Navigation

Author Archive | Steve Statsinger

Wednesday, July 7th, 2010

Kaiser on a Roll

United States v. Kaiser, No. 07-2365-cr (2d Cir. July 1, 2010) (Jacobs, Calabresi, Pooler, CJJ)

Mark Kaiser was convicted after a jury trial of securities fraud-related offenses in connection with an accounting fraud scheme at USF, a large food product distributor. The circuit, finding error in the conscious avoidance instruction and in an evidentiary ruling, vacated the judgment and remanded the case for a new trial.

Background

From 1994 until 2001, Kaiser helped run USF’s Purchasing Department, and negotiated rebates from its vendors called promotional allowances (“PA”s”). Kaiser was charged with developing a scheme to fraudulently inflate the PA income for certain years and with committing other fraudulent acts, including making false statements, to hide the inflated numbers from USF’s outside auditors. The government’s case was built largely around the testimony of three cooperating witnesses, who testified that Kaiser was the mastermind. Kaiser’s defense was that the cooperators had cooked …

Posted by
Categories: conscious avoidance, hearsay, Uncategorized

Posted By
Categories: conscious avoidance, hearsay, Uncategorized

Continue Reading

Penalty Phase Two

United States v. Wilson, No. 07-1320-cr (2d Cir. June 30, 2010) (Jacobs, Miner, Livingston, CJJ)

An Eastern District jury convicted Ronell Wilson of capital crimes for the murder of two NYPD detectives during a botched undercover gun buy; it also unanimously voted to sentence him to death. On appeal, a divided panel vacated the death sentence and remanded the case to the district court for a new penalty phase.

The majority identified two errors that occurred during the penalty phase, both relating to Wilson’s statement of remorse, which he was permitted to read to the jury without being subject to cross-examination.

First, the prosecutor argued that Wilson had not until “last week” accepted responsibility for his offense; while he had “an absolute right to go to trial,” he could not “have it both ways” – go to trial and then “say I’m sorry only after you prove I did it.” …

Posted by
Categories: death penalty, Uncategorized

Posted By
Categories: death penalty, Uncategorized

Continue Reading

A Study In Contradictions

United States v. Ramirez, No. 07-2912-cr (Calabresi, Cabranes, Parker, CJJ) (2d Cir. June 29, 2010)

In this case, the circuit found that the district court erred in applying the “impeachment by contradiction” doctrine. But since the error was harmless, it affirmed.

Background

At his drug conspiracy trial, defendant Jose Luis Rodriguez testified that he was not knowingly involved in the drug trafficking of which he was accused. He claimed that he was merely the driver for Jose Adames, the group’s ringleader, and never saw or knew of any cocaine on their trips. Rodriguez testified that he served as Adames’ chauffeur until late 2004, when he received a warning that Adames was involved with drugs, at which time he stopped driving for him.

To rebut this, the government called a police officer who testified that he saw Rodriguez handle cocaine during an unrelated traffic stop after the charged conspiracy had ended. …

Posted by
Categories: harmless error, impeachment, rebuttal, Rule 608, Uncategorized

Posted By
Categories: harmless error, impeachment, rebuttal, Rule 608, Uncategorized

Continue Reading

Lost In Translation

United States v. Malki, No. 08-4417-cr (2d Cir. June 29, 2010) (Newman, Raggi, Hall, CJJ)

In this rare choice-of-guideline appeal, the circuit vacated the sentence and remanded for resentencing under a different guideline.

Background

Defendant Malki entered the United States illegally in 1978. He eventually obtained political asylum, permanent residence status and United States citizenship, but all under a false identity. In 2003, still using this false identity, he took a job as a translator for a military contractor in Iraq and gave false background information to obtain a security clearance. In connection with this work, Malki had access to classified information, but was not permitted to possess it. Eventually, in connection with a security review, classified documents were found in his apartment, and Malki, when confronted, admitted his false identity.

He ended up pleading guilty to making false statements and naturalization fraud, as well as to four counts of …

Posted by
Categories: choice of guideline, Uncategorized

Posted By
Categories: choice of guideline, Uncategorized

Continue Reading
Monday, June 21st, 2010

Ordinary People

United States v. Heras, No.09-3150-cr (2d Cir. June 18, 2010) (Raggi, Lynch, Wallace, CJJ)

On this government appeal, the circuit vacated a district court order granting a Rule 29 motion that misconstrued the “ordinary consequences” rule and remanded the case for reinstatement of the verdict.

Background

Defendant Heras was arrested in the parking lot of a Queens hotel, after dropping off the target of a controlled cocaine delivery. When the agents told him what was going on, he said that “[w]hatever happened” in the hotel “has to do with [the target]. That has nothing to do with me.” He first told the agents that he had taken the target there to meet a woman, but then admitted that he knew the target was a drug dealer who had gone to the hotel to pick up drugs. He also admitted that he expected the target to compensate him, as he had …

Posted by
Categories: sufficiency, Uncategorized

Posted By
Categories: sufficiency, Uncategorized

Continue Reading
Sunday, June 20th, 2010

Wholly Terror

United States v. Awan, No. 07-4315-cr (2d Cir. June 14, 2010) (Pooler, Raggi, Livingston, CJJ)

On this government appeal, the circuit remanded for resentencing in light of the district court’s refusal to apply the terrorism enhancement, U.S.S.G. § 3A1.4.

