Public Defense
Second Circuit Blog 
Case Summaries and Commentary by Attorneys from the Federal Defenders Office in New York City
Post Frequency: 8/day Last Entry: November 14, 2009 at 12:40:00 Recent Entries: 255
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Bye-Bye Baby
Posted on November 14, 2009United States v. Hasan, No. 08-4921-cr (2d Cir. November 10, 2009) (Cabaranes, Sack, CJJ, Rakoff, DJ)Syed Hasan was convicted of a number of crimes in connection with his successful scheme to kidnap his infant son and spirit the child off to India. He appealed on a number of grounds...
The Things We Do For Love
Posted on November 14, 2009United States v. Caraballo, No. 08-4640-cr (2d Cir. November 5, 2009) (Leval, Raggi, Livingston, CJJ)Gilberto Caraballo was a large-scale drug supplier in the Sunset Park section of Brooklyn. In September of 2000, he started dating Quincy Martinez, former girlfriend of Jose Fernandez, a dealer who worked for Caraballo...
Summary Summary
Posted on November 14, 2009Two summary orders of interest:In United States v. McDarrah, No. 07-1849-cr (2d Cir. November 5, 2009), a child enticement case, the district court admitted opinion testimony from an FBI agent that was improper in two ways. First, the agent used "we" to preface one of his opinions, which suggested that the opinion was based on his and other agents' collective knowledge and experience, and thus was "specialized knowledge" and not a "lay" opinion...
Cash and Quarry
Posted on November 03, 2009United States v. Byors, No. 08-4811-cr (2d Cir. October 29, 2009) (Cabranes, Livingston, CJJ, Korman, DJ)Defendant, while ostensibly was raising money for a Vermont marble quarry, made material misrepresentations to his investors. He also converted substantial amounts of their money to pay for his personal expenses, including vacation homes, cars and horses...
Action Jackson
Posted on October 28, 2009United States v. Jackson, No. 08-5151-cr (2d Cir. 2009) (McLaughlin, Katzmann, CJJ, Korman, DJ)Here, the circuit concluded that erroneous introduction of prejudicial ?other acts? evidence required a new trial.The FactsPolice officers responding to a ?shots fired? call in Queens encountered Jackson and others outside the target apartment building...
Summary Summary
Posted on October 27, 2009Two more summary orders of interest:In United States v. Howard, No. 08-0944-cr (2d Cir. October 26, 2009), the court, when considering the denial of a motion to suppress wiretap evidence, questioned whether the district court correctly rejected without a hearing the defendant's claim that the government illegally began tapping his phone before it obtained a wiretap order...
Drug Abuse
Posted on October 27, 2009United States v. Wright, No 08-0322-cr (2d Cir. October 19, 2009) (Jacobs, McLaughlin, Parker, CJJ)Here, the circuit held that the admission of defendant McCallum?s two prior drug convictions - which it termed ?propensity evidence in sheep?s clothing? - during his federal crack trafficking trial was an abuse of discretion...
PC World
Posted on October 27, 2009Here are the two most recent PC?s.In United States v. Bell, No. 08-5506-cr (2d Cir. October 20, 2009) (Miner, Cabranes, CJJ, Rakoff, DJ) (per curiam), the court reversed the district court?s grant of a new trial under F.R.Cr.P. 33 and remanded the case for sentencing...
A Matter of Substance
Posted on October 14, 2009United States v. Rigas, No. 08-3485-cr (2d Cir. October 5, 2009) (Feinberg, Winter, Cabranes, CJJ)When we last heard about the Rigas père et fils - former senior officers at Adelphia Communications who were convicted of conspiracy, securities, wire and bank fraud - the circuit affirmed the majority of their convictions, but reversed a single count of bank fraud for insufficient evidence...
Summary Summary
Posted on October 11, 2009Here's a fairly large crop of summary orders of interest.In United States v. Smith, No. 07-5740-cr (2d Cir. October 8, 2009), the court agreed that it was error to admit a picture of the defendant's tattoo - which depicted the skull, arms and ribcage of a skeleton firing a weapon - in a homicide case...
Murder, She Dotes
Posted on October 11, 2009United States v. Young, No. 07-2729-cr (2d Cir. October 8, 2009) (Jacobs, Walker, Leval, CJJ)Defendant Laval Farmer was a member of the Bloods street gang, charged with a 2001 gang-related murder and and 2002 gang-related attempted murder, along with various associated firearms offenses...
Plea Circus
Posted on October 11, 2009United States v. Carreto, No. 06-2295-cr (2d Cir. October 8, 2009)(Parker, Livingson, CJJ, Chin, DJ)Three defendants were charged with various offenses relating to a scheme in which young women were smuggled into the United States from Mexico and forced to engage in prostitution...
PC World
Posted on October 11, 2009This set of per curiam decisions deals with mes rea elements.In United States v. Romero-Padilla, No. 08-1817-cr (2d Cir. October 7, 2009) (Calabresi, Cabranes, Hall, CJJ), the court held that 21 U.S.C. § 959(a), a drug importation statute, requires the government to prove that the defendant actually, as opposed to constructively, knew that a controlled substance he distributed or manufactured would be illegally imported into the United States...
Summary Summary
Posted on September 13, 2009Here are three more summary orders of interest.In United States v. Delacruz, No. 08-1192-cr (2d Cir. September 11, 2009), the district court did not inform the defendant of the possibility of a forfeiture during the plea allocution, but still entered a forfeiture order at sentencing...
Tapped Out
Posted on September 07, 2009United States v. Concepcion, No. 08-3785-cr (2d Cir. August 31, 2009) McLaughlin, Calabresi, Sack, CJJ) On this government appeal, the court reversed a district court order suppressing evidence obtained pursuant to a wiretap. Background One of Concepcion?s former cellmates (the "CI") went to the FBI claiming that Concepcion planned to assist foreign terrorists in attacking the United States...
Delay Gratification
Posted on August 31, 2009United States v. Ray, No. 08-2795-cr (2d Cir. August 27, 2009)(Leval, Cabranes, Livingstone, CJJ)In this decision, the court holds that an unexplained and prejudicial fifteen-year delay in imposing sentence amounted to a Fifth-Amendment due process violation, but did not violate the Sixth Amendment right to a speedy trial...
Out Of Range
Posted on August 30, 2009United States v. Main, No. 08-4088-cr (2d Cir. August 27, 2009) (Walker, Wallace, CJJ)Christopher Main pled guilty to a crack cocaine offense pursuant to a Rule 11(c)(1)(C) agreement that stipulated to maximum sentence of 96 months, which was below the 120 to 150-month guideline range, and provided a ?carve-out? for Main to seek a downward departure...
Summary Summary
Posted on August 29, 2009For your reading pleasure, here are more summary orders of interest:In two related decisions, both captioned United States v. Salvagno, Nos. 06-4201-cr and 06-4202-cr (2d Cir. August 28, 2009), the defendants, who were father and son, complained of a confict of interest between some of their attorneys - they were employed at the same firm - at sentencing...
Khat Man, Two
Posted on August 29, 2009United States v. Hassan, No. 05-6949 (2d Cir. August 21, 2009) (Calabresi, Pooler, CJJ)Hassan was convicted of three conspiracy counts - (1) importation of a controlled substance (2) distribution of a controlled substance, and (3) money laundering - along with forty-one substantive money laundering counts, in connection with his importation of khat into the United States...
PC WORLD
Posted on August 29, 2009The court's latest per curiam ("PC") opinion deals with the narrow definition of "crime of violence" in the illegal reentry guideline, U.S.S.G. § 2L1.2. United States v. Gamez, No. 07-3660-cr (2d Cir. August 20, 2009) (per curiam), holds that the New York State offense of criminal possession of a weapon in the second degree, which makes it a crime to possess various types of firearms "with the intent to use the same unlawfully against another" is not a crime of violence under that section...
Cap?n Crunched
Posted on August 29, 2009United States v. Pizzonia, No. 07-4314-cr (2d Cir. August 19, 2009) (Calabresi, Straub, Raggi, CJJ)Dominick Pizzonia, a one-time captain for the Gambino crime family, was convicted of a racketeering conspiracy and sentenced to fifteen years in prison...
On a Role
Posted on August 28, 2009United States v. Ware, No. 07-5222-cr (2d Cir. August 18, 2009) (Kearse, Sack, Hall, CJJ)For five months in 2001 and 2002, Ware, an attorney, ran a ?pump and dump? scheme, in which entities he controlled issued fraudulent, and supposedly independent, press releases promoting two penny stocks that he owned...
Same S***, Different Day
Posted on August 17, 2009United States v. Parker, No. 08-4199-cr (2d Cir. August 14, 2009) (McLaughlin, Calabresi, Raggi, CJJ)Travious Parker received a 180-month sentence after a jury trial. This sentence comprised a 120-month drug mandatory minimum and mandatory sixty-month consecutive sentence on a § 924(c) count...
Summary Summary
Posted on August 17, 2009Here is the latest collection of summary orders of interest:In United States v. Bender, No. 08-3103-cr (2d Cir. August 14, 2009), the court rejected both substantive and procedural challenges to an upward departure in a child pornography case, even though the district court "should have provided a written statement of the specific reasons for its sentence...
Suffer the Little Children
Posted on August 12, 2009United States v. Freeman, No. 08-1886-cr (2d Cir. August 10, 2009) (Cabranes, Wallace, CJJ)In United States v. Delmarle, 99 F.3d 80 (2d Cir. 1996), the circuit held that it was within the district court?s discretion to apply the guideline enhancement for possessing child pornography that depicted sadistic or masochistic conduct where the image showed a ?young child [subject] to a sexual act that would have to be painful...
You Can?t Bet On It
Posted on August 12, 2009United States v. Battista, No. 08-3750-cr (2d Cir. August 6, 2009) (Walker, Wesley, Wallace, CJJ)James Battista was part of an illegal NBA gambling operation. He pled guilty to conspiring to transmit wagering information, in violation of 18 U.S.C. §§ 371 and 1084, and his sentence included restitution to the NBA...
Going Down!
Posted on August 03, 2009United States v. Perez, No. 08-4131-cr (2d Cir. August 3, 2009) (Newman, Pooler, Parker, CJJ)Here, the circuit concluded that an internal BOP investigation into corrections officers? use of force against an inmate constituted an ?official proceeding? within the meaning of 18 U...
Car, Men, Miranda
Posted on August 02, 2009United Statse v. Plugh, No. 07-2620-cr (2d Cir. July 31, 2009) (Jacobs, Wesley, Hall, CJJ)In September of 2005, FBI agents arrested Gordon Plugh on child pornography charges. In the car, an agent read him his Miranda rights and asked him to sign a waiver form...
Transmission Lines
Posted on August 02, 2009United States v. Bah, No. 07-4370-cr (2d Cir. July 31, 2009) (Jacobs, Walker, Calabresi, CJJ)Boubacar Bah ran a licensed money transmission business in New Jersey, but did not have an equivalent license in New York. He was convicted of operating an unlicensed money transmitting business, in violation of 18 U...
Summary Summary
Posted on August 02, 2009Here are two more summary orders of interest.In United States v. Nash, No. 08-0136 (2d Cir. July 29, 2009), a fraud prosecution, the court remanded the case for further record development on the question whether the "10 or more victims" enhancement should apply...
Formula 404
Posted on August 02, 2009United States v. Mercado, No. 08-1017-cr (2d Cir. July 17, 2009) (Calabresi, Wesley, CJJ, Droney, DJ)In this split decision, the court upheld the admission of Rule 404(b) evidence - prior firearms sales - on the issue of intent in a drug conspiracy trial...
