April 19, 2017

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 Frederic Block imposed a probationary sentence in light of the extensive collateral consequences of defendant's conviction. Judge Allyne R. Ross sanctioned two attorneys for a pattern of conduct including neglect of trial-related scheduling orders. And Judge Jack B. Weinstein held that, contrary to a recently amended Application Note to a Guidelines provision, defendant's prior plea to Driving While Ability Impaired does not elevate his criminal history and thus he remains eligible for a "safety-valve" exception to a ten-year mandatory minimum sentence.

Collateral Consequences

In United States v. Nesbeth, 15 CR 18 (EDNY, May 24, 2016), Judge Block, after considering the collateral consequences of defendant's conviction for cocaine offenses, sentenced her to a one-year probationary term with six months of home confinement (except to go to work or school) and 100 hours of community service. The Sentencing Guidelines range was 33 to 41 months. Block wrote this opinion setting forth the consequences of the sentence on defendant's future work opportunities and on other rights and privileges because "sufficient attention has not been paid at sentencing by me and lawyers...to the collateral consequences facing a convicted defendant." Slip op. 2.

Defendant brought 602 grams of cocaine into the U.S. from Jamaica contained in the handles of suitcases given to her by friends. Though born in Jamaica, where she was raised in lower income circumstances, she lived in Connecticut and was a United States citizen. Defendant was in college studying education, but switched to sociology out of concern that her conviction would foreclose a career in education. She worked as a nail technician.

Block emphasized the general obligations of defense counsel, prosecutor and Probation Department "to assess and apprise the court, prior to sentencing, of the likely collateral consequences facing a convicted defendant." Slip op. 39.

Collateral consequences differ for each defendant depending on the defendant's occupation and other personal circumstances. Defendant's conviction could render her ineligible for (1) any funds provided by an agency or funds of the United States for five years; (2) Social Security Act or Food Stamp benefits; (3) issuance of a passport during supervised release; (4) issuance of a driver's license for six months; and (5) federal employment in areas such as child care. Also, under Connecticut law, she will not be able to vote until probation expires, serve on a jury for seven years, qualify for a teaching certificate for five years, adopt a child for five years, get a license for a child-related occupation, or be eligible for Connecticut public housing. Slip op. 23-29.

Defendant fit the criteria for an aberrant behavior departure under §5K2.20 of the Sentencing Guidelines. Her crimes were a "marked deviation from an exemplary law-abiding life." As a courier, she committed crimes of limited duration and without significant planning on her part.

Defendant also qualified for a variance from the sentencing guidelines based on collateral consequences:

[T]he collateral consequences Ms. Nesbeth will suffer, and is likely to suffer-principally her likely inability to pursue a teaching career and her goal of becoming a principal, Conn. Gen. Stat. §§10-145b, 145i-have compelled me to conclude that she has been sufficiently punished, and that jail is not necessary to render a punishment that is sufficient but not greater than necessary to meet the ends of sentencing.

Slip op. 33.

Block noted that in old England a conviction was called "civil death." In spite of reform efforts, the equivalent of civil death fairly describes such collateral consequences today. The Uniform Law Commission released the 2010 Uniform Collateral Consequences of Conviction Act (UCCCA), which includes procedural protections such as notifying a defendant of the collateral consequences of pleading guilty. Vermont has enacted the UCCCA, and similar bills are pending in New York, Pennsylvania and Wisconsin.

There are 50,000 federal and state statutes imposing collateral consequences on convicted felons. Under federal law there are 1,200 collateral consequences for convictions generally and another 300 for controlled-substance offenses.

There is a split among the circuits as to the permissibility of considering the collateral consequences of a conviction when balancing sentencing factors under 18 U.S.C. §3553(a). The Sixth, Seventh, Tenth and Eleventh Circuits have concluded that collateral consequences of felony convictions are "impermissible considerations", while the Second and Fourth Circuits have found that the impact of a conviction on a career and likely deportation are important when considering "just punishment." E.g., United States v. Stewart, 590 F.3d 93 (2d Cir. 2009). Slip op. 17-18.

Attorney Sanctions

In Martin v. Giordano, 11 CV 4507 (EDNY, May 9, 2016), Judge Ross sanctioned two lawyers for persistent failures to comply with court-ordered deadlines, and referred other actions by them for possible disciplinary response.

