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Author Archive | Steve Statsinger

Sunday, June 12th, 2011

What’s Drug Dealer To Do?

United States v. Figueroa, No. 10-2050-cr (2d Cir. May 16, 2011) (Miner, Cabranes, Straub, CJJ)
Several months ago, in a per curiam, the court held that it was not error for a district court to treat the combination of BZP and TFMPP, which is commonly sold on the street as ecstasy, but for which there is no dedicated guideline, as ecstasy (“MDMA”) . This opinion deals with BZP alone, and reaches a different result.
Here, the defendants had about 20,000 pills containing BZP, combined with trace – the circuit called it “unmeasurable” – amounts of other substances, including TFMPP. The district court treated the pills as containing pure BZP, then analogized BZP to MDMA for guidelines purposes. The defense disputed this, and asked for a hearing, but the district court refused even that, relying on the DEA’s lab report and the fact that BZP is sold as MDMA on
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A Condition Precedent

United States v. Spencer, No. 10-1869-cr (2d Cir. May 20, 2011) (Parker, Pooler, Lohier, CJJ)
Joseph Spencer left much to be desired as a supervised-releasee.
He was originally sentenced to time served and three years’ supervised release for bank fraud, then, after a hearing, the district court found that he, in essence, committed the same crime while on supervision. Spencer was also subject to Standard Condition 6, which required him to “notify the probation officer at least ten days prior to any change in residence or employment,” and the district court also found that Spencer violated Condition 6. The court sentenced him to a total of fourteen months’ imprisonment for everything. While Spencer did not challenge the finding of new criminal conduct on appeal, the circuit agreed that his other violation conduct was not “clearly and specifically forbidden by Condition 6″; it vacated and remanded for resentencing.
The evidence
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Sunday, May 15th, 2011

Body of Evidence

United States v. Perisco, No. 08-5266-cr (2d Cir. May 3, 2011) (Jacobs, Kearase, Leval, CJJ)

Defendants Perisco and DeRoss, former high-ranking members of the Colombo crime family, were convicted of murder-in-aid-of racketeering and related offenses in connection with the murder of one William Cutolo, in connection with an intra-family power struggle. In this long opinion, which deals with several not-very-interesting evidentiary and sufficiency claims, the circuit affirms.

The opinion addresses only one noteworthy issue. At the time of the defendant’s trial, Cutolo’s body had not been located. And the theory of the government, based on other evidence, was that the body had been dumped at sea. Post-trial, the body was found buried on Long Island, which prompted the defendants to move for a new trial under Fed. R. Crim. P. 33.

The circuit affirmed the denial of that motion. It agreed with the district court that the discovery of the …

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Bad Cop, Bad Cop

United States v. Cedeno, No. 09-1857-cr (2d Cir. May 2, 2011) (Jacobs, Calabresi and Chin, CJJ)

In 1990, the Appellate Division specifically found that a New York City detective lied at a suppression hearing, by “patently tailor[ing]” his testimony to avoid suppression. Here, the circuit held that it was error for the district court to categorically preclude cross-examination of that same detective at trial about the adverse credibility finding.

The district court, relying on United States v. Cruz, 894 F.2d 41 (2d Cir. 1990), had held that the Appellate Division’s finding went to the detective’s credibility in a specific hearing, not that he lacked veracity generally, and that, here, the subject matter of the testimony would be different because the detective would not be testifying about the constitutionality of a search.

The circuit faulted this inquiry as “too narrow,” because Cruz did not “purport to set out a rigid two-part …

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Friday, May 13th, 2011

Summary Summary

Another crop of three:

In United States v. Reed, No. 09-2093-cr (2d Cir. May 5, 2011), the court vacated special conditions of supervised release requiring the defendant to participate in drug and alcohol treatment. He committed the offense of conviction while in prison, without access to drugs or alcohol, and there was no evidence that alcohol or drugs had any relation to its commission.

In United States v. Cedeno, No. 09-1857-cr (2d Cir. May 2, 2011), the district court erroneously charged the jury that, in prosecution under 18 U.S.C. § 924(c), “as a matter of law, a gun is a firearm.” Not all guns are firearms “because, for instance, a BB gun is not a ‘firearm.'” But, here, the error was harmless.

In United States v. Stroman, No. 10-0962-cr (2d Cir. April 26, 2011), the court considered whether a police officer conducted an “interrogation” of the defendant, for Miranda purposes, …

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Beating Disorder

United States v. Wells, No. 10-1266-cr (2d Cir. April 28, 2011) (Kearse, Sack, Katzmann, CJJ)

The defendants here, Wells and Rhodes, both former prison guards, were convicted of covering up the beating of a prisoner at the Queen Private Correctional Facility (“QPCF”). The episode began when the prisoner commented on the appearance of a female guard in Wells’ presence. Wells beat the prisoner, and the beating was witnessed by Rhodes and three other guards. The QPCF immediately began an internal investigation, and the witnesses, at Wells’ urging, filed false reports. Later, Wells and Rhodes were interviewed by an agent of the Office of the Inspector General and lied to her about what happened.