INTRODUCING A NEW FEATURE - "PC WORLD"
Posted on July 28, 2009The circuit is increasingly publishing per curiam (or "PC") opinions in criminal cases. These opinions tend to either answer open questions or make official rulings that have previously appeared only in non-precedential summary orders. PC's are generally short and contain little or no reasoning, which render them very much like - except for their precedential value - summary orders...
No Escape
Posted on July 10, 2009United States v. Mills, No. 07-0308-cr (2d Cir. June 26, 2009) (Kearse, Sack, Livingston, CJJ) (per curiam)Gary Mills was convicted of violating 18 U.S.C. § 922(g), and received a 188-month sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA)...
Summary Summary
Posted on July 10, 2009Interesting summary orders have been piling up. Here is the latest crop:In United States v. Strand, No. 08-3730-cr (2d Cir. July 8, 2009), the court held that the district court lacked the authority to impose a drug sentence lower than the mandatory minimum to ?adjust? for time served on state sentences for related conduct, where the state sentences had been fully discharged several years before the federal sentences were imposed...
Daye of the Weak
Posted on July 10, 2009United States v. Daye, No. 08-1012-cr (2d Cir. July 10, 2009) (Miner, Raggi, Livingston, CJJ)Bruce Daye received an 180-month ACCA sentence. On appeal, he raised challenges to the use of all of his prior convictions as ACCA predicates, and the court sent the case back for further findings...
Back to the Future
Posted on July 10, 2009United States v. Pearson, No. 07-0142-cr (2d Cir. July 2, 2009) (Miner, Katzmann, Raggi, CJJ) (per curiam)Title 18, U.S.C. § 2259 provides that, in sex abuse cases, restitution is mandatory for the full amount of any loss to the victim, including the costs of medical or psychiatric care...
Unlucky Day
Posted on June 21, 2009United States v. Lucky, No. 08-1939-cr (2d Cir. June 19, 2009) (Calabaresi, Katzmann, CJJ, Eaton, J CIT)Damon Lucky appealed the denial of his Speedy Trial Act (STA) dismissal motion. The circuit, finding only 69 days of nonexcluded time, one short of the magic number, affirmed...
Gray's Anatomy
Posted on June 20, 2009United States v. Jass, No. 06-4899-cr (2d Cir. June 16, 2009) (Walker, Cabranes, Raggi, CJJ)Defendant Leight began sexually abusing his daughter when she was four years old. Jass, his girlfriend, entered the household four or five years later and joined in...
Gambling Problem
Posted on June 20, 2009United States v. Ivezaj, No. 06-3112-cr (2d Cir. June 11, 2009) (Feinberg, Miner, Parker, CJJ)Six defendants were convicted of racketeering and related offenses arising from their efforts to break the hold that New York City?s traditional organized crime families had on illegal gambling...
Timewell Spent
Posted on June 04, 2009United States v. Timewell, No. 07-4587-cr (2d Cir. June 1, 2009) (Miner, Raggi, Livingston, CJJ)Here, the circuit held that the district court?s reasons for denying a Crosby remand rendered the sentence procedurally unreasonable. It remanded the case for reconsideration, with instructions...
Reduction Ad Absurdum
Posted on May 29, 2009United States v. Savoy, No. 08-4800-cr (2d Cir. May 27, 2009)(per curiam)After a 1998 jury trial on crack distribution charges, Demetric Savoy faced a guideline sentencing range of 188 to 235 months? imprisonment, and received a sentence at the bottom of the range...
Citizen Feign
Posted on May 14, 2009United States v. Tureseo, No. 07-2933-cr (2d Cir. May 14, 2009)(Miner, Cabranes, CJJ, Berman, DJ)Juan Tureseo was deported in 1997, after an assault conviction. Immigration agents found him in the United States in 2006, at which time he insisted he was a United States citizen named Danny Ortega...
Summary Summary
Posted on May 10, 2009There have been five summary orders of interest in the past month or so. Here they are:In United States v. Al Manware, No. 08-2235-cr (2d Cir. May 4, 2009), the court ordered resentencing on a supervised release violation because the district court did not provide the defendant an opportunity to allocute before imposing sentence...
The Pursuit of Happy Ness
Posted on May 10, 2009United States v. Ness, No. 05-4401-cr (2d Cir. May 8, 2009) (Winter, Calabresi, Pooler, CJJ)Samuel Ness was convicted of money laundering offenses in connection with his armored car business, which received and distributed millions of dollars in narcotics proceeds...
Extension Headache
Posted on May 05, 2009United States v. Vargas, No. 08-1542-cr (2d Cir. May 5, 2009)(Calabresi, Livingston, CJJ, Restani, JCIT)In connection with a drug conviction, Raphael Varas was sentenced to a five-year term of supervised release. In January of 2008, he pled guilty to a supervised release violation...
If You Love Her, Let Her Go
Posted on May 03, 2009United States v. McGee, No. 07-4509-cr (2d Cir. April 24, 2009)(Leval, Katzmann, Livingston, CJJ)A Rochester police officer responded to 911 call at defendant McGee?s home. When the officer arrived, he saw McGee running away through the backyard. McGee?s girlfriend was outside the house...
Porn At Home
Posted on May 03, 2009United States v. Polouizzi, No. 08-1830-cr (2d Cir. April 24, 2009)(Leval, Katzmann, Raggi, CJJ)Defendant - referred to in the opinion as Peter Polizzi - was convicted by a jury of eleven counts of possession of child pornography, in violation of 18 U...
Caboose of Discretion
Posted on May 03, 2009United States v. Borden, No. 08-1625-cr (2d Cir. April 22, 2009: amended opinion) (Cabranes, Hall, CJJ, Sweet, DJ)Every other circuit to consider the question has concluded that a district court?s denial of a crack retroactivity motion under 18 U.S.C...
Khat Red-Handed
Posted on May 03, 2009United States v. Abdulle, No. 06-3647-cr (2d Cir. April 22, 2009) (Newman, Sotomayor, Katzmann, CJJ)Defendant Mohamed was convicted of distributing cathinone, the active ingredient in khat leaves, and challenged the sufficiency of the evidence against him...
The Acquittal That Wasn't
Posted on May 03, 2009United States v. McCourty, No. 07-3862-cr (2d Cir. April 9, 2009) (Miner, Sotomayor, Katzmann, CJJ)BackgroundAt McCourty?s drug trial, one of the counts in the indictment alleged that he possessed with the intent to distribute both a quantity of cocaine and more than five grams of crack...
Straddle Sore
Posted on April 29, 2009United States v. Josephberg, No. 07-3958-cr (2d Cir. April 9, 2009) (Kearse, Sack, Katzmann, CJJ)Background - Multiple Acts of Tax Fraud and EvasionA ?straddle? is a type of tax shelter transaction involving the simultaneous ownership of a contract to buy a commodity for delivery in a future month and a contract to sell the same amount of the same commodity in a different future month...
Object Permanence
Posted on April 28, 2009United States v. Marte Robles, No. 07-1013-cr (2d Cir. April 9, 2009)(Straub, Hall, CJJ, Eaton, DJ)(per curiam)In this case, the court was called upon to construe Application Note 4 to U.S.S.G. § 1B1.2. Section 1B1.2(d) provides that a ?conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit...
A Small Triumph
Posted on April 26, 2009United States v. Hertular, No. 07-1453-cr (2d Cir. April 6, 2009) (Straub, Raggi, CJJ, Session, DJ)Robert Hertular was convicted after a jury trial of running a large-scale cocaine importation ring, obstruction of justice, and misdemeanor assault of a federal officer under 18 U...
Kopp Out
Posted on April 20, 2009United States v. Kopp, No. 07-797-cr (2d Cir. April 6, 2009) (Kearse, Katzmann, CJJ, Chin, DJ) (per curiam)James Charles Kopp was sentenced to life plus ten after a jury convicted him of killing an abortion provider, in violation of 18 U.S.C. § 248, and discharging a firearm in connection with a crime of violence...
Summary Summary
Posted on April 01, 2009Here?s the latest crop:In United States v. Ramirez, No. 08-2771 (2d Cir. April 1, 2009), the district court committed a procedural sentencing error in the defendant?s favor by refusing to calculate the applicable Guideline range based on the actual drug quantity and instead deferring to the jury?s finding that less than 500 grams of cocaine was attributable to the defendant...
Publish and Perish
Posted on March 25, 2009United States v. Samas, No 05-5213-cr (2d Cir. March 24, 2009) (Jacobs, Wesley, Hall, CJJ) (per curiam)This case was originally decided by summary order in December of 2009. On the government?s motion, the court withdrew the summary order and issued this published decision in its place...
Summary Summary
Posted on March 23, 2009So far, there have been three summary orders of note in March. Let?s take a look.In United States v. Alkhabbaz, No. 07-4679-cr (2d Cir. March 23, 2009), the defendant was convicted of fraud and money laundering offenses. The circuit held that it was error to impose a sentence enhancement for using a minor, since the use of the minor was in connection with the underlying fraud, not the money laundering offense itself...
For Your Information
Posted on March 20, 2009United States v. Morales, No. 07-4202-cr (2d Cir. March 18, 2009) (per curiam)Morales was charged in a two count drug indictment; one count had a 5-year mandatory minimum, under 21 U.S.C. § 841(b)(1)(B), while the other had a 10-year mando under § 841(b)(1)(A)...
Seizure Disorder
Posted on March 20, 2009United States v. Simmons, No. 07-5127-cr (2d Cir. March 17, 2009) (Pooler, Sotomayor, Katzmann, CJJ)This appeal tackles an interesting search and seizure issue, a challenge to the discharge of a juror, and a sentencing issue. Simmons prevailed only on the sentencing claim...
Global Warming
Posted on March 14, 2009United States v. Yauri, No. 08-1105-cr (2d Cir. March 12, 2009)(Sack, Wesley, CJJ, Kahn, DJ) (per curiam)In Yauri?s money laundering plea agreement, the government agreed to a two-level reduction for a ?global disposition" and to a loss amount of ?more than $30,000...
Same Claim, Different Day
Posted on March 14, 2009United States v. Pitcher, No. 05-3182-pr (2d Cir. March 11, 2009) (Wesley, Hall, CJJ, Oberdorder, DJ) (per curiam)In 1999, Pitcher went to trial on a heroin distribution charge. He was convicted, sentenced to 121 months? imprisonment, and appealed. In a 2001 summary order, the court of appeals rejected his claim that his counsel had been ineffective for counseling him to reject the government?s efforts to sign him up as a cooperator, and affirmed...
Rehearing Loss
Posted on March 14, 2009United States v. Owen, No. 07-4966-cr (2d Cir. March 9, 2009) (Feinberg, Cabranes, Hall, CJJ)Defendant Owen has had a Rule 33 motion pending in the district court for quite some time. This is circuit?s third opinion in the case. In the first, Owen I, it held that the district court erred in granting the motion based on newly discovered evidence, but remanded for consideration of an ineffectiveness claim...
Coffe, Tea or Jail?
Posted on March 14, 2009United States v. Delis, No. 08-0641-cr (2d Cir. March 5, 2009) (McLaughlin, Calabresi, Livingston, CJJ)On a flight from Zurich to JFK, Pierre Delis, upset that the meal service ran out of chicken, got into a scuffle with a flight attendant during which, at a minimum, he pushed her hand away from his face...
Off-Whitley
Posted on March 14, 2009United States v. Williams, No. 07-2436-cr (2d Cir. March 5, 2009) (Pooler, Hall, CJJ, Trager, DJ)Title 18 U.S.C. § 924(c) provides for consecutive mandatory minimum sentences for the use or possession of a firearm in connection with a drug offense or crime of violence except "to the extent that a greater minimum sentence is otherwise provided by ...
Trust Fun
Posted on March 14, 2009United States v. Friedberg, No. 08-3763-cr (2d Cir. March 2, 2009) (Pooler, Katzmann, CJJ, Preska, DJ)Daniel Friedberg was Grand Secretary of an Odd Fellows lodge for eighteen years. During that time, he embezzled nearly $600,000 of the organization?s funds...
