Public Defense

Two defendants in an extortion case raised a host of garden-variety challenges to their conviction, to little effect, and to their sentence, one of which prevailed.

During one of the extortions, a victim was beaten and a caustic substance was sprayed into his eyes, briefly blinding him. Once he rinsed it out, his eyes felt better, but from that point on he found it painful to read for long periods of time, and thus had stopped reading the newspaper. Based on this account, the district court imposed a six-level Guideline enhancement for permanent injury, which is defined as ?loss or substantial impairment of the function of a bodily member, organ, or mental faculty that is likely to be permanent.?

The circuit held that the district court?s finding that the impairment, as described, was both substantial and permanent, was clearly erroneous. While it was clear that the victim suffered a substantial impairment of his eyesight at the time of the assault, his testimony that, having recovered, it still hurt his eyes to spend time reading did not constitute a substantial impairment that was likely to be permanent. The case was remanded for resentencing.

Full post as published by Second Circuit Blog on December 19, 2007 (boomark / email).