Author Archive | Steve Statsinger

Here’s a fairly large crop of summary orders of interest.

In United States v. Smith, No. 07-5740-cr (2d Cir. October 8, 2009), the court agreed that it was error to admit a picture of the defendant’s tattoo – which depicted the skull, arms and ribcage of a skeleton firing a weapon – in a homicide case. Other than to show propensity, the evidence was irrelevant. The error, however, was harmless.

In United States v. Jackson, No. 08-0541-cr (2d Cir. October 2, 2009), the court found no error in allowing the government to prove two assaults through hearsay at a supervised release violation hearing. The government justified the hearsay by asserting that the victims were no longer cooperating with the authorities – one had recanted and the other had indicated that she was afraid of the defendant. The court found that the government conclusively demonstrated the reliability of the hearsay.

In …

This set of per curiam decisions deals with mes rea elements.

In United States v. Romero-Padilla, No. 08-1817-cr (2d Cir. October 7, 2009) (Calabresi, Cabranes, Hall, CJJ), the court held that 21 U.S.C. § 959(a), a drug importation statute, requires the government to prove that the defendant actually, as opposed to constructively, knew that a controlled substance he distributed or manufactured would be illegally imported into the United States.

United States v. Grandt, No. 08-1834-cr (2d Cir. October 1, 2009) (Parker, Wesley, CJJ, Murtha, DJ), looked at 18 U.S.C. § 2421, one of the provisions of the Mann Act. This section makes it a crime to “knowingly” transport an individual in interstate commerce with the intent that the individual engage in prostitution. Under Flores-Figueroa v. United States, 129 S.Ct. 1886 (2008), the district court should have charged the jury that it had to find that defendants knew that individuals were …

Here are three more summary orders of interest.

In United States v. Delacruz, No. 08-1192-cr (2d Cir. September 11, 2009), the district court did not inform the defendant of the possibility of a forfeiture during the plea allocution, but still entered a forfeiture order at sentencing. While the allocution error was not enough to warrant vacating the judgment of conviction, the court granted a limited remand so that the forfeiture order could be vacated.

In United States v. Serna, No. 07-5288-cr (2d Cir. September 11, 2009), the court denied an ineffectiveness claim on direct review, instead of deferring judgment and inviting a future 2255 motion, which is its usual practice. Here, the court concluded “beyond any doubt” that the defendant, who avoided a ten-year mandatory minimum through “safety valve” relief, could not establish ineffective assistance of counsel.

In United States v. Valentine, No. 06-2679-cr (2d Cir. August 31, 2009), the …

For your reading pleasure, here are more summary orders of interest:

In two related decisions, both captioned United States v. Salvagno, Nos. 06-4201-cr and 06-4202-cr (2d Cir. August 28, 2009), the defendants, who were father and son, complained of a confict of interest between some of their attorneys – they were employed at the same firm – at sentencing. The circuit concluded that the district court’s Curcio hearing, while “not examplary” was adequate because the conflict was waived by each defendant’s non-conflicted attorney, with the defendants present and “evidently in agreement.”

In United States v. Rodriguez-Nieves, No. 08-0783-cr (2d Cir. August 28, 2009), the court agreed that, where the the defendant was convicted of being the principal administrator of a continuing criminal enterprise (“CCE”) under 21 U.S.C. § 848, his convictions of two lesser included offenses – an underlying drug conspiracy count and a conviction for basic administration of the …

United States v. Hassan, No. 05-6949 (2d Cir. August 21, 2009) (Calabresi, Pooler, CJJ)

Hassan was convicted of three conspiracy counts – (1) importation of a controlled substance (2) distribution of a controlled substance, and (3) money laundering – along with forty-one substantive money laundering counts, in connection with his importation of khat into the United States. In September of 2008, the court of appeals reversed his conviction on the substantive money laundering counts due to insufficient evidence, and remanded for a new trial on all of the conspiracy convictions because of an erroneous jury instruction. See “Krazy Khat,” posted September 27, 2008.

Both sides sought rehearing, and this amended opinion, which deals with the claims raised in the rehearing petitions, supersedes the original without changing the outcome. In the court’s own words, here is the difference between the original opinion and the new one:

[T] his amended opinion replaces …