July 15, 2015

New York Law Journal / Written by: Harvey M. Stone, Richard H. Dolan

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, referring to "excessive" sentences in drug cases, explained the strong reasons for leniency in sentencing a mother whose young daughter suffered from sickle cell disease and other impairments. Judge Raymond J. Dearie, on motions for summary judgment, addressed several issues relating to an insurance company's assertion of an "auto exclusion" defense. And Judge Denis R. Hurley found that various communications sent by defendant did not violate his supervised release because the evidence at hand did not show the statements to be "true threats."

Reasons for Leniency

In United States v. G.L., 12 CR 475 (EDNY, April 2, 2015), Judge Weinstein stated reasons to sentence defendant—"a mother who used the presence of her young daughter as camouflage to help smuggle drugs into the United States"—to time served (one day), a significant deviation from the Sentencing Guidelines imprisonment range of 37-46 months.

In May 2012 defendant arrived with her 5-year-old daughter at John F. Kennedy Airport, returning from the Dominican Republic. Defendant was stopped after narcotics detector dogs honed in on her suitcase, which contained 4,587.6 grams of cocaine. Upon her arrest, she admitted to (a) the attempted cocaine smuggling that day, (b) smuggling $30,000 on her outgoing flight to the Dominican Republic, and (c) a prior courier trip in April 2012. On each trip her daughter traveled with her. Defendant's cooperation was offered immediately, "at considerable risk to herself."

Defendant, an American citizen, is 30 years old and the primary caregiver to her daughter, now 6 years old. Her daughter "suffers from sickle cell disease, hyperthyroidism, and Attention Deficit Hyperactivity Disorder." Defendant separated from the child's father because of his violence, but the couple contemplate reuniting to give their daughter a better life.

Since November 2012, defendant has been employed full-time. Her relatives are unable to help care for her child.

Defendant pleaded guilty in December 2012 to one count of conspiring to import cocaine. The court delayed imposition of sentence in anticipation of probation if defendant could maintain a stable life. In March 2015 the court imposed its sentence of time served and five years' supervised release.

As Weinstein noted, people incarcerated as a result of drug convictions comprise half of the U.S. prison population. The number of women in prison, many for drug offenses, has been growing since 1980 at a rate 50 percent higher than the rate for men. Though the guidelines must not discriminate based on gender, "family responsibilities cannot be ignored in individual cases." Slip op. 4. The incarceration of a parent causes major collateral damage to the child.

The court acknowledged that "the use of children to evade detection in drug smuggling" normally warrants heightened punishment. The court also commented on the need to avoid sentencing disparities among comparable defendants guilty of similar conduct. Slip op. 7.

Weinstein observed that the guidelines for drug crimes, though reduced, are "still excessive," driven as they are by drug type and quantity rather than on other relevant factors.

As the court also noted, "[s]elfish use of a child by a parent to aid in criminal activity may indicate a higher than normal risk of future criminality." Nonetheless, the overriding concern was "the serious adverse effect that defendant's incarceration would have on her daughter[.]" Slip op. 10. This, combined with defendant's cooperation, called for special consideration.

The lenient punishment here achieves "general and specific deterrence" and complies with the purposes of sentencing. "If the situation remains stable," the court added, "defendant or probation may move to end supervised release early." Slip op. 10-11.

Insurance—Auto Exclusion

In The City of New York v. Western Heritage Insurance Company, 13 CV 4693 (EDNY March 6, 2015), Judge Dearie denied plaintiffs' motion for summary judgment seeking a declaration that they were entitled to defense and indemnity under a commercial general liability policy, and granted in part, and denied in part, the defendant insurer's motion for summary judgment.

Plaintiff Dragonetti Brothers Landscaping Nursery and Tree Care held a policy with defendant Western Heritage Insurance Company. The policy contained an "auto exclusion" for damages "arising out of the ownership, maintenance, use or entrustment to others of any…'auto'…owned or operated or rented or loaned to any insured."

The City of New York had hired Dragonetti to do certain landscaping work. A vehicle operated by non-party John Battocchio collided with Dragonetti's dump truck, which was being operated by plaintiff Scott Paulino on the city's job. Battocchio died, and his estate brought an action in New York State Supreme Court against Paulino, Dragonetti and the city, alleging that Paulino was negligent in operating the vehicle, and Dragonetti and the city were negligent "in the maintenance, hiring, operation, management and control of the landscaping service" as well as in "the operation, supervision, maintenance, management and control of the Dragonetti motor vehicle operated by" Paulino. Western Heritage disclaimed coverage, and plaintiffs brought the federal action challenging that decision.

