District Judge Thomas J. McAvoy

U.S. v. Pierce, 224 F.2d 158 (2000)

This is a Second Circuit decision reversing McAvoy's bench trial verdict of conviction in a money laundering/wire fraud case.

[160] "In 1999, following a bench trial, the Pierces were convicted in the United States District Court for the Northern District of New York (Thomas J. McAvoy, Chief Judge).

"The 'specified unlawful activity' in which the Pierces were accused of having engaged was a wire-fraud scheme...to defraud the Canadian government of tax and duty revenue. The prosecution alleged that the Pierces transported or caused to be transported alcoholic beverages, mostly or entirely liquor, from the United States to Canada through the [Native American] Reservation, and sold or caused the beverages to be sold in Canada.

"The government did not elicit proof at trial that the Canadian government imposes duty or taxes on such importation or sale of liquor. The existence of such duties or taxes payable to the Canadian government was essential to proving the scheme to defraud alleged in the indictment...Because the government thus failed to establish a fact necessary to prove wire fraud, the Pierces' conviction cannot stand. We therefore reverse the judgments of conviction and direct that verdicts of acquittal be entered.

[161] "The liquor was originally brought to warehouses owned and run by persons other than the Pierces, but eventually delivery began to be made to a warehouse operated by Lyle Pierce. Regina Pierce worked at the warehouse, performing primarily clerical duties.

"On February 29, 1996, seven participants in the operation, including the Pierces, were indicted on one count of conspiracy to commit money laundering...They were not charged with smuggling, wire fraud, or transporting currency across the border illegally.

[164] "After a bench trial before Judge McAvoy, Regina and Lyle Pierce were convicted and sentenced to fifty-one months' [4+ years'] and 151 months' [12 1/2+ years'] imprisonment, respectively.

"On appeal, the Pierces argue, inter alia, that insufficient evidence was introduced at trial to support their convictions. Specifically, they assert that the government failed to establish that Canada imposed duty or taxes on the importation or sale of liquor such as that which they transported or caused to be transported across the border... There was no such testimony or other evidence. On May 9, 2000, shortly after receiving the supplemental briefs, we ordered the district court to release the Pierces on their own recognizance pending resolution of this appeal. We now reverse the judgments of conviction and direct that verdicts of acquittal be entered in favor of the Pierces.

"We must affirm the Pierces' convictions if 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'...When reviewing a claim of insufficiency of the evidence, 'the standard of review is exactly the same regardless whether the verdict was rendered by a jury or by a judge after a bench trial.'

[165] "[T]he government had to establish that the Pierces moved funds internationally with 'the intent to promote the carrying on of' the wire fraud scheme. It was therefore necessary for the government to show that the scheme of which the Pierces used the proceeds or intended to promote actually was an illegal wire-fraud scheme.

[166] "[W]ithout evidence that Canada imposes duty on imported liquor in the first place, the government cannot prove a scheme to defraud the Canadian government because there is no evidence whatsoever of a property right -- a right to revenue -- of which the Canadian government could be defrauded. If no Canadian duty or tax actually existed, the Pierces were no more guilty of wire fraud than they would have been had they used the wires in furtherance of a scheme to surreptitiously transport liquor down the Hudson River from Yonkers to New York City, by flat-bottomed boat in the dead of night, in the sincere but mistaken belief that New York City imposes a duty on such cross-border shipments.

"There is no evidence in the record demonstrating the existence of a Canadian duty or tax on cross-border transportation of liquor or the sale of U.S.-tax-paid liquor imported from the United States. There is nothing in the record from which a finder of fact could conclude beyond a reasonable doubt that there was such a duty or tax. No Canadian statutes are named, no Canadian provinces or policies are described, and no experts on Canadian law testified.

[167] "The Pierces argue vigorously below, and continue to argue vigorously before this Court, that their cross-border operations were...legal because they took place on the Reservation and were largely conducted by Native Americans. They assert that such operations are tax-free under Canadian law and that the government therefore could not have proved that they deprived the Canadian government of any revenue. It is difficult to understand why the Pierces repeatedly used stealth tactics if they thought what they were doing was lawful. But proof that the Pierces thought, or acted as though they thought, that what they were doing was illegal, or that their view of the law was flawed or feigned, does not establish that they were guilty of the crime of which they were charged. For that crime, proof of the existence of a scheme to defraud the Canadian government of revenue was necessary.

"One element of the crime of which the Pierces were charged was that they conspired to promote, or use the [168] profits, of a scheme to defraud the Canadian government of a tax or duty. In the absence of any proof of such tax or duty, there was no such scheme to defraud. The evidence of that element of the crime having been not only insufficient but non-existent, the judgment of convictions must be reversed.

"Because a fact necessary to prove the crime charged was not proved, 
acquittal was mandatory. We therefore reverse the trial court's judgments of conviction and direct that verdicts of acquittal be entered in favor of the Pierces."

