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Wednesday, August 17th, 2016

Bronx Assemblyman’s Conviction and Sentence Upheld

In 2014, a jury convicted Eric Stevenson, a former member of the New York state assembly for the Bronx, of accepting bribes to promote a proposal in the state legislature about adult daycare centers. The district court sentenced him to 36 months of imprisonment and a forfeiture of $22,000. Today the Second Circuit affirmed the conviction and sentence.

The circuit court disposed of all of Mr. Stevenson’s substantive arguments in a summary order. It found it wasn’t arbitrary for the district court to deny the attorney’s two-week adjournment request because 26 days was enough time to prepare for trial. It rejected the argument that Mr. Stevenson’s cross-examination was limited for a witness who had used a racial epithet. And it found the evidence of guilt sufficient.

The court also completely rejected Mr. Stevenson’s sentencing arguments in a separate published decision. Mr. Stevenson argued that increasing his offense level by two …

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Monday, May 16th, 2016

Second Circuit Vacates Sentence Due to Inadequate Factual Determination Regarding Application of the “Otherwise Extensive” Nature of Conduct Enhancement under U.S.S.G. § 3B1.1(a); Affirms Three Convictions in Summary Orders

In United States v. Kent, 14-2082, the Second Circuit vacated a sentence and remanded for resentencing after concluding that the District Court’s application of a 4-level enhancement under U.S.S.G. § 3B1.1(a) was not supported by adequate factual findings.  The district court determined that Mr. Kent was a leader or organizer of criminal activity that was “otherwise extensive” within the meaning of U.S.S.G. § 3B1.1(a)  and applied the 4-level enhancement.  Many of the facts relied upon by the district court in making this determination – including the amount of money Mr. Kent made and the number of victims of the scheme – already were taken into account by enhancements under U.S.S.G. § 2B1.1(b)(1)(H) (the loss amount enhancement) and U.S.S.G. § 2B1.1(b)(2)(B) (the number of victims enhancement).  The Second Circuit explained that relying on loss amount and the number of victims to find that criminal activity was “otherwise extensive” for …

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Categories: conscious avoidance, double counting, sentencing findings

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Sunday, May 3rd, 2009

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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Sunday, February 22nd, 2009

Double Trouble

United States v. Reyes, No. 06-3699-cr (2d Cir. February 19, 2009)(Leval, Cabranes, Livingston, CJJ) (per curiam)

Defendant Reyes participated in the beating of a victim with, amongst other things, a baseball bat. The victim was left with severe brain damage – his wife told the court that he would “never wake up again.”

Reyes pled guilty to assault in aid of racketeering. He faced a sentencing range of ninety-two to 115 months’ imprisonment, which included an enhancement for “permanent or life threatening bodily injury” under U.S.S.G. § 2A2.2(b)(3)(C). At sentencing, however, the district court invoked U.S.S.G. § 5K2.2, which authorizes an upward departure for “physical injury,” and sentenced him to 180 months’ imprisonment.

On appeal, Reyes claimed that the sentence was the result of impermissible “double counting.” The circuit affirmed, reminding that impermissible double counting only occurs when a court acts “in contravention of the applicable statute or Sentencing Guideline.” …

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