Author Archive | Steve Statsinger

This has been a busy week in the circuit, and not just for published opinions. There are also three summary orders of interest.

United States v. Harrington, No. 09-1160-cr (2d Cir. March 23, 2010), has two noteworthy features. First, at this gun possession trial, the district court allowed the defense to present evidence of, and charged the jury on, “innocent possession,” in light of the defendant’s claim that he possessed the gun only to turn it in to the city’s “Toys for Guns” program. Second, the circuit noted that it was error, albeit harmless, to admit, under Rule 404(b), evidence of a prior robbery conviction to rebut this defense, where the certificate of conviction did not indicate that a firearm was used in the robbery.

United States v. Townsend, No. 09-1283-cr (2d Cir. March 25, 2010), considered whether evidence used against the defendant at a supervised release violation hearing was …

Here are two more interesting summary orders.

In United States v. Spivack, No. 08-6091-cr (2d Cir. March 18, 2010), the prosecutor allowed a government witness to testify falsely that the defendant was a pedophile. The court characterized this as “outrageous” and as “severe misconduct.” But here, in light of the measures adopted to cure the misconduct and the certainty of conviction in the absence of the misconduct, Spivack was not prejudiced. The court also noted that some of the prosecutor’s comments about the nature of the child pornography in the case were “troubling” given their relationship to the false testimony, but did not rise to the level of misconduct, and that the prosecutor’s closing references to Lolita were “more problematic” – they had no purpose “other than to inflame the jury” – but did not amount to a due process violation.

In United States v. Gjidija, No. 07-3546-cr (2d Cir. …