The following are from Appellant's Brief (papers submitted by the Pierce's lawyers as part of their appeal):

[25] "Count 1 of this indictment fails to allege a crime cognizable by this Court...

"A prosecution based on a scheme to defraud the Canadian government of revenue is good violative of the 'Revenue Rule.' The so-called 'revenue rule' is a more particular name for the general principle that the courts of this country should not enforce the revenue or penal laws of a foreign country...[T]he fraud allegedly committed by the defendant Lyle David Pierce does not fall within the parameters of a 'scheme or artifice to defraud'...That being so, there is no predicate unlawful activity alleged in the indictment which would support [such] a charge...

"In any event, the indictment does not set forth a scheme or artifice to defraud as required by the wire fraud statute. Assuming every fact in the indictment is true...the indictment [still] fails to competently allege a violation...

"There is no allegation to be found in any part of the indictment that any of the defendants, acting singly or in concert, made any false representations, created or submitted any false or fraudulent documents, deceived any person or did any other thing that could reasonably be described as fraud."

Citing trial transcript, Judge McAvoy speaking:

"'The Court...finds that the evidence is overwhelming beyond a reasonable doubt, beyond any doubt that that conspiracy existed at or about the time alleged in the indictment.'" [Emphasis added. See <u> 'Overwhelming' </u> section.]

Therefore, McAvoy convicted the Pierces without any actual evidence that they were engaged in any kind of illegal activity. It would appear that the mere fact of them having been charged with illegal activity was -- for him -- enough to convict . Thus, it was scarcely surprising that he so readily sided with the government in Nickel's case as well.

Pavel v. Hollins, 261 F.3d 210 (2001)

This is another Second Circuit decision; but this time, concerning a child sexual abuse case.

[211] "In the spring of 1989, Pavel was arrested and accused of sexually abusing his [two sons, ages seven and five]. The accusations were brought to the attention of the police by Pavel's then-wife, Margaret Pavel...with whom he was engaged in a series of marital disputes, and who had recently been denied sole custody [of the two boys].

"Upon his arrest, Pavel contacted Sanford Meltzer...the attorney who had represented him in connection with the marital disputes. Meltzer noted that there was little if any physical evidence that Pavel had sexually abused the boys in the manner that they alleged. Accordingly, Meltzer did not prepare a defense; instead, he planned to move to dismiss the charges against Pavel at the close of the prosecution's presentation of its evidence...

"On October 18, 1989, the state trial judge found Pavel guilty of some of the charged crimes...

[213] "On February 7, 1995, Pavel petitioned for a writ of habeas corpus in the District Court, arguing, inter alia, that Meltzer had provided ineffective assistance of counsel. The petition was denied as procedurally barred...Pavel then applied for a Certificate of Appealability, and his application was denied in a December 23, 1996 Decision and Order entered by Judge McAvoy.

"Approximately one month later, Pavel moved this Court for a Certificate of Appealability. We ruled by summary order that Pavel's claims were not procedurally barred and remanded the cause to the District Court...for a determination of the petition on the merits.

"On June 16, 1999, Judge McAvoy again dismissed Pavel's habeas petition, this time on the merits, and...denied for a second time Pavel's motion for a Certificate of Appealability.

"On October 19, 1999, Pavel moved in the [U.S. Circuit] Court of Appeals for another Certificate of Appealability. By order dated July 24, 2000, we granted the motion on the question of whether 'appellant [Pavel] was denied effective assistance of trial counsel if, as he alleges, his counsel, assuming that his motion to dismiss would be granted, failed to prepare a defense.'

[219] "There are many ways properly to assist a client...But making important decisions with no regard for a client's interests is not one of them.

[228] "[W]e pause briefly now to commend Kelley Drye & Warren (Kevin C. Walker, of counsel, New York City), which took on this matter pro bono publico over eight years ago, and has now seen it through. Kelley Drye's work on this case has been tenacious and consistently skillful, and by providing their clients with superbly effective assistance of counsel, the firm has acted in the best traditions of our profession." [Emphasis original.]

[229] "On remand, the District Court shall issue a writ of habeas corpus to Mr. Pavel..." [Emphasis added.]

[FN20:] "Dr. [Sandra] Kaplan [of Cornell University Medical College ] also noted that the boys were not interviewed using a standardized questionnaire, and opined that 'the use of a standardized protocol when interviewing young children who are alleged to be the victims of sexual abuse is critical because it ensures that the interviewer will not use leading questions which unduly influence the child or suggest a desired response. In this instance, it is apparent that leading questions were used throughout the children's numerous interviews. . .Given this history of numerous, improperly conducted interview sessions with both boys, as a professional child psychiatrist experienced in the evaluation of claims of sexual abuse, I would consider the boys' stories inherently unreliable.'" [See Suggestibility
section.]

The following are from Appellant's Brief:

"District Judge Thomas J. McAvoy adopted the Magistrate Judge's [Scanlon's] Report-Recommendation [to deny the habeas petition] in a one-page Decision and Order..." [Emphasis added.]

