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Public Defense

Second Circuit Blog

Case Summaries and Commentary by Attorneys from the Federal Defenders Office in New York City

Post Frequency: 14.2/day

Last Entry: November 17, 2012 at 18:07:00

On Bank

Posted on November 17, 2012
United States v. Gyanbaah, No. 10-2441-cr (2d Cir. November 8, 2012) (Winter, Lynch, Carney, CJJ)The appellant here was part of a group that, for more than three years, stole names and other identifying information, then used it to file thousands of fraudulent tax returns in those victims? names...

Radio Smack

Posted on November 17, 2012
United States v. Lacey, No. 11-2404-cr (2d Cir. November 7, 2012) (Winter, Straub, Lynch, CJJ)Defendants Lacey and Henry were convicted after a jury trial of various offenses resulting from their involvement in a mortgage fraud scheme. In the scheme a real estate company, MTC, would purchase ?short-sale? properties from distressed homeowners, then resell them to straw buyers, who would obtain mortgages on the properties, without intending to live in them or make payments...

PC World

Posted on November 17, 2012
United States v. Harrison, No. 11-1240-cr (2d Cir. November 6, 2012) (Cabranes, Chin, Carney, CJJ) (per curiam)The court's latest per curiam opinion holds that the appellate waiver provision of the standard Southern District plea agreement is enforceable, even in the wake of Dorsey v...

Stop and Flop

Posted on October 28, 2012
United States v. Wilson, No. 11-915 (2d Cir. October 25, 2012) (Jacobs, Calabresi, Pooler, CJJ)Defendant Wilson was subject to a car stop near New York?s border with Canada. He was just outside of the St. Regis Mohawk reservation, not a member of the tribe, and the officers who stopped the car - which was registered to a known marijuana dealer - were members of the tribal police department...

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PC World

Posted on October 27, 2012
United States v. Oehne, No. 11-2286 (2d Cir. October 25, 2012) (Kearse, Katzmann, CJJ, Gleeson, DJ) (per curiam)This latest per curiam looks at the pretrial ruling on a motion to suppress, and the long sentence imposed in a child pornography production and distribution case...

The Wizards of I.D.

Posted on October 20, 2012
Young v. Conway, No. 11-830-cr (2d Cir. October 16, 2012) (Parker, Hall, Carney, CJJ)While decisions on state prisoners? federal habeas corpus petitions are not consistently covered on this site, this particular case is fascinating. In it, the circuit agrees with the district court that the New York state courts misapplied federal law in finding that the victim of a home invasion robbery had an independent basis for her in-court identification of the petitioner, Rudolph Young...

You Don't Stay

Posted on October 20, 2012
United States v. Colasuonno, No. 11-1188-cr (2d Cir. October 12, 2012)(Kearse, Walker, Raggi, CJJ)Answering a question of first impression, here the circuit holds that the automatic stay provisions of the bankruptcy code does not apply to either a restitution order or a probation violation proceeding based on a failure to comply with a restitution order...

Bad Sport

Posted on October 14, 2012
United States v. Mason, No. 11-544 (2d Cir. September 4, 2012, (Walker, Pooler, Livingston, CJJ)In this part of the country, the ?lawful sporting purposes? provision of U.S.S.G. � 2K2.1(b)(2) and Application Note 6 - a downward adjustment that the defendant bears the burden of proving - is rarely invoked...

PC World

Posted on October 14, 2012
United States v. Ageloff, No. 11-2474-cr (2d Cir. October 10, 2012) (Pooler, Wesley, Lohier, CJJ) (per curiam)This short per curiam opinion affirms the district court?s authority, under the All Writs Act, 28 U.S.C. 1651, to retrain a convicted defendant?s property - here, some $536,000 of Ageloff's money - in anticipation of ordering restitution...

Bail Doubt

Posted on October 14, 2012
United States v. Briggs, No. 12-2988-cr (2d Cir. October 5, 2012) (Calabresi, Carney, CJJ)Antonio Briggs, charged in a large, multi-defendant drug conspiracy, was ordered detained in September of 2010, and remains in jail today. In this appeal, he claimed that this lengthy pretrial detention deprived him of due process...

