Author Archive | David Lewis

United States v. Salazar, No. 06-0198-cr (2d Cir. June 13, 2007) (per curiam) (Sack, B.D. Parker, Hall, C.JJ.).

The headline says it all. Or almost. The court notes that the Guidelines say that the preponderance standard is “appropriate” to Guidelines findings, U.S.S.G. § 6A1.3, comment., and concludes: “[T]he discretion afforded district judges by Booker applies only to their consideration of a Guidelines range as one of the § 3553(a) factors after that range has been calculated. Booker does not affect a district judge’s obligation to perform a Guidelines calculation or the burden of proof applicable to facts relevant to sentencing upon which that Guidelines calculation is made.”…

United States v. Prince Gaines,Docket No. 04-5616 (Jacobs, Parker, Gleeson(D.J.)) : In a close gun-possession case, in which the defendant testified that he had not known of the presence of a gun found hidden (or less hidden) in a gypsy cab seat where he was a passenger, the Court found reversible error in a charge on the defendant’s interest in the case. The district court charged the jury that the defendant “has a deep personal interest in the result of the prosecution,” that this “interest creates a motive for false testimony,” and that “the defendant’s testimony should be scrutinized and weighed with care.”

In a fine opinion, the Court of Appeals held that the charge that the defendant’s interest created a “motive for false testimony” was error because it undermined the presumption of innocence, for it assumed that the defendant was guilty. In addition, after surveying the case …

United States v. Quentin Singletary, Docket No. 05-6145 (2d Cir. July 19, 2006) (Cabranes, Straub, Hall): At his initial sentencing before the decision in Booker, the defendant was given an upward departure to a sentence of 42 months on his conviction for possessing crack with the intent to distribute it. He appealed, and the case was remanded for resentencing under the Supreme Court’s decision in Booker. Upon remand the district court raised the sentence to 57 months’ imprisonment, relying on facts all of which had been in the record before and noting that previously it had “felt constrained” by the guidelines, although since it was departing it had not been constrained in any legal sense, but was required only to impose a reasonable sentence, the same standard that applied post-Booker.

On his second appeal, the defendant argued pursuant to North Carolina v. Pearce…

United States v. Temple, Docket No. 05-0165-cr(L); 05-0679(XAP) (2d Cir. May 1, 2006) (Miner, Wesley, Rakoff)

Eva Temple, an IRS employee, was charged with disruptive behavior in two separate incidents. In the first, two New York City Police Detectives came to arrest her at her place of work, and, as they did, she verbally abused them. In the police car on the way to the precinct, she told the detectives that “she had the ‘ability to initiate investigations and audits into the[ir] tax histories'” and that she had co-workers who held a grudge against the police whom she could tell to audit their tax returns. For this, she was charged with willfully oppressing a person under color of law while acting in connection with a revenue law of the United States. 26 U.S.C. § 7214(a). Ms. Temple was subsequently fired from her job and made a telephone …

United States v. Jermi Francisco Lopez, Docket No. 03-1476-cr (2d Cir. April 4, 2006) (Sack, Sotomayor, Raggi):

Where an element of a crime, in this case a prior deportation, depends on an administrative finding, due process requires that that finding have been subject to judicial review, to ensure its accuracy and make it a proper basis for criminal sanctions. See United States v. Mendoza-Lopez, 481 U.S. 828 (1987); 18 U.S.C. § 1326(d). In this case, the defendant had sought dismissal of his illegal reentry indictment on the ground that he had been denied judicial review of his deportation by misinformation given him at his hearing and by the Immigration Judge’s failure to advise him of the availability of collateral relief by habeas corpus. In 1997, just at the time of amendment of new immigration laws eliminating much of the existing discretionary relief for deportation, the defendant had …

U.S. v. Paulino, Docket No. 04-2553-cr (2d Cir. March 29, 2006) (Oakes, Raggi, Wesley):

Having decided a routine Crawford issue in U.S. v. Snype, the Court, again by Judge Raggi, turns in this case to a more complicated situation. The case raises the interesting question whether a court’s instruction to a jury that a hearsay statement is not to be considered for its truth eliminates all Sixth Amendment concerns, even where no alternate purpose for its admission seems obvious, and where the district court’s limiting instruction may not have obviated all need for cross-examination.