Let The Burglar Beware
Posted on February 25, 2009United States v. Johnson, No. 08-2296-cr (2d Cir. February 25, 2009) (Cabranes, Wesley, CJJ, Korman, DJ) (per curiam)Defendant Johnson stole a firearm during a burglary, and pled guilty to being a felon in possession of that same gun. At sentencing, he received a four-level enhancement for possessing it in connection with ?another felony,? the burglary...
Re: Possessed
Posted on February 24, 2009United States v. Ayon-Robles, No. 07-0785-cr (2d Cir. February 24, 2009) (Jacobs, Wesley, CJJ, Arcara, DJ) (per curiam)Recently, in an immigration case, Alsol v. Mukasey, 548 N.Y.S.2d 207 (2d Cir. 2009), the court held that a second state-court conviction for simple drug possession was not an ?aggravated felony? under the relevant immigration statute, 8 U...
Flaw-Of-The-Case
Posted on February 22, 2009United States v. Carr, No. 06-5490-cr (2d Cir. February 19, 2009) (Kearse, Sack, Kaztmann, CJJ)Carr was convicted after a jury trial of racketeering, drug and firearms offenses. At his original sentencing, since the racketeering predicate was murder, the then-mandatory guidelines prescribed a life sentence, and that is what he received, plus five years on a § 924(c) count...
Double Trouble
Posted on February 22, 2009United States v. Reyes, No. 06-3699-cr (2d Cir. February 19, 2009)(Leval, Cabranes, Livingston, CJJ) (per curiam)Defendant Reyes participated in the beating of the victim with, amongst other things, a baseball bat. The beating left the victim with severe brain damage - his wife told the court that he would ?never wake up again...
Dont Speak!
Posted on February 22, 2009United States v. Gutierrez, No. 08-3581-cr (2d Cir. February 11, 2009)(Cabranes, Sotomayor, CJJ, Rakoff, DJ)Before Gutierrez was sentenced, his counsel filed a sentencing memorandum outlining five separate grounds for a below-guideline sentence. The government?s written response sought a guideline sentence...
Sorry, Wrong Number
Posted on February 22, 2009United States v. Poindexter, No. 07-1151-pr (2d Cir. February 10, 2009) (Walker, Calabresi, Katzmann, CJJ) (per curiam)In 1995, Melvin Poindexter was charged with a cocaine conspiracy, with no drug quantity specified in the indictment. He therefore faced a 20-year maximum, but no mandatory minimum...
Summary Summary
Posted on February 22, 2009In the past month or so, there have been only two summary orders of interest. Here they are:Guidelines section 4A1.2(c)(2) lists offenses that are too petty to count in the criminal history score, and instructs that offenses ?similar to? those on the list are also excluded...
Resale Wrongs
Posted on February 08, 2009United States v. Parker, No. 07-0620-cr (2d Cir. February 3, 2009) (Feinberg, Leval, Cabranes, CJJ)Recently, the court held that the ?buyer-seller? rule did not apply where the defendant, a drug buyer who resold the drugs, clearly had a stake in the seller?s operation...
If I Had A Hammer
Posted on February 06, 2009United States v. Pope, No. 08-1007-cr (2d Cir. February 3, 2009) (Cabranes, Livingston, CJJ, Eaton, DJ)Steven W. Pope pled guilty to two counts of bank burglary, in violation of 18 U.S.C. § 2113(a). During one of the burglaries, he broke a side window of a Chase branch with a sledgehammer...
Cashed and Burned
Posted on February 06, 2009United States v. Varrone, No. 07-4533-cr (2d Cir. January 30, 2009) (Calabresi, Sotomayor, Parker, CJJ)Joseph A. Castello ran a check cashing business. He cashed more than $200 million in checks that exceeded $10,000 - charging a four percent check-cashing fee - for which he was obligated to file currency transaction reports (CTR?s)...
Structural Failure
Posted on February 06, 2009Gibbons v. Savage, No. 07-3306-pr (2d Cir. January 28, 2009)(McLaughlin, Leval, Pooler, CJJ).At Robert Gibbons? state court trial, the judge closed the courtroom during jury selection, expelling the only spectator, Gibbons? mother. After exhausting his state court appeals, Gibbons filed a 2254 petition, which the district court dismissed...
Child-Like
Posted on February 06, 2009United States v. Irving, No. 07-1312-cr (2d Cir. January 28, 2009)(Kearse, Sack, Raggi, CJJ)Stefan Irving is a former physician who was convicted, after a jury trial, of child pornography offenses, and several other counts relating to his travel to Mexico and Honduras to engage in sexual acts with children...
Building Block
Posted on February 06, 2009United States v. Hurell, No. 06-5653-cr (2d Cir. January 28, 2009) (Kearse, Calabresi, Sack, CJJ) (per curiam)In each of these three consolidated cases, all government appeals, the district court held that New York convictions for burglary in the third degree or attempted burglary in the third degree were not crimes of violence as defined in the career offender provisions of the Sentencing Guidelines...
Summary Summary
Posted on January 25, 2009Three more quickies:In United States v. Espinal, No. 07-3128-cr (2d Cir. January 21, 2009), there was an inconsistency between the district court's oral statement of the guideline range and the range contained in the written judgment. The court remanded the case for the "ministerial purpose" of amending the judgment to reflect the actual Guideline range that the court used...
Crack a Smile
Posted on January 25, 2009United States v. McGee, No. 08-1619-cr (2d Cir. January 23, 2009) (Pooler, Raggi, Livingson, CJJ) (per curiam)Darius McGee, convicted of a crack cocaine offense, was a career offender. At his sentencing, however, the district court downwardly departed...
Hart's Desire
Posted on January 25, 2009United States v. Draper, No. 07-2301-cr (2d Cir. January 20, 2009)(Newman, Calabresi, Sotomayor, CJJ)Defendants Hart and Draper were members of LRP, a drug gang that operated in Brooklyn. In July of 2001, LRP members robbed and murdered a rival. One of the LRP members involved in the killing, Clinton Davy, was picked up and questioned by New York City police officers...
Ship of Fuels
Posted on January 25, 2009United States v. Ionia Management S.A., No. 07-5801-cr (2d Cir. January 20, 2009) (McLaughlin, Calabresi, Livingston, CJJ)(per curiam)In the 1970's, the United States entered into two international treaties, collectively known as MARPOL, intended to eliminate marine pollution by oil...
Habeas Corpulent
Posted on January 19, 2009Dolphy v Mantello, No. 03-2738-pr (2d Cir. January 9, 2009) (Jacobs, Hall, CJJ, Arcara, DJ)At Seth Dolphy?s state-court criminal trial, the prosecutor exercised a peremptory challenge against the only African-American member of the jury panel, and Dolphy raised a Batson challenge...
The Rare Necessity
Posted on January 19, 2009United States v. White, No. 07-1180-cr (2d Cir. January 9, 2009)(Kearse, Sack, Livingston, CJJ)Police officers entered Anthony White?s home in response to a domestic violence call. According to the officers, they found him in the bedroom. He was sitting on the bed loading a sawed-off shotgun that was pointed at the doorway where the officers stood...
On Hold
Posted on January 19, 2009United States v. Owen, No. 07-4966-cr (2d Cir. January 9, 2009)(Feinberg, Cabranes, Hall, CJJ)This decision addresses one of the procedural complexities that can arise when a defendant changes counsel on appeal while post-verdict motions are pending in the trial court...
Crosswalk Puzzle
Posted on January 19, 2009United States v. Stewart, No. 07-3003-cr (2d Cir. January 8, 2009) (Winter, Miner, Cabranes, CJJ)Brett Stewart was a passenger in a livery cab that stopped at a red light. Two police officers claimed that the cab?s front wheels ended up in the crosswalk, a traffic violation...
Summary Summary
Posted on January 17, 2009Here are two summary orders of interest:In United States v. Mammedov, No. 06-2971-cr (2d Cir. December 30, 2008), the court vacated a restitution order where the district court failed to set a payment schedule and, at least implicitly, ordered that the full amount be paid immediately...
Crack Under Pressure
Posted on January 17, 2009United States v. Williams, No. 08-1065-cr (2d Cir. January 7, 2009) (Hall, Livingston, Gibson, CJJ)Here, the defendant, Saquan Lewis, unsuccessfully appealed the district court's denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c) based on the retroactive amendment to the Guideline for offenses involving crack cocaine...
Nothing In Store
Posted on January 17, 2009United States v. Uddin, No. 07-3121-cr (2d Cir. January 6, 2009) (Kearse, Sack, Katzmann, CJJ)Mohammed Uddin owned a small grocery store in Manhattan, and used it to commit food stamp fraud between 2003 and 2006 by dispensing cash in exchange for food stamps...
Lies My Broker Told Me
Posted on January 17, 2009United States v. Kelley, No. 06-5536-cr (2d Cir. January 5, 2009) (per curiam)Kevin Kelley, a stock broker, was convicted of securities and wire fraud based on his fraudulent activities with respect to four separate securities. For each of them he would either (1) purchase stocks for his clients without their authorization (2) do so without disclosing his own interest in the company or (3) misappropriate client funds for his own use...
Dogged Determination
Posted on December 24, 2008United States v. Hayes, No. 07-0063-cr (2d Cir. December 24, 2008) (Miner, McLaughlin, Pooler, CJJ)On the morning of September 3, 2002, Derrick Hayes overdosed on cocaine. After he was put in an ambulance, his girlfriend gave local police officers permission to search the house...
Summary Summary
Posted on December 18, 2008span style="font-family: verdana;"There were some interesting summary orders this week.br /br /In span style="color: rgb(0, 204, 204);"United States v. Romero/span, No. 06-1199-cr (2d Cir. December 18, 2008), the district court imposed a $10,000 fine, observing that the debt would make the defendant eligible for work in prison...
Taking Stock
Posted on December 18, 2008span style="font-family: verdana;"span style="color: rgb(0, 204, 204);"United States v. Elgindy/span, No. 06-4081-cr (2d Cir. December 17, 2008) (Sack, Katzmann, CJJ, span style="font-weight: bold;"Rakoff/span, DJ)br /br /Defendants Elgindy and Royer were convicted of securities fraud-based racketeering counts, as well as related extortion charges relating to a complex stock manipulation scheme...
Restoration Drama
Posted on December 17, 2008span style="font-family: verdana;"span style="color: rgb(0, 204, 204);"United States v. Bullock/span, No. 07-3059-cr (2d Cir. December 17, 2008) (span style="font-weight: bold;"Jacobs/span, Minor, Sotomayor, CJJ)br /br /Bullock, a previously convicted felon, was convicted, after a jury trial, of possessing ammunition...
Summary Summary
Posted on December 10, 2008Here is the latest crop of summary orders of interest:In United States v. Cardenas, No, 06-5601-cr (2d Cir. December 9, 2008), the court remanded for an evidentiary hearing as to whether an ?oral cooperation agreement? existed. The defendant alleged that there was, and there was not ?overwhelming evidence to the contrary...
Run-On Sentence
Posted on December 08, 2008United States v. Chavez, No. 05-4679-cr (2d Cir. December 8, 2008) (Kearse, Calabresi, Sack, CJJ)Jaime Chavez was convicted after a jury trial of a drug conspiracy and a § 924(c) offense, and faced a 50-year mandatory minimum: due to a prior conviction there was a 20-year minimum on the drug charge; and, because the gun had a silencer, he faced a 30-year mandatory consecutive sentence for the gun...
Take It To The Banc
Posted on December 07, 2008United States v. Cavera, No. 05-4591-cr (2d Cir. December 4, 2008) (en banc)Gerard Cavera pled guilty to participating in a scheme in which guns were purchased in the South then transported to New York City for sale. At sentencing, the district court imposed a sentence six months longer than the top of the Guideline range, and an above-Guideline fine, based on two ?location specific? concerns...