You've Been Trumped

Posted on October 14, 2012
United States v. Carter, No. 11-3605-cr (2d Cir. September 28, 2012) (Leval, Cabranes, Katzmann, CJJ)The ?parsimony clause? of 18 U.S.C. � 3553(a) requires that the court impose a sentence that is not ?greater than necessary? to serve the goals of sentencing...

Barnes Ignoble

Posted on October 14, 2012
United States v. Barnes, No. 10-3099-cr (2d Cir. September 4, 2012) (Kearse, Parker, Hall, CJJ).Tuere Barnes and his co-defendants faced a thirty-eight count superseding indictment charging them with racketeering and several violent crimes in aid of it, including murder...

White Out

Posted on October 08, 2012
United States v. White, No. 11-772-cr (2d Cir. August 30, 2012) (Jacobs, Calabresi, Pooler, CJJ)Here, a divided circuit panel concluded that two evidentiary errors prejudiced the outcome of Lance White?s felon-in-possession trial. The court vacated the conviction and remanded the case for a new trial...

PC World

Posted on October 08, 2012
United States v. Reyes, No. 10-1400-cr (2d Cir. August 29, 2012) (Katzmann, Wesley, CJJ, Underhill, DJ) (per curiam)Closing the question left open by United States v. Rosa, 507 F.3d 142, 156 (2d Cir. 2007), this per curiam opinion concludes that it was plain error for the district court to rely solely on the presentence report?s uncontested description of a prior offense in determining whether the defendant was a career offender, where the statute of conviction described some offenses that met the definition of crime of violence and some that did not...

One Statute, Indivisible

Posted on October 08, 2012
United States v. Beardsley, No. 11-2206-cr (2d Cir. August 27, 2012) (Newman, Straub, Lynch, CJJ)For purposes of recidivism enhancements, the statutes underlying prior convictions can be categorized into two distinct groups. ?Divisible? statutes are those that identify distinct offenses, some of which would trigger the enhancement and some would not...

As Seen On TV

Posted on October 07, 2012
United States v. Salim, No. 10-3648-cr (2d Cir. August 24, 2012) (Walker, Lynch, CJJ)Mamdouh Salim, incarcerated on terrorism charges, stabbed and nearly killed an MCC guard in a misguided attempt to induce the district court to grant him a change of counsel...

You Can Resist

Posted on September 09, 2012
United States v. Davis, No. 10-4104-cr (2d Cir. August 24, 2012) (Walker, Lynch, Droney, CJJ) Hoping to evade a drug arrest, Deitron Davis ran from an agent; during the chase the agent frequently caught up to him and struck him with a baton, but Davis - a very big guy - kept running...

The Thirty Years? War

Posted on September 09, 2012
United States v. Broxmeyer, No. 10-5283-cr (2d Cir. August 28, 2012) (Jacobs, Winter, Raggi, CJJ)Former high school athletic coach Todd J. Broxmeyer was originally convicted of five offenses involving child sex abuse and pornography, and received a 40-year sentence...

The Cartridge Family

Posted on September 08, 2012
United States v. Graham, No. 09-2819-cr (2d Cir. August 15, 2012) (Cabranes, Livingston, Carney, CJJ)Title 18, U.S.C. � 844(h) makes it a separate offense to use ?an explosive? to commit a federal felony. During an attempted extortion of one of his fellow-gang members - a dispute over some robbery proceeds - defendant Graham fired a cartridge from his 9-millimeter semi-automatic into the ground...

The Tipping Point

Posted on September 08, 2012
United States v. Contorinis, No. 11-3-cr (2d Cir. August 17, 2012) (Winter, Hall, Chin, CJJ)In this appeal from an insider trading conviction, the defendant unsuccessfully challenged the jury instructions in which the district court defined ?material, nonpublic information...

