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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: 2.4/day

Last Entry: March 25, 2016 at 12:33:00

Our Blog Has Moved!

Posted on March 25, 2016
This blog has now moved. Please visit us at blog.federaldefendersny.org!

Posted on March 27, 2011
Here are three more summary orders of interest.United States v. Hernandez, No. 09-4930-cr (2d Cir. March 25, 2011), points out an interesting Guidelines question. Under § 3B1.1, the government bears the burden of proving that the defendant played an aggravating role...

Get the Point?

Posted on March 20, 2011
United States v. Potes-Castillo, No. 07-5518-cr (2d Cir. March 15, 2011) (Straub, Hall, CJJ, Underhill, DJ)The defendant here received a 188-month sentence after a jury convicted him of a drug conspiracy. At sentencing, it emerged that he had but one prior conviction: a 2004 New York State conviction for driving with ability impaired by alcohol (?DWAI?) in violation of New York Vehicle and Traffic Law § 1192(1)...

Down for the Count

Posted on March 20, 2011
United States v. Desnoyers, No. 10-0447-cr (2d Cir. March 14, 2011) (Jacobs, Wesley, Chin, CJJ)Mark Desnoyers was convicted of, inter alia, one count of conspiring to both violate the Clean Air Act (?CAA?) and to commit mail fraud, in connection with his asbestos abatement work...

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Thoroughly Unappealing

Posted on March 20, 2011
United States v. Buissereth, No. 09-5358-cr (2d Cir. March 15, 2011) (Cabranes, Chin, CJJ, Crotty, DJ)This decision found great fault with a sentencing that ?left much to be desired.? The district court ?failed to (1) rule on the numerous filed objections to the PSR; (2) rule on the requests for downward departures and a variance; (3) adopt the findings of the PSR; (4) mention, much less articulate its consideration of, the relevant factors set forth in 18 U...

Nothing Special

Posted on March 20, 2011
Morales v. United States, No. 04-0585-pr (2d Cir. March 11, 2011) (Pooler, Hall, Livingston, CJJ)Although decisions in habeas cases are generally beyond the scope of this blog, this one contains an discussion of an interesting sentencing issue relating to convictions on multi-object conspiracies where there is no special verdict...

Meet The Press

Posted on March 20, 2011
United States v. Treacy, No. 09-3939-cr (2d Cir. March 9, 2011) (McLaughlin, Hall, CJJ, Restani, JCIT)James J. Treacy, former COO and President of the parent company of Monster.com, was convicted of securities fraud and related offenses based on a scheme in which he backdated stock options...

Dead Again

Posted on March 11, 2011
United States v. Qurashi, No. 10-348-cr (2d Cir. March 8, 2011) (Newman, Walker, Pooler, CJJ)Imran Quarashi and his brother, Adnan, purchased $3 million insurance policies on Adnan?s life from two different insurance companies. They then faked Adnan?s death, falsely asserting that he had died in a car accident in Pakistan, and the insurers paid Quarashi on the policies...

A Good-Faith-Based Decision

Posted on March 11, 2011
United States v. Clark, No. 09-3462-cr (2d Cir. March 8, 2011) (Sack, Raggi, Lynch, CJJ)In the district court, defendant Clark moved to suppress physical evidence and statements obtained after execution of a search warrant, and the district court granted the motion...

Summary Summary

Posted on March 10, 2011
It's been a while since the court issued an interesting summary order. But here are two that caught my eye.In United States v. Alkhabbaz, No. 09-5271-cr (2d Cir. March 10, 2011), the defendant's original sentence included a reduction for acceptance of responsibility, and the government did not appeal...

Peter Paul and Money

Posted on March 10, 2011
United States v. Paul, No. 09-3191-cr (2d Cir. March 7, 2011) (Cabranes, Chin, CJJ, Crotty, DJ)Defendant Peter Paul pled guilty to securities fraud, in connection with a stock manipulation scheme that permitted him to fraudulently obtain multi-million dollar margin loans, which he never repaid, from two brokerage houses...

Information Failure

Posted on March 10, 2011
United States v. Espinal, No. 09-4344-cr (2d Cir. March 7, 2011) (Walker, Straub, Lynch, CJJ)Here, the district court did not properly follow 21 U.S.C. § 851(b), which sets out the procedures for using a prior felony information to increase the mandatory minimum sentence in a drug case...

Racket Club

Posted on March 10, 2011
United States v. Applins, No. 07-2193-cr (2d Cir. March 1, 2011) (Miner, Sack, Hall, CJJ)This decision closes a hole in the Second Circuit?s RICO jurisprudence. The appellants, drug dealers who were members of something called the Elk Block gang, were convicted of RICO conspiracy under 18 U...

Face Time

Posted on March 06, 2011
United States v. Hotaling, No. 09-3935-cr (2d Cir. February 28, 2011) (Newman, Hall, CJJ, Restani, JCIT)John Hotaling cropped the faces from non-pornographic pictures of minor females and morphed them onto the heads of nude adult women engaged in sexually explicit conduct, including one in which the woman was handcuffed, shackled and tied to a dresser...

PC World

Posted on March 05, 2011
As usual, sentencing issues occupy the court in its most recent pair of per curiam opinions.In Brown v. United States, No. 09-3495-pr (2d Cir. March 1, 2011) (Winter, Livingson, Lynch, CJJ) (per curiam), an appeal of the denial of a § 2255 motion, the court rejected an argument that the Sentencing Guidelines? treatment of prior convictions affected the application of the Armed Career Criminal Act (?ACCA?)...

