Author Archive | Yuanchung Lee

Sunday, March 4th, 2007

Statute Prohibiting Forgery of Judicial Signature or Seal Does Not Require Proof of Intent to Defraud

United States v. Reich, Docket No. 06-1445-cr (2d Cir. Mar. 2, 2007) (Kearse, Sotomayor, Koeltl): This opinion principally holds that 18 U.S.C. § 505, which makes it a crime to “forge[] the signature of any judge … of any court of the United States … or forge[] or counterfeit[] the seal of any such court . . . ” does not require proof of an intent to defraud. This holding aligns the Second Circuit with the Tenth, see United States v. Cowan, 116 F.3d 1360 (10th Cir. 1997), and against the Sixth, see Levinson v. United States, 47 F.2d 470 (6th Cir. 1931). The Circuit’s lengthy exegesis of why this is so, see Op. 13-18, is interesting for those who care about this issue.

The opinion also unsurprisingly holds, though technically as a matter of first impression in this Circuit, that the particular version of the …

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Saturday, March 3rd, 2007

Standard Appellate Waiver Does Not Bar Appeal of District Court’s Decision re Concurrency

United States v. Stearns, Docket No. 05-2550-cr (2d Cir. Mar. 2, 2007) (Calabresi, Parker, Hall) (per curiam): This short opinion principally confirms, as a general matter, that appellate waivers must be narrowly construed (and in the defendant’s favor) and, more specifically, that a standard appellate waiver (wherein the defendant “waives the right to appeal … any sentence imposed by the Court which is the same as or less than” a specific number of months or years) does not bar an appellate challenge to the district court’s decision to run the federal sentence only partially concurrent to an undischarged state sentence. Op. 4-5. The Circuit had previously held the same in United States v. Williams, 260 F.3d 160, 164-65 (2d Cir. 2001), and United States v. Brown, 232 F.3d 44, 48 (2d Cir. 2000).

Moreover, for purposes of determining the scope of the appellate waiver, it did …

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Thursday, March 1st, 2007

Yet Another Time-Warp Opinion

United States v. Capanelli, Docket No. 05-3056-cr (2d Cir. Mar. 1, 2007) (Jacobs, Sack, Oberdorfer) (per curiam): This opinion follows the Rattoballi line of cases, which emphasize the continuing centrality of the Guidelines in sentencing despite Booker. The panel rejects Capanelli’s claim that his sentence must be vacated as procedurally unreasonable because the district court “gave complete deference to the guidelines” at sentencing. Op. 4. Among other things, the district judge, while repeating the “of course the Guidelines are now advisory” mantra, stated that the Guidelines should be “given significant and substantial deference” at sentencing.

No problem!, this panel says, because the Guidelines range “‘should serve as a ‘benchmark or a point of reference or departure’ for a sentencing court,” (emphasis in original) and because

“A sentencing judge’s decision to place special weight on the recommended guideline range will often be appropriate, because the Sentencing …

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Wednesday, February 7th, 2007

No Error in Indictment’s Failure to Allege Materiality in Bank Fraud Prosecution

United States v. Dayan, Docket Nos. 05-3443-cr (L), 05-4199-cr (CON) (2d Cir. Feb. 5, 2007) (Kearse, Winter, Walker): This short opinion rejects Dayan’s claim that his indictment, charging him with conspiracy to commit bank fraud and several substantive counts of bank fraud, was defective because it failed to state that his frauds were “material,” an element of the offense. In Neder v. United States, 527 U.S. 1, 25 (1999), the Supreme Court ruled that although the bank fraud statute, 18 U.S.C. § 1344, does not contain the word “material,” materiality was nonetheless an element of the offense “because the word fraud incorporated fraud’s ‘well-settled meaning at common law’ — a ‘misrepresentation or concealment of material fact.'” Op. 5 (quoting Neder) (emphasis in original). Using the same reasoning, the Circuit rejects Dayan’s claim: “If materiality can be inferred to be an element of criminal fraud because of …

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District Court’s Task Is Not to Impose a “Reasonable” Sentence

United States v. Williams, Docket Nos. 05-4928-cr (L) & 05-4956-cr (2d Cir. Jan. 30, 2007) (Winter, Cabranes, Korman): The only item worth noting in this opinion, in which both defendants appeal the district court’s refusal to resentence them following a Crosby remand, is the Circuit’s reminder to district judges that their task at sentencing is not to impose a “reasonable” sentence, but rather a sentence that (1) takes into account all the § 3553(a) factors, and (2) is no greater than necessary to promote the ends of sentencing. Op. 12. As the Court states in a quotable line, “district courts are to impose sentences pursuant to the requirements of § 3553(a) — including the requirements of § 3553(a)’s parsimony clause — while appellate courts are to review the sentences actually imposed by district courts for reasonableness.” Id. Reminding district courts of this distinction may not make a difference …

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Wednesday, January 31st, 2007

Fight the Power … Fight the Power that B(OP)

Our colleague Steve Sady of the Federal Public Defender Office in Oregon has prepared another extremely useful resource, this time discussing BOP issues affecting our clients before and after sentencing. The memo discusses, among other things, the status of litigation concerning the BOP’s view of halfway house placement, the calculation of good-time credit, and eligibility for § 3621(e)’s one-year sentence reduction for completing a residential substance-abuse treatment program.