Family Plot

Posted on August 31, 2012
United States v. Antico, 10-5026-cr (2d Cir. August 14, 2012) (Pooler, Livingston, Lohier, CJJ)Mario Gulinello won $1.6 million at a horse race. Defendant Antico was convicted of conspiring with members of the Genovese crime family to rob him of that money, one of the predicates of a racketeering conviction...

?The Truth? Didn?t Set Him Free

Posted on August 31, 2012
United States v. Williams, No. 11-676-cr (2d Cir. July 16, 2012, amended August 15, 2012) (Sack, Livingston, Lynch, CJJ)At Malik Williams? gun trial, the prosecutor, in rebuttal summation, said, ?this is not a search for reasonable doubt, this is a search for truth...

A Bronx Tale

Posted on August 27, 2012
United States v. Davis, No. 10-3424-cr (2d Cir. August 8, 2012) (Leval, Raggi, Chin, CJJ)Appellant Davis attempted to rob a drug dealer in Elmont, Queens. Once inside the dealer?s house, he shot and killed the dealer?s girlfriend, and shot at (but missed) the dealer?s mother...

Finding that "Relevant" Conduct is not "Relevant Conduct," the Circuit Remands

Posted on August 27, 2012
United States v. Wernick, No. 10-2974-cr (2d Cir. August 8, 2012) (McLaughlin, Sack, Lynch, CJJ)Defendant Wernick was convicted after trial of, inter alia, one count of child enticement - he persuaded two teenagers to meet with him. At his sentencing, the court factored in three other acts involving the abuse or attempted sex abuse of young children as ?relevant conduct...

Brady Violation Allows Defendants to "Squawk" Away

Posted on August 26, 2012
United Statesv v. Mahaffy, No. 09-5349-cr (2d Cir. August 2, 2012) (McLaughlin, Parker, Wesley, CJJ) This, the court?s most recent Brady decision, presents a truly shocking instance of prosecutorial misconduct.Factual BackgroundThe Brady violation was here was straightforward: the defendants were employees of brokerage houses and a day trading firm called A...

Truman/False Man

Posted on August 24, 2012
United States v. Truman, Sr., No. 11-784-cr (2d Cir. 2012) (Livingston, Lohier, CJJ, Rakoff, DJ)Jeffrey Truman, Sr., recruited his son, Jeffrey Truman, Jr., to burn down a building that Truman Sr. owned in Oneida, New York. The was in dire financial straits and the property had a very large insurance policy...

Let's Get Metaphysical

Posted on August 24, 2012
United States v. Cassesse, No. 10-2210-cr (2d Cir. July 11, 2012, amended July 25, 2012) (Newman, Katzmann, Parker, CJJ)This case untangles a mathematic quandary left by some unclear statutes: how can a life term of supervised release, imposed on a supervised release violation, be reduced by the number of months of the prison term imposed for that same violation? Here the district court simply sentenced the defendant to twelve months in prison on the violation to be followed by another life term of supervised release...

Grand Slam

Posted on August 24, 2012
United States v. Gonzalez, No. 11-1490-cr (2d Cir. July 19, 2012) (Jacobs, Kearse, McLaughlin, CJJ)Omar Gonzalez was originally charged with a narcotics conspiracy in a superseding indictment that alleged his involvement with ?mixtures and substances containing a detectable amount of cocaine...

Up In Smoke

Posted on August 23, 2012
United States v. Morrison, No. 10-1926(L) (2d Cir. July 16, 2012) (Calabresi, Chin, Carney, CJJ)After a jury convicted Morrison of violating the Contraband Cigarette Trafficking Act (here, ?the Act?), Morrison persuaded the district court to vacate the conviction and dismiss the charges...

Trust Fun

Posted on August 17, 2012
United States v. Zaleski, No. 11-660-cr (2d Cir. July 13, 2012) (Newman, Lohier, Droney, CJJ)This fascinating opinion considers whether the defendant, Alan Zaleski, from whom a large quantity of legally possessed firearms and ammunition were seized, should be permitted get them back from the government and sell them through a third party trustee, even though as a convicted felon, he is no longer permitted to possess them himself, even constructively...

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