Author Archive | Steve Statsinger

Sunday, December 7th, 2008

Take It To The Banc

United States v. Cavera, No. 05-4591-cr (2d Cir. December 4, 2008) (en banc)

Gerard Cavera pled guilty to participating in a scheme in which guns were purchased in the South then transported to New York City for sale. At sentencing, the district court imposed a sentence six months longer than the top of the Guideline range, and an above-Guideline fine, based on two “location specific” concerns. The court held that firearms offenses are more dangerous in densely populated urban environments and that the need for deterrence was greater because New York’s strict gun laws made it one of the few places where gun-running was profitable.

On Cavera’s appeal, a panel of the court vacated the sentence as procedurally unreasonable (the case was blogged here twice, most recently in October 2007 under the title Location, Location, Location). The circuit then took up the case en banc. Although the court divided deeply …

Posted by Steve Statsinger
Categories: procedural reasonableness, substantive reasonableness, Uncategorized

Posted By Steve Statsinger
Categories: procedural reasonableness, substantive reasonableness, Uncategorized

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Who’s Your Daddy?

United States v. Connolly, No. 06-3139-cr (2d Cir. December 4, 2008) (Straub, Raggi, CJJ, Sessions, DJ)

Odell Connolly was born in Panama on April 21, 1968. His mother was a local, but his father was a United States citizen. They were not married. The father had been drafted into the United States Army in 1966 and was on active duty in the Panama Canal Zone until eighteen days before Connolly was born. After that, he was transferred to the Ready Reserves; he performed no further duty or services for the army, and received no pay or other form of government compensation. Although the army had the right to recall him to active duty, it never did so, and he was discharged in 1972.

Connolly legally entered the United States in 1993, but was deported in 1998 after a drug conviction, without asserting a claim to U.S. citizenship. He reentered illegally …

Posted by Steve Statsinger
Categories: statutory interpretation, Uncategorized

Posted By Steve Statsinger
Categories: statutory interpretation, Uncategorized

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Saturday, December 6th, 2008

Hire Today, Gone Tomorrow

United States v. Lee, No. 05-1684-cr (2d Cir. December 3, 2008) (Straub, Hall, CJJ, Haight, DJ)

Here, a divided panel found that a Crawford error required a new trial for two defendants convicted in a murder-for-hire conspiracy, although the evidence was legally sufficient.

Background

Defendant Williams was the head of a crack-cocaine ring operating in the Bronx. Defendant Lee was one of his dealers. The target of the conspiracy was Kawaine Ellis, who stabbed Lee in the chest in June of 2001. In November of 2001, Williams rented three cars at Newark Airport. Lee was pulled over while driving one of them, and was carrying a gun, which he told the police he had for “protection.” Around that same time, Williams spoke to another member of his crew, Jason Lawton, and told him to return a gun to Williams because Lee had “just got bit,” meaning that he had been …

Posted by Steve Statsinger
Categories: Crawford, harmless error, sufficiency, Uncategorized

Posted By Steve Statsinger
Categories: Crawford, harmless error, sufficiency, Uncategorized

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How Not To Seek A Change Of Counsel

United States v. Salim, No. 04-2643-cr (2d Cir. December 2, 2008) (Newman, Walker, Sotomayor, CJJ)

With the help of a cellmate, defendant Salim, while awaiting trial for the bombing of the United States embassies in Kenya and Tanzania, abducted an MCC guard and stabbed him in the eye with a sharpened comb, nearly killing him. He pled guilty to conspiracy and attempted murder of a federal official. Although Salim had originally claimed that this was a botched escape attempt, at the Fatico hearing, his story changed. He testified that he abandoned the escape plan as unworkable; rather his goal was to take the guard’s keys, unlock the attorney-client visiting room, and attack his attorneys so that they would withdraw from the case. Salim had indeed, on several occasions, unsuccessfully sought a substitution of counsel from the district court.

The district court credited Salim’s story; it held that the assault was …

Posted by Steve Statsinger
Categories: obstruction of justice, terrorism enhancement, Uncategorized

Posted By Steve Statsinger
Categories: obstruction of justice, terrorism enhancement, Uncategorized

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The Waist Band

United States v. Padilla, No. 07-5359-cr (2d Cir. December 2, 2008) (Raggi, Calabresi, CJJ, Keenan, DJ)

October is the cruellest month. That’s when a New York City detective recovered a gun from Hector Padilla’s waistband. Padilla was sentenced to 120 months’ imprisonment, the statutory maximum. On appeal, his principal challenge was to the stop-and-frisk.

The Terry Stop

The detective, who was on surveillance in a “high-crime” area, became suspicious when he saw Padilla and another person following a “skinny,” “disheveled” white male down a secluded wooded path. The officer thought either that the two men were planning to rob the disheveled man or that the three were going to engage in a drug deal together. The officer drove around the block; when he saw the three again they were on the other side of the path and appeared to be walking as a group. This did not dispel his suspicions. …

Posted by Steve Statsinger
Categories: frisk, reasonable suspicion, terry stop, Uncategorized

Posted By Steve Statsinger
Categories: frisk, reasonable suspicion, terry stop, Uncategorized

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Sunday, November 30th, 2008

Embassy Suite

In re Terrorist Bombings of U.S. Embassies in East Africa, No. 01-1535-cr (2d Cir. November 24, 2008) (Feinberg, Newman, Cabranes, CJJ)

This trio of long opinions, captioned In re Terrorist Bombings of U.S. Embassies in East Africa, resolves the appeals of the defendants convicted of the embassy bombings in Kenya and Tanzania in 1998. One opinion deals with trial and sentencing issues, the second deals specifically with Fifth Amendment claims, and the third deals specifically with Fourth Amendment claims. The convictions of all defendants were affirmed, although one defendant asked for, and received, a Fagans remand.