After a jury trial, Wells was convicted of five offenses relating to obstruction of justice, witness tampering and the making of a false statement. Rhodes was convicted of obstruction of justice and making a false statement.

On …

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Stalking Points

United States v. Curley, No. 09-3314-cr (2d Cir. April 25, 2011) (Jacobs, Wesley, Chin, CJJ)

In this circuit, it is a fairly rare occurrence for a conviction to be vacated based on a Rule 404(b) error. But here, James Curley, convicted of interstate stalking offenses, will get a second bite at the apple.

Background

In 2006, Curley’s marriage to his wife, Linda, dissolved, and his behavior became increasingly bizarre. After serving her with divorce papers, he began following her, and recruiting family members to do so, as well. Linda obtained custody of their children and an order of protection. Curley did not take this all too seriously, however, since then secretly installed a GPS device on her car – a friend tracked her movements on the internet and forwarded the information back to Curley. Linda only found out about it when she had an automobile accident in New Jersey and …

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Friday, April 15th, 2011

Summary Summary

Here are four recent summary orders of interest.

In United States v. Durham, No. 10-1046-cr (2d Cir. April 12, 2011), a supervised release violation case, the defendant claimed that his CJA lawyer was ineffective due to a conflict of interest. The circuit observed that in a VOSR the right to counsel is “statutory, not constitutional,” and thus that “the scope of [the] right to effective assistance of counsel is arguably an open question in our Circuit.” In the end, however, the court did not resolve the question because the factual basis for the conflict of interest claim was not sufficiently developed.

In United States v. Monk, No. 09-3618-cr (2d Cir. April 11, 2011), the court vacated a drug sentence because the district court’s findings of fact were insufficient to support the imposition of the two-level gun enhancement. The court relied on evidence that the defendant had possessed guns in the …

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Saturday, April 2nd, 2011

PC World

United States v. Perez-Frias, No. 10-1401-cr (2d Cir. March 31, 2011) (Jacobs, Calabresi, Lohier, CJJ) (per curiam)

Pedro Ruben Perez-Frias appealed his 42-month, below-Guideline illegal reenty sentence, arguing that it was substantively unreasonable. The circuit affirmed.

His case presented a particularly unsympathetic set of facts. In 1995, Perez-Frias was convicted of a drug-related manslaughter. He was selling marijuana at the time, and told his friends that he was having trouble with a rival dealer. This inspired someone else to kill the rival. Perez-Frias received a 7-to-21-year state sentence, and served about 14 years before being paroled to immigration authorities, who immediately deported him. He returned to the United States in August of 2009 and, two months later, was arrested for possessing marijuana. Within a few months he was in federal custody facing an illegal reentry charge.

Perez-Frias’ primary argument at sentencing was that a Guideline sentence was greater than necessary …

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Pill Pains

United States v. Quinones, No. 09-4361-cr (2d Cir. March 29, 2011) (Walker, Straub, Katzmann, CJJ)

Antonio Quinones and his son, Herman, were convicted of conspiring to distribute controlled substances. Antonio was also convicted of a money laundering conspiracy. In this opinion, the Court tries to make sense of a confusing Supreme Court money laundering case and displays a rare difference of opinion over a conscious avoidance jury instruction.

Background

Antonio Quinones entered the internet pharmacy business in 2002 and, for several years, ran websites where customers could purchase prescription drugs with virtually no medical oversight. The purchaser would select the drug he wanted and fill out a brief medical questionnaire. This was then submitted to a doctor who reviewed it and approved the order. The doctors were paid per questionnaire reviewed, and often reviewed more than one hundred per day. Once approved, the prescription was transmitted to an actual pharmacy …

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Sunday, March 27th, 2011

Summary Summary

Here are three more summary orders of interest.

United States v. Hernandez, No. 09-4930-cr (2d Cir. March 25, 2011), points out an interesting Guidelines question. Under § 3B1.1, the government bears the burden of proving that the defendant played an aggravating role. And one of the requirements for safety valve consideration is that the defendant not receive an aggravating role enhancement. But the circuit has held that the defendant bears the burden of proving that he qualifies for the safety valve. These conflicting principles have created “uncertainty about where the burden lies with respect to” this aspect of safety valve relief. This opinion, unfortunately, only points out the question but does not answer it.
In United States v. Nelson, No. 09-3308-cr (2d Cir. March 23, 2011), the court considered whether an appeal waiver was knowing and voluntary. The waiver precluded an appeal of any sentence of 137 months’ imprisonment or
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