In 2011, attorney Jason Leventhal asserted state and federal claims arising from an incident in which plaintiff Isa Martin allegedly was struck by a New York Police Department vehicle and beaten by officers.

When Leventhal cited a conflict to adjourn the trial date set for March 21, 2016, Ross moved the trial up to March 14, with pretrial submissions due Feb. 22. On Feb. 19-the last business day before submissions were due-attorney John Nonnenmacher wrote Ross that he had been brought on by Leventhal as "trial counsel," had recently learned of the loss of a "close family member," and needed an extension of "at least one week" for pretrial submissions. Ross expressed her condolences but granted only a one-day extension.

Defense counsel wrote Ross on Feb. 22, advising that they were unable to prepare their own pretrial submissions, because Leventhal told them they should communicate only with Nonnenmacher, who was unreachable. Ross moved the trial back to March 21, the pretrial submissions to noon on Feb. 26, and "expressed concerns regarding Mr. Nonnenmacher's conduct and raised the specter of sanctions for the first time."

The same day that this order issued, Nonnenmacher filed another motion, "providing unsolicited details regarding the death in his family and related arrangements" and seeking an extension to Feb. 29 for pretrial submissions. After Ross granted the extension to 10 a.m. on Feb. 29, defense counsel wrote that morning to seek additional time given the deficient cooperation of Nonnenmacher.

Ross held a telephone conference that day, again raising the prospect of sanctions, and directed that all pretrial submissions be completed by noon on March 2. When plaintiff's March 2 pretrial submissions proved deficient, Ross held follow-up conferences, with additional warnings of sanctions. Though plaintiff's counsel continued to miss deadlines for addressing the deficiencies, the submissions were complete in time for the March 21 trial date.

On the morning of March 21, Leventhal wrote Ross that Nonnenmacher's mother had died. Ross adjourned the trial to March 28 and told Leventhal that he would be expected to proceed on that date with or without Nonnenmacher. On March 23, Leventhal advised Ross that Nonnenmacher's wife had informed him that Nonnenmacher's mother had not died, and Nonnenmacher had himself been hospitalized. Leventhal moved for an immediate hearing to disqualify Nonnenmacher. Stating that, in reliance on Nonnenmacher as trial counsel, he had "not yet begun to prepare for trial," Leventhal sought adjournment of the March 28 trial date, which was denied.

On Saturday, March 26, Leventhal filed a stipulation of voluntary dismissal with prejudice on plaintiff's behalf. He subsequently acknowledged this was done "without plaintiff's express authorization" and, upon ex parte review, Ross found the materials relevant to the termination to be protected by attorney-client privilege. Ross retained jurisdiction for the sanctions application defendants indicated they intended to bring.

Nonnenmacher continued to miss deadlines in responding to the sanctions application, and his name was not recognized when chambers called the hospital where a former associate (who had contacted the court on his behalf) had indicated he could be found.

Weeks later, when Nonnenmacher eventually appeared, he explained that he had called Leventhal in a "hysterical" state on the morning of March 21 and had said that his mother was "about to die," leading to Leventhal's "apparent understanding" that she was already dead. He claimed he was suffering "extreme anxiety, emotional distress, and severe medical problems" that resulted in his hospitalization two days later and, as he was not released until April 16, he had not been in a position to correct Leventhal's misstatement to the court. Slip op. 19-20.

Ross denied sanctions under Fed. R. Civ. P. 11(c) and 28 U.S.C. §1927. Under Rule 11(c), there was insufficient basis to find that Leventhal had knowingly made a false statement, or had an improper purpose, in writing Ross that Nonnenmacher's mother had died. Nonnenmacher himself made no such representation to the court and, as Leventhal's submission did not violate Rule 11(c), the rule would not extend to Nonnenmacher's role in causing that submission, although his conduct was referred for possible disciplinary action. Slip op. 32-33.

Section 1927 requires a finding of bad faith. Leventhal's conduct "may be characterized as neglectful or apathetic, but it does not evince bad faith." Determination of the motives behind Nonnenmacher's behavior could not be made without further inquiry. That too was more appropriately a matter for the disciplinary authorities. Slip op. 41-43.

