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Federal Defenders of New York Second Circuit Blog


Sunday, October 26th, 2008

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.

Background

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 …

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Categories: conspiracy, drug distribution, sufficiency, Uncategorized

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Buyer’s Remorse

United States v. Hawkins, No. 07-3018-cr (2d Cir. October 16, 2008) (Straub, Raggi, CJJ, Sessions, DJ)

Alex Luna sold drugs in Danbury, Connecticut, from 2002 to 2005. Warren Hawkins was convicted, after a jury trial, of one count of conspiring with Luna to distribute less than 500 grams of cocaine and less than five grams of crack. After the verdict, the district court granted Hawkins’ Rule 29 motion, finding that, although Hawkins bought drugs from Luna with intent to resell them, there was insufficient evidence to establish that Hawkins participated in Luna’s conspiracy. On the government’s appeal, the circuit reversed.

Background

In February 2005, Hawkins spoke with a another Luna co-conspirator about purchasing five grams of cocaine. They discussed price, quality, and how Hawkins would raise the money, but the sale did not take place. A few days later, Hawkins spoke with Luna and said that some of his co-workers …

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Sexually Charged

United States v. Rivera, No. 06-4946-cr (2d Cir. October 15, 2008) (Jacobs, Kearse, Katzmann, CJJ)

Carlos Rivera was convicted of various offenses relating to the sexual exploitation of children. One count involved the production of child pornography for which Rivera, a recidivist, received a mandatory life sentence. His primary argument on appeal was that the district court incorrectly charged the jury on the definition of “lascivious” with respect to that count. Finding no error, the court of appeals affirmed.

At issue were six photographs that Rivera took of a sixteen-year old boy lying naked on a hotel bed, in various suggestive poses. The statute, 18 U.S.C. § 2251(a), prohibits coercing or enticing a minor to engage in “sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” “Sexually explicit conduct” is defined to include the “lascivious exhibition of the genitals or pubic area of any person.”…

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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.

Background

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 …

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Sunday, October 19th, 2008

Bonnano Republic

United States v. Massino, No. 07-1618-cr (2d Cir. October 10, 2008) (Hall, Livingston, CJJ, McMahon, DJ) (per curiam)

Patrick DeFilippo was convicted of racketeering and other offenses in connection with his involvement with the Bonnano crime family, and the district court sentenced him to forty years’ imprisonment. He challenged two evidentiary rulings, albeit without success.

1. Mobsters are Always “Guilty as Charged”

During a recorded conversation between a Bonnano cooperating witness and DeFilippo’s co-defendant, the cooperator remarked that the feds usually charged mobsters with “nine thousand six hundred and eight-four other charges.” At trial, the government asked the cooperator why he had said this and he replied “to win their confidence.” Not satisfied with this answer, however, the prosecutor went back to the subject twice more, asking him whether he knew of anyone involved in organized crime who had ever “been charged with a crime that they were not guilty …

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Unattached

United States v. Worjloh, No. 06-3129-cr (2d Cir. October 8, 2008) (Parker, Raggi, Hall, CJJ) (per curiam)

Although not yet charged with a federal offense, Worjloh was questioned by federal agents while he had state drug charges pending. The state charges were ultimately dismissed, and a federal indictment was returned. On appeal, he argued that his statements to the federal agents were obtained in violation of his Sixth Amendment right to counsel.

The circuit disagreed. Because Worjloh was not subject to federal charges when the feds questioned him, “no Sixth Amendment right to counsel had attached as to the then uncharged federal conduct.” The Sixth Amendment rights related to the state offenses did not “serve to restrict the ongoing investigation into uncharged federal crimes where, as here, that investigation is not tied to the state’s conduct.” It might be different if the federal prosecutors had sought to admit evidence obtained …

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Unlucky Strike

United States v. Matthews, No. 07-0699-cr (Wesley, Hall, Gibson, CJJ) (per curiam)

Matthews challenged his life sentence under the federal “three-strikes” statute, 18 U.S.C. § 3559(c), on several grounds. The circuit affirmed.