Awan was convicted after a jury trial of various offenses in connection with his efforts to assist the Khalistan Commando Force (the “KCF”), a Sikh terrorist organization based in India, the ultimate aim of which is to compel the Indian government to create a separate Sikh state in the Punjab region. From 1998 to 2001 Awan served as a conduit for funds from U.S. supporters of the KCF to its leader. Later, while incarcerated at the MDC on credit card fraud charges, Awan tried to recruit an associate to go to Pakistan and receive explosives training at a KCF camp.

The terrorism enhancement applies if the defendant was convicted of a …

Posted by
Categories: terrorism enhancement, Uncategorized

Posted By
Categories: terrorism enhancement, Uncategorized

Continue Reading
Saturday, June 19th, 2010

Julius’ Seizure

United States v. Julius, No. 08-4267-cr (2d Cir. June 11, 2010) (Pooler, Hall, CJJ, Sweet, DJ)

Here, the district court granted the defendant’s motion to suppress a gun seized during Julius’ arrest on a parole violation. on the government’s appeal, the circuit remanded for reconsideration in light of Herring v. United States, 129 S.Ct. 695 (2009).

In 2007, Julius violated the conditions of a term of special parole imposed after a state court conviction in Connecticut. He had failed to attend court-mandated counseling sessions and had changed his residence but refused to disclose his new address to his parole officer.

The officer finally found Julius at his girlfriend’s house, where the officer, accompanied by another parole officer and a deputy marshal found him lying on a bed in a back bedroom. They arrested him without incident. As an officer removed him from the room, in handcuffs, the marshal searched the …

Posted by
Categories: Exclusionary Rule, Fourth Amendment, Uncategorized

Posted By
Categories: Exclusionary Rule, Fourth Amendment, Uncategorized

Continue Reading

PC World

United States v. Vallejo, No. 09-1673-cr (2d Cir. June 11, 2010) (Winter, Cabranes, Raggi, CJJ) (per curiam)

This latest per curiam opinion looks at the petty offense exception to the Sentencing Guidelines’ criminal history rules, set out in U.S.S.G. § 4A1.2(c)(1). That provision excludes from the criminal history score prior sentences for certain petty offenses and “offenses similar to them.” On appeal, Vallejo argued that his two prior convictions for unauthorized use of a vehicle in New York State were for an offense “similar to” the listed offense of careless or reckless driving.

But the circuit held that Vallejo had waived the claim. For one of them, a 2001 conviction, after a sentencing hearing he “expressly acknowledged” that the conduct underlying the conviction – stripping parts from a stolen car – warranted the assessment of a criminal history point. For the other, the underlying conduct was identical, so he waived …

Posted by
Categories: 4A1.2(c), criminal history, Uncategorized

Posted By
Categories: 4A1.2(c), criminal history, Uncategorized

Continue Reading
Monday, May 31st, 2010

PC World

In its two latest per curiam opinions, the court discusses a traffic stop and the district court’s obligation to sua sponte ensure that the defendant is competent.

In United States v. Harrison, No. 09-2907-cr (2d Cir. May 26, 2010)(Jacobs, Miner, Wesley, CJJ)(per curiam), the court rejected a claim that the police unreasonably prolonged an otherwise lawful traffic stop by questioning the defendant and his passengers about matters unrelated to the basis for the stop. The total time elapsed was only “five to six minutes.”

In United States v. Arenburg, 08-5090-cr (2d Cir. May 25, 2010) (Miner, Cabranes, Wesley, CJJ) (per curiam), a magistrate judge found the defendant competent to go to trial and proceed pro se a few months before trial. But at trial, the defendant behaved quite erratically, blaming MGM studios for conducting illegal drug trafficking in his name, and questioning witnesses about “radio waives” and “microwave channels.” His …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading

Summary Summary

Here are the three latest summary orders of interest.

In United States v. Cabrera, No. 09-2553-cr (2d Cir. May 26, 2010), the defendant argued that claims based on his pretrial motions should not be deemed waived by his guilty plea because the district court did not advise him of this during the allocution. The circuit disagreed: “We have never required that defendants be informed that by pleading guilty they waive the right to appeal defects in the prior proceedings.”

In United States v. Waithe, No. 07-2234-cr (2d Cir. May 19, 2010), the court bounced an Anders brief, then held that defendant’s prior escape conviction under 18 U.S.C. § 751 was not a crime of violence for the purposes of the illegal reentry guideline.

In United States v. Barris, No. 08-4247-cr (2d Cir. May 17, 2010), the court continued to apply the Williams rule precluding mandatory 924(c) sentences when the defendant …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading

Something Barrow-ed

United States v. Oluwanisola, No. 08-4442-cr (2d Cir. May 21, 2010)(Leval, Pooler, Parker, CJJ)

Taking a case to trial after the client has proffered is a difficult thing to do. Most proffer agreements have a clause permitting the government to introduce the defendant’s proffer statements to rebut evidence offered or elicited, or factual assertions made by, the defense. In United States v. Barrow, 400 F.3d 109 (2d Cir. 2005), the court held that such rebuttal clauses apply to all factual assertions, including those made in counsel’s arguments and cross-examination, but are not triggered by arguments that challenge the sufficiency of the evidence. Here, having found that the district court misapplied Barrow at Oluwanisola’s heroin trafficking trial, the court vacated the judgment and remanded the case for a new trial.

The appellate court identified several problems with the district judge’s approach. First, the judge ruled that arguing that specific elements of …

Posted by
Categories: harmless error, proffer agreements, right to counsel, Uncategorized

Posted By
Categories: harmless error, proffer agreements, right to counsel, Uncategorized

Continue Reading