MEDIA

December 14, 2012

Involuntary Medication, Extradition, Third-Party Reliance and Fraud

Published in: New York Law Journal | volume 248

This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge Eric Vitaliano granted the government’s application to continue medicating defendant involuntarily to render him competent to stand trial, even though the first course of treatment, with a different medication, had failed. Judge Joseph Bianco found that New York Penal Law §265.01, banning "metal knuckles," was not unconstitutionally vague as applied to a "Black Cat Keychain." Magistrate Judge Joan Azrack issued a certificate of extraditability, requiring a defendant convicted in a Brazilian narcotics trial to be returned to Brazil. And Judge I. Leo Glasser held that third-party reliance on defendants’ statements provided a basis to uphold common law fraud claims.

Involuntary Medication

In United States v. Decoteau, 08 CR 736 (EDNY, Oct. 24, 2012), Judge Vitaliano granted the government’s motion for renewed authorization to medicate defendant involuntarily for an extra four months to restore his competency to stand trial.

In April 2012, following an evidentiary hearing, Vitaliano granted the government’s initial application to medicate defendant Osmond Decoteau involuntarily. A doctor for the Bureau of Prisons (BOP) had testified at the hearing that involuntary medication with anti-psychotic drugs provided approximately a 70 percent chance that defendant would be restored to competency. Defendant did not respond to the initial drug, Risperdal, given to him. In the present application, the government repeated its position that continued medication would render defendant competent to stand trial, and proposed to use different medication that the BOP doctor believed would succeed.

Defendant did not challenge that (1) the government had significant interests in trying him; (2) the treatment was necessary to further those interests; and (3) the treatment was medically appropriate. He contended, however, that the treatment would not work.

The court found it "substantially likely" that treatment would restore defendant to competence. The BOP doctor had provided "credible expert testimony." Slip op. 8-9. In the doctor’s opinion, offered with a reasonable degree of certainty, there was a "substantial probability" that the proposed medication regimen would be effective. Vitaliano also found a useful guidepost in the Bureau of Prisons’ 70 percent success rate in restoring defendants to competence through treatment. Further, two studies showed "77 and 73% success rates among a population of incompetent defendants suffering the same type of disorder as Decoteau," even though these studies did not address the situation here, where defendant had not responded to the first medication. Slip op 10.

Finally, deferring to the BOP doctor, Vitaliano authorized an extension of four months involuntary medication to provide time for the new medication to work, for a total treatment time of eight months. This would allow a sufficient period for assessing the efficacy of the medication while minimizing defendant’s risk of side effects. Slip op. 11. The court requested monthly progress reports:

with the fourth report being filed at least three weeks before the end of the four month period concurrently with any request to extend the period. If there is a change in relevant circumstances, including changes in Decoteau’s medical condition, defendant or the government may move at any time to amend this order. If Decoteau is restored to competence, a report shall be filed with the Court discussing the results of the treatment, whether and how the medications will affect Decoteau at trial, and how to monitor for effects of the treatment throughout trial. If, on the other hand, it is determined that the treatment has failed, the government shall file a report so advising the Court and assessing defendant’s current mental and physical condition. Slip op. 12.

New York Penal Law §265.01

In Small v. Bud-K Worldwide, 11 CV 2471 (EDNY, Sept. 28, 2012), Judge Bianco dismissed claims by the buyer and seller of a device known as the "Black Cat Keychain," seeking a declaration that the device (1) is legal to possess in New York, and (2) may not be considered "metal knuckles" for purposes of prosecution under New York Penal Law §265.01(1).

Following his arrest for possessing a Black Cat Keychain under §265.01 — which prohibits possession of, inter alia, "metal knuckles" — plaintiff had pleaded guilty to disorderly conduct. He then brought suit to clarify his right to possess the device going forward.

The Black Cat Keychain is a metal device that "is advertised as an ‘unusual keychain’ that ‘packs a mighty punch’ such that ‘[t]he eyes of the cat become finger holes and the ears become spikes when clutched in the hand to create an excellent means of self-defense against an attacker.’" Slip op. 2.

