November 13, 2014
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 Frederic Block took steps to help an inmate change his security classification, set by the Bureau of Prisons in reliance on an obsolete Pre-Sentence Report. Judge Raymond Dearie held that a police officer who signed a complaint in a criminal case did not later receive absolute immunity from malicious prosecution charges by testifying in the grand jury. Judge Eric Vitaliano reduced a sentence in light of a post-sentence amendment to the Guidelines Manual. And Judge Arthur Spatt dealt with various issues relating to a press application for release of transcripts and exhibits in a sealed contempt proceeding.
Security Classification
In United States v. Jones, 09 CR 395 (S-1) (EDNY, June 25, 2012), Block recommended that the Bureau of Prisons (BOP) reconsider an incarcerated defendant's "high security" classification, which was "based on an outdated Presentence Report (PSR) containing allegations rejected by the jury at trial and by the Court at sentencing."
Defendant Anthony Praddy is now serving a sentence of 15 years' imprisonment pursuant to a judgment of Nov. 9. 2011. BOP classified his security level as "high" and designated USP Big Sandy, a high-security facility in Kentucky, for service of his sentence.
In October 2010 a jury had found Praddy guilty of racketeering offenses, conspiracy to distribute 100 kilograms or more of marijuana, use of a firearm in furtherance of that conspiracy, and instances of small-scale marijuana distribution. The jury deadlocked on charges relating to the murder of one Kevin Simon. A second jury acquitted Praddy of the murder charges.
Over defense objection, the Probation Department's original PSR cited allegations related to the Simon murder as "relevant conduct." But at sentencing the court found no "clear and convincing evidence" of Praddy's involvement in that murder, and thus explicitly declined to consider this alleged conduct.
On Nov. 11, 2011, after the sentencing, BOP prepared an Inmate Load and Security Designation Form — a "BP-337" — to classify Praddy's security level. The BP-337 is a key factor in designating a particular facility. The BP-337 assessed 7 points — the maximum for severity of the offense — apparently based on allegations relating to the murder. The drug convictions did not qualify for maximum severity, and the form used abbreviations to refer to the firearm and murder: "POSS F/A, SHOT/KILLED VCTM."
On Dec. 21, 2011, a month after the BP-337 was prepared, the Probation Department completed a revised PSR omitting the Simon murder as relevant conduct in light of the court's findings and directives at sentencing.
Here, Praddy challenged (among other things) his classification and designation. As Block noted, Praddy may be following the wrong path by seeking relief from the warden at Big Sandy. "Instead, his attempt at administrative resolution should presumably begin with a request to the [BOP's] Classification Unit and, if necessary, end with an appeal to BOP's General Counsel." Slip op. 7.
As Block also observed, the classification and designation of inmates are within BOP's sole discretion. Judicial review of a classification is, "if not completely unavailable, severely curtailed." Slip op. 8.
Prison designations are, by statute, exempted from the Administrative Procedures Act. 18 U.S.C. §3625. While a court has habeas jurisdiction to address execution of sentence under 28 U.S.C. §2241, a federal prisoner challenging aspects of his custody must "name his warden as respondent and file the petition in the district of confinement," Rumsfeld v. Padilla, 542 U.S. 426 (2004) — in this instance, the Eastern District of Kentucky. Even if Praddy took that route, there would be formidable barriers to success.
Though the remedy lies with the BOP, the court concluded with the following statement to try to facilitate a just result:
[P]ursuant to Federal Rule of Criminal Procedure 32(i)(3)(C), the Probation Department is directed to append this memorandum to Praddy's revised PSR. It is further directed to serve a copy of the revised PSR, with this memorandum appended, on BOP's Classification Unit and on its General Counsel. The Court recommends, in the strongest terms its limited role allows, that the BOP reconsider Praddy's security classification in light of the revised PSR and this memorandum.
Malicious Prosecution
In Sankar v. The City of New York, 07 CV 4726 (EDNY, July 18, 2012), Dearie, denying defendants' petition for rehearing, held that a police officer's testimony before the grand jury did not, in itself, shield him from liability in a malicious prosecution case where the same officer had signed the complaint leading to plaintiff's arrest on charges later dismissed.
This case, arising from a landlord-tenant dispute, involved allegedly false reports to police officers accusing the landlord, plaintiff Marlene Sankar, of assault, harassment and contempt. After those charges were dismissed, Sankar filed a malicious prosecution action against the City of New York and various officials.
On March 30, 2012, Dearie granted in part and denied in part defendants' motion for summary judgment. On this petition for rehearing by the remaining defendants, Dearie observed first that defendants' papers present only "repetitive arguments" on issues already decided and, even "more troubling," attempt "to rewrite the Court's analysis to serve their purposes."
Relying on the Supreme Court's recent decision in Rehberg v. Paulk, 132 S. Ct. 1497 (2012), defendants also argued that defendant Officer Greg Ostrowski acquired absolute immunity from any §1983 claim by testifying before the grand jury in the case. But Ostrowski had also signed the sworn criminal complaint.
As Dearie explained:
Rehberg did not alter controlling Second Circuit (and New York) law that an officer's filing of a sworn complaint is sufficient to satisfy the initiation prong of a malicious prosecution claim. Ostrowski's testifying at the grand jury was but one additional step this officer took in his effort to push the case against plaintiff forward. If anything, Rehberg reinforces the distinction between one who simply testifies at a grand jury and "does not make the decision to press criminal charges," Rehberg, 132 S. Ct. at 1508, and one, like Ostrowski, who "set[s] the wheels of government in motion by instigating a legal action. Id. at 1507 (citing Wyatt v. Cole, 504 U.S. 158, 164-65 (1992)). Defendants' attempt to convert grand jury testimony into an all-purpose shield from malicious prosecution liability is unpersuasive. The adoption of such a broad interpretation of Rehberg would allow any police officer — regardless of the extent of their involvement in laying the groundwork for an indictment — to escape liability merely by securing an appearance before a grand jury.