"Magistrate Judge Scanlon -- without ever holding a hearing to consider the evidence supporting [Pavel's] Petition -- issued a second Report-Recommendation recommending that the Petition be denied on the merits. [Pavel] filed timely Objections to Magistrate Judge Scanlon's Report-Recommendation...Over a year later...and again without holding a hearing...Judge McAvoy issued a three-paragraph Decision and Order adopting Judge Scanlon's Report-Recommendation in its entirety... The Decision and Order contained no legal analysis." [Emphasis added.]

"Magistrate Judge Scanlon's May 12, 1998 Report-Recommendation, which District Judge McAvoy adopted...completely overlooked the powerful evidence that [Pavel] submitted in support of his Petition, evidence that would have cast more than reasonable doubt on [Pavel's] guilt had it been offered at trial.

"The District Court concluded that [Pavel] was not denied effective assistance of counsel. First, it stated -- incorrectly -- that [Pavel's] 'only viable defense strategy' was to prove that [the boys' mother as well as their therapist] 'convinced his two sons that [Pavel] had sexually abused them'...Even a cursory review of [Pavel's] Petition reveals that this theory was not [Pavel's] 'only defense.' Indeed, the petition never states that [the boys] were 'convinced' of anything...

"The District Court also held that it was reasonable for [defense] counsel not to call a medical expert to testify that the state's medical evidence was 'inconsistent with repeated sexual abuse' because Dr. Madden admitted this point...In fact, Dr. Madden admitted no such thing. Dr. Madden did testify 'that a sexually abused child does not always display medical signs indicating such abuse has occurred.'...That, however, is far different from saying that a child who is repeatedly, violently sodomized will invariably show evidence of the abuse, and that the absence of such evidence strongly indicates that no such abuse occurred..." [Emphasis original.]

"The District Court erred in concluding that 'virtually all of the evidence that Petitioner claims should have been presented [at trial] was presented.' In fact, no such evidence was presented, and the District Court failed even to discuss most of the evidence submitted in support of this Petition.

Now, citing excerpts of Kenneth Pavel's statements at sentencing:

"'Sodomy, sodomy, sodomy. This is all that the D.A. has yelled since the inception of this action. Why has he not yelled facts, evidence, proof? I'll tell you why he has not -- why he has veiled the former and not the latter. Because he had no facts, he had no evidence, and he had no proof. He played upon the emotional sensationalisms of the accusations. Why did he have no facts, evidence or proof? Because I never committed any of the alleged acts
. . .You, Your Honor...have fallen prey to the rantings of a fanatic. The D.A. and the probation department condemn me for inflicting trauma on my sons, for having them testify in open court. I ask them to reflect for a moment. Who led the inquisition on the night the boys disclosed? Who had them face the intimidating sheriff's deputies in an enclosed and windowless room? Who slapped them in front of a grand jury of some 20-odd people?...I question the so-called facts of the case. When I was...arrested...I was accused of having committed these acts on Saturday, April 22, 1989...with both boys present in the shower...Why then did the facts change to April 15 after I testified to the grand jury, proving that these were impossible allegations? Why did the facts change to each boy individually rather than together? Why did the facts change again to April 8? I'll tell you why. They weren't facts.'

"'There was only one trier of fact herein. With all due deference to the bench, it simply is not that easy to separate out inadmissible evidence once heard.'"

The following is the entirety of Judge McAvoy's decision denying Pavel's first petition:

"This petition was referred to Magistrate Judge Daniel Scanlon, Jr., for a Report-Recommendation. Judge Scanlon filed a Report-Recommendation on June 13, 1996, and objections have been filed. Accordingly, pursuant to Fed.R.Civil.P. 72, this Court has made a 'de novo determination upon the record' of the petition before the Court. Fed.R.Civ.P. 72 (b). After making a de novo determination, this Court may 'accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.' Id. Upon such a de novo review, this Court adopts the Report-Recommendation of the Magistrate Judge.

"It is, therefore, ORDERED that the Defendant's petition for a Writ of Habeas Corpus, is hereby DENIED."

That is McAvoy's entire decision. This two-paragraph opinion is pure boilerplate; indeed, it does not even note what kind of case this was.

Though McAvoy's second denial of the writ adds a few more words, there is no actual  substance to it, either. Once again, pure boilerplate. Ever handy is his rubber stamp.

U.S. v. Thomas, 274 F.3d 655 (2001)

Another Second Circuit case. Here, McAvoy used the type and quantity of drugs to impose a sentence beyond the statutory maximum. Finding that this issue of fact had to be submitted to the jury, the Circuit vacated the sentence and remanded.

[659] "The question presented is whether...the District Judge was empowered to impose on defendant Ramse Thomas a sentence beyond the otherwise applicable statutory maximum based on his 
findings...concerning the quantity of drugs involved in Thomas' offense when the indictment made no mention of quantity and the question of quantity was not presented to the jury.

