June 13, 2019
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 applied the First Step Act of 2018 to reduce a 2009 sentence to time served. Judge Raymond J. Dearie found that the government's untimely production in a criminal case of voluminous material, much of it in Swahili and some of it favorable to the defense, required a new trial under Brady v. Maryland, 373 U.S. 83 (1963). And Judge I. Leo Glasser found no merit to plaintiffs' claims for overtime under the Fair Labor Standards Act and New York Labor Law, given the FLSA's Motor Carrier Exemption.
Sentence Reduction-First Step Act of 2018
In United States v. Simons, 07 CR 00874 (EDNY, April 22, 2019), Judge Weinstein reduced a 12-year sentence, imposed over a decade ago, to time served in one of the first cases under the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018).
In 2009 Cheyenne Simons was sentenced to 12 years' imprisonment for his role in a conspiracy to distribute crack cocaine. He pled guilty to 18 counts in the indictment, including count 1 (conspiracy to distribute 50 grams or more of cocaine base, 31 U.S.C. §846, §841(a)(1), and §841(b)(A) (iii)), and count 39 (carrying and using a firearm during and in relation to drug trafficking, 21 U.S.C. §924(c)). Here, he moved to reduce his sentence under the First Step Act. When Weinstein reduced his sentence, Simons had already served more than 136 months of his 144-month sentence.
Though conceding that defendant was eligible for resentencing under the First Step Act, the government argued that there were no factors justifying a reduction. Weinstein found the government to be "mistaken":
We now have two well-considered statements of federal policy by Congress since the defendant was originally sentenced-the First Step Act and the Fair Sentencing Act of 2010 ... Both favor sending fewer people to prison, imposing shorter sentences for drug crimes, and reducing the sentencing disparity between crack and powder cocaine offenses.
Slip op. 2 The court added: "An extra year, day, or moment of freedom from prison, when warranted, is worth pursuing by a prisoner, and, if justified by the law, should be granted by the court."
The Fair Sentencing Act of 2010 softened "a penalty structure for crack cocaine offenses that was considered by many to be overly harsh and to have a disparate heavy impact on African American defendants." Slip op. 6. But that Act did not apply retroactively.
The First Step Act of 2018 ameliorated somewhat the tough sentencing laws of the 1980s and 1990s that had "led to an explosion in federal prison population and costs." These costs were cutting into the Justice Department's other priorities. The Act also "expanded vocational training, work-release programs, and other programs designed to reduce recidivism." Slip op. 7.
The First Step Act makes retroactive the reforms enacted by the Fair Sentencing Act. The First Step Act "allows courts to impose reduced sentences on any prisoner who is still serving a sentence for a 'covered offense' if that sentence was imposed before the Fair Sentencing Act's penalty structure applied." Slip op. 9. As defined by Section 404 of the First Step Act, an offense is "covered" when the statutory penalties "were modified by Section 2 or 3 of the Fair Sentencing Act of 2010" and the offense "was committed before August 3, 2010."
As Weinstein found, defendant's drug convictions are covered offenses, and the listed statutory limitations did not apply to him. After analyzing the record of the case, the various changes in the law since 2009 and the resulting changes in the Guideline Range, Weinstein explained the reasons for the reduction. Slip. op. 10-15. The court noted that, while in custody, defendant has taken significant steps to achieve rehabilitation, earning his GED and completing vocational and educational courses and drug treatment programs. These and other factors called for a sentence of time served.
Weinstein directed the Probation Department to supervise defendant for 60 days upon his release and to assist his "reentry into lawful life." Slip op. 14.
'Brady' Violation-New Trial Granted
In United States v. Djibo, 15 CR 00088 (EDNY, April 8, 2019), Judge Dearie granted defendant's motion for a new trial after finding that the government had wrongly withheld material favorable to the defense.
Defendant Amado Djibo was convicted of a variety of drug charges, including possession of heroin with intent to distribute, based on the testimony of Stanley Walden. After being caught with 6.4 kilograms of heroin by Customs at Kennedy Airport, Walden had identified Djibo as the leader of this, as well as earlier, drug importation schemes, and denied that he had ever imported drugs other than at Djibo's direction. Several days before the start of Djibo's trial, the government produced approximately 8,000 pages of records from Walden's cell phone, about half of which was in Swahili and required translation. Based on the government's representation that all relevant portions of the Walden cell phone records had been produced six months earlier, the court allowed Djibo's counsel only a one-day extension to review the newly-produced material.