The court rejected the state’s argument that the requested declaratory relief would violate the Heck doctrine (see Heck v. Humphrey, 512 U.S. 477, 487 (1994)) by implying the unlawfulness of plaintiff’s prior conviction. Plaintiff was not "seeking to disturb his earlier guilty plea," so Heck did not apply. Slip op. 5.

The court, however, did reject plaintiff’s argument that the statute is unconstitutionally vague, and granted summary judgment to defendants, because "a person of ordinary intelligence reading §265.01(1) would understand the term ‘metal knuckles,’ given the common meaning of the term (especially in the context of the statute) to apply to an item such as the Black Cat Keychain that is clearly designed as a weapon to be put over multiple knuckles, with the metal spikes protruding from the knuckles." Slip op. 12.

Plaintiff’s reliance on conflicting results from New York state trial courts concerning the application of §265.01(1) to a wrist strap device with metal spikes failed to show that application of the statute to the Black Cat Keychain was unconstitutionally vague. First, "simply because two courts disagree over the application of a statute does not necessarily mean that the statute is void for vagueness." Second, the Black Cat Keychain "is completely different" from the device at issue in those cases, "as it is constructed entirely out of metal and has metal finger holes," bringing it within the common-sense meaning of "metal knuckles." Slip Op. 10.

The court agreed with the reasoning of a third New York state trial court decision — People v. Laurore, 2011 WL 903184 (Sup. Co., Rockland Co. 2011) — which rejected a vagueness argument under §265.01(1) with specific reference to the Black Cat Keychain. Quoting Laurore with approval, Bianco dismissed the argument that vagueness arises from the failure to define "metal knuckles" in the Penal Law: "The law does not require that every single term in the Penal Law be defined. The mere fact that the legislature undertook to define some objects and not others is an indication that the legislature was well aware of the self-defining nature of "metal knuckles." Slip op. 9.

Extradition

In In the Matter of the Extradition of Alex Suyanoff A/K/A Amnon Mordahaev, 12 MJ 462 (EDNY, Sept. 20, 2012), Magistrate Judge Azrack, granting an extradition request by the Government of Brazil, rejected Alex Suyanoff’s argument that he was not extraditable given the circumstances of his narcotics conviction in Brazil.

Suyanoff was arrested in Brooklyn in May 2012. According to the papers supporting the arrest warrant, he had been convicted in Brazil of narcotics trafficking and sentenced to 12 years’ imprisonment. He escaped after serving three-and-a-half years and fled to the United States.

Acting through the Eastern District U.S. Attorney’s Office, Brazil sought to extradite Suyanoff pursuant to the Treaty of Extradition between the two countries.

Contrary to Suyanoff’s contentions, there was "probable cause" to conclude that he had committed the alleged crimes. The U.S. Attorney presented documentation of his convictions in Brazil on one count of conspiracy to traffic in narcotics and one count of trafficking. "No further probable cause analysis is needed where foreign convictions, as opposed to foreign charges, or desire to prosecute, are presented." Slip op. 8.

Suyanoff asserted that his convictions do not establish probable cause because they were obtained in violation of his rights to counsel and an interpreter. He submitted evidence that his trial was conducted in Portuguese, which he allegedly understands poorly, and that his requests for an interpreter were denied.

As shown in the extradition papers, however, the Brazilian appellate court found Suyanoff to be "fluent in the national language, as it is clear from his interrogation." Azrack had no reason to discredit the conclusions of the Brazilian trial and appellate courts. To hold that the Brazilian convictions do not show "probable cause" would violate principles of international comity. Slip op. 9.

Even apart from the convictions themselves, the extradition papers detail probable cause by summarizing the evidence presented at trial. While some of that evidence would be inadmissible at a criminal trial here, it may be considered in extradition proceedings. Slip op. 10.

