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Wednesday, August 19th, 2020

Circuit Reverses Convictions For Aiding And Abetting VICAR Murder For Insufficient Evidence

In United States v. Anastasio, the Circuit (Carney, joined by Jacobs and Pooler), reversed two convictions for aiding and abetting VICAR murder, 18 U.S.C. § 1959(a)(1), for insufficient evidence. Specifically, the Circuit held that Anastasio undertook no affirmative act that facilitated the murders; he had merely been in the company of the murderers, without offering any assistance, before and after (but not during) the shootings.

Anastasio was a member of the 10th Street Gang in Buffalo. Members of a rival gang shot and injured the brother of a 10th Street member, Delgado. Later that day, 10th Streeters, including Anastasio, beat someone they believed belonged to the rival gang. Still later that day, 10th Streeters, again including Anastasio, met at an apartment to discuss further retaliation. Delgado told those present of his plan to shoot at members of the rival gang and instructed everyone present to find guns. Several did …

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Categories: aiding and abetting, Batson, RICO

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Circuit Vacates LWOP Sentence Based On Inadequate Consideration Of Juvenile Offender’s Age

In United States v. Delgado, the Circuit (Pooler, joined by Jacobs and Carney) vacated a life sentence imposed on a 17-year-old convicted of two murders, on the ground that the district court had failed to give the requisite consideration to the defendant’s age, as required by Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

Delgado was a gang member in Buffalo. A rival gang shot and injured Delgado’s brother. In retaliation, Delgado attacked members of the rival gang, but wound up shooting and killing two bystanders instead. He was 17 at the time. After a jury trial, Delgado was convicted of multiple offenses arising from his long-term gang membership, including RICO conspiracy (predicated in part on the murders), drug conspiracy, and § 924(c). The district court (Arcara, WDNY) sentenced him to life.

The Circuit vacated the life sentence. The …

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Categories: 3553(a), 924(c), Batson, bruton, RICO

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Thursday, June 27th, 2019

Supreme Court Debrief: Flowers v. Mississippi

In Flowers v. Mississippi, the Supreme Court ruled 7-2 that death-row inmate Curtis Flowers’ criminal trial was affected by racial discrimination.  You can read more about the case here.

Georgetown Professors Abbe Smith and Vida Johnson of Georgetown Law’s Criminal Defense & Prisoner Advocacy Clinic, two career criminal defense attorneys, have recorded a video exploring the Flowers case, its implications and how criminal defenders and prosecutors should approach jury selection going forward.

You can watch the video here.…

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Categories: Batson, bias, jury selection, Uncategorized

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Monday, June 24th, 2019

The Supreme Court reverses death sentence for State inmate because of violations of Batson v. Kentucky (proscribing racially based exercises of peremptory challenges in jury selection): Flowers v. Mississippi, No. 17-9572, __S.Ct. __, 2019 WL 2552489 (June 21, 2019).

In Flowers v. Mississippi, No. 17-9572, __U.S.__ , 2019 WL 2552489  (June 21, 2019), the Court reversed a death sentence because of a violation of Batson v. Kentucky, 476 U.S. 79 (1986), which prohibits the racially discriminatory use of peremptory challenges.

Curtis Flowers was tried in six separate trials, by the “same lead prosecutor” for an offense that occurred in 1996. The first trial was reversed for prosecutorial misconduct; the second and third trials involved judicial findings of Batson violations;  and after the fourth and fifth trials resulted in hung juries, in the sixth trial, the prosecutor struck five of the six black prospective jurors, and Flowers was convicted. Op. at 1-2.  In a 7-2 decision, authored by Justice Kavanagh, the Court reversed the decision of the Mississippi Supreme Court affirming the conviction.

The Court cited four critical facts that taken together required reversal. “First, in …

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Categories: Batson, government misconduct, jury selection

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Saturday, October 2nd, 2010

Gender Contender

United States v. Paris, No. 08-5071-cr (2d Cir. September 17, 2010) (Jacobs, Wesley, Chin, CJJ)

This interesting Batson decision deals with gender-based peremptory challenges, a subject that the circuit has not previously discussed.

Background

For about five years, Dennis Paris ran a multi-state prostitution ring centered in the Hartford, Connecticut, area and recruited teenage girls to work for him. He was charged with criminal sex trafficking and conspiracy offenses, and took the case to trial.

Before jury selection, his attorney notified the district court that Paris would exercise peremptory challenges primarily against women, because he believed that male jurors would be “fairer to Mr. Paris than female jurors will be.” Sure enough, after the challenges for cause were resolved, Paris used his first four peremptory challenges against women. When the government registered a Batson objection, defense counsel conceded that gender was “absolutely” one of the reasons for the strikes.

The …

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Monday, January 19th, 2009

Habeas Corpulent

Dolphy v Mantello, No. 03-2738-pr (2d Cir. January 9, 2009) (Jacobs, Hall, CJJ, Arcara, DJ)

At Seth Dolphy’s state-court criminal trial, the prosecutor exercised a peremptory challenge against the only African-American member of the jury panel, and Dolphy raised a Batson challenge. The prosecutor’s supposedly race-neutral explanation for striking the juror was that she was overweight: “[B]ased on my reading and past experience, … heavy-set people tend to be very sympathetic toward any defendant.” When the judge asked him if he was “saying that race had nothing to do with it,” the prosecutor agreed. The defense again objected, noting that the same prosecutor had allowed overweight people on juries in other cases. The judge sustained the strike, holding that “I’m satisfied that is a race neutral explanation, so the strike stands.”

Once his conviction was affirmed in the New York State courts, Dolphy filed a pro se § 2254 petition …

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Friday, June 6th, 2008

Nostab

United States v. Todd, No. 05-5525-cr (2d Cir. June 5, 2008) (per curiam)

In this “reverse-Batson” decision, the court upheld the district court’s decision to re-seat a white juror against whom the defendants, all members of minority groups, had exercised a peremptory challenge. The court found no clear error in the district court’s conclusion that the challenge was based on the juror’s race.

Specifically, the circuit agreed that the defendants’ concern that the brother of the juror’s fiancé was a police officer was unjustified because (1) the juror said that this would not affect her and (2) the defense had accepted a Latino juror whose brother was a retired undercover officer. The court also rejected the defendants’ claim that the juror’s residence in Westchester County was a basis for the challenge. That juror lived in Yonkers, which the defense conceded was “more like the Bronx than Westchester” and, in any …

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