Federal Defenders of New York Second Circuit Blog

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 Steve Statsinger
Categories: findings, notice, objection, plain error, preservation, Rule 52, Uncategorized

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

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IF THE CRIME DOESN’T FIT THEY CAN’T FORFEIT

United States v. Capoccia, No. 06-0669-cr (2d Cir. September 19, 2007) (Sotomayer, Katzmann, CJJ, Gertner, DJ)

In this case, the district court erred in ordering forfeiture of the proceeds of conduct that occurred prior to the date of the conduct with which the defendant was charged. The decision turned on a very narrow reading of the indictment, as well as on the nature of the statute under which the defendant was charged.

At issue was money that Capoccia, a lawyer, misappropriated from a credit counseling/debt reduction service that he founded. Capoccia was convicted of misappropriating unearned client retainer fees, failing to give complete refunds to clients who withdrew from the program, and embezzling client escrow funds that was supposed to be paid to credit card companies to settle clients’ debts.

Capoccia was charged with interstate transportation of stolen money under 18 U.S.C. § 2314. While the indictment referenced a “scheme” …

Posted by Steve Statsinger
Categories: fofeiture, indictment, scheme, stolen property, Uncategorized

Posted By Steve Statsinger
Categories: fofeiture, indictment, scheme, stolen property, Uncategorized

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Saturday, September 29th, 2007

Follow The Bouncing Anders

United States v. Whitley, Docket No. 05-3359-cr (2d Cir. September 17, 2007) (Straub, Pooler, Parker, CJJ) (per curiam)

Once – or rather twice – again, in these consolidated appeals, the Circuit has bounced Anders briefs. Here the court was dissatisfied with the briefs’ treatment of the reasonableness of the sentence. One “merely recite[d] the legal standard for procedural reasonableness and desribe[d] the sentencing process” but did not analyze either the procedural or substantive reasonableness of the sentence itself. The other made conclusory statements about the reasonableness of the sentence but did not analyze the district court’s sentencing determinations or the sentence itself.

After reviewing the purposes of Anders briefs, the court held that such briefs must include a discussion of both the substantive and procedural reasonableness of the sentence, reminding the bar that there is no presumption of reasonableness for Guidelines sentences in this Circuit.

What is the lesson here? …

Posted by Steve Statsinger
Categories: Anders, presumption, procedural reasonableness, sentence, substantive reasonableness, Uncategorized

Posted By Steve Statsinger
Categories: Anders, presumption, procedural reasonableness, sentence, substantive reasonableness, Uncategorized

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Double Trouble, But Not Double Jeopardy

United States v. Dionisio, Docket No. 06-0908-cr (2d Cir. September 17, 2007) (Calabresi, Wesley, CJJ, Oberdorfer, DJ)

This case presented a question open that the Circuit has never addressed: does jeopardy attach to counts that were dismissed with prejudice by the government pursuant to a plea agreement? Reviewing the framework set by a line of Supreme Court cases, the Circuit concluded that the answer to this question is “possibly, but not here.”

Dioniso pled guilty in 2001 under plea agreement in which the government agreed to dismiss certain racketeering charges with prejudice, and ultimately did so. In 2004, despite its promise, the government indicted him on suspiciously similar charges, and he moved to dismiss the new indictment as a violation of the Double Jeopardy Clause. The district court held that, per se, jeopardy never attaches to a pretrial dismissal.

The Circuit disagreed with this ruling, although not the ultimate outcome, …

Posted by Steve Statsinger
Categories: dismissal, double jeopardy, interlocutory, plea agreement, prejudice, Uncategorized

Posted By Steve Statsinger
Categories: dismissal, double jeopardy, interlocutory, plea agreement, prejudice, Uncategorized

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Friday, September 28th, 2007

Crawford’s Eleven

United States v. Becker, Docket No. 06-1274-cr (2d Cir. September 13, 2007) (Calabresi, Parker, Wesley, CJJ)

At Becker’s stock fraud trial, the government introduced into evidence the plea allocutions of eleven (yes, eleven) of his co-defendants, supposedly for the “limited purpose” of establishing that the conspiracy charged in the indictment existed. The Circuit concluded that this was a Confrontation Clause violation under Crawford and, for the first time, found that such a violation was not harmless.

The court rejected the government’s claim that the district court’s limiting instructions cured the error, finding that the sheer number of allocutions and their repetitive nature suggested that the conspiracy was widespread, “making it plausible for the jury to assume that Becker was a participant simply by association with” the other conspirators, despite the instructions. In addition, the content of the allocutions was “far reaching and detailed” and significantly undermined Becker’s defense that his …

Posted by Steve Statsinger
Categories: 2255, Confrontation Clause, Crawford, harmless error, law of the case, plea allocution, Sixth Amendment, Teague, Uncategorized

Posted By Steve Statsinger
Categories: 2255, Confrontation Clause, Crawford, harmless error, law of the case, plea allocution, Sixth Amendment, Teague, Uncategorized

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Absence Makes the Court Affirmer

United States v. Kaid, Docket No. 05-4480-cr (2d Cir. September 12, 2007) (Calabresi, Raggi, Hall, CJJ) (per curiam)

Two years after his client was convicted, defense counsel filed an affirmation stating that he was absent for twenty minutes during the testimonial portion of the trial. At issue was whether this constituted ineffectiveness. The district court had decided, rather than try to reconstruct the events years later at a hearing, that it would assume the facts to be true. It held that the absence did not constitute a Sixth Amendment violation. The Circuit, expressing some skepticism about whether the absence had been adequately established at all, nevertheless agreed. The court rejected the invitation to treat the absence as per se ineffectiveness, a doctrine that is reserved for extreme situations, such as where the attorney is not an attorney at all or has been implicated in the defendant’s crimes.

