Bail — better to have loved and lost
United States v. Briggs, No. 12-2988-Cr (2d Cir. October 5, 2012)
Antonio Briggs, charged in a large, multi-defendant drug conspiracy, was ordered detained in September of 2010, and remains in jail today. In this appeal, he claimed that this lengthy pretrial detention deprived him of due process.
The circuit, although clearly concerned with the length of the delay, held that there was as yet no due process violation. However, the court directed that the district court either commence his trial, or set reasonable bail for him, on or before February 1, 2013.
The circuit noted that the reasons cited by the district court for detaining Briggs in the first instance were sound: it was a presumption case, and both Briggs’ sentencing exposure and the strength of the government’s evidence supported the initial detention order. And here, much of the two-plus-year-delay, although not necessarily Briggs’ fault, resulted from “repeated motions,” many of which Briggs joined, and abundant discovery.
There is no “bright-line limit on the length of pretrial detention.” Due process requires a balancing among several factors: the length of the detention, the complexity of the case, and the degree to which the government is responsible for the delay. Here, the district court weighed these factors correctly and concluded that the “totality of the circumstances” did not support a finding that Briggs’ due process rights had been violated.
The circuit agreed, but “emphasize[d]
that we are deeply troubled by the length of Briggs’ detention.” The appellate court’s “repeated statements” in other cases that the length of the detention alone “is not dispositive does not authorize “detentions of any length simply because the other relevant factors weigh against the defendant.” Even though there is no “bright-line limit,” the court said, there is indeed a limit, and Briggs’ case is “approaching the limits of what due process can tolerate.” The court ordered the district court to start the trial or set bail conditions by February 1, 2013.
Commentary:
This case should interest extradited prisoners whose cases in certain U.S. districts are moving too slowly, cases that are adjourned frequently simply because U.S. prosecutors do not have the necessary evidence from Colombia, even though it has been, in some cases, available to the U.S. for years. In Colombia, defendants are extradited after waiting a year or more in custody.
These arrests occur months or years after evidence is gathered and available. In New York, for example, it is turned over in less than a month, sometimes within two weeks.
But in slow moving districts, extradited defendants can go months without receiving their evidence and that is inexcusable.
What to do? If a defendant demands his evidence immediately, his demand will get nowhere. The trial judge can deny his request knowing that the defendant will not be able to appeal since such a request is non-appealable until the case is over in that court. But a defendant can always make a motion for bail and that is appealable immediately.
It is precisely what defendant Briggs did and what he got in return was an appeals court that said it was “deeply troubled by the length of Briggs’ detention,” and that is precisely what
you want them to say. With that the lower court will get the message. Any defendant that finds himself similarly frustrated should consider a bail motion based on delay. You may not get the bail, but you will get the action you seek.
– David Zapp
Law or Order? Order always wins
United States v. Carter, No. 11-3605-Cr (2d Cir. September 28, 2012)
The “parsimony clause” of the sentencing statute, 18 U.S.C. § 3553(a) requires that the court impose a sentence that is not “greater than necessary” to serve the goals of sentencing. Many offense statutes, however, contain a mandatory minimum sentence: a “blunt directive that may require judges to give sentences that they consider unduly punitive.”
On this appeal, Carter, who received a ten-year mandatory drug sentence – five years doubled due to his prior felony conviction – argued that this minimum did not bind the district court because the drug statute did not expressly override the parsimony clause. Intriguing argument, but the court of appeals disagreed, and affirmed.
The “general sentencing provisions in § 3553(a)” must “give way to specific mandatory sentencing provisions elsewhere in the criminal code.” The considerations in § 3553(a) “cannot override” a statutory mandatory minimum.
Court Protects Defendant
United States v. White, No. 11-772-Cr (2d Cir. August 30, 2012)
Here, a divided circuit panel concluded that two evidentiary errors prejudiced the outcome of Lance White’s felon- in-possession [of a gun] trial. The court vacated the conviction and remanded the case for a new trial.
