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Author Archive | Steve Statsinger

Sunday, May 10th, 2009

Summary Summary

There have been five summary orders of interest in the past month or so. Here they are:

In United States v. Al Manware, No. 08-2235-cr (2d Cir. May 4, 2009), the court ordered resentencing on a supervised release violation because the district court did not provide the defendant an opportunity to allocute before imposing sentence.

In United States v. McGowan, No. 08-2603-cr (2d Cir. May 4, 2009), the court found no abuse of discretion in the district court’s permitting hearsay at a supervised release revocation hearing. The declarant was a 12-year-old child victim and the district court “implicitly found” that her age and the “suggestive nature of the offense weighed in favor of not requiring her testimony.” Moreover, the hearsay was trustworthy, since it was supported by “ample circumstantial evidence” such as surveillance photographs and the defendant’s own admissions.

In United States v. Scott, No. 08-1489-cr (2d Cir. April 14, …

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The Pursuit of Happy Ness

United States v. Ness, No. 05-4401-cr (2d Cir. May 8, 2009) (Winter, Calabresi, Pooler, CJJ)

Samuel Ness was convicted of money laundering offenses in connection with his armored car business, which received and distributed millions of dollars in narcotics proceeds. He was sentenced to 15 years in prison. On his first appeal, the circuit affirmed. He then sought certiorari in the wake of Regalado Cuellar v. United States, 128 S.Ct. 1994 (2008), and the Supreme Court vacated the affirmance and remanded the case for further consideration. This time, the circuit found that the evidence was insufficient and reversed the conviction.

Cuellar held that, for transportation money laundering offenses, the government must prove that the defendant’s purpose, “in whole or in part, was to conceal the nature, location, source, ownership or control of the funds.” A showing that a defendant hid funds during transportation is not sufficient to support a conviction, …

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Categories: money laundering, sufficiency, Uncategorized

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Tuesday, May 5th, 2009

Extension Headache

United States v. Vargas, No. 08-1542-cr (2d Cir. May 5, 2009)(Calabresi, Livingston, CJJ, Restani, JCIT)

In connection with a drug conviction, Raphael Varas was sentenced to a five-year term of supervised release. In January of 2008, he pled guilty to a supervised release violation. At his sentencing, the district judge said “the sentence is going to be six months’ home confinement,” and entered a written judgment providing that Vargas “shall be on supervised release for … [s]ix (6) months home confinement and electronic monitoring.” The court made no mention of any supervised release beyond the period of home confinement.

Two months later, however, the court entered an “Amended Judgment” that contained the same six-month period of home confinement but also continued the original five-year term of supervised release. Vargas appealed from the Amended Judgment, arguing that, since the court revoked his supervised release in January, absent a new violation, the …

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Categories: supervised release, Uncategorized

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Sunday, May 3rd, 2009

If You Love Her, Let Her Go

United States v. McGee, No. 07-4509-cr (2d Cir. April 24, 2009)(Leval, Katzmann, Livingston, CJJ)

A Rochester police officer responded to 911 call at defendant McGee’s home. When the officer arrived, he saw McGee running away through the backyard. McGee’s girlfriend was outside the house. She told the officer that she lived there with McGee, but was trying to move out. She had packed her bags and put them on the front porch, but McGee, to prevent her from leaving, had grabbed her bags, put them back inside, locked the door and taken away her keys. She asked the officer to break down the door so she could retrieve her belongings. He refused, but once she proved she really lived there, he let her break in herself.

The officer then accompanied her while she collected belongings. When she observed that McGee stored guns in the front closet, the officer asked for …

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Categories: consent, Fourth Amendment, Uncategorized

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Porn At Home

United States v. Polouizzi, No. 08-1830-cr (2d Cir. April 24, 2009)(Leval, Katzmann, Raggi, CJJ)

Defendant – referred to in the opinion as Peter Polizzi – was convicted by a jury of eleven counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and twelve counts of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), after the jury rejected his insanity defense. Post-trial, he made a Rule 33 motion, arguing that the district court erred by refusing to inform the jury that the receipt counts carried a five-year mandatory minimum. Based in part on a post-verdict colloquy with the jurors that revealed that at least some of them would have accepted the insanity defense had they known of the mandatory minimum, the court granted the motion on the receipt counts only. Both sides appealed.

The Defendant’s Appeal

A. Double Jeopardy

1. Multiple Counts of Possession…

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Categories: child pornography, double counting, mandatory minimum, Rule 33, Uncategorized, waiver

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Caboose of Discretion

United States v. Borden, No. 08-1625-cr (2d Cir. April 22, 2009: amended opinion) (Cabranes, Hall, CJJ, Sweet, DJ)

Every other circuit to consider the question has concluded that a district court’s denial of a crack retroactivity motion under 18 U.S.C. § 3582(c)(2) is reviewed for abuse of discretion. With this decision, the Second Circuit joins the train.

