Federal Defenders of New York Second Circuit Blog


Saturday, September 6th, 2008

The Three Racketeers

United States v. Riggi, No. 06-1280-cr (2d Cir. September 4, 2008) (Jacobs, Calabresi, Sack, CJJ)

Defendants Vitabile, Abramo and Schifilliti were all long-time members of the Decavalcante crime family. Vitabile was consignliere for thirty-five years, Abramo had been a captain since the late 1980’s and Schifilliti had held that same title since 1991. They were also part of the family’s administration. After a three-week trial, a jury convicted them of racketeering and racketeering conspiracy – comprising ten predicate acts – and five substantive counts. Included in the mix were several murder conspiracies, extortion, loansharking and securities fraud.

At trial, to bolster the testimony of its cooperating witnesses and augment some otherwise underwhelming recordings, the government introduced into evidence the plea allocutions of eight non-testifying co-defendants. On appeal, the circuit agreed that this violated Crawford and that the violation amounted to plain error. It vacated the convictions and remanded for a …


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Categories: Crawford, harmless error, plain error, Uncategorized

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A Family Affair

United States v. Yannotti, No. 06-5571-cr (2d Cir. September 4, 2008) (Katzmann, Parker, Raggi, CJJ)

Michael Yannotti was one of several Gambino crime family members accused of multiple violent acts – including extortion, loansharking and murder. After a jury trial, he was convicted of a RICO conspiracy, although the only predicates that the jury could agree that he committed were loansharking activities that had taken place eight years or more before he was indicted. The jury did not reach a verdict on a substantive RICO count, which the district court then dismissed on the ground that the government had failed to prove that Yannotti committed any predicate within the five-year statute of limitations. But the court did not dismiss the conspiracy count and, when it sentenced him, based its findings on conduct that the jury had not agreed that the government had proven. Yannotti received twenty years in prison, the …


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Categories: 1B1.2, expert witnesses, RICO, Uncategorized, wiretaps

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Conspiracy Theories

United States v. Santos, No. 06-0833-cr (2d Cir. September 2, 2008) (McLaughlin, Sack, Livingston, CJJ)

In 2000, Santos was hired by a big Columbian drug dealer to kill two men who had stolen drug proceeds from him. Santos had meetings with an intermediary, Medina, in which Medina answered Santos’ questions about the nature of the drug organization and the debt, and detailed the reasons for the hit. Soon after, Santos and an associate shot and killed two men they believed to be the intended targets, but who in fact were not. He was convicted of drug-related murder under 21 U.S.C. § 848(e)(1)(A), and was sentenced to life plus ten.

On appeal, Santos raised, without success, three issues of statutory interpretation relating to his involved in the conspiracy, two of which had a parallel sufficiency claims.

“Engaging In” Drug Trafficking

The statute makes it a crime for a person “engaging in” …


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Categories: conspracy, drug-related murder, Uncategorized

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Saturday, August 30th, 2008

Gimme Shelter

United States v. Stein, no. 07-3042-cr (2d Cir. August 28, 2008) (Jacobs, Feinberg, Hall, CJJ)

This case arose from a 2004 investigation into KPMG’s suspected creation and sale of illegal tax shelters. Although KPMG’s counsel recommended a “cooperative approach” in its dealings with the government, the firm still, initially, promised to pay the attorneys’ fees of any current or former member of the firm who was under investigation.

In subsequent meetings with Southern District prosecutors, however, the government started putting pressure on KPMG to not pay attorneys’ fees. It cited the “Thompson Memorandum,” a directive to federal prosecutors intended to give guidance on when to prosecute business organizations, which instructs prosecutors to consider whether the firm was protecting culpable employees through, inter alia, “the advancing of attorneys fees.” Bowing to this pressure, KPMG’s counsel told the government that it would not pay the fees of employees who failed to “cooperate” …


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Categories: government misconduct, Sixth Amendment, Uncategorized

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Friday, August 29th, 2008

Toll Free

United States v. Kozeny, No. 07-3107-cr (2d Cir. August 29, 2008) (Sack, Katzmann, Hall, CJJ)

In 2002 and 2003, the government believed that Frederic Bourke was involved in a scheme to bribe senior government officials in Azerbaijan in connection with the privatization of that nation’s state-run oil company. During the investigation, the government made treaty requests for assistance to Switzerland and the Netherlands. And, months later, on July 21, 2003, it applied for an order under 18 U.S.C. § 3292 tolling the statute of limitations based on those requests. By this time, however, more than five years had elapsed since some of Bourke’s offenses had been completed.

Despite this, on July 22, 2003, a district judge suspended the statute of limitations for all of the offenses under investigation. Consistent with the statute, the order provided that the suspensions would begin on the date that the treaty requests had been made, …


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Categories: statute of limitations, statutory interpretation, Uncategorized

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Sunday, August 24th, 2008

Feetotalers

United States v. Amato, No. 06-5600-cr (2d Cir. August 21, 2008) (Cardamone, Miner, Pooler, CJJ)

The defendants were the principals of a consulting firm that was purchased by EDS, a much larger company. Their compensation included an incentive plan that promised large bonuses if they helped their clients, financial services firms, avoid losses caused by escheatments. The defendants never met their goals, but devised a successful scheme to deceive EDS into believing that they had.