Who?s Your Daddy?
Posted on December 07, 2008United States v. Connolly, No. 06-3139-cr (2d Cir. December 4, 2008) (Straub, Raggi, CJJ, Sessions, DJ)Odell Connolly was born in Panama on April 21, 1968. His mother was a local, but his father was a United States citizen. They were not married. The father had been drafted into the United States Army in 1966 and was on active duty in the Panama Canal Zone until eighteen days before Connolly was born...
Hire Today, Gone Tomorrow
Posted on December 06, 2008United States v. Lee, No. 05-1684-cr (2d Cir. December 3, 2008) (Straub, Hall, CJJ, Haight, DJ)Here, a divided panel found that a Crawford error required a new trial for two defendants convicted in a murder-for-hire conspiracy, although the evidence was legally sufficient...
How Not To Seek A Change Of Counsel
Posted on December 06, 2008United States v. Salim, No. 04-2643-cr (2d Cir. December 2, 2008) (Newman, Walker, Sotomayor, CJJ)With the help of a cellmate, defendant Salim, while awaiting trial for the bombing of the United States embassies in Kenya and Tanzania, abducted an MCC guard and stabbed him in the eye with a sharpened comb, nearly killing him...
The Waist Band
Posted on December 06, 2008United States v. Padilla, No. 07-5359-cr (2d Cir. December 2, 2008) (Raggi, Calabresi, CJJ, Keenan, DJ)October is the cruellest month. That?s when a New York City detective recovered a gun from Hector Padilla?s waistband. Padilla was sentenced to 120 months? imprisonment, the statutory maximum...
Embassy Suite
Posted on November 30, 2008In re Terrorist Bombings of U.S. Embassies in East Africa, No. 01-1535-cr (2d Cir. November 24, 2008) (Feinberg, Newman, Cabranes, CJJ)This trio of long opinions, captioned In re Terrorist Bombings of U.S. Embassies in East Africa, resolves the appeals of the defendants convicted of the embassy bombings in Kenya and Tanzania in 1998...
Simply Possession
Posted on November 29, 2008Alsol v. Mukasey, No. 07-2068-ag (2d Cir. November 14, 2008) (Calabresi, Straub, Raggi, CJJ)This decision, although an immigration case, clarifies an important legal issue that also arises in criminal cases. Here, each petitioner had been convicted of two New York State drug misdemeanors involving simple possession of a controlled substance...
Confrontational
Posted on November 20, 2008United States v. Figueroa, No. 06-1595-cr (2d Cir. November 18, 2008) (Kearse, Sack, Hall, CJJ)In an interesting companion to Brinson v. Walker [blogged below under the title "Confrontation Claws"], the court treated a highly similar issue, this time under both the Confrontation Clause and the federal rules of evidence...
Summary Summary
Posted on November 14, 2008This week there were three interesting summary orders:In United States v. Solano, No. 07-1656-cr (2d Cir. November 14, 2008), the government repeatedly insisted before trial that a detective had not taken notes when he interviewed the defendant. Mid-trial, the government did an about-face and disclosed that the notes had once existed but had been destroyed...
Confrontation Claws
Posted on November 14, 2008Brinson v. Walker, No. 06-0618-cr (2d Cir. November 13, 2008) (Kearse, Leval, Sack, CJJ)In this state prisoner?s habeas corpus case, the circuit affirmed the grant of the writ because the state court?s refusal to permit the defense to cross-examine a supposed robbery victim about his racial bias violated the confrontation clause...
Uninformed Consent
Posted on November 14, 2008United States v. Lopez, No. 081269-cr (2d Cir. November 13, 2008) (McLaughlin, Leval, Pooler, CJJ)Albert Lopez violated his supervised release by failing a drug test, and marshals went to his house to arrest him. After he was cuffed, the marshals took his girlfriend upstairs to get clothes for him...
False Promise
Posted on November 14, 2008United States v. Buie, 07-0258-cr (2d Cir. November 13, 2008) (McLaughlin, Leval, Pooler, CJJ)For a drug conviction to be an ACCA predicate, it must be of an offense ?for which a maximum term of imprisonment of ten years or more is prescribed by law.? 18 U...
Driving While Incriminated
Posted on November 12, 2008United States v. Lopez, No. 06-3730-cr (2d Cir. November 10, 2008) (Kearse, Leval, Cabranes, CJJ) Police officers arrested Lopez for drunk driving. He has a gun in his pocket. Meanwhile, other officers, while looking for Lopez? girlfriend?s identification, found cocaine in her purse...
Summary Summary
Posted on November 09, 2008Things have been eerily quiet in the circuit - no published decision in a criminal case in nearly two weeks. But there have been a few summary orders of note. First, in United States v. Dean, No. 07-3015-cr (November 7, 2008), the court vacated an above-guideline sentence because, although the district court indicated that it was departing upward on criminal history grounds, it did not "follow the recommended procedure in § 4A1...
The Fugitive
Posted on October 30, 2008United States v. Zedner, No. 07-1049 (2d Cir. October 28, 2008) (Kearse, Pooler, CJJ, Cote, DJ)While on supervised release, and with his appeal pending, Jacob Zedner received his probation officer?s permission to go to Israel for two weeks to attend his brother?s funeral...
Sir Speedy
Posted on October 26, 2008United States v. Oberoi, No. 04-4545-cr (2d Cir. October 23, 2008) (Jacobs, Kearse, Katzmann, CJJ)Tejbir Oberoi, proceeding pro se, claimed on appeal that he was denied a speedy trial. He lost the case, but it took the circuit about fifty pages to sort things out...
A Crime of Violins
Posted on October 26, 2008United States v. Sprysak, No. 07-3353-cr (2c Cir. October 22, 2008) (Newman, Calabresi, Parker, CJJ)Adam Potocki was convicted of conspiracy to sell stolen property, a Stradivarius violin that was later determined to be fake. The court of appeals held that the evidence was insufficient on two elements: whether Potocki believed the violin was worth at least five thousand dollars, and whether the offense involved goods that moved in interstate commerce...
The Ecstasy and the Ecstasy
Posted on October 26, 2008United States v. Ogando, No. 05-0236-cr (2d Cir. October 20, 2008) (Kearse, Calabresi, Sack, CJJ)Francisco Ogando, a licensed livery cab driver, was convicted of participating in an ecstasy importation and distribution conspiracy. On appeal, the circuit held that the evidence was insufficient...
Buyer's Remorse
Posted on October 26, 2008United States v. Hawkins, No. 07-3018-cr (2d Cir. October 16, 2008) (Straub, Raggi, CJJ, Sessions, DJ)Alex Luna sold drugs in Danbury, Connecticut, from 2002 to 2005. Warren Hawkins was convicted, after a jury trial, of one count of conspiring with Luna to distribute less than 500 grams of cocaine and less than five grams of crack...
Sexually Charged
Posted on October 26, 2008United States v. Rivera, No. 06-4946-cr (2d Cir. October 15, 2008) (Jacobs, Kearse, Katzmann, CJJ)Carlos Rivera was convicted of various offenses relating to the sexual exploitation of children. One count involved the production of child pornography, for which Rivera, a recidivist, received a mandatory life sentence...
Slight Change
Posted on October 25, 2008United States v. Huezo, No. 07-0033-cr (2d Cir. October 14, 2008) (Newman, Walker, Sotomayor, CJJ)Defendant Huezo was convicted, after a jury trial, of money laundering and money laundering conspiracy. The district court granted his post-verdict Rule 29 motion, and the government appealed...
Bonnano Republic
Posted on October 19, 2008United States v. Massino, No. 07-1618-cr (2d Cir. October 10, 2008) (Hall, Livingston, CJJ, McMahon, DJ) (per curiam)Patrick DeFilippo was convicted of racketeering and other offenses in connection with his involvement with the Bonnano crime family, and the district court sentenced him to forty years? imprisonment...
Unattached
Posted on October 19, 2008United States v. Worjloh, No. 06-3129-cr (2d Cir. October 8, 2008) (Parker, Raggi, Hall, CJJ) (per curiam)Although not yet charged with a federal offense, Worjloh was questioned by federal agents while he had state drug charges pending. The state charges were ultimately dismissed, and a federal indictment was returned...
Unlucky Strike
Posted on October 19, 2008United States v. Matthews, No. 07-0699-cr (Wesley, Hall, Gibson, CJJ) (per curiam)Matthews challenged his life sentence under the federal ?three-strikes? statute, 18 U.S.C. § 3559(c), on several grounds. The circuit affirmed.One ?three-strikes? provision requires the defendant to establish that his prior convictions were not ?serious violent felonies,? as defined by the statute...
Materia Girls
Posted on October 19, 2008United States v. Ojeikere, No. 07-1970-cr (2d Cir. October 7, 2008) (Newman, Winter, Calabresi, CJJ)Defendant Ojeikere was convicted of participating in an ?advance fee? scheme the tricked its victims into sending money to the defendant and his confederates to release ?large sums of money supposedly held in Nigeria...
Expert Tease
Posted on October 19, 2008United States v. Mejia, No. 05-2856-cr (2d Cir. October 6, 2008) (Jacobs, Parker, Hall, CJJ)Here, the improper admission of ?officer expert? testimony resulted in a new trial.BackgroundThe defendants were convicted of participating in two drive-by shootings in connection with their membership in the MS-13 gang...
Summary Summary
Posted on October 19, 2008A few more summary orders of interest from earlier this month:In United States v. Nunez-Gonzalez, No. 05-4064-cr (2d Cir. October 10, 2008), the court remanded for resentencing where a "review of the record leaves us uncertain as to whether the District Court fully considered the sizeable disparity between the sentences of" the defendant and his co-defendant...
Trial by Error
Posted on October 06, 2008United States v. Al-Moyad, No. 05-4186-cr (2d Cir. October 2, 2008) (McLaughlin, Parker, Wesley, CJJ)Defendants Al-Moayad and Zayed were convicted in front of Judge Johnson of conspiring to provide material support to Hamas and Al-Qaeda, designated terrorist organizations...
Summary Summary
Posted on October 05, 2008Submitted for your approval - a nother set of notable summary orders.In United States v. Davidson, No. 06-4729-cr (2d Cir. October 3, 2008), the court ducked an interesting issue. Davidson was convicted of a drug offense and a related § 924(c) offense and the district judge fined him $300 on each count...
Good Faith Efforts
Posted on September 28, 2008United States v. Falso, No. 06-2721-cr (2d Cir. September 24, 2008) (Jacobs, Sotomayor, Livingston, CJJ)This opinion, a three-way split, adds another confusing piece to the circuit?s oeuvre in reviewing search warrants in child pornography cases. Judges Sotomayor and Jacobs held that the warrant lacked probable cause; Judge Livingston held that it did not...
Support Hose
Posted on September 28, 2008United States v. Kerley, No. 08-1818-cr (2d Cir. September 25, 2008) (Jacobs, Pooler, CJJ, Restani, JCIT)Clifford Kerley was convicted, after a jury trial, of two counts of willfully evading a child support obligation - one for each of his twin daughters - in violation of 18 U...
Mea Exculpa
Posted on September 28, 2008United States v. Spadoni, No. 06-4970-cr (2d Cir. September 25, 2008) (Pooler, Hall, CJJ, Gleeson, DJ)Here, the defendant successfully argued that the government?s suppression of exculpatory and impeachment material warranted a new trial.BackgroundSpadoni was the general counsel for an investment firm, Triumph, that did business with the State of Connecticut...
