MEDIA

May 9, 2008

Special Child Porn Case, Declaring Firearms at Airports

Published in: New York Law Journal | volume 239

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 Jack B. Weinstein held that the failure to inform the jury of a mandatory minimum sentence violated defendant’s Sixth Amendment rights under the special circumstances of this child pornography case. Judge Brian M. Cogan granted the Port Authority’s motion for summary judgment as to §1983 claims by plaintiffs who encountered problems after declaring their firearms to ticket agents at New York airports. Judge Charles P. Sifton ruled that a plea to aggravated identity theft should be withdrawn for lack of scienter. Judge David G. Trager found that a claimant against Delta Airlines did not receive sufficient notice of the bar date for filing claims in Delta’s bankruptcy to discharge his claim. And Judge Dora L. Irizarry granted a union’s petition for enforcement of an arbitration award against the Long Island Railroad Company.

Jury Instruction on Minimum Sentence

In United States v. Polizzi, 06 CR 22 (EDNY, April 1, 2008), Judge Weinstein set aside a guilty verdict and granted a new trial on charges of receiving child pornography because the court had failed to grant defendant’s request to inform the jury of the five-year mandatory minimum sentence.

Defendant was charged with 12 counts of receiving child pornography and 12 counts of possessing child pornography, 18 U.S.C. §§2252(a)(2) and 2252(a)(4)(B). The receiving counts carry a mandatory minimum sentence of five years.

The evidence at trial showed that defendant, now 54, had emigrated here from Sicily in his early teens, married and had five successful sons, worked hard and supported his family. For five years before his arrest, he often retired to a double-locked room over his garage to view child pornography, mainly pictures of young girls, on his computer.

His conduct was passive, and according to expert testimony he posed no risk of sexual predatory behavior against children.

Indeed, there was expert testimony that defendant’s encounters with child pornography triggered not deviant sexual arousal but rather memories of his own severe and terrifying sexual abuse as a child. Defendant’s repetitive conduct resulted as well from his obsessive compulsive disorder.

Defendant testified that, when he viewed and downloaded the images, he did not know that what he was doing was illegal. Making no effort to hide his identity, he used his real name, e-mail and street address, and credit card to join the service that provided the pictures. The lack of knowledge of illegality, however, was not a defense to the statutory prohibition against ‘knowingly’ receiving the illicit images.

In accordance with standard practice, Judge Weinstein denied defense requests to instruct the jury that the mandatory minimum on the receiving counts was five years. Rejecting the insanity defense, the jury returned a verdict of guilty on all counts. After the verdict the court told the jury about the mandatory minimum sentence. Many jurors expressed distress, saying they would not have voted to convict had they known of the mandatory incarceration. They had assumed that defendant, if convicted, would receive treatment, not lengthy imprisonment.

The court’s decision extensively analyzes a whole array of constitutional issues, some quite substantial, relating to the statutory scheme (slip op. 46-160.) As to various problems relating to passive receiving and possessing without evil intent, the court stated that, were it ‘writing on a clean slate,’ it would declare the statute unconstitutional. Slip op. 76.

But the sole basis for granting a new trial was, in retrospect, the unconstitutional refusal to inform the jury of the mandatory minimum imprisonment. Slip op. 160-238. Reviewing 18th-century colonial and English criminal practices, Judge Weinstein demonstrated that petit juries of 1791 would have been aware of harsh penalties mandatorily imposed, and would have been expected to acquit or convict of a lesser crime to avoid excessive punishment.

As the court stated:

When a jury refuses to convict on the basis of what it thinks is an unjust law as applied, a misconceived prosecution, or any excessive penalty, it is performing exactly its role imposed by the Sixth Amendment . . . . [T]hese powers of the jury were exercised consistently before, and many years after, the Sixth Amendment was adopted. (Slip op. 162-63.)

In the latter part of the 18th century, moreover, jurors knew details about criminal law and punishment that many jurors today ‘do not know and are deliberately kept from knowing.’ It would have been ‘inconceivable’ that a New York jury of 1791 trying a case like this (if such a case had existed) would not have known of a minimum five-year sentence. Slip op. 66.

Judge Weinstein traced as well the efforts in the 19th and 20th centuries to water down the Sixth Amendment by restricting jury discretion. ‘Since the late nineteenth century,’ the court observed, ‘jury power has increasingly been suppressed in favor of judicial control in both civil and criminal trials through case law and amendments to the statutes and rules governing the trial process.’ Slip op. 193.

As Judge Weinstein emphasized, however, recent Supreme Court case law has rejected attempts to limit jury power. In one series of decisions dealing with sentencing guidelines, the Supreme Court has revived Sixth Amendment guarantees by requiring a jury finding of the facts needed to enhance a sentence. E.g., United States v. Booker, 543 U.S. 220 (2005); Blakely v. Washington, 542 U.S. 296 (2004). This line of cases, which invalidated widespread accepted sentencing practice, was ‘founded largely on the court’s interpretation of the jury’s role in sentencing in early American and English cases.’ Slip op. 201.