After a jury trial, the court sentenced both defendants to prison, then conducted a restitution hearing and concluded that they owed $12.8 million in restitution to EDS. This figure included more than $3 million in attorney and accountant fees that EDS had incurred as a result of its participation in the prosecution.

On appeal of this part of the restitution order, the circuit affirmed. It noted that the statute at issue, 18 U.S.C. § 3663A(b)(4) …


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Categories: restitution, Uncategorized

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Flight Cancellation

United States v. Mundy, No. 06-1190-cr (2d Cir. August 21, 2008) (Kearse, Leval, Cabranes, CJJ).

In this decision, the court all but eliminates the “flight as consciousness of guilt” jury instruction from Second Circuit jurisprudence.

The facts here were somewhat unusual because it was the the defendant who sought the instruction with respect to a co-defendant. The defendant was trying to bolster his argument that drugs and guns in they apartment where they were both arrested belonged to the other guy. Naturally, the government objected.

On appeal, the circuit held that district court did not err in refusing to give the instruction. But it also went on to map out the multitude of reasons why such an instruction, if objected to, should not be given, regardless of which party is seeking it.

First, there are many inferences that can be drawn from a person’s flight and, while the standard instruction …


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Categories: consciousness of guilt, jury charge, Uncategorized

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Tuesday, August 19th, 2008

Standing Alone

United States v. Hamilton, No. 06-2933-cr (2d Cir. August 15, 2008) (Leval, Sotomayor, Katzmann, CJJ)

Hamilton was convicted of participating in a marijuana conspiracy. He raised a host of issues on appeal, and prevailed on his claim that the district court erroneously concluded that he lacked standing to challenge a search.

The Fourth Amendment Issue

This investigation began in 1999, in Los Angeles, where local authorities arrested Hamilton and charged him with marijuana possession. Hamilton was released on bail, then disappeared, and later acquired a Florida driver’s license in a different name. The government later learned that the LA marijuana would make its way to the Bronx.

In 2004, L.A. police officers intercepted a FedEx package containing marijuana that was supposed to go to an address in Encino, California. They conducted a controlled delivery, and discovered five men in the driveway of the house, one of whom was Hamilton, who …


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Categories: hearsay, standing, Uncategorized

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Tamper Proof

United States v. Ventry, No. 06-3104-pr (2d Cir. August 15, 2008) (Cabranes, Wesley, CJJ, Castel, DJ).

In this appeal from the denial of a 2255 motion, the circuit faulted the district court’s finding that Ventry’s counsel did not suffer from a conflict of interest. It remanded the case for further proceedings to determine the nature of the conflict and consideration of whether Ventry was prejudiced by it.

Background

Ventry was a suspect in robbery in the Niagara Falls area. After he received a subpoena to testify before a federal grand jury, he confessed to his girlfriend, Christine Janik. When Janik was interviewed by an FBI agent, she told the agent when Ventry had said, and signed a written statement, although she later testified that she had felt pressured to make the statement. Janik then told Ventry what she had done and, that same day, broke up with him.

Ventry’s father …


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Categories: conflict of interest, Uncategorized

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It Depends Upon What the Meaning of the Word “Is” Is

United States v. Darden, No. 06-4567-cr (2d Cir. August 15, 2008) (Cardamone, Pooler, CJJ, Keenan, DJ)

Under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), a felon-in-possession of a firearm or ammunition faces a fifteen-year mandatory minimum sentence (the maximum is life) if he has at least three prior convictions for felony crimes of violence and/or “serious” drug offenses. The statute defines “serious” drug offenses as those for which the maximum penalty that “is prescribed” is ten years or more.

These four consolidated appeals all arose from the application of this definition to defendants whose past convictions were for New York State Class C or Class B (first offender) drug felonies. Until 2005, the maximum penalty for such offenses was more than ten years. Effective January of 2005, the state reduced the maximum penalty for such offenseses to less than ten years, but the amelioration is not retroactive.…

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Categories: ACCA, Uncategorized

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Categories: ACCA, Uncategorized

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Collusion Course

United States v. Guevara-Umana, No. 07-1410-cr (2d Cir. August 15, 2008) (Leval, Calabresi, Pooler, CJJ) (per curiam)

Guevara was deported in 1999. By 2004, he was back; on February 21, 2004, he was charged with grand larceny in New York State. That same day, ICE filed an immigration detainer. On March 4, 2004, ICE filed a Record of Deportable Alien and, the next day, it served Guevara with a notice of intent to reinstate the previous deportation order.

On May 6, 2004, Guevara pled guilty in state court and, four days later, ICE confirmed that he was the same person deported in 1999. On May 21, 2004, an ICE agent wrote a memorandum to Guevara’s A-file that indicated that he had begun an investigation into whether Guevara was an illegal reentrant. This memorandum indicated that a complaint had been authorized by an AUSA.

On June 3, 2004, Guevara was sentenced …


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Categories: speedy trial, Uncategorized

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