Both Leventhal and Nonnenmacher were, however, sanctioned under Rule 16(f) for failure to obey a scheduling or other pretrial order. Ross found at least six violations of specific orders. Leventhal's attempt to attribute responsibility to Nonnenmacher alone failed because he remained co-counsel of record after Nonnenmacher's appearance. The amount of the monetary sanction, limited to fees incurred as a direct result of the six enumerated violations, was referred to Magistrate Judge James Orenstein for determination. Ross also issued a public reprimand to both attorneys. Slip op. 34-41.

Finally, Ross asked the chief judge to refer the matter "to the Committee on Grievances to consider the imposition of discipline or other relief pursuant to Local Civ. R. 1.5(f)" on additional grounds. As to Leventhal, the questions were whether (1) his admission that he terminated the matter without plaintiff's express authorization violated Rules 1.2 or 1.16 of the Rules of Professional Conduct of the New York State Unified Court System (Disciplinary Rules), and (2) he had conflicting interests in representing, on defendants' motion for sanctions, both himself and plaintiff (as to whom sanctions were denied).

As to Nonnenmacher, the questions were whether (1) his failure to withdraw when his physical or mental condition materially impaired his ability to represent the client violated Disciplinary Rule 1.16(b)(2), and (2) his conduct "has been competent and diligent within the meaning of" Disciplinary Rules 1.1 and 1.3. Slip op. 46-48.

Guidelines - Criminal History

In United States v. Paredes, 15 CR 436 (May 5, 2016), Judge Weinstein, declining to apply a recently amended Application Note to the Sentencing Guidelines, held that defendant's prior plea to a New York State "infraction" for Driving While Ability Impaired (DWAI), New York Vehicle & Traffic Law §§1192(1), 1193(1)(a), did not increase his criminal history score, which would have required a 10-year mandatory minimum sentence for the instant drug offense. The court imposed a sentence of eight months' time served and noted that defendant will probably now be deported.

Defendant pleaded guilty two years ago to participating in a cocaine conspiracy as a low-level courier. The statute calls for a 10-year mandatory minimum sentence, 21 U.S.C. §841(b)(1)(A)(ii)(II), subject to a safety valve, 18 U.S.C. §3553(f), which provides relief for defendants who meet certain criteria, including no more than one criminal history point. (The criminal history score is based on a defendant's prior criminal record.) At the time of the plea, the parties believed that defendant's earlier DWAI infraction would not affect his criminal history, and defendant satisfied all other criteria.

Section 4A1.2 of the Guidelines lists factors for determining whether a prior sentence bears on criminal history. Sentences for "misdemeanor and petty offenses" are counted, except for various listed offenses and "offenses similar to them." One of the listed offenses is "careless or reckless driving." These excepted offenses "are counted only if (A) the sentence was a term of probation of more than a year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense[.]" Neither condition applied to defendant's prior DWAI infraction.

In a case nearly identical to this, the U.S. Court of Appeals for the Second Circuit held that a New York DWAI infraction should be omitted from a criminal history score in the absence of disqualifying facts. United States v. Potes-Castillo, 638 F.3d 106 (2d Cir. 2011). The case was remanded to the district court to decide whether the DWAI infraction was "similar to" a "[c]areless or reckless driving" offense. On remand the district court found in defendant's favor on that issue, making him eligible for the safety valve. Slip op. 7-11.

Seeking to overrule the Second Circuit's decision, the Sentencing Commission amended Application Note 5, which now states: "Convictions for driving while intoxicated or under the influence (and similar offenses by whatever name they are known) are always counted, without regard to how the offense is classified."

As Weinstein observed, the Second Circuit has already decided this issue, and Application Note 5 does not apply here for a number of reasons: (1) The Note applies to "convictions" for driving while intoxicated; defendant's offense was a mere "infraction" of a non-criminal traffic law provision; (2) While the Note applies to convictions for "driving," a DWAI offense in New York can occur even with no driving involved; (3) DWAI is not "categorically more serious" than "reckless driving" listed in section 4A1.2(c)(1).

Considering the Guidelines range (51-63 months), the sentencing factors under 18 U.S.C. §3553(a), and the hardships of deportation, Weinstein sentenced defendant to eight months' time served and three years' supervised release. Slip op. 16-20.