pigott asked “you’re not saying under no circumstance can you get a circumstantial evidence charge in an automobile presumption case?” Ms. Cohen agreed that was exactly what she was saying. Judge Rivera asked what the claimed “direct evidence” was. Ms. Cohen responded “His feet were on top of the trap which contained a kilogram of cocaine.” Judge Rivera responded “But that’s how you sit in a car.” Judge Smith attempted to clarify the direct v circumstantial evidence question: “I mean, is it not an inference from those facts that you’re asking people to draw that he was in possession of the drugs?” Ms. Cohen: “Yes, to prove beyond a reasonable doubt, there would have to be an inference of knowing possession, but that’s” Judge Smith: “And is inference the mark of circumstantial test – – – of circumstantial evidence?” Judge Rivera: “How is it direct?” Ms. Cohen did not state how it was direct. Instead, she moved on to answer an unasked question: ”Yes, but not every inference requires a specially crafted jury instruction.”

The Court of Appeals unanimously reversed, reiterating that “a “defendant’s request for a circumstantial evidence instruction must be allowed when proof of guilt rests exclusively on circumstantial evidence””. The Court noted that “[i]n this case, the proof connecting defendant to the drugs was wholly circumstantial. Defendant was not the owner or driver of the vehicle, nor was he the target of the surveillance operation, and there was no direct evidence that he was aware of the hidden compartment or that he exercised dominion and control over the concealed cocaine”. The Court further stated that “[c]ontrary to the People’s assertion, proof by direct evidence of the nature and weight of the controlled substance does not render the circumstantial evidence charge unnecessary. The charge is required where, as here, the only proof that defendant committed the crime charged was circumstantial.”