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Archive | double jeopardy

Saturday, March 27th, 2010

A Pattern Emerges

United States v. Basciano, NO. 09-0281-cr (2d Cir. March 23, 2010) (Walker, McLaughlin, Raggi, CJJ)

On this interlocutory appeal, the circuit found that an indictment charging Basciano, who had previously been convicted of racketeering in conducting the affairs of the Bonanno crime family, with a successive racketeering count violated the Double Jeopardy Clause, because both counts alleged the same pattern of racketeering.

Background

1. The 2003 Indictment

Basciano and several co-defendants were originally charged in a 2003 Indictment with racketeering conspiracy and several other counts. The jury convicted Basciano of the racketeering conspiracy, but was unable to reach a verdict on some of the other counts. In preparing to retry him on the 2003 Indictment, the government superseded and added a substantive racketeering count. That count alleged that, from January 1979 through November 2004, Basciano conducted and participated in the conduct of the affairs of the Family through a pattern …

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Sunday, May 3rd, 2009

The Acquittal That Wasn’t

United States v. McCourty, No. 07-3862-cr (2d Cir. April 9, 2009) (Miner, Sotomayor, Katzmann, CJJ)

Background

At McCourty’s drug trial, one of the counts in the indictment alleged that he possessed with the intent to distribute both a quantity of cocaine and more than five grams of crack. The facts underlying this count were unusual: McCourty ran away from some police officers and dropped a bag containing a small amount of both drugs on the street. Twenty minutes late, the officer found him at his grandmother’s apartment wearing a backpack that contained more than five grams of crack.

Before trial, defense counsel noted a duplicity “problem” with this count and asked for a “special interrogatory” to avoid a general verdict that would not reveal the type or quantity of drugs the jury found that McCourty had possessed. The district judge addressed this problem in the verdict sheet, which split the …

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Categories: constructive amendment, double jeopardy, Uncategorized

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Friday, February 6th, 2009

Child-Like

United States v. Irving, No. 07-1312-cr (2d Cir. January 28, 2009)(Kearse, Sack, Raggi, CJJ)

Stefan Irving is a former physician who was convicted, after a jury trial, of child pornography offenses, and several other counts relating to his travel to Mexico and Honduras to engage in sexual acts with children. The district court sentenced him to 262 months’ imprisonment, the top of the Guideline range. A 2005 Second Circuit decision disposed of his trial-related claims. This opinion, which arose in the context of the district court’s decision to adhere to the original sentence after a Crosby remand, disposes of his sentencing claims.

Irving’s Guidelines claims are not particularly interesting. First, he unsuccessfully challenged the district court’s choice of Chapter 2 offense conduct guidelines, but the court’s choices were clearly correct under the relevant instructions in the Guidelines manual.

He also challenged the “vulnerable victim” enhancement, claiming that his victims’ vulnerability …

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Categories: child pornography, double jeopardy, Uncategorized, vulnerable victim

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Friday, November 2nd, 2007

Who’s SORA Now?

Willette v. Fischer, No. 06-1422-pr (2d Cir. October 29, 2007) (Meskill, Newman, Sotomayor, CJJ)

Although the Blog does not regularly report on decisions in state prisoners’ habeas corpus proceedings, this nifty case has relevance to federal criminal practice.

Steven Willette, a convicted sex offender in New York State, was tried and convicted, inter alia, of multiple violations of New York’s Sex Offender Registration Act (SORA). During 1997 and 1998, Willette was living with his girlfriend but, on the four occasions that he was supposed to report his address (SORA prescribed ninety-day intervals), he falsely stated that he was still living with his father. Willette was found guilty of four SORA counts of failing to report change of address. He received a six-month misdemeanor sentence on the first SORA count, and three consecutive felony sentences on the others, for a total of ten and one half to twenty-one years’ imprisonment.

Here, …

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Categories: double jeopardy, multiple punishments, Sex offender registration, Uncategorized

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Saturday, September 29th, 2007

Double Trouble, But Not Double Jeopardy

United States v. Dionisio, Docket No. 06-0908-cr (2d Cir. September 17, 2007) (Calabresi, Wesley, CJJ, Oberdorfer, DJ)

This case presented a question open that the Circuit has never addressed: does jeopardy attach to counts that were dismissed with prejudice by the government pursuant to a plea agreement? Reviewing the framework set by a line of Supreme Court cases, the Circuit concluded that the answer to this question is “possibly, but not here.”

Dioniso pled guilty in 2001 under plea agreement in which the government agreed to dismiss certain racketeering charges with prejudice, and ultimately did so. In 2004, despite its promise, the government indicted him on suspiciously similar charges, and he moved to dismiss the new indictment as a violation of the Double Jeopardy Clause. The district court held that, per se, jeopardy never attaches to a pretrial dismissal.

The Circuit disagreed with this ruling, although not the ultimate outcome, …

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Categories: dismissal, double jeopardy, interlocutory, plea agreement, prejudice, Uncategorized

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Sunday, September 23rd, 2007

Attorney’s Quick Change Of Heart Saves The Day

United States v. Razmilovic, No. 06-4198-cr (2d Cir. August 27, 2007) (Miner, Kaztmann, CJJ, Murtha, DJ).

Here, the district court’s precipitate grant of a mistrial barred the reprosecution of the defendants under the Double Jeopardy Clause.

At the end of a six-week fraud trial, and only 3 days of deliberation, the jury sent out a note, its first of this kind, saying that it was “at a dead lock. We have exhausted all our options.” The only action Judge Wexler took was to ask whether any defendant sought a mistrial. When two defendants so moved, the judge granted it.

Covering well trod ground, the Circuit concluded that there was no “manifest necessity” for a mistrial at such an early point, and thus that the two defendants who objected to the mistrial could not be reprosecuted. The court considered the complexity of the trial, the length of the deliberations, the fact …

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Categories: deadlock, double jeopardy, Fifth Amendment, mistrial, Uncategorized

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