Suyanoff also argued that he must not be extradited because his conviction violated his due process rights and resulted from conduct that "shocks the conscience" of the court. But in the interests of comity, a court ruling on an extradition request made pursuant to treaty should not assess a foreign country’s law enforcement procedures. Nor was this case "antipathetic" to a "sense of decency." As Azrack observed:

Suyanoff had an attorney, he put up a defense, and he had a full appeal wherein his arguments were considered and his sentence was reduced. His claims that he was entrapped by the Brazilian authorities and did not speak the language during his trial are contradicted by the record. . . (Slip op. 12).

Finally, the claims of "inhumane treatment" in Brazilian prisons are beside the point. It is up to the Secretary of State, not the courts, to decide whether extradition should be denied on humanitarian grounds.

Third-Party Reliance

In Prestige Builder & Management v. Safeco Insurance of America, 12 CV 1947 (EDNY, Oct. 10, 2012), Judge Glasser denied the motion to dismiss fraud claims against individual defendants, concluding that a claim for common law fraud in New York may rest on third-party reliance on defendants’ statements.

Triton Structural Concrete Incorporated entered into a contract with the New York City Parks Department to serve as general contractor for the construction of an amphitheater at the Pelham Fritz Recreation Center in Harlem’s Marcus Garvey Park. Safeco Insurance Company of America, acting as surety for Triton, executed a payment bond to the City of New York, securing payment to those who worked on the project.

Plaintiff Prestige Builder & Management LLC, a subcontractor, entered into two contracts — one for "stage framing work" and the other for "wood frame construction work." Prestige performed its work and billed Triton regularly. Prestige alleges that Triton employees falsely certified and submitted to the Parks Department forms relating to work completed for various laborers on the project, including work performed by Prestige.

Specifically, in March 2011 Triton’s controller certified and submitted a form containing false statements that there were no monies due to laborers on the project and failing to identify Prestige as a subcontractor performing work as part of the project. In May 2011, an accounts payable manager submitted a certificate containing false statements regarding the amount of work performed by Prestige and failed to identify amounts due to Prestige, and Triton’s manager certified and submitted a form containing the same false statement submitted in March. The Parks Department made payments to Triton that included money due to Prestige, which was still owed $134,927.66. Prestige commenced this action in April 2012, asserting claims for payment against Safeco and fraud claims against the individual defendants.

Defendants contend that Prestige lacked standing to bring the action because (1) it had suffered no direct injury, but rather was seeking to assert the rights of the Parks Department, not its own rights; (2) the misrepresentations were directed at the Parks Department, not Prestige, so only the Parks Department could claim it was defrauded; and (3) Prestige could not show it suffered a direct compensable injury.

Invoking the doctrine of "third-party reliance," plaintiff argued that defendants’ misrepresentations caused the Parks Department to pay Triton money that should have been paid to Prestige, thereby causing injury to Prestige.

Third-party reliance is an exception to the justifiable reliance requirement of common law fraud: "the doctrine of third-party reliance permits the plaintiff to show that a third-party relied upon a misrepresentation by the defendant, which resulted in injury to the plaintiff." Slip op. 7. As Glasser noted, the New York Court of Appeals accepted the doctrine (although in antiquated cases), the U.S. Court of Appeals for the Second Circuit apparently disavowed it, and the New York state and federal district courts were divided. Glasser agreed with the Southern District judges that the New York Court of Appeals decisions allowing for recovery remained good law. In short, plaintiff had sufficiently alleged reliance under the New York third-party reliance doctrine and thus had standing to bring its fraud claims.

Plaintiff also met the particularity requirements of Rule 9(b). Defendant contended that Prestige failed to allege that the individual defendants intended to defraud Prestige or that Prestige relied on any representations made by them. Glasser found these contentions frivolous: First, the "state of one’s mind, intent, can almost never be proved directly and invariably is proved circumstantially." Second, "[w]hich inference, other than intent, could even the most inventive and imaginative mind ascribe to the false representations made to the Parks Department?" Slip op. 13-14.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.

[This article is reprinted with permission from the December 14, 2012, issue of the New York Law Journal. Copyright © 2012 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]