Archive | plain error

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 …


Posted By
Categories: pattern requirement, plain error, RICO, Uncategorized

Continue Reading
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 …


Posted By
Categories: ex post facto, plain error, Uncategorized

Continue Reading
Sunday, May 23rd, 2010

Reefer Gladness

United States v. Needham, No. 06-5652-cr (2d Cir. May 14, 2010) (Cabranes, Katzmann, Parker, CJJ)

The three defendants here were part of a larger group that was in the business of robbing drug dealers of drugs and drug proceeds. They were all convicted of a Hobbs Act conspiracy, which included robberies of cocaine and heroin dealers, and each was also convicted of one substantive count involving the robbery of a marijuana dealer. Consistent with circuit law at the time, the district court instructed the jury that “all illegal drug activity, even if it is purely local in nature,” affects interstate commerce. While the defendants’ appeal was pending, the circuit held that this instruction was wrong: proof of drug trafficking does not automatically prove an affect on interstate commerce. Instead, “even in drug cases, the jury must find such an effect as part of its verdict.” Finding plain error in the …


Posted By
Categories: interstate commerce, jury charge, plain error, Uncategorized

Continue Reading
Tuesday, December 15th, 2009

Money Disorder

United States v. Garcia, No. 08-1621-cr (2d Cir. December 1, 2009) (Jacobs, Sack, Lynch, CJJ)

In Cuellar v. United States, 128 S.Ct. 1994 (2008), the Court held that, for the crime of transportation money laundering under 18 U.S.C. § 1956(a)(2)(B)(i), the government most prove more than that the money was hidden during its transportation. Rather, it must prove that the “purpose,” not merely the effect, of the transportation was to conceal or disguise the nature, location, source, ownership or control of the money. Thus, the government must prove not just how the money was moved, but why it was moved. The Second Circuit has held that this holding applies equally to “transaction” money laundering under 18 U.S.C. § 956(a)(1)(B)(i), which makes it a crime to engage in certain financial transactions, including the transfer or delivery of cash, for those same purposes.

Here, the court held that, in light of these …


Posted By
Categories: money laundering, plain error, plea allocution, Uncategorized

Continue Reading
Sunday, January 25th, 2009

Hart’s Desire

United 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. Over the next several months, Davy implicated another LRP member, Cory Marcano, ultimately giving information that led to Marcano’s arrest. After Marcano’s arrest, Davy was assaulted on three separate occasions for being a “snitch.”

Relevant to this appeal is the third such beating, which occurred on August 8, 2003. Hart, Draper and other LRP members entered Davy’s apartment and beat him with “a clothing iron, electrical cords, and bleach.” They discussed shooting him too, but the police arrived before they had the chance. Two days later, on April …


Posted By
Categories: plain error, retaliation, sufficiency, Uncategorized

Continue Reading
Saturday, September 6th, 2008

The Three Racketeers

United 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. They were also part of the family’s administration. After a three-week trial, a jury convicted them of racketeering and racketeering conspiracy – comprising ten predicate acts – and five substantive counts. Included in the mix were several murder conspiracies, extortion, loansharking and securities fraud.

At trial, to bolster the testimony of its cooperating witnesses and augment some otherwise underwhelming recordings, the government introduced into evidence the plea allocutions of eight non-testifying co-defendants. On appeal, the circuit agreed that this violated Crawford and that the violation amounted to plain error. It vacated the convictions and remanded for a …


Posted By
Categories: Crawford, harmless error, plain error, Uncategorized

Continue Reading
Sunday, June 22nd, 2008

Affirm Stance

United 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.

In addition, a DEA agent testified, and it was this testimony that was the subject of the appeal. Here, the circuit agreed that the government elicited “numerous” instances of “improper testimony” from the agent. This included: (1) highly prejudicial statements about the DEA’s investigation of Walker; (2) information the agent developed that “corroborated” Walker’s guilt, such as hearsay reports from other agents that drug customers had implicated Walker; (3) lengthy testimony that cooperating witnesses and other …


Posted By
Categories: government misconduct, plain error, Uncategorized

Continue Reading
Saturday, October 6th, 2007

OBJECT LESSONS

United States v. Villafuerte, Docket No. 06-1292-cr (2d Cir. September 21, 2007) (Walker, Cabranes, CJJ, Goldberg, DJ)

United States v. Hirlman, Docket No. 05-3677 -cr (2d Cir. September 27, 2007) (Winter, Walker, Sack, CJJ)

These two cases, although not related, together provide new insights into an extremely important area – the need to preserve sentencing issues for appeal.

Villafuerte is a very disturbing case. For nearly two decades, the conventional wisdom in the Second Circuit has been that appellate claims relating to the procedural aspects of sentencing – e.g., whether the court understood its departure authority, made adequate legal findings in support of an enhancement, or gave the defendant an opportunity to allocute – would be reviewed on appeal, even where there was no specific objection pointing out the procedural failing.

Villafuerte changes all that. In this case, the Circuit holds that the most common post-Booker claims about procedural unreasonableness …


Posted By
Categories: findings, notice, objection, plain error, preservation, Rule 52, Uncategorized

Continue Reading