Sentence Reduction
In United States v. Huertas, 07 CR 197 (EDNY, June 6, 2012), Vitaliano granted defendant's motion for a modification of his term of imprisonment following alteration of the applicable offense levels in the United States Sentencing Guidelines Manual.
In July 2007, defendant pled guilty to an indictment charging him with "possessing a firearm after having been previously convicted of a felony . . . and with distribution and possession with intent to distribute cocaine base." The Pre-Sentence Report held defendant accountable for the 22.17 grams of crack cocaine he sold to an undercover officer, plus an additional 283.5 grams based on defendant's statement that he sold approximately 10 ounces of crack cocaine per week. The government agreed with defendant that it was more reasonable to use 22.17 grams as the relevant drug amount and calculated a total offense level of 25, yielding an advisory guidelines range of 100 to 125 months. The court imposed concurrent sentences of 108 months on each count.
Under the guidelines, if a defendant is serving a sentence of imprisonment and the applicable guideline range has been subsequently lowered as a result of an amendment to the Guidelines Manual, the court may reduce defendant's term of imprisonment.
Vitaliano found defendant eligible for a sentence reduction because a guideline amendment lowered defendant's applicable range. Defendant's new total offense level on the crack cocaine was 21 instead of 25, resulting in a new advisory guidelines range of 70 to 87 months. The court rejected the government's request to change the drug amount, finding that neither the guidelines amendment nor the policy statement in Guidelines Manual §1B1.10 authorized relitigation of the drug weight.
Finding in its discretion that a reduction was warranted, the court reduced the two concurrent sentences from 108 months to 80 months.
Access to Sealed Documents
In Dorsett v. County of Nassau, 10 CV 1258 (EDNY, June 6, 2012), Spatt granted in part and denied in part Newsday LLC and News 12 Networks LLC's (press applicants) motion seeking release of a transcript and exhibits arising from a contempt proceeding against Nassau County Legislature Presiding Officer Peter Schmitt.
In the underlying action plaintiffs sought damages for the death of Jo'Anna Bird. A major document in the case was an Internal Affairs Unit Report that documented the Nassau County Police Department's internal investigation into Bird's death. In January 2011, Magistrate Judge A. Kathleen Tomlinson granted a protective order restricting access to the report solely to the parties to the litigation to (1) prevent disclosure of law enforcement techniques and procedures, and (2) safeguard the privacy of individuals involved in the investigation. In December 2010, the press applicants had moved to intervene in the action in part to oppose the motion for a protective order. Tomlinson denied that motion and the press applicants' requests to unseal certain transcripts. Spatt rejected the press applicants' objections to Tomlinson's protective order in August 2011.
In December 2011, the court entered a Confidentiality Order permitting members of the Nassau County Legislature to review the internal affairs report in order to make an informed decision concerning approval of a settlement in the underlying action. The Confidentiality Order restricted access to the report to members of the Legislature and their counsel. It also provided:
In the event of a breach or violation of any term or condition of this Order, the County Defendants shall have the right to seek enforcement of the terms hereof and the imposition of any other appropriate remedy including, but not limited to, sanctions and contempt. Slip op. 5.
Despite the clear prohibition against disclosure of the report in any way, in February 2012 Schmitt made several statements to an interviewer in a videotaped Cablevision editorial that revealed contents of the report. The court issued an order to show cause why it should not find him in contempt of the Confidentiality Order, and granted the motion by the Police Benevolent Association of Nassau County (PBA) to intervene for the purpose of enforcing the Confidentiality Order. Spatt closed the courtroom during the contempt proceedings because PBA needed to demonstrate that Schmitt had revealed information contained in the report. The press applicants objected to the closure of the courtroom and requested an adjournment, which was denied. Now, the press applicants seek immediate release of the transcript of the proceedings and copies of exhibits.
Spatt did not reconsider whether the press applicants were entitled to access the report. Although lower courts have concluded that there is a presumptive right of access to almost all criminal and quasi-civil proceedings, the Supreme Court has not yet considered whether there is a constitutional right of access to civil trials. In addition, many federal and state courts have determined that the public has the right to inspect judicial documents and proceedings under the First Amendment, including transcripts of certain proceedings and related exhibits.
The presumption of access under the First Amendment and the common law may be overcome by countervailing interests, one of which is the danger of impairing law enforcement or judicial efficiency. Here, Spatt identified the "ability of the Court to enforce its own Confidentiality Order and conduct contempt proceedings where there is an alleged flouting of the Court's authority" as a significant judicial function and a countervailing interest to disclosure. Slip op. 11.
If the report's contents were disclosed through the contempt proceeding, it would undermine the basis of the confidentiality order and impair the court's ability to craft a settlement of the case. In short, the "court would be potentially sanctioning a non-party for supposedly revealing certain details of a protected report, while simultaneously releasing the same protected information to the public." Slip op 12. However, a redacted version of the transcript omitting details of the report could be released. Spatt presumed that the press applicants had copies of three requested exhibits representing replicas of Newsday print articles about the underlying criminal case. Slip op. 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 August 10, 2012, issue of the New York Law Journal. Copyright © 2012 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]