On appeal, after Djibo's Rule 33 motion for a new trial was denied, the Second Circuit directed that he be given time and funding to retain a Swahili translator to review Walden's cell phone records, and then the opportunity to renew his Rule 33 motion. Granting the renewed motion, Dearie found that (1) certain communications contained in the government's 8,000-page production just before trial were favorable for the defense; (2) under Brady v. Maryland, 373 U.S. 83 (1963), the government should have produced those materials in a way that allowed for effective use at trial; and (3) its failure to do so prejudiced the defense.
The communications referred in code to drug transactions where Djibo was not involved, and Walden appeared to the be leader. Slip op. 11-14. This evidence could have been used to attack Walden's credibility because he had denied participating in drug transactions apart from those with Djibo and to argue that Walden possessed the drugs for which Djibo was charged on Walden's own account rather than on Djibo's behalf. Slip op. 14-16.
The withholding was material and prejudicial. Slip op. 17-19. The unfairness of producing 8,000 pages, many needing translation, days before trial was compounded by the government's successful opposition to an adequate adjournment based on the misrepresentation that all relevant materials had been provided earlier. "A showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal, but rather a conviction must be reversed upon a showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" Slip op. 19, quoting United States v. Mahaffey, 693 F.2d 113, 127 (2d Cir. 2012). Djibo met this standard, especially as Walden was the government's only basis at trial for connecting him with the charged offense. Slip op. 21.
Motor Carrier Exemption To FLSA
In Hayward v. IBI Armored Services, 17 CV 2944 (EDNY, April 11, 2019), Judge Glasser dismissed plaintiffs' claims for overtime under the Fair Labor Standards Act (FLSA) and granted defendant's motion for summary judgment regarding any right to overtime under New York Labor Law (NYLL).
Plaintiff Travis Hayward and 28 other plaintiffs, employees of defendant IBI Armored Services Inc., claimed that defendant failed to pay minimum wage, overtime and spread-of-hours compensation as well as provide wage statements, in violation of the FLSA, the NYLL and the New York State Wage Theft Prevention Act. Defendants argued that plaintiffs were subject to the FLSA's Motor Carrier Exemption, 29 U.S.C. §213(b)(1), "which provides that mandatory overtime compensation does not apply to 'any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service ...'"
Because plaintiffs did not dispute that they were subject to the FLSA's Motor Carrier Exemption, Glasser dismissed their claims under the FLSA. Plaintiffs asserted that they were, nonetheless, entitled to overtime and wage statements under the NYLL. According to plaintiffs, the New York Department of Labor Minimum Wage Order, 12 N.Y.C.R.R. §142-2.2, relating to the NYLL, "mandates that even employees who are exempt pursuant to the FLSA's Motor Carrier Exemption are nevertheless entitled to overtime compensation under the NYLL." Slip op. 4. As the court observed, however, the Minimum Wage Order, while not specifically mentioning the Motor Carrier Exemption, provides that an employer shall pay minimum wage at a rate of one and a half times the regular rate "subject to the exemptions of the ... [FLSA.]" On June 30, 2010, the Department of Labor issued an opinion letter to the effect that even if employees met the requirements of the Motor Carrier Exemption under the FLSA, they must be paid overtime under the NYLL.
As to the deference, if any, that must be paid to the Department of Labor opinion, Glasser looked to the Supreme Court's decision in Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1984). Chevron held that, if Congress has spoken on the precise statutory question at issue and its intent is clear, the courts and the agency administering the statute must give effect to the intent of Congress. But if Congress has not addressed the question at issue, the courts must look to the agency interpretation of the statute. Here, "the Department of Labor's intent was clearly expressed in Minimum Wage Order 12 N.Y.C.R.R §142-2.2 and ... the NYLL adopts the FLSA's Motor Carrier Exception." Slip op. 6. It was inconsequential that the Department of Labor did not expressly mention the Motor Carrier Exception.
As to plaintiffs' wage statement claim, Glasser denied summary judgment, holding that there was a genuine issue of material fact as to whether defendants made complete and timely payment of all wages due. Slip op. 7-8.
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.