Archive | plain error

Friday, October 6th, 2017

Recent Cert. Grants

The Supreme Court granted certiorari on a number of criminal cases in orders from its September 25 conference. The details are below, courtesy of Sentencing Resource Counsel:

City of Hays, Kansas v. Vogt, No. 16-1495
Question Presented: Whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.

Cert papers and opinion below available here:
http://www.scotusblog.com/case-files/cases/city-hays-kansas-v-vogt/

Collins v. Virginia, No. 16-1027
Question Presented: Whether the Fourth Amendment’s automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Cert papers and opinion below available here:
http://www.scotusblog.com/case-files/cases/collins-v-virginia/

Byrd v. United States, No. 16-1371
Question Presented: Does a driver have a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is …


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Categories: certiorari, due process, Fifth Amendment, Fourth Amendment, plain error, probable cause

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Friday, September 29th, 2017

Abu Ghayth and the Material Support Statute

In a summary order, the Second Circuit upheld the convictions of Sulaiman Abu Ghayth (a son-in-law of Osama Bin Laden) for offenses including conspiracy to murder Americans and providing material support for terrorist activities.  The outcome is unsurprising, but the decision nevertheless offers some hope for differently situated defendants charged under the material support statute, 18 U.S.C. § 2339A.

The order, available here, serves as a troubling reminder of the potential breadth of the material support statute. Abu Ghayth’s material support conviction was based on his speeches in the wake of September 11 urging Muslims to fight for Al Qaeda and threatening attacks on “new American targets.” Slip op. at 8. The Circuit rejected a sufficiency-of-the-evidence challenge to this conviction, and observed that “speech alone” can serve to establish a material support violation. Id. at 7 (quoting United States v. Rahman, 189 F.3d 88, 116-17 (2d Cir. 1999)). …


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Categories: aiding and abetting, conspiracy, jury charge, jury instructions, material support statute, plain error, prejudice, sufficiency, summary order, terrorism

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Monday, August 28th, 2017

Second Circuit Vacates Sentence Based on Erroneous PSR

Today, in United States v. Genao, the Second Circuit vacated an illegal reentry sentence as procedurally unreasonable where the sentencing court relied on a factually erroneous presentence investigation report (PSR) to calculate the defendant’s Guidelines range. The opinion is notable both for its analysis of whether an offense under the New York burglary statute is a “crime of violence” and its determination that the district court failed to satisfy § 3553(c)’s requirement that it provide reasons for its sentence in open court.

You can access the opinion here.

Roman Bartolo Genao was convicted of illegal reentry, and had previously been convicted in New York state of first-degree robbery and first-degree burglary. At the time of Genao’s sentencing, the Guidelines imposed a 16-level enhancement for illegal reentry sentences where the defendant had previously been convicted of a “crime of violence.” (This Guideline has since been revised to impose enhancements based …


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Categories: 3553(c), Johnson, plain error, procedural reasonableness, sentencing

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Friday, May 20th, 2016

Second Circuit Updates – May 20, 2016

There were three summary orders from the Second Circuit. Of particular interest is the Court’s order in United States v. Choudhry, No. 15-1737-cr. There a panel of the Second Circuit (Newman, Cabranes, Lohier, Jr.) addressed, among other issues, whether jury instructions regarding the charge of transmission of a threat to injure were erroneous in light of the Supreme Court’s decision in Elonis v. United States, 135 S. Ct. 2001 (2015). As I’ve written about here before, and as this case demonstrates, courts are still struggling with the boundaries of Elonis.

The District Court in Choudhry gave the following instruction:

“[a] statement is a threat if it was made under such circumstances that a reasonable person hearing or reading the statement [who] was familiar with the context of the threat would interpret it as a threat of injury.”

But, as the Second Circuit noted, in Elonis, …


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Categories: jury instructions, plain error

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Wednesday, March 9th, 2016

The Modified Plain-Error Standard Lives to Fight Another Day

United States v. Joseph Ray Jordan, No. 14-79-cr (Summary Order of March 9, 2016) (Sack, Chin, Lohier):

The Circuit did not issue a published decision today. However, one summary order today warrants discussion on the issue of plain error.

Defendant Jordan raised a number of issues on appeal, but the Court addressed only one in its summary order: Whether the trial judge’s instruction to the jury on the § 875(c) count (making threatening interstate communications), given before the Supreme Court’s decision in Elonis v. United States, 135 S. Ct. 2001 (2015), and erroneous in light of that subsequent decision, warrants a new trial. The judge had told the jury that it could convict Jordan even if he did not “intend[] the communication [he] transmitted to be threatening.” Though this was correct under then-governing law in the Circuit, Elonis subsequently ruled that a conviction under § 875(c) requires more …

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Sunday, October 7th, 2012

As Seen On TV

United States v. Salim, No. 10-3648-cr (2d Cir. August 24, 2012) (Walker, Lynch, CJJ)

Mamdouh Salim, incarcerated on terrorism charges, stabbed and nearly killed an MCC guard in a misguided attempt to induce the district court to grant him a change of counsel. For that crime, he pled guilty to conspiracy to murder, and the attempt to murder, a federal official. At his sentencing, the court refused to apply the guidelines’ terrorism enhancement – it sentenced him to 32 years’ imprisonment – then declined to resentence him on a  Crosby remand.  In the circuit’s first decision in the case, which was a cross-appeal, the court rejected Salim’s challenges to his sentence, but agreed with the government that it was error not to apply the terrorism enhancement. See “How Not To Seek A Change of Counsel,” posted December 6, 2008.

