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Author Archive | Daniel Habib

Sunday, November 23rd, 2014

Plain Error For District Court To Consider Non-Shepard Documents In Determining Whether Prior Offenses Were Committed On “Different Occasions” Under ACCA

United States v. Dantzler, No. 13-2930-cr (2d Cir. Nov. 14, 2014) (Cabranes, Carney and Droney), available here

The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), mandates a 15-year minimum sentence for certain firearms offenses if a  defendant “has three previous convictions … for violent felony or a serious drug offense, or both, committed on occasions different from one another.”  In this case, the Circuit held that in determining whether prior offenses were committed on occasions different from one another,” a district court is limited to consulting documents approved in Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2005).
That is, a district court may consider the fact of the prior conviction, the statutory definition of the offense, the charging document, the jury instructions, the written plea agreement, the transcript of plea colloquy, and any explicit factual finding
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Thursday, October 30th, 2014

Admission Of Defendant’s Social Media Profile Was Error Absent Sufficient Authentication

United States v. Zhyltsou, No. 13-803-cr (Wesley,Livingston, and Lohier), available here

At defendant’s trial for unlawful transfer of a false identification document, the government introduced a printed copy of a webpage that it claimed was defendant’s profile page from the Russian social network VK.com.  The printout contained defendant’s photograph, as well as information (defendant’s Skype ID, places of employment,and birthplace) that corroborated testimony of the cooperating witness on whom the government’s case depended.
In particular, the profile listed defendant’s Skype ID as “Azmadeuz,” which was significant because the false identification document at issue had been emailed to the cooperating witness from the address “azmadeuz@gmail.com.”  A State Department special agent testified that he had printed the profile page off the Internet, but acknowledged that he did not know who had created the page.  Defendant objected, contending that the page had not been authenticated as his, so the printout was inadmissible
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Friday, September 19th, 2014

Car Parked Outside Victim’s House Is Within Victim’s “Presence” For Purposes of Federal Carjacking Statute

United States v. Soler, No. 12-2077-CR (2d. Cir. July 22, 2014) (Katzmann, Walker, and Droney), available
here

The federal carjacking statute, 18 U.S.C. § 2119, criminalizes the forcible taking of an automobile “from the person or presence of another.”  Following decisions by all the other Courts of Appeals to have addressed the question, the Circuit here held that an automobile is in the “presence” of a victim “if it is so within his or her reach, inspection, observation, or control that he or she could, if not overcome by violence or prevented by fear, retain possession of it.”
Defendants robbed a house and, on the way out, demanded that one of the occupants give them the keys to a car parked in front of the house.  The car was parked on a curb 10-15 feet, or a 5-second walk, from the front door to the house.  The victim testified
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Modified Allen Charge Not Required Where Jury Poll Reveals Non-Unanimity

United States v. McDonald, No. 12-2056-CR (2d Cir. July 22, 2014) (Cabranes, Sack, and Lynch), Available Here

During deliberations in defendant’s fraud trial, the jury announced that it had reached a guilty verdict. When the jury was polled, Jurors 1-10 so confirmed, but Juror No. 11, asked whether guilty was her verdict, answered “no.” With the parties’ agreement, the trial court (Koeltl, J.) told the jury that he would “send you back to deliberate to see whether you can reach a unanimous verdict, in light of all the instructions I have given you.”

After deliberations resumed, the court told the parties that he had identified a model instruction (Sand ¶ 9.12) applicable where a jury poll reveals a lack of unanimity. The first part of the model instruction tracks what the jury had already been told. The second part, however, contains a modified Allen charge, encouraging the jurors to …

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