Benched
Posted on September 28, 2008United States v. Carmenate, No. 07-2421 (2d Cir. September 24, 2008) (Cabranes, Pooler, Katzmann, CJJ) (per curiam)Carmenate was charged with bank fraud. His counsel, fearing the consequences of having the jury hear from a witness that he believed was biased, asked for a bench trial...
Jailhouse Rock
Posted on September 28, 2008United States v. Cote, No. 07-1852 (2d. Cir. September 24, 2008) (Pooler, Sotomayor, CJJ, Restani, JCIT)Paul Cote was a prison guard at the Westchester County jail. On October 10, 2000, during an altercation, Cote repeatedly punched and stomped on an inmate?s head while the inmate lay on the floor...
Conditional Love
Posted on September 28, 2008United States v. MacMillen, No. 07-3377-cr (2d Cir. September 23, 2008) (Hall, Livinston, CJJ, McMahon, DJ)MacMillen pled guilty to possessing child pornography, and the court sentenced him to seventy-eight months? imprisonment and supervised release for life...
Commitment Issues
Posted on September 28, 2008United States v. Magassouba, No. 06-2628-cr (2d Cir. September 19, 2008) (Parker, Raggi, Wesley, CJJ)Defendant Magassouba has been in custody since at least August of 2003, when he was ordered detained on heroin trafficking charge that carried a ten-year mandatory minimum sentence...
Krazy Khat
Posted on September 27, 2008United States v. Hassan, No. 05-6949-cr (2d Cir. September 19, 2008) (Calabresi, Pooler, Sotomayor, CJJ)Defendant Hassan was convicted of three conspiracy counts - (1) importation of a controlled substance (2) distribution of a controlled substance, and (3) money laundering - along with forty-one substantive money laundering counts, in connection with his importation of khat into the United States...
Offer Rejected
Posted on September 27, 2008United States v. Savage, No. 06-4097-cr (2d Cir. September 18, 2008) (Pooler, Livingston, CJJ, Kaplan, DJ)Lavon Savage pled guilty to possessing a gun. At issue was whether his offense level should be enhanced for a prior ?controlled substance offense,? based on his conviction under Connecticut General Statute § 21a-277(b), which makes it a crime to, inter alia, sell a controlled substance...
Enterprise Rent-A-Cop
Posted on September 27, 2008United States v. Eppolito, No. 06-3280-cr (2d Cir. September 17, 2008) (Kearse, Sack, Hall, CJJ)Louis Eppolito and Stephen Caracappa were NYPD detectives who, for many years, also worked for the Lucchese organized crime family - and occasionally other Mafia families - on the side...
Summary Summary
Posted on September 27, 2008So far, September has produced two summary orders of interest.In United States v. Evans, No. 05-5753-cr (2d Cir. September 18, 2008), the court ordered a Regalado remand for one defendant, even though he was a career offender. His offense level was the same under the drug quantity table and the career offender rules, and the district judge made some comments that suggested that she did not fully understand her sentencing discretion...
Romeo and "Julie"
Posted on September 10, 2008United States v. Joseph, No. 06-5911-cr (2d Cir. September 9, 2008) (Newman, Walker, Sotomayor, CJJ)Dennis Joseph, through an internet chat room called ?I Love Older Men,? met ?Julie,? an FBI agent posing as a thirteen-year-old girl. He began exchanging messages with her describing sexual acts he wanted to perform with her, and over time, they made a plan to meet at a café in Manhattan...
The Three Racketeers
Posted on September 06, 2008United States v. Riggi, No. 06-1280-cr (2d Cir. September 4, 2008) (Jacobs, Calabresi, Sack, CJJ)Defendants Vitabile, Abramo and Schifilliti were all long-time members of the Decavalcante crime family. Vitabile was consignliere for thirty-five years, Abramo had been a captain since the late 1980's and Schifilliti had held that same title since 1991...
A Family Affair
Posted on September 06, 2008United States v. Yannotti, No. 06-5571-cr (2d Cir. September 4, 2008) (Katzmann, Parker, Raggi, CJJ)Michael Yannotti was one of several Gambino crime family members accused of multiple violent acts - including extortion, loansharking and murder. After a jury trial, he was convicted of a RICO conspiracy, although the only predicates that the jury could agree that he committed were loansharking activities that had taken place eight years or more before he was indicted...
Conspiracy Theories
Posted on September 06, 2008United States v. Santos, No. 06-0833-cr (2d Cir. September 2, 2008) (McLaughlin, Sack, Livingston, CJJ)In 2000, Santos was hired by a big Columbian drug dealer to kill two men who had stolen drug proceeds from him. Santos had meetings with an intermediary, Medina, in which Medina answered Santos questions about the nature of the drug organization and the debt, and detailed the reasons for the hit...
Gimme Shelter
Posted on August 30, 2008United States v. Stein, no. 07-3042-cr (2d Cir. August 28, 2008) (Jacobs, Feinberg, Hall, CJJ)This case arose from a 2004 investigation into KPMG?s suspected creation and sale of illegal tax shelters. Although KPMG?s counsel recommended a ?cooperative approach? in its dealings with the government, the firm still, initially, promised to pay the attorneys' fees of any current or former member of the firm who was under investigation...
Toll Free
Posted on August 29, 2008United States v. Kozeny, No. 07-3107-cr (2d Cir. August 29, 2008) (Sack, Katzmann, Hall, CJJ)In 2002 and 2003, the government believed that Frederic Bourke was involved in a scheme to bribe senior government officials in Azerbaijan in connection with the privatization of that nation?s state-run oil company...
Feetotalers
Posted on August 24, 2008United States v. Amato, No. 06-5600-cr (2d Cir. August 21, 2008) (Cardamone, Miner, Pooler, CJJ)The defendants were the principals of a consulting firm that was purchased by EDS, a much larger company. Their compensation included an incentive plan that promised large bonuses if they helped their clients, financial services firms, avoid losses caused by escheatments...
Flight Cancellation
Posted on August 24, 2008United States v. Mundy, No. 06-1190-cr (2d Cir. August 21, 2008) (Kearse, Leval, Cabranes, CJJ).In this decision, the court all but eliminates the ?flight as consciousness of guilt? jury instruction from Second Circuit jurisprudence.The facts here were somewhat unusual because it was the the defendant who sought the instruction with respect to a co-defendant...
Standing Alone
Posted on August 19, 2008United States v. Hamilton, No. 06-2933-cr (2d Cir. August 15, 2008) (Leval, Sotomayor, Katzmann, CJJ)Hamilton was convicted of participating in a marijuana conspiracy. He raised a host of issues on appeal, and prevailed on his claim that the district court erroneously concluded that he lacked standing to challenge a search...
Tamper Proof
Posted on August 19, 2008United States v. Ventry, No. 06-3104-pr (2d Cir. August 15, 2008) (Cabranes, Wesley, CJJ, Castel, DJ).In this appeal from the denial of a 2255 motion, the circuit faulted the district court?s finding that Ventry?s counsel did not suffer from a conflict of interest...
It Depends Upon What the Meaning of the Word ?Is? Is
Posted on August 19, 2008United States v. Darden, No. 06-4567-cr (2d Cir. August 15, 2008) (Cardamone, Pooler, CJJ, Keenan, DJ)Under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (?ACCA?), a felon-in-possession of a firearm or ammunition faces a fifteen-year mandatory minimum sentence (the maximum is life) if he has at least three prior convictions for felony crimes of violence and/or ?serious? drug offenses...
Collusion Course
Posted on August 19, 2008United States v. Guevara-Umana, No. 07-1410-cr (2d Cir. August 15, 2008) (Leval, Calabresi, Pooler, CJJ) (per curiam)Guevara was deported in 1999. By 2004, he was back; on February 21, 2004, he was charged with grand larceny in New York State. That same day, ICE filed an immigration detainer...
Ratio Days
Posted on August 19, 2008United States v. Keller, No. 07-3330-cr (2d Cir. August 14, 2008) (Miner, Cabranes, CJJ, Berman, DJ)This case provides an important clarification of the procedure that the court set out earlier this year in United States v. Regalado, 518 F.3d 143 (2d Cir...
Sex Post Facto
Posted on August 18, 2008United States v. Marcus, No. 07-4005-cr (2d Cir. August 14, 2008) (Straub, Sotomayor, Wesley, CJJ) (per curiam)Between 1999 and 2001, Glenn Marcus kept a woman, ?Jodi,? as his sex slave. Having met her on the internet, he induced her to move from the Midwest to Maryland, where he set her up in an apartment...
Uncooperative
Posted on August 18, 2008United States v. Doe, No. 06-4124-cr (2d Cir. August 13, 2008) (Kearse, Pooler, CJJ, Cote, DJ)Defendant John Doe, along with others, was charged with ?an array? of drug and gun offenses, racketeering, robbery and two murders. He expressed an interest in trying to cooperate with the government, but the government declined...
Valentine?s Day Off
Posted on August 18, 2008United States v. Valentine, No. 06-5648-cr (2d Cir. August 5, 2008) (Leval, Calabresi, CJJ, Nevas, DJ)Federal agents intercepted a fifty kilogram drug shipment that was addressed to an apartment building in Brooklyn. They arranged for a controlled delivery, and watched from a surveillance van across the street...
Scent of a Warehouse
Posted on August 18, 2008United States v. Klump, No. 06-0339-cr (2d Cir. August 4, 2008) (McLaughlin, Sack, Livingston, CJJ)Federal drug agents followed a fan believed to be associated with drug activity to a home depot, and then to a warehouse in Buffalo that Klump owned. The agents watched the warehouse for a while, and when Klump and another person left the building, detained them...
In Search of Lost Time
Posted on July 30, 2008United States v. Abiodun, No. 06-5335-cr (2d Cir. July 30, 2008) (Cardamone, Cabranes, Katzmann, CJJ)Emmanuel Abiodun was one of a group of people who ran a large credit card and identity fraud scheme in which credit reports were illegally downloaded and used to obtain credit cards in the victims? names...
Glitter and Begay
Posted on July 30, 2008United States v. Gray, No. 07-3636-cr (2d Cir. July 25, 2008) (Wesley, Hall, CJJ, Koeltl, DJ)In New York, reckless endangerment in the first degree involves conduct ?evincing a depraved indifference to human life? that ?creates a grave risk of death to another person...
Car Trouble
Posted on July 30, 2008United States v. Delossantos, No. 06-4713-cr (2d Cir. July 25, 2008) (Feinberg, Miner, Parker, CJJ)Marino Delossantos was a drug dealer, who was negotiating a deal with an undercover officer. While Delossantos was under surveillance, defendant Rodriguez was seen at the building where Delossantos lived ,and also drove him to and from various locations related to the drug deal...
Bolt 45
Posted on July 30, 2008United States v. Torres, No. 06-4124-cr (2d Cir. July 24, 2008) (Kearse, Pooler, CJJ, Cote, DJ)Facing a mandatory life sentence after trial, defendant Torres pled guilty to a series of crimes of violence in exchange for a forty-five year sentence. Five months later, he moved to withdraw his plea, claiming that statements by the prosecutor at a reverse proffer and in court on the day of the plea unduly coerced him...
Remand Performance
Posted on July 27, 2008United States v. Ogman, No. 06-0203-cr (2d Cir. July 24, 2008) (Sotomayor, Livingson, CJJ, Preska, DJ) (per curiam)This published opinion replaces a summary order filed in this case back in April. [It was blogged in that month?s Summary Summary.] The case holds that, in a crack cocaine prosecution, a Regalado remand is not warranted when the defendant was sentenced as a career offender...
Warrant Peace
Posted on July 27, 2008Untied States v. Waker, No. 07-4160-cr (2d Cir. July 22, 2008) (Hall, Livinston, CJJ, McMajon, DJ) (per curiam)Here, the defendant unsuccessfully argued that various defects invalidated a search warrant.He first cited two typographic errors - the magistrate accidentally set the execution deadline as April 30, 2004, instead of April 30, 2005, and the agent accidentally post-dated by one day facts in the supporting affidavit...