This opinion concern’s Salim’s appeal after the resentencing, …


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Categories: plain error, right to be present, Uncategorized

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Monday, August 27th, 2012

Finding that “Relevant” Conduct is not “Relevant Conduct,” the Circuit Remands

United States v. Wernick, No. 10-2974-cr (2d Cir. August 8, 2012) (McLaughlin, Sack, Lynch, CJJ)

Defendant Wernick was convicted after trial of, inter alia, one count of child enticement – he persuaded two teenagers to meet with him. At his sentencing, the court factored in three other acts involving the abuse or attempted sex abuse of young children as “relevant conduct.”  The circuit concluded that the acts involving the young children, although clearly “relevant” to Wernick’s sentencing, were not “relevant conduct” under the sentencing guidelines.

The guideline under which Wenick was sentenced, § 2G1.1, has a specific offense characteristic involving the sex abuse of individuals other than those in the count of conviction:  if the “relevant conduct” to the offense of conviction includes “prohibited sexual conduct in respect to more than one victim,” regardless of whether that victim is specified in the count of conviction, each such victim …


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Categories: plain error, relevant conduct, Uncategorized

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Sunday, June 3rd, 2012

Cash Cow

United States v. Wagner-Dano, No. 10-4593-cr (2d Cir. May 14, 2012) (Winter, Livingston, CJJ, Rakoff, DJ)

Melissa Wagner-Dano was a bookkeeper in upstate New York, where she worked for a small town and two large dairy farm cooperatives. She stole more than $1 million from her employers through unauthorized withdrawals from their bank accounts, using used the money for various personal projects. Wagner-Dano covered her tracks by transferring funds among the employers’ accounts. As the scheme unraveled, she blamed the missing funds on computer errors, then repaid some of the money from her personal bank account. Finally, she threw in the towel, admitted her crime and pled guilty to wire fraud.

On appeal, she claimed that several errors in her presentence report rendered her 78-month, top-of-the-range sentence procedurally unreasonable. Wagner-Dano had detailed these objections to the Probation Department, which had explained them in the addendum to the report, but …


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Categories: plain error, sentencing, Uncategorized

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Sunday, April 22nd, 2012

Gain? Wait!

United States v. Zangari, No. 10-4546-cr (2d Cir. April 18, 2012) (Cabranes, Pooler, Wesley, CJJ)
In this decision, the court found that the district court’s restitution order, which was based on the defendant’s gain instead of the victims’ loss, was error, but not plain error. It accordingly affirmed.
Defendant Zangari was a securities broker in the securities-lending departments of two major banks.  He engaged in unauthorized stock-loan transactions with financial institutions that had a relationship with one of his co-workers, and received a portion of the kickbacks, approximately $65,000.  His employers  suffered “losses in the form of unrealized profit.”
Zangari pled guilty to a Travel Act conspiracy, and was sentenced under USSG § 2B4.1, the commercial bribery guideline. The PSR used the $65,000 figure as the loss calculation, recommending an enhancement for a loss between $30,000 and $70,000. Although neither bank had submitted a loss affidavit, the PSR …

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Categories: plain error, restitution, Uncategorized

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Sunday, February 12th, 2012

Cain is Able

United States v. Cain, 09-0707-cr (2d Cir. January 31, 2012) (Newman, Lynch, CJJ, Restani, JCIT)

This is a case, oddly enough, about trees. Appellant David Cain, Jr., proprietor of David’s Tree Service, assisted by his brother, Chris Cain, a cousin, Jamie Soha, and others, was trying to corner the tree service and logging market in northwestern New York State. To get there, they engaged in acts of violence, extortion and even arson, and were convicted of substantive and conspiracy RICO counts and of other, related crimes.

All convictions were affirmed except for Chris Cain’s on the RICO counts. The circuit found that the district court’s “pattern” instruction was erroneous and, as to Chris Cain, the error, although not flagged below, was plain.

The RICO statute requires proof of a “pattern of racketeering activity” – at least two acts, the last of which occurred within ten years after the commission of …


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Categories: pattern requirement, plain error, RICO, Uncategorized

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Saturday, December 18th, 2010

Plain Terror

United States v. Marcus, No. 07-4005-cr (2d Cir. December 7, 2010) (Calabresi, Straub, Wesley, CJJ)

This is Marcus’ second go-round in the circuit. He won the first time, in August of 2008, (see “Sex Post Facto”, posted August 18, 2008). The government got cert, and the Supreme Court reversed, holding that the first panel had used an incorrect plain error standard. In this decision, on remand from the Supremes, Marcus had only a partial win.

The underlying conduct is particularly disturbing. From October of 1998 through June of 1999, Marcus was in a consensual, albeit kinky, sexual relationship with “Jodi.” This nature of the relationship changed in October 1999 when Jodi refused to recruit her sister to become one of Marcus’ “sex slaves.” In response, Marcus “punished” Jodi severely, and began to terrorize her regularly. With this, the relationship became nonconsensual.

In January of 2000, Marcus directed Jodi to move …


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Categories: ex post facto, plain error, Uncategorized

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