Click here for a PDF copy of this very useful document. And print out an extra copy for your favorite litigious client!…

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Prosecutorial Gamesmanship Deemed Sleazy but Harmless

United States v. Chin, Docket No. 06-1048-cr (2d Cir. Jan. 30, 2007) (McLaughlin, Sack, Rakoff): This is yet another instance in which the Court scolds a prosecutor for sleazy misconduct at trial, but then renders its bite toothless by deeming harmless the misdeed. I suppose this is better than simply overlooking the misconduct, as the Court often does, but then I’m not the one who has to do the time.

Chin was charged with pretending to be an INS officer and defrauding aliens by telling them that he could obtain U.S. visas for them for a fee. To prove his guilt, the Government offered victim witnesses who said that they met with the defendant in China on particular dates. In his defense, Chin attempted to introduce into evidence credit-card receipts, complete with his signature, showing that he was actually in New York on the those same dates. The …

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Wednesday, January 24th, 2007

Proof of Defendant’s Predisposition (to Rebut Entrapment Defense) Is Not Same as Proof that Defendant Had the Requisite Intent / Mens Rea

United States v. Taylor, Docket No. 05-6764-cr (2d Cir. Jan. 23, 2007) (Calabresi, Wesley, Rakoff) (per curiam): The Court affirms Taylor’s sentence, rejecting his claim that remand for resentencing was required because the district judge denied him acceptance-of-responsibility credit on the basis of an erroneous legal ruling that Taylor’s assertion of an entrapment defense at trial was equivalent to a denial of criminal intent to commit the underlying crime. (NB: Darrell Fields of this Office litigated the case on appeal). The Panel affirms the sentence by skirting the ultimate legal question — i.e., whether assertion of an entrapment defense precludes the possibility of acceptance credit under U.S.S.G. § 3E1.1, a question on which the Circuits have split, see Op. 7-8 — in favor of a somewhat dubious finding that the district court actually denied acceptance credit on the basis of other, undeniably proper considerations. Op. 5.…

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Panel Revisits Guidelines-Land

United States v. Trupin, Docket No. 05-2934-cr (2d Cir. Jan. 23, 2007) (Wesley, Hall, Jones): The real sentencing action is occurring elsewhere, of course, but someone has to report the news from the provinces. This opinion is bad news indeed, but may become irrelevant by June. Keep your fingers crossed.

Here, on a Government appeal of the 69-year-old tax-cheat defendant’s 7-month prison sentence, a Panel of the Circuit vacates the sentence as substantively unreasonable — i.e., “too darn short for our particular taste.” The opinion is fact specific, to be sure, but also portends a broader view of sentencing (at both the district and Circuit levels) quite familiar to most — the pre-Booker, mandatory Guidelines regime in which sentences outside the Guidelines range were presumptively suspicious and lawful only where exceptional circumstances exist. Also, nowhere seen is the deferential, hands-off appellate posture announced …

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Wednesday, January 10th, 2007

Another Sign of SDNY-Centrism?

LoCascio v. United States, Docket No. 05-6761-pr (2d Cir. Jan. 9, 2007) (Cardamone, Straub, Koeltl) (per curiam): There is little of interest in this fact-specific opinion, which principally rejects LoCascio’s (the co-defendant of the senior John Gotti, RIP) motion to recuse Judge Glasser from deciding his § 2255 petition (based principally on a claim that his attorney suffered from an actual conflict at the trial because Gotti threatened to kill the attorney if he did anything adverse to Gotti’s interests). But we must point out that the Circuit errs, twice, in describing this as an appeal “from the judgment of the United States District Court for the Southern District of New York (I. Leo Glasser, Judge).” Op. 1 & 2 (emphasis added). Last we checked, Judge Glasser sits in the EDNY, and the underlying trial — starring the notorious Sammy “the Bull” Gravano as Government Snitch No. …

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Monday, January 8th, 2007

Denial of Motion to Dismiss for Untimeliness of Death Notice Not Appealable under Collateral Order Doctrine

United States v. McGriff, Docket No. 06-2014-cr (2d Cir. Jan. 5, 2007) (Parker, Wesley, Hall): In a matter of first impression in this Circuit, the Court holds here that a district court’s denial of the defendant’s motion to strike the Government’s death notice for untimeliness under 18 U.S.C. § 3593(a) is not immediately appealable under the collateral order exception to the final judgment rule. The Court rejects McGriff’s effort to characterize the right conferred by § 3593(a) — requiring the Government to notify a defendant of its intent to seek the death penalty, and the aggravating factor(s) justifying such a sentence, at “a reasonable time before the trial or before acceptance by the court of a guilty plea” — as a right “not to stand trial for a capital offense except upon adequate notice.” Op. 7. Rather, the Court explained that the protection offered by § 3593(a) …

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