Applying that standard here, the court affirmed. The district court reviewed the relevant records, considered the § 3553(a) factors and cited an appropriate reason – the danger that Borden posed to the community. In light of Borden’s lengthy criminal history, the district court was free to reject the Probation Department’s conclusion that Borden no longer “pose[d] a threat to society.”…

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Khat Red-Handed

United States v. Abdulle, No. 06-3647-cr (2d Cir. April 22, 2009) (Newman, Sotomayor, Katzmann, CJJ)

Defendant Mohamed was convicted of distributing cathinone, the active ingredient in khat leaves, and challenged the sufficiency of the evidence against him. The circuit affirmed.

The difficulty, as always in khat cases, is the complex regulatory scheme for this substance. See Krazy Khat, posted September 27, 2008. Khat itself is not a controlled substance. Cathinone, the stimulant present in the leaves when it is first harvested is a Schedule I controlled substance; cathine, the substance that cathinone turns into after a few days, is a Schedule IV controlled substance and is not always illegal.

Mohamed was specifically charged with trafficking in the Schedule I substance. Thus, the government was required to prove that he knew that he possessed and intended to deal in a controlled substance, and that he in fact possessed cathinone. His sufficiency …

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The Acquittal That Wasn’t

United States v. McCourty, No. 07-3862-cr (2d Cir. April 9, 2009) (Miner, Sotomayor, Katzmann, CJJ)

Background

At McCourty’s drug trial, one of the counts in the indictment alleged that he possessed with the intent to distribute both a quantity of cocaine and more than five grams of crack. The facts underlying this count were unusual: McCourty ran away from some police officers and dropped a bag containing a small amount of both drugs on the street. Twenty minutes late, the officer found him at his grandmother’s apartment wearing a backpack that contained more than five grams of crack.

Before trial, defense counsel noted a duplicity “problem” with this count and asked for a “special interrogatory” to avoid a general verdict that would not reveal the type or quantity of drugs the jury found that McCourty had possessed. The district judge addressed this problem in the verdict sheet, which split the …

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Categories: constructive amendment, double jeopardy, Uncategorized

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Wednesday, April 29th, 2009

Straddle Sore

United States v. Josephberg, No. 07-3958-cr (2d Cir. April 9, 2009) (Kearse, Sack, Katzmann, CJJ)

Background – Multiple Acts of Tax Fraud and Evasion

A “straddle” is a type of tax shelter transaction involving the simultaneous ownership of a contract to buy a commodity for delivery in a future month and a contract to sell the same amount of the same commodity in a different future month. Either the purchase or sale contracts can be sold at a loss. Josephberg’s company sold interests in limited partnerships that invested in such straddle transactions. The partnership owned both contracts to buy and contracts to sell, and each year it would sell the type of contract that had decreased in value, to realize the losses. Individual partners would claim their shares of the losses as deductions on their tax returns for that year, and the partnership would defer the sale of the offsetting …

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Tuesday, April 28th, 2009

Object Permanence

United States v. Marte Robles, No. 07-1013-cr (2d Cir. April 9, 2009)(Straub, Hall, CJJ, Eaton, DJ)(per curiam)

In this case, the court was called upon to construe Application Note 4 to U.S.S.G. § 1B1.2. Section 1B1.2(d) provides that a “conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit.” The application note advises that “[p]articular care must be taken” when applying this subsection because there are cases where “the verdict or plea does not establish” which offenses were “the object of the conspiracy. In such cases, [subsection(d)] should only be applied with respect to an object offense alleged in the conspiracy count” if the court, were it sitting as the trier of fact, “would convict the defendant of conspiring to commit that …

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Sunday, April 26th, 2009

A Small Triumph

United States v. Hertular, No. 07-1453-cr (2d Cir. April 6, 2009) (Straub, Raggi, CJJ, Session, DJ)

Robert Hertular was convicted after a jury trial of running a large-scale cocaine importation ring, obstruction of justice, and misdemeanor assault of a federal officer under 18 U.S.C. § 111. He was sentenced to 400 months’ imprisonment on the drug counts, 120 months concurrent on the obstruction, and 12 months concurrent on the assault. On appeal, the circuit agreed that the evidence was insufficient on the assault count. It reversed that conviction and remanded the case for resentencing.

Background

Hertular was originally arrested by local authorities in Belize, and charged with cocaine trafficking. Once released on bail, he initiated contact with a DEA agent, Vincent Williams, who was stationed in Belize, and expressed an interest in cooperating with American authorities. After two meetings in 2001, Williams told Hertular that the DEA would not use …

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