[660] "Applying plain error review to the particular facts of this case, we conclude that District Court erred, that the error was plain, that the error affected the defendant's substantial rights, and that the error seriously affected the fairness and the public reputation of judicial proceedings. We therefore vacate Thomas' sentence and remand for further proceedings consistent with this opinion.

[663] "[I]t is error for a court to 'enhance' a defendant's sentence above the statutory maximum based on drug quantity if the Government has not charged drug quantity in the indictment and proved it to a jury beyond a reasonable doubt.

[669] "The facts alleged in the indictment and found by the jury supported a maximum penalty of imprisonment for twenty years (240 months). Nevertheless, the District Court sentenced Thomas to 292 months -- 52 months more than the applicable maximum. It is beyond cavil that imprisonment for an additional 52 months beyond the penalty authorized by Congress, as a direct result of the error using a drug quantity neither charged nor found by the jury, constitutes prejudice.

[671] "We conclude that the error 'seriously affected' at least the fairness and reputation of judicial proceedings.

[672] "[T]he error in this case can be seen as an error in sentencing – i.e., as the District Court imposing a sentence that it had no actual authority to impose." [Emphasis original.]

Bennett v. Goord, 343 F. 3d 133 (2003)

Another Second Circuit decision. This, however, is a civil case brought by a prisoner, alleging retaliation by correctional officers. McAvoy granted the DOC's motion for summary judgment (meaning, asking the court to rule in their favor without holding a hearing), which the Circuit then reversed.

[134] "Bennett brought claims...alleging that various officials of the New York State Department of Correctional Services (DOCS) had retaliated against him as a consequence of his engaging in constitutionally protected conduct: the successful prosecution of a prior lawsuit and the filing of grievances against various DOCS officials.

"In 1995, Bennett...brought claims...(similar to those asserted here)...alleging that DOCS officials had retaliated against him for filing grievances against a corrections officer by issuing false misbehavior reports and punitively transferring him to a different [135] facility...The New York Attorney General's office decided to settle the litigation. Negotiations with Bennett were finalized in October 1997, and the district court entered a stipulation of settlement on November 3...Defendants paid Bennett $3,000 and promised that he would be considered for a transfer to a different DOCS facility 'without benefit or detriment' arising from the litigation.

"According to Bennett, this lawsuit and particularly its settlement ignited a series of retaliatory actions by DOCS officials, which led to a new lawsuit culminating in this appeal.

"In the Spring of 1997, Bennett had been deemed suitable for a less secure facility and was transferred from Attica Correctional Facility, a maximum-security prison, to Collins Correctional Facility, a medium-security prison. But in late September, while the aforementioned settlement was being finalized, Collins officials attempted to transfer him back to Attica. The first attempt was administratively denied because of 'insufficient reason for placement.' Just three days later, however, two unrelated disciplinary charges were filed against Bennett by defendant Becker, a Collins correctional officer, and another officer. One charge accused Bennett of defacing library books. The other accused him of 'working to consolidate unauthorized groups to a common purpose to the detriment of the safety and security of the facility.' At hearings held shortly after the charges were filed, both were sustained. The day after the second hearing Collins officials again sought to transfer Bennett. This attempt was successful, and he was transferred to Attica.

"Bennett administratively appealed the [disciplinary] decisions, and DOCS officials concluded that both lacked merit and reversed them. The decision concerning the charge that Bennett was 'working to consolidate unauthorized groups' was found to have been 'conclusory [and] without supporting details.' The reversal also noted that the 'hearing officer should have made further inquiry to develop a record of facts that supported the determination reached.' The other decision was reversed because Bennett had not been supplied with the documentary evidence that he had requested. Both reversals required prison officials to expunge references to the adverse decisions from Bennett's record.

"Following these reversals, Bennett sought to be transferred from Attica back to a medium-security prison...To make matters [136] worse, according to Bennett, reference to the Collins hearing rulings remained on his record and, when he appeared before the parole board while at Attica, the references led, he alleges, to his serving additional years in custody.

"Around the time his complaint was filed, Bennett was transferred from Attica to Gowanda Correctional Facility, a medium-security prison, but one which is in the same 'hub system' as Attica. He immediately filed a grievance, asserting a right to be transferred out of the Attica hub.

"While awaiting transfer, Bennett underwent medical treatment and HIV counseling at Gowanda. During a discussion with an unnamed defendant 'head nurse,' Bennett alleges that defendant Rutski, a corrections officer, entered the examination room. Asserting that his right to confidentiality concerning HIV counseling had been violated, Bennett filed another grievance.

"Three days 
later, defendant George, a corrections officer, charged Bennett with the possession of a home-made weapon, which Bennett alleges officers had planted in his cell. The weapon was allegedly discovered during a search conducted by defendants George, Osgood, and Lavocci and authorized by defendant Maternowski. Bennett claims that the search was triggered by his latest grievance over the violation of his privacy in the examination room." [Emphases added. This is precisely what c.o.s at Auburn did to Nickel, when he stood up for another inmate who was constantly being harassed by officers. See Department of Corruptions section.