One “three-strikes” provision requires the defendant to establish that his prior convictions were not “serious violent felonies,” as defined by the statute. The court joined eight other circuits in upholding the constitutionality of this allocation. “Where no fundamental right is at issue, there is no doubt that the legislature may assign to defendants burdens of proof with regard to affirmative defenses.”

Matthews also argued that the burden itself – of producing clear and convincing evidence – violates due process. The court noted that four circuits had found that this standard did not violate due process, but did not resolve the issue here. Matthews could not show, even by a preponderance of the evidence, that his past convictions were …

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Materia Girls

United States v. Ojeikere, No. 07-1970-cr (2d Cir. October 7, 2008) (Newman, Winter, Calabresi, CJJ)

Defendant Ojeikere was convicted of participating in an “advance fee” scheme the tricked its victims into sending money to the defendant and his confederates to release “large sums of money supposedly held in Nigeria.”

On appeal, he challenged the restitution order, which was nearly $700,000. He claimed that his “victims,” although they suffered losses, had hands too dirty to claim restitution, since they all participated in what they believed was a fraudulent scheme to obtain money from Nigeria. The court agreed with Ojeikere in principle only – restitution is not appropriate where the victims are, in effect, co-conspirators.

But restitution “may not be denied simply because the victim had greedy or dishonest motives.” It should only be denied where the victims’ intentions were in pari materia with those of the defendant. Because Ojeikere did not …

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Expert Tease

United States v. Mejia, No. 05-2856-cr (2d Cir. October 6, 2008) (Jacobs, Parker, Hall, CJJ)

Here, the improper admission of “officer expert” testimony resulted in a new trial.

Background

The defendants were convicted of participating in two drive-by shootings in connection with their membership in the MS-13 gang. One defendant was sentenced to sixty-three years’ imprisonment, the other to sixty.

A significant portion of the evidence against them, however, came from a New York State Police investigator who testified about the structure and organization of MS-13, as well as its “methods and activities, modes of communication and slang.” It turned out however, the officer’s sources for much of this information were suspect, including reports from other law enforcement officers, custodial statements from other gang members, internet research, and wiretaps that he listened to.

The Court’s Ruling

The court of appeals reversed, finding that much of the officer’s testimony was improper.…

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Summary Summary

A few more summary orders of interest from earlier this month:

In United States v. Nunez-Gonzalez, No. 05-4064-cr (2d Cir. October 10, 2008), the court remanded for resentencing where a “review of the record leaves us uncertain as to whether the District Court fully considered the sizeable disparity between the sentences of” the defendant and his co-defendant.

In United States v. Mercardo, No. 07-3327-cr (2d Cir. October 7, 2008), the defendant in a drug case argued that he was prejudiced by testimony of an agent who explained that he investigated “violent crimes associated with narcotics use.” The court “caution[ed]” the government about “unnecessarily eliciting testimony about agents’ responsibilities not relevant to the charged crime,” but found the error to be harmless. In addition, the court granted a Regalado remand, even though the defendant was sentenced as a career offender, since it was unclear whether the district court fully understood its …

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Monday, October 6th, 2008

Trial by Error

United States v. Al-Moyad, No. 05-4186-cr (2d Cir. October 2, 2008) (McLaughlin, Parker, Wesley, CJJ)

Defendants Al-Moayad and Zayed were convicted in front of Judge Johnson of conspiring to provide material support to Hamas and Al-Qaeda, designated terrorist organizations. Al-Moayad was also convicted of related substantive offenses. He was sentenced to seventy-five years in prison, while Zayed was sentenced to forty-five years.

The defendants asserted that they were entrapped. Their trial, however, was marred by a string of spectacularly unfair evidentiary rulings that gravely undermined their defense. The court of appeal remanded the case for a new trial before a different judge.

Background

This case arose through the efforts of a confidential informant named Al-Anssi. In November of 2001, Al-Anssi approached the government and offered to furnish – for money – information regarding terrorism. Among ththe possible targets he mentioned was Al-Moayad, whom Al-Anssi described as the imam of a …

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