Plaintiffs argued that the "auto exclusion" did not apply because they had been sued for negligence in ways going beyond the operation of a vehicle. Dearie rejected that argument, citing U.S Fire Ins. Co. v. New York Marine & Gen. Ins. Co., 268 A.D.2d 19, 21, 706 N.Y.S.2d 377, 378 (1st Dept. 2000), for the proposition that "'it is the act giving rise to liability that is determinative, not the theories of liability alleged." Therefore, "regardless of whether the theory of liability in the underlying accident is negligence, negligent hiring or supervision, or negligence in the provision of landscaping services, the act giving rise to liability—an automobile accident—is the same", and "the 'auto exclusion'…bars coverage for the Battocchio accident." Slip op. 8.

Western Heritage, however, was not entitled to summary judgment dismissing the complaint. The question of whether it had given notice of its disclaimer of coverage "as soon as is reasonably possible", as required by N.Y. Insurance Law §3420(d), remained. In all but the "exceptional case" that is a jury question, Underwriters Ins. Co. v. City Club Hotel, 369 F.3d 102, 107 (2d Cir. 2004), quoting Hartford Ins. Co v. Nassau Cnty., 46 N.Y.2d 1028, 1030, 289 N.E.2d 1061, 1062-63 (1979), and several factors left the question insufficiently settled for resolution by the court on summary judgment, including whether Western Heritage's notice to Dragonetti was timely, and whether the city was an additional insured entitled to separate notice of disclaimer (which was not given). Slip op. 8-14.

Threatening Communications

In United States v. McCrudden, 11 CR 61 (EDNY, March 16, 2015), Judge Hurley held that defendant Vincent P. McCrudden had not violated his supervised release by making certain statements because they did not qualify as "true threats" and "the government has failed to establish that any of the subject undisputably vile, inane communications constitutes a violation of federal law[.]" Slip op. 3.

In July 2011, defendant pleaded guilty to transmitting threatening communications. He was sentenced to 28 months' incarceration to be followed by two years of supervised release, which commenced in January 2013.

A Violation of Supervised Release Report (VOSR), filed by the Probation Department in November 2014, charged defendant with, inter alia, committing another crime by "attempting to influence an officer of the United States by transmitting threatening communications," in violation of 18 U.S.C. §1503, and "mailing threatening communications," in violation of 18 U.S.C. §876(c). Both statutes require that the communications at issue constitute a "true threat."

A "true threat" occurs when "an ordinary, reasonable recipient who is familiar with the context of the communication would interpret it as a threat of injury." Slip op. 11. In considering whether the threat is real to the recipient, "only the background or contextual information known by, and the utterances directed at the recipient of the threat may be considered." Slip op. 12.

The communications at issue in the VOSR, sent to Hurley and other recipients, followed adverse rulings by Hurley on defendant's motion for early termination of his supervised release and adverse decisions involving related principles in cases pending in the Southern District of New York and U.S. Court of Appeals for the Second Circuit.

Hurley analyzed each of the government exhibits starting with the three communications sent to him. While finding that these three communications were offensive, Hurley did not objectively view them as threats and found some to be ambiguous.

The other communications in question were directed to the media, the Second Circuit Council, the Senate Judiciary Committee, the Second Circuit, Southern District Judge William Pauley, Second Circuit Chief Judge Robert Katzmann, Second Circuit Judges Dennis Jacobs, Rosemary Pooler and Denny Chen, and Southern District Judge Laura Taylor Swain. These communications fell into various categories, but none contained a "true threat," although most included threatening and/or obnoxious or obscene language. One communication to Thomson Reuters contained a First Amendment-protected call for revolution, a number of others were ambiguous and Hurley did not have information regarding the perceptions of other recipients. Hurley concluded:

None of the items in evidence authored by McCrudden qualifies as a "true threat" under the narrowly crafted, now abandoned Circuit standard articulated almost forty years ago in United States v. Kelner, 534 F.2d 1020, 1027 (2d Cir. 1996) but some of them when evaluated under the more broadly encompassing, and currently controlling criteria set forth in United States v. Turner, 720 F.3d 411 (2d Cir. 2013), are right on the cusp of being criminal. Indeed, but for the absence of reaction testimony from the recipients of McCrudden's letters and e-mails, several in all probability would have been found to be criminal in nature as alleged and, thus, violative of his supervised release. However, based on the limited record before me, I conclude that the government has not established that the defendant has violated either charge 1 or charge 2 as set forth in the November 6, 2014 VOSR report.

Slip op. 36.

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.