[138] "Bennett's allegations of retaliation are further supported by the fact that essentially all adverse actions by DOCS officials were subsequently found to have been unjustified.

[139] "Once Bennett produced evidence sufficient to raise a material question of fact as to retaliation, the burden shifted to DOCS to demonstrate through admissible evidence that the challenged actions would have occurred in any event...DOCS' motion was not accompanied by affidavits of knowledgeable correctional officers supplying their version of the relevant events or their explanations for the transfer attempts or disciplinary charges -- or, for that matter, by any evidence at all rebutting Bennett's evidence. On this record, DOCS was not entitled to summary judgment.

"For the reasons we have discussed, the judgment of the district court is reversed. The case is remanded for further proceedings consistent with this opinion, including the opportunity for further discovery and consideration of the appointment of counsel...Although leaving to the district court the resolution of any request for appointment of counsel, we note that Bennett appears plainly to meet the threshold requirement that his claims are likely to be of substance."

So, with correctional officers clearly conjuring up false charges against Bennett in retaliation for his other valid legal claims – which resulted in Bennett serving significantly more time in prison than he otherwise would have – Judge McAvoy was quite prepared to dismiss this prisoner's suit based on the state's absolutely unsupported say-so.

Love v. McCray, 413 F.3d 192 (2005)

This Second Circuit case involves a burglary/larceny conviction.

[194] "In 1998, Love was charged in Onandoga County, New York, with unlawfully entering an apartment and stealing a wallet that contained credit cards and $350...

"The chief evidence at trial was the identification of Love by [the alleged burglary victim], who testified that on October 2, 1997, she returned home from work to find Love in her apartment rifling through her boyfriend's wallet; Love left after a brief confrontation, taking the wallet. [Her] testimony was based on her identification of Love from a photographic array one month after the incident. On the evening of the incident, however, [she] gave a description of the burglar to the police, who used it to develop a composite sketch that allegedly does not resemble Love.

"Love filed a federal habeas petition...in the Northern District of New York (McAvoy, J.), raising (inter alia) his Brady and ineffectiveness [of counsel] claims. The case was referred to Magistrate Judge Treece, who recommended that the petition be denied...[T]he magistrate judge ruled that the use of [194] the sketch at trial would not have had a material effect on the verdict.

[195] "The primary evidence against Love at trial was [the alleged victim's] identification testimony; yet the composite sketch developed from [her] contemporaneous description of the burglar allegedly does not resemble Love. Whether trial counsel was constitutionally deficient for failing to make use of this sketch at trial (or in failing to procure it, as the case may be) is at least an issue that deserves encouragement.

"For the foregoing reasons...the Government's motion for summary affirmance is denied..."

from Appellant's Brief.

"Love's landlady, based upon her review of her appointment book, maintained that Love had been arguing with her at her apartment house during the time the burglary took place...The defense called an additional witness who testified about her longstanding familiarity with Love's physical appearance and noted that he had a moustache at trial, and has had a moustache for a long time, including...when the burglary took place." [The alleged victim had said nothing about the burglar having a moustache.]

In a -- once again -- pure boilerplate, two-page decision, McAvoy adopted Treece's Report-Recommendation to deny the writ, without even mentioning what kind of case this was.

"Love's trial counsel was constitutionally ineffective for failing to use the composite sketch developed from [the alleged victim's] contemporaneous description of the burglar which did not resemble Love. Love's conviction rested solely on the victim's identification of him...[C]onfronting [the alleged burglary victim] with the composite sketch and offering it in evidence would have totally undermined her testimony and called her credibility into question."

But Judges Treece and McAvoy could apparently not have cared less. Indeed, as far as Judge Treece is concerned, despite an exhaustive, computerized search, we have been unable to locate even a single case in which he recommended that a Writ of Habeas Corpus be granted. It certainly is difficult to square this fact with his statement -- made in a radio interview -- that he became a judge in order to "help the downtrodden." If he does not do so even when they may well be innocent...

Judge McAvoy is scarcely any better on this score. We found only one case where he (conditionally) granted a writ; but even there, 
because the defendant was already back home, it's not like it was of immense help to him. Thus, McAvoy, too, has never granted a writ for anyone currently in prison.

U.S. v. Falso, 544 F.3d 110 (2008)

In this child pornography case, to which the defendant did plead guilty, the Second Circuit found that, though there was a lack of probable cause for issuance of the search warrant, the 'good faith' exception still applied. But there was also a dissenting opinion.

[117] "This Court must afford 'great deference' to the district court's probable cause determination...Our 'duty' on review, therefore, 'is simply to ensure that the [district court] had a substantial basis for. . .concluding that probable cause existed.'...Nevertheless, under this standard, we 'may properly conclude that. . .[a] warrant was invalid because the district court's probable- cause determination reflected an improper analysis of the totality of the circumstances.'

