Archive | Uncategorized

Tuesday, June 14th, 2016

How Severe is Too Severe (for Production of Child Porn)?

“Serious nonhomicide crimes may be devastating in their harm[,] but in terms of moral depravity and of the injury to the person and to the public, they cannot be compared to murder in their severity and irreovocability.”  So said the Second Circuit today in United States v. Brown, No. 13-1706-cr (June 14, 2016)  (quoting the Supreme Court decision in Graham v. Flordia, 560 U.S. 48, 69 (2010)), in remanding a 60-year sentence for production of child pornography on procedural grounds that look awfully substantive.  The opinion contains must-use language for advocates at sentencing for a less-than-extreme sentence in any non-homicide case.

The majority opinion (written by J. Pooler with J. Sack signing on) found that the District Court (J. Sharpe, NDNY) may have misunderstood certain facts in imposing a virtual life sentence for photographing and disseminating sexual images of three young girls and possessing thousands of other images of …


Posted By
Categories: child pornography, procedural reasonableness, sentencing, substantive reasonableness, Uncategorized

Continue Reading
Friday, June 3rd, 2016

Second Circuit Updates – June 3, 2016

No criminal cases were decided by the Circuit today.

But there is an interesting civil case resulting from the plaintiff’s arrest by NYPD detectives,  on charges that were later dismissed. The plaintiff brought a civil suit against the defendants — several named NYPD detectives — under 42 U.S.C.§ 1983 .

The case is Figueroa v. Mazza et al.,  No. 14-4116-cv  (2d Cir. June 3, 2016)  (Circuit Judges: Kearse, Walker, and Cabranes; Judge Kearse dissents from part of the opinion).

In the plaintiff’s civil suit under 42 U.S.C.§ 1983  and state law, he raised the following claims against the detectives: (1) false arrest, (2) excessive force, (3) assault, (4) failure to intervene (because the detectives did not stop an unidentified police officer from beating him as he sat in a  police car), and (5) unlawful entry.

Of interest is Circuit’s discussion of the unlawful entry claim because it involves a …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Friday, May 13th, 2016

District Court Updates: Driving While Impaired Violation Under NY VTL 1192.1 Does Not Count For Criminal History; Career Offender Guideline Too Harsh

In United States v. Paredes, 15-Cr-436, EDNY Judge Jack B. Weinstein held that a defendant’s conviction for violating New York Vehicle and Traffic Law Section 1192.1, a violation and not a crime, does not result in criminal history points, thereby allowing the defendant to qualify for safety valve relief from a mandatory minimum sentence.  Judge Weinstein concluded that the Sentencing Commission could not have intended to include VTL 1192.1 – New York’s Driving While Ability Impaired statute – because the statue “is a light, noncriminal offense with mens rea squeezed out of it.”  Opinion at 14.  You can read Judge Weinstein’s opinion here.  The New York Law Journal has coverage here.  Mr. Paredes was represented by Len Kamdang of the Federal Defenders of New York.

In United State v Henry, 15-Cr-179, SDNY Judge Paul A. Crotty imposed a sentence of 36 months in a case in …


Posted By
Categories: career offender, criminal history, safety valve, Uncategorized

Continue Reading
Wednesday, May 4th, 2016

Circuit affirms denial of 18 U.S.C. 3582 sentence reduction

In United States v. Jimenez, 15-1624, the Circuit affirmed the District Court’s denial of a reduction in sentence pursuant to 18 U.S.C. 3582.  The Circuit held that when the District Court stated that a lower sentence was “foreclose[d]” by the defendant’s participation in four murders, it meant that the original sentence was the minimum sentence necessary in light of Jimenez’s conduct and that the facts of the case did not provide a basis for granting a sentence reduction.…


Posted By
Categories: 3582(c)(2), Uncategorized

Continue Reading

Second Circuit: Conviction for Investment Adviser Fraud Requires Only Intent To Deceive, Not Intent To Harm

In United States v. Tagliaferri, No. 15–536, the Second Circuit held that a conviction for investment adviser fraud, under section 206 of the Investment Advisers Act of 1940, 15 U.S.C. § 80b–6 and 80b–17, requires only intent to deceive one’s clients, not intent to harm them as well.

Tagliaferri ran a boutique investment advisory firm where, the government alleged, he engaged in various deceptive practices, including taking kickbacks for investing client funds with particular entities, cross-trading between client accounts, and falsely characterizing investments as loans. The government charged Tagliaferri with, among other offenses, investment adviser fraud under section 206. At trial, Tagliaferri’s defense was that, despite his deceptive practices, he “always believed that he would be able to work things out so that his clients would not be harmed.” Accordingly, he sought a jury instruction that investment adviser fraud requires not only intent to deceive one’s clients, but …

Posted by
Categories: fraud, intent, Uncategorized

Posted By
Categories: fraud, intent, Uncategorized

Continue Reading
Monday, May 2nd, 2016

Second Circuit rejects claims that District Court erred in limiting cross-examination of prosecution witness and committed various procedural errors at sentencing.

United States v. Rodriguez, No. 14-4267 (2d Cir. Apr. 27, 2016) (Leval, Droney, and Engelmayer).

Rodriguez was convicted by a jury of charges of racketeering conspiracy and conspiracy to distribute narcotics. He argued on appeal that the district court erred by disallowing certain cross-examination of a key prosecution witness, and that the district court committed various procedural errors at sentencing. The Court affirmed.

(a) Cross-examination.

Before trial, the government moved to preclude the defense from cross-examining a key government witness at trial about certain sexual offenses he had committed. Defense counsel argued that the evidence bore upon the witness’s credibility but the district court excluded it under Fed. R. Evid. 403.

The Circuit held that the district court had properly balanced the relevant factors under Rule 403 and had noted that the witness disclosed his sexual misconduct to the government, which undermined the defense’s argument that his sexual …


Posted By
Categories: Rule 403, sentencing, Uncategorized

Continue Reading