Author Archive | Steve Statsinger

Two more summary orders of interest:

In United States v. Howard, No. 08-0944-cr (2d Cir. October 26, 2009), the court, when considering the denial of a motion to suppress wiretap evidence, questioned whether the district court correctly rejected without a hearing the defendant’s claim that the government illegally began tapping his phone before it obtained a wiretap order. One record was “troubling,” in that it seemed to support the defendant’s claim, and the government’s explanation – that the record was a “data entry error” – was unconvincing. The court noted that “[i]f we were in the district court’s position, we would have conducted a hearing to delve further into this bare explanation,” although it was not an abuse of discretion to decline to do so.

In United States v. Carrasco-Abreu, No. 08-4420-cr (2d Cir. October 20, 2009), the court held that an alien who failed to leave the the country …

United States v. Wright, No 08-0322-cr (2d Cir. October 19, 2009) (Jacobs, McLaughlin, Parker, CJJ)

Here, the circuit held that the admission of defendant McCallum’s two prior drug convictions – which it termed “propensity evidence in sheep’s clothing” – during his federal crack trafficking trial was an abuse of discretion. It also found the error to be harmless, however, and affirmed.

McCallum was a member of a drug crew in Spring Valley, New York. At trial, the government sought to offer into evidence his two prior convictions for possession and attempted sale of cocaine, arguing that they were admissible under Rule 404(b) to show his knowledge and intent. The district court allowed the evidence, but did not explain why it believed it was admissible.

The circuit began by noting that its “inclusionary approach” to Rule 404(b) does not give the government “carte blanche” to offer “any prior act of the …

Here are the two most recent PC’s.

In United States v. Bell, No. 08-5506-cr (2d Cir. October 20, 2009) (Miner, Cabranes, CJJ, Rakoff, DJ) (per curiam), the court reversed the district court’s grant of a new trial under F.R.Cr.P. 33 and remanded the case for sentencing.

After the defendant was convicted of attempted murder of a federal officer, assault and discharging a firearm in connection with those offenses, the lower court concluded that it had given the jury an erroneous definition of the term “intentional” that did not clearly distinguish between intentional and accidental conduct. The circuit disagreed, holding that the district court’s chosen language – that the defendant’s act must have been the product of his “conscious objective rather than the product of a mistake or accident” was not error. The appellate court was equally unimpressed with the district court’s alternative reason for granting a new trial: the uncontested …

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 …