[121] "[FBI] Agent Lyons's inconclusive statements about whether Falso even accessed the cpfreedom.com website, coupled with the absence of details about the features and nature of the non-member site, falls short of establishing probable cause. The question, then, is whether other allegations in the affidavit, considered as a whole, provide a basis to support the district court's finding of probable cause.

"The most obvious factor that might support a finding of probable cause is Falso's eighteen-year-old misdemeanor [122] conviction of Endangering the Welfare of a Child. The district court also found Falso's conviction '[i]mportant' and 'highly relevant' to the probable cause calculus in light of the affidavit's representation that 'the majority of individuals who collect child pornography are persons who have a sexual attraction to [children].' But this reasoning falls victim to logic.

"'It is an inferential fallacy of ancient standing to conclude that, because members of group A' (those who collect child pornography) 'are likely to be members of group B' (those attracted to children), 'then group B is entirely, or even largely, composed of members of group A.'...Although offenses relating to child pornography and sexual abuse of minors both involve the exploitation of children, that does not compel, or even suggest, that correlation drawn by the district court...While the district court undoubtedly had the safety of the public in mind, an individual's Fourth Amendment right cannot be vitiated based on fallacious inferences drawn from facts not supported by the affidavit.

[123] "In the end, the district court's finding of probable cause in Falso's case required it to make at least two significant additional inferential leaps...First, in Falso's case there is no allegation that he in fact gained access to the cpfreedom.com website, much less that he was a member or subscriber of any child-pornography site. Second, there are no allegations to support an inference that the sole or principal purpose of the cpfreedom.com website was the viewing and sharing of child pornography, much less that images of child pornography were downloadable from the site. Thus, it is only after making the inferences that (1) Falso in fact accessed a website (2) whose principal purpose was the viewing and sharing of child pornography, that the district court could draw the ultimate inference...that those who become members of a child-pornography website are likely to collect such images. Putting aside the dangers of [this] ultimate inference...the dangers of coupling it with the inferences drawn in Falso's case are exponential.

"We are not insensitive to 'the need of law enforcement to have a certain amount of latitude in conducting criminal investigations.'...But...requiring the government to gather 'evidence  particularized to the target of the search' before the warrant application is made 'will simply focus law enforcement efforts on those who can reasonably be suspected of possessing child pornography.'...If this proves to be a hindrance, it is one the Fourth Amendment demands." [Emphasis original.]

"Accordingly, we find no substantial basis for probable cause and reverse the district court's conclusion in this regard.

[129] "In short, the error in this case, as found by a majority of the panel, was committed by the district court in issuing the warrant, not by the officers who executed it...Accordingly, we uphold the district court's good-faith exception to deny Falso's suppression motion.

"For the foregoing reasons, we hold that the district court's finding of probable cause was not supported by a substantial basis. However, because the district court properly applied the good-faith exception in denying Falso's suppression motion, and for the additional reasons discussed in our accompanying order, we AFFIRM the judgment."

The following is from the dissent of Chief Judge Dennis Jacobs:

[132] "I conclude that the affidavit was recklessly misleading (at best), and that Agent Lyons -- because he was both affiant and executing officer -- could not rely in good faith on the imprimatur of the district judge. Accordingly, I would reverse the denial of the motion to suppress, vacate Falso's conviction, and remand for further proceedings.

[133] "[T]he arresting officer cannot rely on a warrant obtained by his own misleading affidavit.

[134] "Agent Lyons' affidavit contained a recklessly misleading (if not deliberately false) statement.

[136] "Once we excise the misleading statement...Lyons' affidavit establishes no more than that Falso, an individual with a misdemeanor conviction for conduct involving the sexual abuse of a minor from eighteen years earlier, clicked on a website containing child pornography, and may have attempted to view it. Assessed in light of 'all the circumstances set forth in the affidavit'...these three facts blatantly fail the test of probable 
cause.

"[W]here, as here, the executing officer is the same officer who misled the judge, the good-faith exception to the exclusionary rule cannot apply.

"An executing officer can hardly claim good-faith reliance on a warrant issued by a judge who was misdirected by the officer himself: the same principle explains why, at a magic show, the credulity of the audience does not cause the magician to fear that the lady has been sawn in half."
---
But it is important to note that Judge McAvoy was not merely 'misled' here. Of far greater concern are that: 1) He engaged in fallacious reasoning, likely because this was required in order to achieve the outcome he desired, and, 2) He simply does not understand what the Constitution – specifically, the 4th Amendment – requires. Thus, he would seem to be quite unqualified to pass judgment on the validity of state criminal convictions.

U.S. v. Martinucci, 561 F.3d 533 (2009)

Another Second Circuit child pornography case in which a plea was affirmed.