The Trial Opinion

This opinion covers a host of issues, some of which are surprisingly mundane and are treated rather cursorily by the court. A few, however, are more interesting and are discussed here.

1. The Capital Indictment

Defendant Al-‘Owalhi was charged with capital offenses. Although not sentenced to death, he challenged the sufficiency …

Posted by Steve Statsinger
Categories: Fifth Amendment, Fourth Amendment, terrorism, Uncategorized

Posted By Steve Statsinger
Categories: Fifth Amendment, Fourth Amendment, terrorism, Uncategorized

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Saturday, November 29th, 2008

Simply Possession

Alsol v. Mukasey, No. 07-2068-ag (2d Cir. November 14, 2008) (Calabresi, Straub, Raggi, CJJ)

This decision, although an immigration case, clarifies an important legal issue that also arises in criminal cases.

Here, each petitioner had been convicted of two New York State drug misdemeanors involving simple possession of a controlled substance. The immigration courts, relying on the circuit’s decision in United States v. Simpson, 319 F.3d 81 (2d Cir. 2002), held that the second simple possession misdemeanor was a “drug trafficking crime,” and hence an aggravated felony, because such an offense could have been prosecuted as a felony under federal law. The immigration consequences were profound, as each defendant was denied “cancellation of removal,” the only available relief from deportation.

The circuit disagreed, however, and granted the two petitioners relief. The relevant immigration statute, 8 U.S.C. § 1101(a)(43), includes as an aggravated felony any “drug trafficking crime,” a phrase that …

Posted by Steve Statsinger
Categories: aggravated felony, Uncategorized

Posted By Steve Statsinger
Categories: aggravated felony, Uncategorized

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Thursday, November 20th, 2008

Confrontational

United States v. Figueroa, No. 06-1595-cr (2d Cir. November 18, 2008) (Kearse, Sack, Hall, CJJ)

In an interesting companion to Brinson v. Walker [blogged below under the title “Confrontation Claws”], the court treated a highly similar issue, this time under both the Confrontation Clause and the federal rules of evidence.

At Edwin Figueroa’s gun possession trial, he wanted to cross-examine a government witness about the fact that the witness had swastikas tattooed on his body. Since Figueroa was a member of a minority group, he argued that the tattoos would show that the witness was biased. Citing Rule 608, the district court precluded the questioning as inadmissible evidence of “bad character.”

On appeal, the circuit disagreed, holding that precluding the cross-examination violated the Confrontation Clause. “Inasmuch as the tattoos suggested that [the witness] harbored animus against racial or ethnic minority groups and their members, they were relevant to and probative …

Posted by Steve Statsinger
Categories: bias, Confrontation Clause, Uncategorized

Posted By Steve Statsinger
Categories: bias, Confrontation Clause, Uncategorized

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Friday, November 14th, 2008

Summary Summary

This week there were three interesting summary orders:

In United States v. Solano, No. 07-1656-cr (2d Cir. November 14, 2008), the government repeatedly insisted before trial that a detective had not taken notes when he interviewed the defendant. Mid-trial, the government did an about-face and disclosed that the notes had once existed but had been destroyed. The circuit granted the defendant no relief, but did note that the government’s behavior “was far from exemplary. We would expect the government to review their procedures to assure against a repetition.”

In United States v. Johnson, No. 07-5356-cr (2d Cir. November 12, 2008) the court granted a Regalado remand even though the defendant did not ask for one on appeal.

And, in United States v. Medley, No. 06-3204-cr (2d Cir. November 12, 2008), defense counsel did not file a timely notice of appeal, despite his assurances to the client that he would. The …

Posted by Steve Statsinger
Categories: Uncategorized

Posted By Steve Statsinger
Categories: Uncategorized

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Confrontation Claws

Brinson v. Walker, No. 06-0618-cr (2d Cir. November 13, 2008) (Kearse, Leval, Sack, CJJ)

In this state prisoner’s habeas corpus case, the circuit affirmed the grant of the writ because the state court’s refusal to permit the defense to cross-examine a supposed robbery victim about his racial bias violated the confrontation clause.

Brinson, the petitioner, testified at trial that this was not a robbery, but rather a small – ten-dollar – marijuana sale that had gone bad. He had hoped to raise a defense that the witness’ robbery accusation was false, and was motivated by a racial hatred of African-Americans. Defense counsel had a compelling offer of proof: first, he indicated that the witness had refused to serve African-Americans when he worked as a waiter, and that he was prepared to call the victim’s supervisor if the witness denied it. In addition, an acquaintance of the witness was prepared to …

Posted by Steve Statsinger
Categories: bias, Confrontation Clause, Uncategorized

Posted By Steve Statsinger
Categories: bias, Confrontation Clause, Uncategorized

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