RePetition
Posted on July 27, 2008Nnebe v. United States, No. 05-5713-pr (2d Cir. July 21, 2008)Pena v. United States, No. 06-0218-pr (2d Cir. July 21, 2008)This month, the court re-issued decisions in two cases decided in June - one of which the court subsequently withdrew [see prior posts ?Role of Certs? and ?Withdrawal Symptoms?] - dealing with counsel?s obligation to file a petition for a writ of certiorari...
Deceptively Simple
Posted on July 27, 2008United States v. Finnerty, No. 07-1104-cr (2d Cir. July 18, 2008) (Jacobs, Pooler, CJJ, Restani, J)The New York Stock Exchange functions, essentially, as an auction market. Specialist firms are designated to facilitate the auction of a particular stock by processing the bids to buy and offers to sell it...
Luggage Wreck
Posted on July 27, 2008United States v. Leerdam, No. 07-1435-cr (2d Cir. July 18, 2008) (Jacobs, Straub, CJJ, Jones, DJ).Here, the circuit reversed the convictions of two defendants, Andrea and Julio Lorenzo, who had been convicted in a drug importation and distribution conspiracy, finding that the evidence was legally insufficient...
The Amazing Trace
Posted on July 27, 2008United States v. Crawford, NO. 06-5059-cr (2d Cir. July 17, 2008) (Sotomayor, Wesley, Wallace, CJJ)This gun possession case arose when defendant Crawford was arrested by parole officers for violating his curfew and smoking marijuana. The officers claimed that they found a gun and ammunition in his bag...
Summary Summary
Posted on July 27, 2008So far, a bunch of interesting summary orders this month. Here?s the roundup:In United States v. Pryce, No. 07-2210-cr (July 25, 2008), a marijuana trafficking case, the court vacated the sentence and remanded for findings on the scope of the defendant?s participation in the conspiracy...
Bank Failure
Posted on July 16, 2008United States v. Carlton, No. 07-2344-cr (2d Cir. July 16, 2008) (Winter, Miner, Cabranes, CJJ) In June of 2004, after a hearing, Judge Robinson found that Carlton, who was on supervised release for a bank robbery, had committed another one. He sentenced Carlton to 30 months? imprisonment...
Discovery Channel
Posted on July 13, 2008United States v. Siraj, No. 07-0224-cr (2d Cir. July 9, 2008) (Jacobs, Straub, CJJ, Jones, DJ)This case holds that, under Fed.R.Crim.P 16(a)(1)(B)(i), a defendant is not entitled to discovery of police reports that memorialize his statements to an undercover officer...
No Sale
Posted on July 13, 2008United States v. Wallace, No. 05-1424-cr (2d Cir. July 8, 2008) (Jacobs, Kearse, Katzmann, CJJ)This short opinion holds that a drug purchaser who shares drugs with others socially commits a distribution offense, even though the defendant lacked a commercial purpose, because a distribution can take place without a sale...
The Secret Guardin'
Posted on July 13, 2008United States v. Aref, No. 07-0981-cr (2d Cir. July 2, 2008) (Jacobs, McLaughlin, CJJ, Sand, DJ)In this terrorism prosecution, the court held that the district court can, for ?good cause,? restrict a defendant?s access to discoverable material that might impact on national security concerns...
Lethal Rejection
Posted on July 13, 2008United States v. Fell, No. 06-2882-cr (2d Cir. June 27, 2008) (Walker, Cabranes, Parker, CJJ)Donald Fell was not having a good day. During a card game, he killed his mother?s boyfriend, while his buddy, Charles Lee, killed Fell?s mother. Together, they then carjacked a car from a Vermont grocery store, drove to New York, and killed the car?s owner...
CASH AS CACHE CAN
Posted on July 08, 2008United States v. Jones, No. 05-5879-cr (2d Cir. June 24, 2008) (Leval, Cabranes, Raggi, CJJ)In 2004, Jones was present in a ?gatehouse? - an apartment used solely for the purpose of selling drugs - when Rochester police executed a search warrant. The officers found, inter alia, twenty-two grams of crack residue and $883 in cash hidden in the apartment...
Summary Summary
Posted on June 22, 2008Here are June's first two summary orders of interest.In United States v. Heredia, No. 07-0849-cr (2d Cir. June 20, 2008), the court agreed that introducing hearsay evidence as a prior consistent statement was error, but found the error to be harmless...
Affirm Stance
Posted on June 22, 2008United States v. Walker, 06-0594-cr (2d Cir. June 19, 2008) (Jacobs, Leval, Cabranes, CJJ)The evidence at Walker's drug trial included: (1) recordings of two drug-related meetings with a cooperating co-defendant in which they discussed both past and future drug activity and in which the cooperator gave Walker money to pay for a previous shipment; (2) Walker's two detailed confessions about his drug dealing activities; and (3) the testimony of four of his associates...
Feckless Enganderment
Posted on June 22, 2008United States v. Legros, No. 05-2828-cr (2d Cir. June 17, 2008) (Jacobs, Calabresi, Sack, CJJ)When police officers responded to a ?shots fired? radio call, they encountered three men. One of them, Legros, ran off, and tossed a gun along the way. That gun matched several spent shell casings recovered from the scene...
Shipping Bricks
Posted on June 22, 2008United States v. Bermudez, No. 06-5119-cr (2d Cir. June 17, 2008) (Walker, Calabresi, CJJ, Underhill, DJ)Richie Bermudez was convicted, after a jury trial, of being a felon in possession of a firearm. On appeal, he challenged an evidentiary ruling, as well as the district court?s jury selection method...
Withdrawal Syptoms
Posted on June 18, 2008Today the court withdrew the opinion in Nnebe v. United States, No. No. 05-5713-pr (2d Cir. June 12, 2008), blogged below under the title "Role of Certs."
You Can't Get A Ten With A Gun
Posted on June 16, 2008United States v. Whitley, No. 06-0131-cr (2d Cir. June 16, 2008) (Newman, Sack, Parker, CJJ)BackgroundWhitley used a gun to rob a grocery store; during the robbery, the gun accidentally went off. He was convicted after a jury trial of robbery, possessing the firearm as a previously convicted felon, and discharging that same firearm in connection with a crime of violence, under 18 U...
Out of Hindsight
Posted on June 15, 2008Parisi v. United States, No. 06-1148-pr (2d Cir. June 13, 2008) (Winter, Hall, CJJ, Oberdorfer, DJ)In this 2255 appeal, the defendant unsuccessfully argued that his counsel was constitutionally ineffective for failing to move for dismissal based on a Speedy Trial Act violation...
Recuse Me
Posted on June 15, 2008United States v. Hasarafally, No. 06-4239-cr (2d Cir. June 12, 2008) (Cardamone, Sotomayor, Raggi, CJJ)The defendant moved in the circuit to disqualify the entire justice department from representing the government on this appeal, because the judgment under review was rendered by Judge Mukasey, who is now Attorney General...
Role of Certs
Posted on June 15, 2008This pair of decisions, both arising from 2255 motions, gives helpful guidance on counsel?s obligations to file a petition for a writ of certiorari.In Pena v. United States, No. 06-0218-pr (2d Cir. June 12, 2008) (Jacobs, Parker, Wesley, CJJ)(per curiam), the court held that a retained attorney was not ineffective for failing to advise his client of the right to seek certiorari...
Hollywood Accounting
Posted on June 15, 2008United States v. Leonard, No. 05-5523-cr (2d Cir. June 11, 2008) (Kearse, Calabresi, Katzmann, CJJ)In this case, the court concludes that interests in film production companies were ?investment contracts,? and hence securities, under federal securities law...
Allocution Lessons
Posted on June 14, 2008United States v. Gonzalez, No. 07-4824-cr (2d Cir. June 11, 2008) (Newman, Walker, Pooler, CJJ)In this case, the circuit sets out the procedure that a district court should follow when it realizes that it has sentenced a defendant without first giving him an opportunity to allocute...
The Loan Arranger
Posted on June 14, 2008United States v. Confredo, No. 06-3201-cr (2d Cir. June 10, 2008) (Newman, Winter, Parker, CJJ)This case takes on the difficult question of fixing the loss amount under the sentencing guidelines when the case involves fraudulently obtained that loans have been partially repaid...
Breach Blanket Bingo
Posted on June 14, 2008United States v. Bell, No. 07-0715-cr (2d Cir. June 10, 2008) (Jacobs, Calabresi, Sack, CJJ) (per curiam)In this case, the circuit had to sift through competing claims as to which party breached the plea agreement.Defendants Brumer and Klein pled guilty to various offenses relating to healthcare fraud...
Nostab
Posted on June 06, 2008United States v. Todd, No. 05-5525-cr (2d Cir. June 5, 2008) (per curiam)In this ?reverse-Batson? decision, the court upheld the district court?s decision to re-seat a white juror against whom the defendants, all members of minority groups, had exercised a peremptory challenge...
Summary Summary
Posted on June 04, 2008This crop of summary orders of interest closes out May 2008.In United States v. McCargo, No. 07-0626-cr (2d Cir. May 30, 2008), the defendant escaped from a halfway house, then months later was found to be in possession of a firearm. The court held that the gun possession was properly deemed "in connection with" the escape - triggering a four-level enhancement - because escape is a continuing offense and the defendant admitted that he acquired the gun for "protection...
Pimentel Loaf
Posted on June 04, 2008United States v. Habbas, No. 05-6142-cr (2d Cir. May 30, 2008) (Leval, Sack, CJJ, Garaufis, DJ)This confusing opinion attempts to sort through the defendant?s claim that the government breached a plea agreement. But because of the imprecise way it is written, it is hard to know what really happened...
Summary Summary
Posted on May 28, 2008The court has only issued 2 published opinions in criminal cases in the past two weeks. But there has been a flurry of noteworthy summary orders. Here is the latest crop:In United States v. Creary, No. 06-2233-cr (2d Cir. May 27, 2008), a document fraud case, the court vacated the sentence because the district judge did not make sufficient findings that the case involved 100 or more fraudulent documents...
Deficiency Expert
Posted on May 28, 2008United States v. Ellett, No. 07-3682-cr (2d Cir. May 23, 2008) (per curiam)James Ellett was a tax protester, who stopped paying his federal income tax after reading a book called ?Vultures in Eagle?s Clothing,? which purported to describe a lawful way of avoiding taxes...
Two For The Price Of One
Posted on May 13, 2008United States v. Douglas, No. 06-0581-cr (2d Cir. May 13, 2008) (Kearse, Katzmann, CJJ, Rakoff, DJ)Douglas was convicted of killing a Brink's employee while attempting to steal money from Citibank ATMS that were serviced by Brink?s. He was sentenced to life in prison...
Quantum Mechanics
Posted on May 09, 2008United States v. Martinez, No. 06-5502-cr (2d Cir. May 9, 2008) (per curiam).In this brief per curiam, the court reaffirms that there is only one quantum of proof necessary for sentencing enhancements post-Booker - the preponderance standard.Specifically, the court rejected Martinez? argument that where the enhancement requires the sentencing judge to determine that the defendant committed a separate offense (here, the 4-level bump under § 2K2...
Yanni, Get Your Gun
Posted on May 09, 2008United States v. Desinor, No. 05-4500-cr (2d Cir. May 8, 2008) (Walker, Straub, Hall, CJJ)This prosecution arose from a murderous rivalry between two drug gangs. One, the ?Cream Team? (footnote 1 of the opinion, which explains the derivation of this name, is a must-read), was populated largely by the defendants on trial...
Summary Summary
Posted on May 08, 2008United States v. Rattoballi, No. 06-5881-cr (2d Cir. May 8, 2008). Rattoballi faced a guideline range of 27 to 33 months? imprisonment but received a noncustodial sentence. The government appealed, and, in a published decision, the court vacated the sentence...
