Author Archive | Yuanchung Lee

United States v. Roman Nektalov, Docket No. 05-2780-cr (2d Cir. Aug. 25, 2006) (Meskill, Cabranes, Wesley): This is a fascinating opinion — maybe too interesting for a Friday afternoon. The issue is whether the conscious avoidance doctrine — under which a defendant can be held liable for his “knowledge” of fact X upon a finding that s/he was “aware of a high probability of” fact X’s existence and “consciously avoided confirming that fact,” United States v. Aina-Marshall, 336 F.3d 167, 170 (2d Cir. 2003) — applies in a sting operation leading to a charge of money laundering, where it is the defendant’s belief, rather than his knowledge, that is critical. The Circuit upheld Nektalov’s conviction, holding principally that the district judge properly charged the jury that it can convict the defendant if he consciously avoided “believing” that the cash he was dealing with were proceeds of drug trafficking.…

United States v. Park, Docket No. 05-6158-cr (2d Cir. Aug. 25, 2006) (Cabranes, Straub, Hall): We’re not sure why the Circuit felt the need to publish this opinion in light of Castillo, but what’s a few more trees felled for the cause of justice? In Castillo, the Circuit held that “a non-Guidelines sentence imposed simply because a district court disagreed with the 100:1 ration [is] unreasonable.” Op. 7. Here, the Court confronts “the related question of whether the imposition of a Guidelines sentence for a crack offense is per se unreasonable as a result of the 100:1 ratio,” where the Guidelines range was determined by the fact that crack (as opposed to power) was involved and where the judge imposed a sentence within that range. Id.

And the answer should be obvious in light of Castillo (indeed, one would think that the answer follows necessarily …

United States v. Osameh Al Wahaidy, Docket No. 05-4770-cr (2d Cir. Aug. 24, 2006) (Leval, Jacobs, Rakoff): This case concerns the constitutionality of the International Emergency Economic Powers Act (“IEEPA”), which authorizes the President to regulate financial transactions with foreign countries (or nationals) in times of security crisis and prescribes penalties for violations of executive orders or regulations issued by the President. Defendant was convicted under IEEPA of violating two presidential orders (issued by Bush the First following Iraq’s invasion of Kuwait in 1990) prohibiting transfers of money to persons in Iraq (he transferred approximately $100,000 to persons in Iraq in 1999 and 2000).

Defendant argued that the charges against him must be dismissed because IEEPA unconstitutionally delegates Congress’s authority to define criminal offenses to the President. The district court disagreed, and the Circuit affirms.

The Circuit relied principally on Touby v. United States, 500 U.S. 160 …

Disimone v. Phillips, Docket No. 05-6893-pr (2d Cir. Aug. 22, 2006) (Miner, Calabresi, Restani): In this decision, the Circuit (1) reverses the district court’s grant of habeas based on insufficiency of the evidence (on the ground that Disimone failed to raise an insufficiency claim to the state appellate courts and cannot demonstrate cause and prejudice for the procedural default), but (2) remands for further fact finding on Disimone’s Brady claim (specifically, whether defense counsel knew or had reason to know of a witness’s exculpatory statement), which the district court summarily rejected in light of its grant of habeas on insufficiency. Judge Calabresi’s opinion discusses many distinct issues, but this Blog will focus on its fine discussion of the prosecutor’s failure to abide by his obligations under Brady.

The essential facts are these. The victim was stabbed to death during a late-night fight outside a Yonkers nightclub involving …

United States v. Mejia, Docket No. 05-3903-cr (2d Cir. Aug. 22, 2006) (Jacobs, Parker, Oberdorfer): In holding that a sentencing court has no authority to reconsider or reject the Guidelines’ 100:1 treatment of powder vs crack cocaine, the Circuit last week in Castillo specifically rejected the defendant’s argument that § 3553(a)(6) — instructing district courts to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct” — permitted a sentencing court to impose a non-Guidelines sentence when it believed that a Guidelines sentence would produce an unwarranted disparity. The Court explained that “[w]hile the 100:1 ratio clearly produces a disparity, it is one that Congress has mandated [and] one that Congress has continually refused to alter . . . .” Op. 35-36.

