Archive | sufficiency

Sunday, May 9th, 2010

Package Deal

United States v. Torres, No. 09-1771-cr (2d Cir. May 5, 2010)(Kearse, Hall, CJJ, Rakoff, DJ)

Every once in a while, when the judge and jury refuse to acquit an innocent defendant, the circuit steps in and sets things right. This is such a case. Finding that the evidence was insufficient to establish that Torres knew that there were drugs in some UPS packages that he went to great lengths to pick up, the court reversed the conviction and remanded for entry of a judgment of acquittal.


On April 30, 2008, a UPS deliveryman attempted to deliver two large “high value” packages to “Jose Torrez” at an address in Yonkers. Two men intercepted the driver near that address and asked for the packages. The driver asked for identification, but because it showed an address in Brooklyn, he would not release the packages.

The men were persistent. They followed the truck …

Posted By
Categories: sufficiency, Uncategorized

Continue Reading
Saturday, November 14th, 2009

The Things We Do For Love

United 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. Three months into their relationship, Martinez asked Caraballo to murder Fernandez because he had been abusive toward her. Caraballo answered, “Say no more.”

Caraballo recruited one of his former drug dealers, Aguilar, and Aguilar’s associate, Taylor, to help do the job. Caraballo had previously cut off Aguilar’s supply over an unpaid drug debt, but promised to forgive the debt and resume supplying to him in exchange for the hit. Taylor, who realized that his own sales would increase once Caraballo started supplying Aguilar again, agreed to help and was to receive $5,000 in cash or drugs.

Aguilar, Taylor and Caraballo did …

Posted By
Categories: drug-related murder, sufficiency, Uncategorized

Continue Reading
Sunday, May 10th, 2009

The Pursuit of Happy Ness

United 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. He was sentenced to 15 years in prison. On his first appeal, the circuit affirmed. He then sought certiorari in the wake of Regalado Cuellar v. United States, 128 S.Ct. 1994 (2008), and the Supreme Court vacated the affirmance and remanded the case for further consideration. This time, the circuit found that the evidence was insufficient and reversed the conviction.

Cuellar held that, for transportation money laundering offenses, the government must prove that the defendant’s purpose, “in whole or in part, was to conceal the nature, location, source, ownership or control of the funds.” A showing that a defendant hid funds during transportation is not sufficient to support a conviction, …

Posted By
Categories: money laundering, sufficiency, Uncategorized

Continue Reading
Sunday, April 26th, 2009

A Small Triumph

United 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.S.C. § 111. He was sentenced to 400 months’ imprisonment on the drug counts, 120 months concurrent on the obstruction, and 12 months concurrent on the assault. On appeal, the circuit agreed that the evidence was insufficient on the assault count. It reversed that conviction and remanded the case for resentencing.


Hertular was originally arrested by local authorities in Belize, and charged with cocaine trafficking. Once released on bail, he initiated contact with a DEA agent, Vincent Williams, who was stationed in Belize, and expressed an interest in cooperating with American authorities. After two meetings in 2001, Williams told Hertular that the DEA would not use …

Posted By
Categories: assault, remedy, sufficiency, 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, December 6th, 2008

Hire Today, Gone Tomorrow

United 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.


Defendant Williams was the head of a crack-cocaine ring operating in the Bronx. Defendant Lee was one of his dealers. The target of the conspiracy was Kawaine Ellis, who stabbed Lee in the chest in June of 2001. In November of 2001, Williams rented three cars at Newark Airport. Lee was pulled over while driving one of them, and was carrying a gun, which he told the police he had for “protection.” Around that same time, Williams spoke to another member of his crew, Jason Lawton, and told him to return a gun to Williams because Lee had “just got bit,” meaning that he had been …

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

Continue Reading
Sunday, October 26th, 2008

A Crime of Violins

United 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.


Potocki was an associate of Krzysztof Sprysak, who was part of a Brooklyn criminal gang known as the “Greenpoint Crew.” Sprysak called Potocki in December of 2005 to tell him that he might have a Stradivarius violin to sell. He said that the violin had been brought from Europe illegally and was stolen. Potocki agreed to show an antiques dealer a picture of the violin so that it could be appraised, and said that the dealer might be …

Posted By
Categories: stolen property, sufficiency, Uncategorized

Continue Reading

The Ecstasy and the Ecstasy

United 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.


Angel Gomez, a drug courier, was arrested at Kennedy Airport with ecstasy that he had imported from Belgium, and agreed to cooperate. He told the agents that he was supposed to call “Frank” – defendant Ogando – on arrival. He did so, and Ogando said he was right near the airport. Ogando found Gomez and brought him to his car. They did not discuss drugs, money or where they would be going, and were arrested before they got into Ogando’s car.

Ogando was found to have a cellphone – Gomez had been given that number by his handlers – a business card that mentioned Brussels and …

Posted By
Categories: conspiracy, drug distribution, sufficiency, Uncategorized

Continue Reading
Saturday, October 25th, 2008

Slight Change

United 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. A divided appellate panel reversed. It also, however, unanimously wrought an important change in conspiracy law: an elimination of the so-called “slight evidence” rule.


On November 5, 2004, two of Huezo’s co-conspirators drove from Connecticut to New York in a Jeep registered to Heuzo to discuss delivering $1 million to an undercover agent, who was posing as a money launderer. Three days later, Huezo drove one of them back to New York, opened the trunk from the driver’s seat, and the agent recovered a bag containing half of the money. It was packaged in bundles, as is typical for money laundering transactions. The two men returned …

Posted By
Categories: conspiracy, money laundering, sufficiency, Uncategorized

Continue Reading
Sunday, July 27th, 2008

Luggage Wreck

United 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.


In July 2005, Francisca Leerdam was recruited to smuggle drugs out of the Dominican Republic. She made three successful trips to the Netherlands, then, in September of 2005, made her first trip to the United States. Her handlers gave her a suitcase, some money, a plane ticket and instructions. She made it through customs at JFK, and eventually met a confederate who took her suitcase and gave her a different one. Later, in Queens, the confederate met up with and spoke to Julio. Leerdam met Andrea, who asked her how it went. Andrea and Julio then took her to a hotel and …

Posted By
Categories: intent, knowledge, sufficiency, Uncategorized

Continue Reading
Saturday, April 12th, 2008

For Your Consideration

United 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. The appellate court held that this Sixth Amendment violation was plain error, but that there was legally sufficient evidence on this element. It accordingly did not reverse the conviction; it vacated and remanded for a new trial.

Facts: Most of the action here involved Glenn Hardwick’s brother, Stacey, who had an ongoing drug and gun trafficking relationship with an undercover police officer. At one point, Stacey contacted the UC and asked him to kill someone who had pulled a gun …

Posted By
Categories: Crawford, plea allocution, sufficiency, Uncategorized

Continue Reading