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Federal Defenders of New York Second Circuit Blog


Thursday, February 28th, 2008

Summary Summary

It’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.”

The “mandate rule” prohibits relitigating on remand issues that the appellate court has already ruled on. In United States v. Argentina, No. 06-1989-cr (2d Cir. February 26, 2008), the court noted that there is an exception to the mandate rule for “cogent and compelling reasons” such as new evidence; here, however, any error in the district court’s refusal to apply the exception was harmless.

Finally, in United States v. Sutton, No. 06-2522-cr (February 11, …

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Wednesday, February 27th, 2008

Risky Business

United 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. It held (again) that New York State convictions for attempted burglary in the third degree (N.Y. Penal Law §§ 110/140.20) and criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03) both involve “conduct that presents a serious potential risk of physical injury to another.”

For the attempted burglary, the court reaffirmed its decision in United States v. Andrello, 9 F.3d 247 (2d Cir. 1993) (per curiam), and also noted that a recent Supreme Court case, James v. United States, 127 S.Ct. 1586 (2007), held that attempted burglary is an ACCA predicate.

Similarly, in United States v. Danielson, 199 F.3d 666 (2d Cir. 1999) (per …

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Sunday, February 24th, 2008

Fast-Track Train Still Stalled

United 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. Once again, all the court notes is that a district judge does not have to consider fast-track sentences. But, of course, we already knew that.

Comment: Just decide the *$&@#)$ issue already. It is not even all that controversial any more, in light of Gall and Kimbrough.…

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The Government Giveth and the Government Taketh Away

United 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 5K1.1 and 18 U.S.C. § 3553(e), then asked the court to sentence her somewhere within a 151 to 188 month range. At sentencing, the judge granted the government’s motions, and then considered mitigating information from Dominguez’ family, friends, employers and the defendant herself. The judge indicated that he believed he had the “discretion to sentence you as to what I feel would be fair and reasonable under the circumstances.” He said that he had “reviewed and considered all the pertinent information including but not limited to the presentence investigation report, submissions by counsel the factors outlined in 18 U.S.C. Section 3553 and the sentencing guidelines” and sentenced her to …

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Russian Revolution

United 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 5K1.1 departure. Six months after getting out of jail, he violated his supervised release by committing a multitude of new offenses. He pled guilty to the supervised release violation and a new felon-in-possession charge, then talked his way into another cooperation agreement. After nearly four years of working with the government, he received another 5K letter. This time, he got 4 years’ probation on the gun charge and 3 years of supervised release on the supervised release violation. Within weeks of his sentencing, he violated his supervision by using marijuana and leaving the district without permission. This time, however, his luck ran out. The district judge slammed him, giving him 57 months’ …

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Friday, February 15th, 2008

The Accidental Terrorist

United 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. Although the case had early on been linked to a large-scale terrorism investigation, the defendants were charged only with financial crimes. The district judge took pains to keep the issue of terrorism out of the trial, and the main issues on appeal related to the defendants’ concerns that the trial was nevertheless tainted by its specter.

A. The Terrorism Stuff

1. Testimony

During the trial, an FBI agent mentioned terrorism in response to two of a defense attorney’s questions on cross-examination. The district judge promptly instructed the jury that this was a case about “banking,” and “ha[d] noting to do with terrorism.” Later, when …

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Thursday, February 7th, 2008

Dismembers Only

United 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. In a series of pretrial rulings, Judge Weinstein (1) precluded from the penalty phase evidence that Pepin had abused his girlfriend’s children and (2) precluded from both the guilt and penalty phases evidence that Pepin dismembered his victims after he killed them. The government appealed, and the circuit affirmed on the child abuse, but reversed on the dismemberment.

Child Abuse

Judge Weinstein held primarily that the evidence of the child abuse, a non-statutory aggravator, was not relevant to future dangerousness, the theory relied on by the government in the death notice. The judge reasoned that, …

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Thursday, January 31st, 2008

Burglar Alarm

United 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 4B1.2(a). It turns out, however, that the issue has a complication.

In Brown’s case, the district court held that the burglary conviction increased his offense level under U.S.S.G. § 2K2.1(a), which uses the Chapter 4 definition of crime of violence. The complication is that, under this definition, a crime of violence is “an offense . . . that . . . is burglary of a dwelling . . . or otherwise involves conduct that presents a serious potential risk” of injury. The New York statute proscribes burglary of a “building,” which is broader than a “dwelling,” thus third-degree burglary can only be a crime of violence …

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Forfeit To Be Tied

United 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.

The district court had relied on 28 U.S.C. § 2461(c) (2005), which provides that a criminal forfeiture can be alleged in the indictment when “no specific statutory provision is made for criminal forfeiture upon conviction.” Schlesinger pointed out that there is a specific statutory provision for forfeiture of mail and wire fraud offenses, thus § 2461(c) should not apply, but also that the specific provision, 18 U.S.C. § 982(a)(2)(A), applies only to the proceeds of frauds affecting a financial institution, which was not the case here. As the circuit summarized it, although it is not an image one would care to dwell on, Schlesinger argued that the government “falls between two …

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Speed Bump

United 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. Thus, an unpreserved statutory speedy trial claim cannot be reviewed at all, even for plain error.

Comment: This one’s kind of a no-brainer, since the statute expressly so provides. 18 U.S.C. § 3162(a)(2). The only complication is United States v. Sorrentino, 72 F.3d 294, 297 (2d Cir. 1995), in which the court actually reviewed an unpreserved Speedy Trial Act claim for plain error, even though no motion had been made below. The Abad panel devised a double-barreled solution to the conundrum: first, it blamed the lawyers, noting that no party mentioned § 3162(a)(2) in its briefing in Sorrentino, and then, just to make sure, …

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Tuesday, January 29th, 2008

Summary Summary

The 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.S.C. § 521 because the government failed to prove that the current federal offense occurred within five years of the predicate offenses, as required by the statute.

United States v. Rodriguez, No. 06-1681-cr (2d Cir. January 28, 2008), vacated the restitution order in a case involving the filing of false tax returns, and ordered further fact-finding on whether the restitution amount should be reduced by the amounts that Rodriguez, the tax preparer, returned to his clients.

And, in United States v. Walker, No. 05-6701-cr (January 23, 2008), the court vacated a $100,000 fine imposed on a defendant whom PSR …

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