Instead, the court …

Posted by Steve Statsinger
Categories: Uncategorized

Posted By Steve Statsinger
Categories: Uncategorized

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Tuesday, September 25th, 2007

SUPPRESS NOT THESE FRUITS

United States v. Acosta, Docket No. 05-1283-cr (2d Cir. September 5, 2007) (Pooler, Parker, Wesley, CJJ)

Last term, the United States Supreme Court held that the exclusionary rule does not apply to violations of the Fourth Amendment’s “knock-and-announce” rule. Hudson v. Michigan, 126 S.Ct. 2169 (2006). Here, the Circuit, unsurprisingly, holds that the same is true for violations of the knock and announce statute, 18 U.S.C. § 3109.

It is almost too sad to blog, but here, in brief, is the court’s reasoning. Both § 3109 and the Fourth Amendment’s knock-and-announce principle “share the same common law roots, overlap in scope, and protect the same interests, which necessitates similar results in terms of the exclusionary rule’s application.” Moreover, a civil remedy is available; a citizen can file a Bivens action. This, according to the Circuit, is an adequate deterrent to federal agents who might contemplate violating the knock-and-announce statute.

However …

Posted by Steve Statsinger
Categories: "knock-and-announce", Bivens, Fourth Amendment, rxclusionary rule, Uncategorized

Posted By Steve Statsinger
Categories: “knock-and-announce”, Bivens, Fourth Amendment, rxclusionary rule, Uncategorized

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33 SKIDOO

United States v. Owen, Docket No. 06-1078-cr (2d Cir. September 4, 2006 [sic]) (Parker, Raggi, Wesley, CJJ)

In case you were wondering, Rule 33 applies only to “newly discovered” evidence, and not “newly available” evidence.

Facts: Lance Owen and two co-defendants loaded five years worth of marijuana into a truck from a warehouse in the Bronx. Owen was pulled over while driving the truck, and explained, not very convincingly, that he was a mover, in the process of moving personal items to Florida for a client. When DEA agents found the marijuana in the truck, they arrested him.

Owen and the two others, Samuels and Baroody, went to trial. No defendant testified, but each, through counsel, pointed his finger at the others. All were convicted, and Judge Patterson sentenced Owen to five years’ imprisonment.

At Samuels’ sentencing, before sentence was imposed, Samuels exculpated Owen. He said that he had “hired …

Posted by Steve Statsinger
Categories: newly available, newly discovered, Rule 33, severance, Uncategorized

Posted By Steve Statsinger
Categories: newly available, newly discovered, Rule 33, severance, Uncategorized

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Sunday, September 23rd, 2007

Tear Up That Anders Brief – The Court Has Found An Issue!

United States v. Hall, No. 05-6919-cr (2d Cir. August 30, 2007) (Calabresi, Raggi, Hall [no apparent relation], CJJ) (per curiam)

This case adds yet another wrinkle to the Circuit’s ever-evolving Anders jurisprudence. Here, the defendant appealed a below-Guidelines sentence and counsel filed a detailed Anders brief. In that brief, counsel correctly pointed out that the district court had omitted the written statement of reasons required by 18 U.S.C. § 3553(c)(2) but argued that any claim of error on this ground would be harmless, since the court gave adequate oral reasons.

Instead of granting Anders relief, however, the Court of Appeals remanded the case to the district court with instructions to include a written statement of reasons. The Court noted that the statement of reasons might affect way that the Bureau of Prisons treats the defendant, and thus directed counsel to remain on the case until the statement is filed. This …

Posted by Steve Statsinger
Categories: 3553(c)(2), Anders, frivolous, judgment, statement of reasons, Uncategorized

Posted By Steve Statsinger
Categories: 3553(c)(2), Anders, frivolous, judgment, statement of reasons, Uncategorized

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Attorney’s Quick Change Of Heart Saves The Day

United States v. Razmilovic, No. 06-4198-cr (2d Cir. August 27, 2007) (Miner, Kaztmann, CJJ, Murtha, DJ).

Here, the district court’s precipitate grant of a mistrial barred the reprosecution of the defendants under the Double Jeopardy Clause.

At the end of a six-week fraud trial, and only 3 days of deliberation, the jury sent out a note, its first of this kind, saying that it was “at a dead lock. We have exhausted all our options.” The only action Judge Wexler took was to ask whether any defendant sought a mistrial. When two defendants so moved, the judge granted it.

Covering well trod ground, the Circuit concluded that there was no “manifest necessity” for a mistrial at such an early point, and thus that the two defendants who objected to the mistrial could not be reprosecuted. The court considered the complexity of the trial, the length of the deliberations, the fact …

Posted by Steve Statsinger
Categories: deadlock, double jeopardy, Fifth Amendment, mistrial, Uncategorized

Posted By Steve Statsinger
Categories: deadlock, double jeopardy, Fifth Amendment, mistrial, Uncategorized

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The Birds Were Exotic; The Appeal Was Not

United States v. Cullen, No. 06-0607-cr (2d Cir. August 23, 2007) (Cardamone, Straub, CJJ, Koeltl, DJ) (per curiam)

The United States is a signatory to the Convention on International Trade in Endangered Species of Wild Fauna and Flora. The Wild Bird Act, 16 U.S.C. § 4904, prohibits the importation into the United States of any exotic bird of a species covered by the Convention, and violators face civil or criminal penalties.

Thomas Cullen used straw purchasers to import Black Sparrowhawks, an African raptor, into the United States. He was trying to make it look as if the importation were valid under a provision permitting persons who have lived outside the United States for more than one year to import a personally owned pet, even if it is a member of one of the listed species. Cullen was convicted both of importing the birds and of making false statements to the …