[533] "Martinucci asserts on appeal that his sentence of 300 months [25 years] was unreasonably severe...[534] His offense of conviction...[535] required a mandatory minimum sentence of 180 months [15 years]."

from Appellant's Brief:

"Appellant Americo Martinucci is 65 years old, has severe medical problems... and no criminal history."

[Referring to sentencing hearing:] "The Court  Judge McAvoy] said that he had reviewed all the evidence and submissions in the case, and stated that Mr. Martinucci was a pedophile, and that he was not human as far as the Court was concerned: ...'Anybody that was human wouldn't have done those things as far as I'm concerned.'

"The sentence imposed, 300 months, was over 66 percent higher than the mandatory minimum sentence, and more than 75 percent higher than the otherwise applicable Guidelines range of 135-168 months.

"One of the reasons given by the district court for imposing a 300 month sentence was a finding that there had been several other victims. However, appellant was never charged with abusing more than one person. The allegations are based on alleged statements contained in police reports, which came about when police put out the word for more victims to come forward after Appellant's arrest. There were never any independent investigations, and no other alleged victims ever came forward until this case was initiated. One of the reports was based solely on a statement from the mother of two girls who claimed that one of her daughters had told her in 1997 that Appellant had masturbated in front of her and fondled her breasts in the 1980's – this was double hearsay regarding very remote events. The Court never even discussed the reliability of said allegations."

Apparently, for Judge McAvoy, if the prosecution says something's true, then it is. Moreover, McAvoy's 'monster' comment here is more than a little troubling. One wonders what crimes he would not deem commitable only by 'monsters.' Anyone so ready and willing to dehumanize people certainly has no business passing legal judgment on them.

Also see Carroll v. David in Judge Karen Peters section.

U.S. v. Dorvee, 604 F.3d 84 (2010)

Yet another Second Circuit review of a child pornography plea. This time, however, the sentence was vacated due to McAvoy's miscalculation of the Sentence Guidelines range; thus, Dorvee's sentence was reduced, due to the fact that it was substantively unreasonable.

[87] "Justin K. Dorvee pled guilty to one count of distribution of child pornography...He was sentenced by the...District Court for the Northern District of New York (McAvoy, J.) to the statutory maximum of 240 months [20 years]...He challenges both the procedural and substantive reasonableness of his sentence. Our review of the record indicates that the district court may have improperly calculated Dorvee's Guidelines range which, we conclude, constitutes procedural error. We also conclude that the sentence imposed on Dorvee is substantively unreasonable. We therefore vacate the judgment and remand to the district court for resentencing.

[88] "Dorvee submitted a sentencing memorandum challenging several of the enhancements and arguing for a non-Guidelines sentence on the ground that the statutory maximum punishment was substantively unreasonable...Dorvee submitted reports from two therapists. Dr. Frank W. Isele, Ph.D., provided a lengthy psychological examination of Dorvee. Dr. Isele explained that Dorvee has been blind in one eye since birth, at times does not eat for days under severe stress, has experienced suicidal ideation, is so shy that he does not use a phone, and 'never even so much as attended another child's birthday party when he was growing up' because he had (and indeed, still has) no friends...Dr. Isele attributed Dorvee's social isolation largely to anxiety stemming from his sexuality -- Dorvee is homosexual. Dorvee has a hobby of obsessively collecting memorabilia (e.g., anything bearing the 'John Deere' insignia), and Dr. Isele attributed Dorvee's cataloguing of pornographic images to this same tendency. Dr. Isele concluded that Dorvee 'is suffering from a severe Major Depressive Disorder'...and is 'socially isolated, anxious. . .[and] frankly suicidal'...As a result, Dr. Isele emphasized, Dorvee 'is simply too passive, shy, socially anxious, retiring, introverted, submissive, unsure of himself and distrustful' to 'push or develop a relationship with any other person, child or adult, unless the other person took the lead'...and concluded that Dorvee is 'not a predator' and 'does not have the personality to actively initiate any dangerous actions.'...Dr. Isele expressed the view [89] that Dorvee 'would never have arranged to meet' the undercover officer had the officer 'not persisted in having the meeting,' and therefore Dorvee is 'unlikely to 
re-offend. . .[if] he obtains the necessary treatment and counseling.'...John Engelbrecht, M.A., who provided Dorvee psychotherapy following his arrest, also diagnosed Dorvee with depression.

"At sentencing, the district court [McAvoy] directly addressed Dorvee's medical evidence. The court expressed sympathy for Dorvee's various mental issues, and agreed that Dorvee would never 'go out and drag some little boy off the street and rape and murder him'...Nevertheless, the court concluded that Dorvee was a 'pedophile' who, if 'given the opportunity. . .would have sexual relations. . .with a younger boy, ages 6 to 15.'...The court did not think Dorvee would 'initiate[]' such behavior, but was wary of 'a situation where it came about,' which posed a 'danger as far as the Court is concerned, because no one knows what's going to happen in the future.'...The court noted that its opinion was informed by the pictures Dorvee took of neighborhood children's feet, which might 'erupt into something.'