Rook and Roll

Posted on February 27, 2011
United States v. Skys, No. 09-5204-cr (2d Cir. February 23, 2011) (Jacobs, Kearse, Straub, CJJ)In August of 2007, Eric Skys approached Citigroup and claimed that his company, Kaiser-Himmel Corp., owned 13.4 million shares of Sprint Nextel Corp. stock, with a market value of approximately $240 million...

Restoration Comedy

Posted on February 27, 2011
United States v. Pescatore, No. 10-0520-cr (2d Cir. February 23, 2011) (Kearse, Winter, Hall, CJJ)In connection with a plea agreement that covered both a long-running chop-shop operation and an extortion scheme, Michael Pescatore agreed to accept a 132 month sentence, a $2...

PC World

Posted on February 22, 2011
United States v. Chowdhury, No. 09-3442-cr (2d Cir. February 22, 2011) (Cabranes, Chin, CJJ, Crotty, DJ) (per curiam)The controlled substance known as BZP, when combined with another chemical, known as TFMPP, which is not a controlled substance, is frequently sold as MDMA (ecstasy) and has a somewhat similar effect on the user...

The Youth Won?t Set You Free

Posted on February 20, 2011
United States v. Conca, No. 09-4475-cr (2d Cir. February 15, 2011) (Miner, Straub, Livingston, CJJ)The Second Circuit has long held that a New York State youthful offender adjudication (a ?y.o.?), counts as an adult conviction in the Sentencing Guidelines...

PC World

Posted on February 19, 2011
United States v. Acoff, No. 10-285-cr (2d Cir. February 10, 2011, amended February 11, 2011) (Calabresi, Lynch, CJJ, Murtha, DJ)In this case, the defendant was convicted of a crack cocaine offense that, under the old law, carried a five-year mandatory minimum...

Abbott Hole

Posted on February 19, 2011
United States v. Tejada, No. 07-5289-cr (2d Cir. February 9, 2011) (Leval, Raggi, CJJ, Gleeson, CJ)The defendant here received a 120-month drug sentence and a consecutive 60-month § 924(c) sentence. On appeal, he argued that this was illegal under the court's decisions in Williams and Whitley...

Attempting Offer

Posted on February 19, 2011
United States v. Sabir, No. 07-1968-cr (2d Cir. February 4, 2011) (Winter, Raggi, CJJ, Dearie, DJ)Rafiq Sabir, an American doctor, was convicted of conspiring to and attempting to provide material support - in the form of his own medical services - to al Qaeda...

The Chose Tattoo

Posted on February 13, 2011
United States v. Greer, No. 09-4362-cr (2d Cir. February 4, 2011) (Walker, Cabranes, CJJ, Koeltl, DJ)Michael Greer was convicted of possessing a gun and its ammunition. The gun was recovered in a trash can along with the keys to a Hyundai Sonata, while the ammunition was found in the car itself...

Swept Away

Posted on January 29, 2011
United States v. Hassock, No. 09-5193-cr (2d Cir. January 28, 2011) (Miner, Parker, Raggi, CJJ)In November of 2009, the district court granted Hassock?s motion to suppress the gun that he was charged with possessin, finding that it was the fruit of an unreasonable search of his bedroom...

PC World

Posted on January 29, 2011
This week?s per curiam opinions both deal with sentencing matters.First is United States v. Johnson, No. 08-4093-cr (2d Cir. January 28, 2011) (Kearse, Winter, Hall, CJJ) (per curiam).Here, three defendants challenged the district court?s denial of their crack resentencing motions under 18 U...

You Can't Go Home ... Again

Posted on January 29, 2011
United States v. English, No. 10-3258-cr (2d Cir. January 18, 2011) (Kearse, Winter, Hall, CJJ).The defendants in this case, charged with narcotics and firearms offenses, sought bail from a magistrate and two district judges. Each time they were ordered detained...

Belgian Awful

Posted on January 22, 2011
United States v. Weingarten, No. 09-1043-cr (2d Cir. January 18, 2011) (Cabranes, Wesley, Livingston, CJJ)Defendant Weingarten, who sexually abused one of his daughters for years, successfully challenged the applicability of 18 U.S.C. § 2423(b), which makes it a crime to travel in "foreign commerce" with the intent to engage in sexual activity that would be illegal in the United States, to one of the counts of conviction...

PC World

Posted on January 05, 2011
United States v. Brown, No. 09-4991 (2d Cir. January 5, 2011) (Calabresi, Sack, Katzmann, CJJ) (per curiam)The court's latest per curiam holds that assaulting a correction officer, in violation of Conn. Gen. Stat. § 53a-167c(a), satisfies the "catch-all" definition of "violent felony" in the Armed Career Criminal Act...

Be Careful What You Fish For

Posted on January 04, 2011
United States v. Bengis, No. 07-4895-cr (2d Cir. January 4, 2011) (Feinberg, Cabranes, Hall, CJJ)Three defendants pled guilty to various offenses arising from their South African lobster fishing businesses; they illegally harvested large numbers of rock lobsters from South African waters for export to the United States, conduct that violated both South African and United States law...

Over-VI?ed

Posted on January 04, 2011
United States v. Preacely, No. 09-2580-cr (2d Cir. December 21, 2010) (Raggi, Lynch, Wallace, CJJ)In this unusual, three-opinion decision the majority remanded for resentencing, finding that the record was ambiguous as to whether the district judge understood his departure authority...

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