1. Erroneous Preclusion of Others’ Arrests and Charging Decisions
The case involved the stop of a minivan that contained White and four women. Officers found three firearms, one supposedly in White’s right front pocket. Two others were recovered from a purse belonging to one of the women, Jennings. Initially, all five individuals were charged in state court with possessing all three guns. Eventually the state dropped all charges against three of the women. For Jennings, the state pursued charges only for the guns in her purse. Over White’s objection, the district court granted the government’s motion to preclude White from introducing evidence of the initial decision to charge all of the women with all of the guns, finding that such evidence was categorically inadmissible.
But the circuit found that this was error. A criminal defendant has a broad right to introduce evidence “tending to prove that another person may have committed the crime” with which he is charged. Such evidence may include the government’s charging decisions – such decisions “may be proper subjects for cross-examination and argument if otherwise admissible,” although they are not per se admissible. “District courts may not automatically exclude such evidence without an inquiry into its relevance and probative value.”
Here, the evidence was relevant to whether White possessed a firearm – “evidence that the other occupants of the vehicle were charged with possession of the firearm allegedly found in White’s pocket was plainly relevant to the question” of whether he even possessed the weapon as the police claimed. Those charging decisions by the State prosecutors “might very well” have “caus[ed] a jury to doubt the officers’ testimony that they recovered the firearm at issue from White’s person,” particularly since this was the only “significant issue at trial.” In New York the so-called “ automobile presumption” creates a presumption that all occupants of an automobile possessed a firearm found there, except where the weapon is “found upon the person of one of the occupants.”
Thus, that the state originally charged all four women with all of the guns,
including the one supposedly found on White’s person supported his theory that “none of the firearms was found on his person” and discredited “the officers’ testimony to the contrary.”
Nor was the district court correct in rejecting this relevant evidence under Federal Criminal Rule of Evidence No. 403. Indeed the court’s 403 balancing (relevance vs. prejudice) was going to go against the defendant because the court had already held that such evidence was not relevant at all. Here, a proper balancing would show that the probative value of the evidence was, in fact, “high” – “crucial to proving” the defense theory. Accordingly, not allowing the evidence was error.
2. Restriction of Cross-Examination
The district court also erred in preventing the defense from cross- examining one of the arresting officers about an adverse credibility finding against him in a different federal felon-in-possession case. The Court of Appeals employs a “non-exhaustive list of factors that bear on the admissibility of prior credibility findings.”
Here, the totality of the factors weighed strongly in favor of admissibility. The prior police testimony that was found to be false “was made under oath in a judicial proceeding” and “plainly involved an important matter at issue” in the prior case. The prior false testimony took place “just months before White’s trial” (timely) and the officer’s motives were the same in both cases: an “attempt to secure a conviction.” Finally, the officer gave “no explanation for the previous inconsistencies in his testimony.” Thus, the prior adverse credibility against the cop was “relevant and highly probative” here.
3. The Errors Were “Far From” Harmless
Here, the evidence the district court precluded “spoke directly to a critical element of the” government’s case; Suppressing it “prevented White from presenting a complete defense.” This is true even though other officers also claimed that they recovered a gun from White’pocket. It was “certainly possible” that the jury, “if presented with reasons
to doubt” one officer’s testimony “might similarly have questioned the testimony of the” others.
4. The Dissent
Chief Judge Jacobs dissented on both points. For the charging decision, he believed that the evidence was properly excluded under Rule 403. The difficulty explaining the state law involved in admitting the evidence might well have confused the jury. And, while Judge Jacobs agreed that the district court applied an incorrect legal standard to assess the admissibility of the prior credibility finding, he would have ordered returning the case to the district (trial) court to allow the district court to consider the appropriate legal factors involved in making that determination.
(Special thanks to Steve Stasinger and the rest of the Federal Defenders of New York for these case summaries)