More bad news today: In Mejia, litigated by Deirdre von Dornum of this …

United States v. Castillo, Docket No. 05-3454-cr (2d Cir. Aug. 16, 2006) (Katzmann, Sack, Murtha): To those who had hoped that our fair Circuit would have more sense than the First, Fourth, and Seventh Circuits, … think again. In Castillo, the Second Circuit follows those Circuits in vacating and holding unreasonable a sentence based solely on the district court’s policy disagreement with the Guidelines’ 100:1 treatment of powder -vs- crack cocaine. While the Circuit left open the possibility of sentencing “adjustment[s] [based upon] the particularities of the individual defendant or the specific offense,” the same suggestion made in United States v. Anati, Docket No. 05-3800 (2d Cir. July 20, 2006), it firmly concluded that “district courts do not have the authority to reject unilaterally the 100:1 ratio on policy grounds.” Op. 2-3. Click here and here for Professor Berman’s stinging critique of Castillo.…

My lengthy vacation has ended recently, and thus this Blog will soon resume its normal activity. Thank you for your patience and continued interest.…

United States v. Peter Gotti et al., Docket Nos. 04-2746-cr (L) (2d Cir. July 12, 2006) (Katzmann, Feinberg, Lynch (D.J.)): In this 94-page opinion affirming the convictions of numerous members of the Gambino crime family, the Circuit principally holds that the Supreme Court’s decision in Scheidler v. National Org. for Women, Inc., 537 U.S. 393 (2003), “leav[es] intact this Circuit’s precedent that intangible property rights can qualify as extortable property under the Hobbs Act” and “simply clarif[ies] that before liability can attach [under the extortion prong of the Hobbs Act], the defendant must truly have obtained (or, in the case of attempted extortion, sought to obtain) the property right in question.” Op. 45; see also id. 3 (“[F]ar from holding that a Hobbs Act extortion could not be premised on the extortion of property rights,” Scheidler “simply clarified that for Hobbs Act liability to attach, there …

Finkelstein v. Spitzer, Docket No. 05-4725-pr (2d Cir. July 11, 2006) (Kearse, Sack, Stanceu (by desig’n)) (per curiam): This short opinion confirms the rule, adopted by other Circuits that have addressed the question, that the writ of error coram nobis (filed via the All Writs Act, 28 U.S.C. § 1651) may not be used in federal court to attack a state court judgment. This is so because the writ was available at common law only to “a court in cases within its own jurisdiction, not to correct errors in other jurisdictions.” Op. 5. Thus, the district court properly rejected Finkelstein’s coram nobis writ seeking to set aside his state court fraud conviction.…

Levine v. Apker, Docket No. 05-2590-pr (2d Cir. July 10, 2006) (Calabresi, Raggi, Murtha (by desig’n)): This is a great victory for the defense. The Court, by Judge Calabresi and with Judge Raggi dissenting, holds that the BOP exceeded its statutory authority when it promulgated a February 2005 rule categorically limiting the amount of time that a defendant can serve at a halfway house (or “community confinement center”) to a maximum of the greater of either 6 months or 10% of the defendant’s total sentence. Under 18 U.S.C. §§ 3621(b) & 3624(c), the Circuit holds, the BOP must consider the statutorily listed factors (e.g., the resources of the facility, the nature of the offense, and the history and characteristics of the offender) before determining whether a particular form of confinement is appropriate and for what period of time. The Court joins the Third and Eighth …

United States v. Jerrell Heath, Docket No. 04-4599-cr (2d Cir. July 10, 2006) (Calabresi, Cabranes, Hall (by desig’n)): The majority opinion by Judge Calabresi has the unusual vice of being both legally suspect and factually wrong. In a case where the Circuit role-plays as the Supreme Court – Judge Cabranes joins only in Part II of Judge Calabresi’s Opinion (and dissents from Part III) while District Judge Hall joins only in Part III of the Opinion (and dissents from Part II)) – the clearest conclusion is the practical outcome: The district court’s decision granting Heath’s suppression motion (on the ground that the police lacked probable cause to arrest – and then search — him) is vacated, and the case is remanded for further fact-finding on whether the police would have inevitably discovered the $3,073 in cash found on him (because other “facts” coming to light after the …