The police executed an arrest warrant for the defendant’s father, Adolfo, at Adolfo’s apartment, where the defendant was living. Adolfo gave consent to search, and the officers found cocaine in the hall closet. Adolfo stated, apparently with respect to these drugs, that he owned them and that “no one else was involved in …

United States v. Snype, Docket No. 04-3299-cr(L) (2d Cir. March 17, 2006) (Cabranes, Raggi, Sand):

This thoroughly litigated case produced a lengthy opinion touching on important Fourth Amendment, trial, and sentencing issues. These issues ranged from intertwined issues of a “warrantless” search and its fruits, the voluntariness of a consent to search, and the lawful scope of that consent, various trial errors including an error under Crawford v. Washington, and several challenges to the mandatory life sentence. The Circuit ultimately rejected all, although the defendant’s arguments appear in a number of cases to be more substantial than the Court’s opinion might suggest.

The defendant Snype was charged with conspiracy to commit bank robbery. According to the government’s cooperating witness, who said he had acted as a lookout, Snype and another man robbed the bank at gunpoint. When police arrived, Snype and his partner fled, shooting at police, and …

Oscar Porcelli v. United States, Docket No. 04-2000-pr (2d Cir. April 12, 2005): Those driving automobiles in the New York area in the early 1980’s will remember Oscar Porcelli fondly as the owner of the Gaseteria chain of discount gas stations, an operation that was able to charge prices for gas significantly lower than all other outlets. The reason for that ability, it turned out, was that Porcelli simply failed to collect state sales taxes on the gas he sold while filing false sales tax returns. Although this conduct was at worst a misdemeanor under New York law, it led to Porcelli’s conviction in Federal court of one count of Rackeetering (RICO) and numerous counts of mail fraud. It also led (alas!) to the demise of the Gaseteria chain and to a whole lot of post-conviction litigation.

On direct appeal in 1989, the Circuit recognized that it “pushed the …

United States v. Williams, Dkt. No. 04-2882-cr (2d Cir. February 23, 2005)

In Williams the Circuit, with Judge Newman writing, has added further comment on its plain error approach in Booker/Fanfan cases, as set out in United States v. Crosby, noted here. The Court reiterated the two types of errors in Booker and Fanfan — mandatorily enhancing a sentence based on facts not found by the jury and, as in Fanfan, “mandatorily imposing a Guidelines sentence even though it is based only on facts found by the jury.” And it once again held that the proper response to such errors was to remand to the district court, not for resentencing, but to determine whether a materially different sentence would initially have been imposed under Booker and Fanfan, and if so, to conduct a resentencing.

The major portion of the opinion consists of the Court’s response to …

In re Grand Jury Investigation (United States v. John Doe), Dkt. No. 04-2287-cv (2d Cir. February 22, 2005)

Creating a circuit split, but in a case that may not be reviewable in the Supreme Court, the Circuit holds that the attorney-client privilege operates with respect to government officials and their government lawyers to the same extent that it applies in the private sphere. The opinion, written by Chief Judge Walker, and joined by Judges Leval and Jacobs, is a resounding reaffirmation of the “public interest” served by the privilege.

In the investigation of former Governor John G. Rowland of Connecticut, the government had subpoened the former chief legal counel to the Office of the Governor to testify to communications concerning the receipt of gifts by officials and the “meaning of related state ethics laws.” The Office of the Governor (both before and after Governor Rowland’s resignation) asserted the privilege, but …

United States v. Crosby, No. 03-1675 (February 2, 2005)

United States v. Fleming, No. 04-1817-cr (February 2, 2005)

United States v. Green, No. 04-6564-cr (February 2, 2005)

In one remarkable opinion in Crosby and its two sidekicks, Fleming and Green, the Circuit discusses, if not settles, many of the issues involved in carrying out the Booker remedy. Crosby in particular is a must-read, since no summary can do it justice. It makes a fine addition to Judge Newman’s long line of distinguished sentencing opinions. It considers the implications of Booker broadly, as well as with reference to the case at hand, and in doing so covers a broad swath of sentencing law.

In considering the application of Booker to future cases, one noteworthy theme of the Crosby opinion is that the Guidelines have not become merely “a body of casual advice.” A somewhat contrasting theme, however, is that to …