The Confrontation Clause has also been reinvigorated in Crawford v. Washington, 541 U.S. 36 (2004). The rationale of that and other modern Supreme Court decisions supports the jury’s power to prevent sentences it deems excessive and its need to have vital sentencing information to fulfill its historical role as ‘the conscience of the community and guardian against government oppression.’ Slip op. 207.

Here, Judge Weinstein concluded, informing the jury of the applicable penalty was required by special circumstances, including ‘the mandatory minimum sentence unknown to the jury, the need for psychiatric help in view of sexual childhood abuse, the locked door behind which viewing took place, and other factors.’ Slip op. 221.

The instruction at issue, the court noted, is ‘not the same as a pro-nullification instruction.’ Slip op. 228.

Finally, because the error was prejudicial, a new trial was required on the receiving counts. Slip op. 234-38.

Transporting Firearms in N.Y.

In Torraco v. Port Authority of New York & New Jersey, 05 CV 5572 (EDNY, March 17, 2008), Judge Cogan granted defendants’ motion for summary judgment dismissing §1983 claims arising from interference by the Port Authority Police with the transport of firearms pursuant to federal law.

Plaintiff Torraco is an attorney who resides in Florida and owns an Astra pistol. In October 2004 he checked into a flight at LaGuardia and advised the airline ticket agent that he was carrying a pistol in a case and wanted to check it through with his luggage. Mr. Torraco believed he was in compliance with the procedure for transporting firearms under federal law. The airline ticket agent tagged the firearm, checked it, and advised plaintiff that it was standard operating procedure to notify the Port Authority Police when a passenger declares a weapon.

Police officers asked Mr. Torraco if he had a New York license for the firearm, and plaintiff explained that federal law, 18 U.S.C. §926A, preempted local licensing requirements and allowed him to transport the firearm. The officers continued to ask if plaintiff had a New York permit or any documentation showing he was lawfully in possession of the gun. Even though a Transportation Security Administration supervisor took the position that Mr. Torraco was correct, the police officers maintained their position that the federal statute did not override New York State law prohibiting carrying firearms without a license. They arrested Mr. Torraco for possession of a weapon in the fourth degree. The district attorney failed to respond to Mr. Torraco’s motion to dismiss on the ground of federal preemption, and the state court granted Mr. Torraco’s motion.

Plaintiff William Winstanley resides in Westchester and owns three firearms for which he has New York permits. He went to JFK airport to take a flight to Phoenix and declared the guns to the ticket agent, who called Port Authority Police. The police officer reviewed Mr. Winstanley’s permit and asked if he had an Arizona permit. Mr. Winstanley stated that he did not need an Arizona permit, but that he had a Florida permit which permitted him to carry a concealed weapon in Arizona. The police officer would not permit Mr. Winstanley to board the aircraft with the firearms. The next day Mr. Winstanley spoke to a lieutenant who finally agreed with him that he did not need a permit in Arizona, but by then he had missed another flight. The third day he was told that he had the wrong type of case, and his flight was canceled. Mr. Winstanley left for Arizona on the fourth day, with his guns in a new case, after showing his New York permit and driver’s license.

Plaintiffs seek injunctive and declaratory relief and damages under §1983, Mr. Winstanley for infringement of his right to travel and carry firearms, and Mr. Torraco for infringement of his Fourth Amendment right to be free from unreasonable search and seizure and right to carry firearms.

Judge Cogan found that Congress did not intend to confer a private right of action under §1983 for violation of §926A. The court concluded that when there is a conflict between state law and §926A, ‘Congress intended to recognize enforceable rights rather than merely make adjustments to local government conduct.’ Slip op. 14. But the language of the statute allowing one to transport firearms ‘for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm,’ was vague and ambiguous in application, because it would require the local police to have knowledge of the firearms laws of the 50 states or accept the oral representation of the suspect. This ‘vague and amorphous’ language did not support a claim for §1983 damages under Blessing v. Freestone, 520 U.S. 319 (1997).

The court also dismissed Mr. Torraco’s Fourth Amendment claims under §1983, finding that the police officers had probable cause to arrest him. After reviewing the facts, Judge Cogan concluded:

A police officer who finds someone carrying a gun in New York City, with no documentation, is not legally obligated to simply take the suspect’s word that his possession is legal when New York law says that it is not. If the suspect can offer nothing to confirm his defense to what appears to be a clear violations of New York law, the officer is entitled to make the arrest and allow a judge or jury to determine the sufficiency of the suspect’s story. Slip op. 24.

The police officers were also protected by qualified immunity because Mr. Torraco’s rights under §926A were not ‘clearly established.’ Slip op. 26. Similarly, the court dismissed Mr. Winstanley’s constitutional right to travel claim, because ‘refusal to allow the transport of a firearm is not sufficiently material to infringe upon that right.’ Slip op. 30.

Aggravated ID Theft: Scienter

In United States v. Sanchez, 08 CR 0117 (EDNY, April 30, 2008), Judge Sifton allowed defendant to withdraw his guilty plea to aggravated identity theft, where his statements under oath did not reflect the necessary scienter.