Diner Out
Posted on May 06, 2008United States v. Iodice, No. 06-2680-cr (2d Cir. May 6, 2008) (Straub, Pooler, Sotomayor, CJJ).John Iodice appealed his arson conviction on the ground that there was insufficient evidence of the requisite nexus to interstate commerce. The circuit affirmed...
Impact Victim
Posted on May 05, 2008United States v. Eberhard, No. 05-3431-cr (2d Cir. May 5, 2008) (Jacobs, Calabresi, Sack, CJJ)Todd Eberhard, a former stock broker, pled guilty to various fraud charges. Under his plea agreement, the stipulated guideline range was 97 to 121 months? imprisonment...
Summary Summary
Posted on May 03, 2008This batch of summary orders of interest wraps up April. Here we go:In United States v. Moya, No. 05-2432-cr (2d Cir. April 30, 2008), the district court erred in imposing a 2-level aggravating role enhancement. Where the defendant is not a manager or supervisor, but there are five or more participants, the district court?s choice is between a 3-level enhancement or no enhancement at all...
State of Disagreement
Posted on May 02, 2008United States v. Williams, No. 05-4416-cr (2d Cir. April 25, 2008) (Calabresi, Cabranes, CJJ, Korman, DJ)Here, the court vacated two below-guideline sentences that seemed to have been imposed largely in order to minimize a perceived disparity between the sentence recommended by the guidelines and the sentence that would have been meted out in state court...
Rejection Letter
Posted on May 02, 2008United States v. Negron, 06-3614-cr (2d Cir. April 24, 2008) (Jacobs, Kearse, Pooler, CJJ) (per curiam)Defendant Silverio, who was sentenced to 272 months (22 years, 8 months) in prison, had been offered, and rejected, a plea agreement with a binding sentencing recommendation of 17 years...
Youthful Indiscretion
Posted on May 02, 2008United States v. Parnell, No. 06-4551-cr (2d Cir. April 23, 2008) (Winter, Straub, Sack, CJJ) (per curiam)In this case, the court again holds that a New York youthful offender adjudication (a ?y.o.?) - here, it was for attempted burglary in the second degree - must be included in the defendant?s criminal history score under the sentencing guidelines and, where applicable, can trigger the ?career offender? enhancement...
Government?s ?Question[able],? ?Troub[ling]? and ?Disingenous? Conduct Results in an Affirmance. Huh?
Posted on May 01, 2008United States v. Blech, No 05-3600-cr (2d Cir. April 23, 2008) (Sotomayor, Parker, Hall, CJJ).Two defendants who were convicted of securities and related frauds appealed on the ground that their cases were misjoined, and one advanced a Brady claim. The court affirmed, but only out of apparent deference to the district court?s findings under the ?abuse of discretion? standard...
Unconditioned
Posted on April 19, 2008United States v. Gill, No. 07-0284-cr (2d Cir. April 17, 2008) (Cabranes, Sotomayor, Wesley, CJJ) (per curiam)Gill, who pled guilty to making false statements in a health care matter, unsuccessfully challenged two of his special conditions of supervised release...
Cracked Up
Posted on April 19, 2008United States v. Lee, No. 06-4933-cr (2d Cir. April 17, 2008) (Cabranes, Wesley, CJJ, Castel, DJ)Defendant Cathy Lee received a 120-month sentence, the mandatory minimum, in a crack trafficking case. She raised on appeal a host of constitutional and statutory challenges to her sentence, claiming that it violated § 3535(a), the Eighth Amendment, and equal protection, in light of the powder-vs-crack sentencing disparities...
For Your Consideration
Posted on April 12, 2008United States v. Hardwick, No. 04-1369-cr (2d Cir. April 11, 2008) (Winter, Walker, Sotomayor, CJJ)Glen Hardwick was convicted after a jury trial of conspiracy to commit and aiding/abetting murder-for-hire in violation of 18 U.S.C. § 1958. Virtually all of the evidence of the ?consideration? element of the offense came from the plea allocution of Hardwick?s brother, which was admitted into evidence over objection, although not a Confrontation Clause objection...
Next Stop, Confusion
Posted on April 09, 2008United States v. Hendry, No. 06-5118-cr (2d Cir. Aprl 9, 2008) (Leval, Calabresi, Wesley, CJJ) (per curiam)In this decision the Court blows yet another opportunity to clarify the ?fast-track? sentencing issue in illegal reentry cases. The court has already held that district courts are not required to take into account the lower sentences imposed in fast track districts, but has left open the question whether a court has the authority to do so if it deems a reduced sentence warranted...
SUMMARY SUMMARY
Posted on April 08, 2008Here are three more s/o?s to chew on:In United States v. Glum, No. 06-3099-cr (2d Cir. April 8, 2008), the court ordered a Crosby remand even though the district court, when denying the defendant?s pro se 2255 motion, had already indicated that it would impose the same sentence...
Consecutive Privilege
Posted on April 04, 2008United States v. Donoso, No. 07-0635-cr (2d Cir. April 3, 2008) (McLaughlin, Hall, CJJ, Sand, DJ) (per curiam)Resolving an open question in this circuit, the court here holds that, under 18 U.S.C. § 3584(a), a district judge cannot order the federal sentence to run consecutively to another sentence that has not yet been imposed...
Medicareless
Posted on April 03, 2008United States v. Wexler, No. 06-1571-cr (2d Cir. April 3, 2008) (Miner, Raggi, CJJ, Rakoff, DJ)David Wexler was a Manhattan dermatologist who ran a prescription mill. He would prescribe painkillers to patients whom he did not examine or treat, often with the understanding that either the prescriptions or the medications would be sold to others...
4(b) and After
Posted on March 31, 2008United States v. Frias, No. 06-5381-cr (2d Cir. March 31, 2008) (Cardamone, Sack, Katzmann, CJJ)The ten-day time for filing a notice of appeal in a criminal case under Fed.R.Ap.Proc. 4(b) is not jurisdictional, which means that the court can consider an untimely appeal if the government forfeits a claim of untimeliness failing to raising it...
Summary Summary
Posted on March 27, 2008It has been a slow week in Foley Square - lots of civil and immigration decisions, but not too much on the criminal front. So, here are some recent summary orders of interest:In United States v. Williams, No. 06-5530-cr (2d Cir. March 27, 2008), the court dealt with an unusual circumstance in this circuit - an illegal reentry jury trial...
About Face!
Posted on March 24, 2008United States v. Dominguez, No. 05-7005-cr (2d Cir. February 15, 2008, amended March 20, 2008) (Miner, Sack, Hall, CJJ)Last month, when we wrote up this case, we noted with alarm the circuit?s holding that, for cases where the defendant faced a mandatory minimum but provided substantial assistance to the government, under § 3553(e) ?any reduction [in sentence] may be based only on substantial assistance to the government and on no other mitigating considerations...
Out of Ammunition
Posted on March 24, 2008United States v. Sero, No. 05-6967-cr (2d Cir. March 19, 2008) (per curiam)Defendant Sero, who pled guilty to illegally exporting weapons to the Philippines, challenged his sentence. In doing so, he gave the court its first opportunity to consider U.S...
Fraud Man Out
Posted on March 24, 2008United States v. Cutler, No. 05-2516(L) (2d Cir. March 17, 2008) (Jacobs, Kearse, Pooler, CJJ)In this case, the government successfully appealed the exceptionally lenient sentences that Judge Preska imposed on two defendants convicted of a multi-million dollar fraud...
Another Fine Meth
Posted on March 11, 2008United States v. Tran, No. 05-5644-cr (2d Cir. March 10, 2008) (Sack, Sotomayor, Hall, CJJ)Defendant Tran was stopped by customs officers while crossing the border from Canada, ostensibly to go to a casino in New York. Customs agents found several bags of pills hidden in the interior roof lining of his rented car, but Tran repeatedly denied knowing that the drugs were there...
The ?Regalado Remand?
Posted on March 06, 2008United States v. Regalado, No. 05-5379-cr (2d Cir. March 4, 2008) (Jacobs, Pooler, Sack, CJJ) (per curiam)At last, the circuit has told us what to do in light of Kimbrough. And the answer is, in essence, a Crosby remand.Regalado received a 262-month crack sentence, the bottom of the Guideline range (he was not a career offender)...
Career Angst
Posted on March 01, 2008United States v. Sanchez, No. 05-3812-cr (2d Cir. February 29, 2008) (Kearse, Straub, Pooler, CJJ).In this long opinion, the court considered several challenges to recidivist sentences in a drug case. Two defendants, both ?career offenders? under Guidelines section 4B1...
Summary Summary
Posted on February 28, 2008It's been a slow month for summary orders, but at last the court has eked out three of them worth noting.First, in United States v. Spencer, No. 06-2517-cr (2d Cir. February 26, 2008), the court reversed both defendants' conviction of conspiracy to commit bankruptcy fraud because the judge erroneously charged the jury that the defendant who testified had a "deep personal interest in the outcome of his prosecution" that created "a motive for false testimony...
Risky Business
Posted on February 27, 2008United States v. Lynch, No. 05-6048-cr (2d Cir. February 27, 2008) (Calabresi, Raggi, Hall, CJJ)David Lynch received a 15-year sentence under the Armed Career Criminal Act (ACCA) and appealed. In an opinion that covered no new ground, the circuit affirmed...
Fast-Track Train Still Stalled
Posted on February 24, 2008United States v. Ramirez-Sucar, No. 06-2909-cr (2d Cir. February 20, 2008) (per curiam)Here is yet another case in which the circuit does not decide whether a district court can consider the lenient illegal-reentry sentences that are regularly imposed in ?fast-track? districts as the basis for downward variance...
The Government Giveth and the Government Taketh Away
Posted on February 24, 2008United States v. Dominguez, No. 05-7005-cr (2d Cir. February 15, 2008) (Miner, Sack, Hall, CJJ)Carol Dominguez faced 240-months in prison: a ten-year crack minimum that was doubled because of her prior conviction. The government moved for a downward departure under 5K1...
Russian Revolution
Posted on February 24, 2008United States v. Verkhoglyad, No. 05-4210-cr (2d Cir. February 14, 2008) (Cabranes, Raggi, CJJ, Berman, DJ)Oleg Verkhoglyad was a Russian mobster who repeatedly received lenient treatment. First, after cooperating in a 1998 extortion case, he received a 5K1...
The Accidental Terrorist
Posted on February 15, 2008United States v. Elfgeeh, No. 06-0638-cr (2d Cir. February 14, 2008) (Kearse, Sack, CJJ, Mills, DJ)Abad Elfgeeh, assisted by his nephew, Aref, ran a money-transfer business out of an ice cream parlor in Brooklyn that funneled money to Yemen and a host of other countries...
Dismembers Only
Posted on February 07, 2008United States v. Pepin, No. 06-1462-cr (2d Cir. February 6, 2008) (Walker, Calabresi, Sack, CJJ)Humberto Pepin is awaiting a capital trial in the Eastern District of New York, where he is charged, inter alia, with murdering two individuals who crossed him, in ways real or imagined, in the course of his drug dealing enterprise...
Burglar Alarm
Posted on January 31, 2008United States v. Brown, No. 05-5462-cr (2d Cir. January 30, 2008) (Kearse, Hall, CJJ, Rakoff, DJ)This opinion deals with a seemingly straightforward issue: whether a New York State conviction for burglary in the third degree is a ?crime of violence? under Guidelines section 4B1...
Forfeit To Be Tied
Posted on January 31, 2008United States v. Schlesinger, No. 05-03021-cr (2d Cir. January 30, 2008) (Jacobs, Parker, Wesley, CJJ) (per curiam)Schlesinger, convicted of mail and wire fraud, made a clever, but unfortunately not clever enough, argument challenging the forfeiture of the proceeds...