[94] "Though we recognize the importance of punishment and deterrence, we nevertheless find Dorvee's sentence substantively unreasonable. First, we are troubled by the district court's apparent assumption that Dorvee was likely to actually sexually assault a child, a view unsupported by the record evidence yet one that plainly motivated the court's perceived need 'to protect the public from further crimes of the defendant.'...We believe that this assumption, in the face of expert evidence to the contrary, caused the district court to place unreasonable weight on this sentencing factor...Although presented with medical evidence that Dorvee was unlikely to engage in a personal relationship 'unless the other person took the lead' -- as the undercover agent posing as 'Seth' had -- the district court's comments at sentencing reveal that the court was convinced that Dorvee was a 'pedophile' likely to engage in sexual conduct with a minor. The court stated that although it believed Dorvee would not initiate a relationship with a child, 'if he were given the opportunity, he would have sexual relations. . .with a younger boy.'...The district court stated that '[f]or an adult of Justin's age to engage in sexual conduct with somebody under the age of 14. . .I think is extremely hurtful. . .[I]t might be worse than sticking somebody with a knife or shooting them with a gun.'...Dorvee, however, is not alleged to have had any actual contact with children (undercover or real) under 14, and admitted only to taking non-explicit photographs of children's feet. Dorvee appears to have been punished as though he already had, or would, sexually assault a child, despite medical testimony to the contrary and Dorvee's lack of any such criminal history.

"Here, the district court provided no reason why the maximum sentence of incarceration was required to deter Dorvee and offenders with similar history and characteristics. Moreover, the district court offered no clear reason why the maximum available sentence, as opposed to some lower sentence, was required to deter an offender like Dorvee.

[97] "The irrationality in [the federal sentencing guidelines in this area] is easily illustrated by two examples. Had Dorvee actually engaged in sexual conduct with a minor, his applicable Guidelines range would have been considerably lower. An adult who intentionally seeks out and contacts a twelve-year-old on the Internet, convinces the child to meet and to cross state lines for the meeting, and then engages in repeated sex with the child, would qualify for a total offense level of 34, resulting in a Guidelines range of 151 to 188 months [12.6-15.7 years] in prison for an offender with a criminal history category of 1. Dorvee, who had never had any contact with any actual minor, was sentenced by the district court to 233 months [15.5 years] of incarceration. What is highly ironic is that the district court justified its 233-month sentence based on its fear that Dorvee would sexually assault a child in the future." [Emphasis original.]

[98] "While we recognize that enforcing federal prohibitions on child pornography is of the utmost importance, it would be manifestly unjust to let Dorvee's sentence stand."

U.S. v. Broxmeyer, 616 F.3d 120 (2010)

This is a Second Circuit review of a child pornography and transportation of a child across state lines conviction, which it, in part, reversed due to insufficiency of evidence.

[122] "Todd Broxmeyer, convicted in the...District Court for the Northern District of New York (McAvoy, J.), challenges the sufficiency of the evidence to support his convictions for [i] production of child pornography and [ii] transportation of a minor across state lines with the intent to engage in criminal sexual activity.

"Broxmeyer, a 37-year-old field hockey coach, entered into a sexual relationship (legal under state law) with a 17-year-old player. The two counts alleging production of child pornography are premised on two photos (one per count) that the girl took of herself. He was found to have induced her to produce them; but while there is evidence that he encouraged her to take photographs of that kind, and that she took several with his encouragement, there is no evidence that he encouraged her to take the two photographs specified in the two counts of conviction.

"The transportation count is premised on the round-trip travel of a 15-year-old field hockey player from her home in Pennsylvania to a field hockey practice in New York where Broxmeyer was coach. He drove her back home, stopping en route for a sexual encounter with her before crossing the state line.

"We agree with Broxmeyer on the sufficiency of evidence challenges; reverse the convictions on Counts One, Two, and Four; and remand [123] for re-sentencing on the counts of conviction as to which no appeal was taken (attempted production of child pornography and possession 
of child pornography).

"[T]he district court sentenced Broxmeyer to concurrent terms of 360 months' [30 years] imprisonment on each of Counts One, Two, and Three; 480 months [40 years] on Count Four...

"Counts One and Two allege that Broxmeyer produced two sexually explicit pictures (one per count) that a 17-year-old hockey player took of herself."

U.S. v. Broxmeyer, 708 F.3d 132 (2013)

In this Second Circuit decision, in banc review (i.e., by all of the judges of the Second Circuit) of a previous affirmation of Broxmeyer's sentence was denied.

From dissent by Chief Judge Dennis Jacobs and Judge Rosemary S. Poole:

"In a nutshell, the district court [McAvoy] imposed a thirty-year sentence on the male coach of [a] girls' field hockey team who asked a seventeen-year-old member to text him a photo of herself without clothes."

Also see Carroll v. David in Judge Karen Peters section.

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