Defendant pleaded guilty to Counts Two and Four of an indictment. Count Two states that he used, for entry into the United States, a Puerto Rican birth certificate, knowing that the document had been unlawfully obtained, 18 U.S.C. §1546(a). The birth certificate was in the name Carlos Morales, which is not defendant’s name. Count Four charges aggravated identity theft, 18 U.S.C. §§1028A(a)(1)(b), and (c)(1). It states that in connection with Count Two, defendant ‘knowingly’ used, ‘without lawful authority, means of identification of another person . . . .’

Section 1028A provides that whoever, in relation to any enumerated felony, ‘knowingly transfers, possesses or uses, without lawful authority, a means of identification of another person shall, in addition to punishment for such felony, receive an enhanced prison term of two years.’ (Emphasis added).

After the plea, defendant was asked if the documents he used belonged to an actual person. Defendant said he did not know if that person existed.

On this record Judge Sifton granted defendant’s motion to withdraw the plea. There is a split among the courts as to the extent of scienter required under the statute. The government argued that the statutory adverb ‘knowingly’ modifies only the adjacent verbs ‘transfers, possesses, or uses’ and does not require knowledge that the particular document belonged to an actual person.

Judge Sifton disagreed, finding the statutory language to be ambiguous, a conclusion reinforced by the split in the decisions. Slip op. 9. ‘The title of the statute and the legislative history,’ the court stated, ‘use the word ‘ theft’ to characterize the offense.’ An essential element of ‘theft’ is the ‘intent’ to deprive another of property. The examples of offenders in the legislative history all involve people who knew they were stealing the identity of another person. Slip op. 11.

As the court also stated, it does not seem ‘entirely just’ to add two years’ imprisonment ‘for a circumstance (the fact that the false name chosen happened to belong to another person) over which the defendant has little control.’ Slip op. 12.

Bankruptcy: Nondischarge

In Bary v. Delta Air Lines Inc., 02 CV 5202 (EDNY, April 24, 2008), Judge Trager granted plaintiff’s motion to reopen the case in spite of Delta Air Line Inc.’s filing and emergence from bankruptcy. Plaintiff’s claim was not discharged in bankruptcy because plaintiff did not get reasonable notice of the bar date for filing claims against Delta.

Plaintiff was a jewelry salesman transporting several hundred thousand dollars worth of jewelry that he claims Delta forced him to check based on his race and nationality (Sri Lankan). When he arrived at his destination, the jewelry was missing from his suitcase. Plaintiff alleged claims based on civil rights violations and the loss of his property.

While the action was pending, Delta filed a petition in Bankruptcy Court which imposed an automatic stay on this action and it was administratively closed. On June 5, 2006, the Bankruptcy Court set a bar date requiring all creditors to file proofs of claim by Aug. 21, 2006. Plaintiff was a scheduled creditor, but the address on Delta’s list was not current, and the notice of the bar date was returned as undeliverable. Delta made no further efforts to provide notice to plaintiff of the bar date and plaintiff never filed a proof of claim. Delta did publish notice in several newspapers and on its Web site.

Judge Trager agreed with plaintiff that he did not receive sufficient notice to discharge his claim, and that Delta’s efforts to notify him did not satisfy due process. If a creditor is known to the debtor, due process requires actual, as opposed to constructive, notice. Even though plaintiff knew of Delta’s bankruptcy filing, that did not satisfy due process, because Delta’s efforts to give him actual notice by trying to ascertain his current address were not reasonably diligent. Delta knew that plaintiff was represented by counsel in this action, yet made no effort to contact him to obtain a current address.

Labor Arbitration Award

In Brotherhood of Locomotive Engineers & Trainmen v. The Long Island Rail Road Co., 07 CV 0934 (EDNY, March 24, 2008), Judge Irizarry granted the union’s petition to enforce an arbitration award, and denied the motion of Long Island Rail Road Co. (LIRR) to dismiss for lack of subject matter jurisdiction.

Between 1998 and 2004, LIRR engineers filed numerous employee claims for compensation pursuant to Article 28 of a collective bargaining agreement between the union and the LIRR. In many instances, the LIRR did not notify the employees or the union within the 30-day time limit set forth in the agreement that the claims were denied. The union demanded that the claims be allowed, and the LIRR refused to allow them. The parties submitted the dispute to a special board of adjustment created pursuant to the agreement. The board of adjustment issued a final award in favor of the union holding that the LIRR did not notify the claimants that it was denying the claims within the time limit.

The LIRR argued that because prior boards of adjustment had denied certain categories of claims, those claims were not allowable. But as Judge Irizarry observed: (1) an adjustment board does not have an ‘absolute duty’ to follow precedent, and (2) the LIRR did not raise this argument during the arbitration and was thus foreclosed from raising it here.

The court found no ambiguity in the award, which clearly held that the LIRR did not timely deny the claims and that those claims should be allowed. Finally, because the dispute did not involve a question concerning the interpretation of the award, the court did not lack subject matter jurisdiction.

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 May 9, 2008, issue of the New York Law Journal. Copyright © 2008 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]