Speed Bump
Posted on January 31, 2008United States v. Abad, No. 06-0338-cr (2d Cir. January 30, 2008) (Jacobs, Parker, Wesley, CJJ) (per curiam)Here, the court holds that a failure to make a claim under the Speedy Trial Act in the district court results in a waiver of the issue on appeal...
Summary Summary
Posted on January 29, 2008The court has not issued a published opinion in a criminal case for a while. But here is the most recent set of summary orders of interest.In United States v. Matthews, No. 04-1657-cr (2d Cir. January 29, 2008), the court vacated the application of the ?street gang? enhancement in 18 U...
Summary Summary
Posted on January 19, 2008Here's another group of summary orders of interest:In United States v. Whitley, No. 05-3359-cr (2d Cir. January 15, 2008), the court accepted a "minimally sufficient" Anders brief.In United States v. Leonardo, No. 05-1791-cr (2d Cir. January 14, 2008), the court excused the defendant's waiver of his appeal, and found that the government breached a cooperation agreement by withdrawing its 5K1...
OPEN SESAME
Posted on January 19, 2008Two recent cases provide some guidance on the requirement in 18 U.S.C. § 3553(c) that the district court state in ?open court? its reasons for imposing a particular sentence.1. United States v. Day, No. 05-4285-cr (2d Cir. January 15, 2008) (Jacobs, Pooler, Sack, CJJ) (per curiam) is particularly shocking...
PORN AGAIN
Posted on January 19, 2008As the Blog has observed, see Post of 11/29/07: Have You Hugged A Sex Offender Recently?, recently sex offenders fared pretty well in the circuit. Until now. In this most recent crop of cases, sex offenders lost three out of four, and the win was in a summary order, to boot...
TRUTH EXTRACTION
Posted on January 19, 2008United States v. Glover, No. 05-5047-cr (2d Cir. January 4, 2008) (Pooler, Raggi, CJJ, McMahon, DJ)At this firearms trial, the judge charged the jury, over objection, that ?the crucial, hard-core question? to answer was, ?Where do you find the truth?? He also instructed: ?The only triumph in any case, whether it be civil or criminal, is whether or not the truth [has] triumphed...
Summary Summary
Posted on January 04, 2008Here is the latest installment of the Blog's round-up of summary orders of interest. In United States v. Fernandez-Quesada, No. 06-4446-cr (2d Cir. January 4, 2008), the court dismissed a sentencing appeal as moot because the defendant had been released, even though he had a "potentially valid claim" that his sentence was based on an unlawful upward departure...
Permanent Waive
Posted on December 31, 2007United States v. Quinones, No. 04-5554 (2d Cir. December 28, 2007) (Winter, Cabranes, Raggi, CJJ)This case has lengthy discussions of two important issues. It turns out that the one that has received the less press is actually the more interesting of the two, so we?ll begin with that...
Breach Baby
Posted on December 26, 2007United States v. Griffin, No. 05-4106-cr (2d Cir. December 21, 2007) (Pooler, Sack, Wesley, CJJ)In this case, a divided panel concluded that the government breached its plea agreement in a child pornography case by twice suggesting that the defendant might not be entitled to a downward adjustment for acceptance of responsibility...
Summary Summary
Posted on December 19, 2007Welcome to yet another installment of the blog's roundup of summary orders of interest.In Mickens v. United States, No. 06-0140-pr (2d Cir. December 19, 2007), the court held that defense counsel's failure to communicate a plea offer to his client was unreasonable, satisfying the first prong of the Strickland ineffectiveness test, although second prong was not satisfied because there was no credible evidence that the defendant would have accepted the offer...
Blurry Vision Leads to Clear Error
Posted on December 19, 2007United States v. Lin Guang, No. 05-4724(L)-cr (2d Cir. December 13, 2007) (McLaughlin, Wesley, CJJ, Sessions, DJ)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...
Not-So-Fast Track
Posted on December 17, 2007United States v. Liriano-Blanco, No. 06-2919-cr (2d Cir. December 11, 2007) (Walker, Calabresi, Sack CJJ)In this unusual case, the circuit entertained an appeal despite a waiver. Liriano-Blanco pled guilty to illegal reentry under a plea agreement in which he agreed to waive any appeal of a sentence of 60 months or less, with a Guideline range of 57 to 71 months...
Underprivileged
Posted on December 17, 2007In re Grand Jury Subpoena Dated July 6, 2005, No. 05-6891-cv (2d Cir. November 16, 2007, posted December 10, 2007) (Pooler, Parker, Wesley, CJJ)In January of 2005, an Eastern District AUSA contacted counsel for the unnamed appellant, a former mortgage broker, and advised that appellant was the subject of a grand jury investigation...
SUMMARY SUMMARY
Posted on December 07, 2007Welcome to the Blog?s periodic roundup of summary orders of interest.In United States v. Rodriguez, No. 06-1681 (November 29, 2007), the court vacated a restitution order for further factfinding in a case involving the filing of fraudulent tax returns...
Graft Dodger
Posted on December 07, 2007United States v. Ganim, No. 03-1448-cr (2d Cir. December 4, 2007) (Jacobs, Sotomayor, Wesley, CJJ)Until his downfall, Joe Ganim was the mayor of Bridgeport, Connecticut. In 2003, he was convicted of racketeering, bribery and other offenses arising out of a bribery and kickback scheme...
Writ Small
Posted on December 05, 2007United States v. Richter, No. 06-1930-cr (2d Cir. December 4, 2007) (per curiam)Richter was sentenced in 1992 and did not appeal. In 2006, he petitioned pro se for a writ of audita querela to make a collateral Booker challenge to his sentence. The court rejected the claim, because Booker does not apply retroactively on collateral review...
Have You Hugged A Sex Offender Lately?
Posted on November 29, 2007United States v. Juwa, No. 06-2716-cr (2d Cir. November 28, 2007) (Walker, Calabresi, Sack, CJJ)United States v. Baker, No. 05-4693-cr (2d Cir. November 16, 2007) (Summary Order)The circuit has. Twice, but only once in a published opinion. In Juwa, the court found that a 90-month sentence was procedurally unreasonable because it might have been based on unsubstantiated pending state court charges...
Joint Pain
Posted on November 21, 2007United States v. Shellef, No. 06-1495-cr (2d Cir. November 8, 2007) (Pooler, Sack, Wesley, CJJ)In this decision applying Fed.R.Cr.P 8, the court held that counts were improperly joined against two separate defendants, and that the misjoinders were not harmless...
Control Freak
Posted on November 21, 2007United States v. Carlo, No. 06-2420-cr (2d Cir. November 19, 2007) (Kearse, Katzmann, CJJ, Rakoff, DJ)This short per curiam opinion discusses the sufficiency of the evidence in a wire fraud prosecution, where the prosecution proceeded on an unusual theory...
To Life!
Posted on November 18, 2007United States v. Freeman, No. 05-5529-cr (2d Cir. November 14, 2007) (Straub, Katzmann, Parker, CJJ)Michael Freeman was convicted of drug trafficking, robbery and gun possession, but acquitted of two homicide counts. The district court nevertheless imposed a life sentence, based on its preponderance finding that Freeman committed the murders of which he was acquitted...
Venue Wish Upon A Star
Posted on November 18, 2007United States v. Rommy, No. 06-0520 (2d Cir. November 6, 2007) (Jacobs, Walker, Raggi, CJJ).Henk Rommy, a Dutch national, was tried in this district on charges that he managed a vast ecstasy importation scheme from Europe. The scheme?s ties to this district were quite thin - although the goal was to get the drugs to New York, only five things actually occurred here: a call from a cooperating witness in Manhattan to Rommy in the Netherlands; a second call between Rommy and the New York informant about one year later, although there was a dispute as to who initiated it; a call to a local FBI agent from Rommy and the informant, both in Europe, although there was a dispute as to whether Rommy or the informant placed the call; and, finally, two calls from the agent in Manhattan to Rommy in Europe...
SUMMARY SUMMARY
Posted on November 02, 2007The Summary Summary is our periodic round-up of summary orders of interest. So, here we go:United States v. Zavala, No. 05-7001-cr (2d Cir. November 1, 2007). Here, the district court applied cumulative aggravating role enhancements under U.S.S.G. § 3B1...
The Good Shepard
Posted on November 02, 2007United States v. Rosa, No. 05-3621-cr (2d Cir. October 30, 2007) (Kearse, Sack, CJJ, Mills, DJ)The Armed Career Criminal Act (ACCA) requires increased penalties for defendants in federal gun possession cases who have three prior convictions for serious drug offenses or ?violent felonies...
Who's SORA Now?
Posted on November 02, 2007Willette v. Fischer, No. 06-1422-pr (2d Cir. October 29, 2007) (Meskill, Newman, Sotomayor, CJJ)Although the Blog does not regularly report on decisions in state prisoners? habeas corpus proceedings, this nifty case has relevance to federal criminal practice...
Score: Form 1; Substance 0
Posted on October 28, 2007United States v. Rutkoske, No. 06-4067-cr (2d Cir. October 25, 2007) (Newman, Winter, Katzmann, CJJ).This stock fraud decision deals primarily with the timeliness of a superseding indictment. An initial indictment not naming Rutkoske was filed on December 11, 2003; S1, the first superseder, was filed on April 6, 2004...
We Value Your Opinion
Posted on October 27, 2007United States v. Tsekhanovich, No. 05-4809-cr (2d Cir. October 24, 2007) (Miner, Cabranes, Straub, CJJ) (per curiam)Treading no new ground, the court reminds us that a lay person can give opinion testimony if it is both based on his first-hand perceptions and rationally derived from them...
?Might? Makes Right
Posted on October 26, 2007United States v. Zhang, No. 05-6662-pr (2d Cir. October 23, 2007) (Winter, Cabranes, CJJ, Korman, DJ)During a plea allocution, advising a defendant that he might be deported was good enough, even though ICE believed that deportation was mandatory.Zhang, a chemist, manufactured and sold an illegal bodybuilding supplement, DNP...
BYE-BYE, BRUTON?
Posted on October 24, 2007United States v. Williams, No. 05-6036-cr (2d Cir. October 23, 2007) (Newman, Walker, Straub, CJJ).In this curious but very troubling case, the court seems to have concluded, sub silentio, that Crawford trumps Bruton.Brothers Bobby and Michael Williams were tried for a drug-related triple homicide...
Attempt-ation
Posted on October 22, 2007United States v. Gaqliardi, No. 06-4541-cr (2d Cir. October 22, 2007) (Walker, Calabresi, Sack, CJJ).This case shuts the door on number of common challenges to convictions under 18 U.S.C. § 2422(b), which makes it a crime to entice a minor to engage in an illegal sexual act, or to attempt to do so...
Location, Location, Location
Posted on October 16, 2007United States v. Cavera, No. 05-4591-cr (2d Cir. October 11, 2007) (Cardamone, Calabresi, Pooler, CJJ)Gerard Cavera received an above-Guidelines sentence based on the district court?s view that gun offenses were more serious in densely populated areas like New York city...
Steal This Footnote
Posted on October 13, 2007United States v. Johnson, No. 05-3811-cr (2d Cir. October 10, 2007) (Meskill, Cabranes, Wesley, CJJ)This is pretty much a case about nothing. The only real nugget is in footnote 4.Johnson appealed his 120-month gun sentence - the statutory maximum - on several grounds...
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What are the differences in the jurisdictions of State and Federal Courts?
U.S. Supreme Court cases must be followed by all courts nationwide. State Suprem...
Is it libel to write blog posts and/or online reviews about a local business that defames one's reputation?
Libel is the form of defamation expressed in fixed-- usually written form. Sland...
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