Archive | evidence

Wednesday, December 11th, 2019

The Second Circuit issues an amended opinion in United States v. Pugh, No. 17-1889-cr, __F.3d__, 2019 WL 6708812 (Dec. 10, 2019) (“Pugh II”), a material support to terrorism case. As in the initial opinion — that was discussed in this blog on Sept. 3, 2019 — the Circuit affirms the convictions, but vacates consecutive prison sentences (totaling 420 months) as procedurally unreasonable because of the inadequate statement of reasons for the sentences.

Yesterday, the Circuit issued an amended opinion in United States v. Pugh. The initial decision issued on August 29, 2019 (United States v. Pugh, 937 F.3d 108) and was discussed in this blog. See infra, posting of Sept. 3, 2019.

The Amended Opinion reaches the same results as the initial opinion. The Circuit  (1) rules against the defendant on the marital communications privilege, Pugh II, 2019 WL 6708812 at *2-*4 ; (2) finds sufficient evidence of an “attempt” to provide material support to a foreign terrorist organization (18 U.S.C. § 2339B(a)(1)), id. at *4-*6; and (3) finds sufficient evidence of obstruction and attempted obstruction of an “official proceeding” (18 U.S.C. §§ 1512(c)(1),  (c)(2)), id. at *6-*7 ; but (4) vacates consecutive sentences totaling 420 months’ imprisonment because of the inadequacy of the Judge’s explanation for the consecutive sentences. Id. at *8-*12.

The Amended Opinion corrected …

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Categories: 3553(c), evidence, marital communications privilege, Material Support, material support statute, obstruction of justice, official proceeding, sentencing, sentencing allocution, terrorism

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Tuesday, October 1st, 2019

Circuit Affirms Conviction and Sentence for Felon in Possession of a Firearm

In United States v. Wiggins, No. 18-1337-cr, __ F. App’x __ (2d Cir. Sept. 30, 2019), the Court summarily affirmed the defendant’s conviction and 78-month prison sentence for possessing a firearm as a convicted felon. First, the Court rejected the defendant’s argument that suppression was required because the district court improperly authorized a second search warrant of his cellphone despite the absence of probable cause. Even if probable cause was lacking, the Court ruled, the police officers executed the warrant in good faith, such that suppression was not required.

Second, the Court upheld evidentiary rulings: (1) admitting certain text messages; and (2) excluding sweatpants that the defendant allegedly wore at the time of his arrest, police recordings of his arrest, and a summary of those recordings.

The text messages tended to show that the defendant had access to a firearm as recently as a “few weeks” before his arrest …

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Categories: crime of violence, evidence, good faith, search warrant

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Tuesday, September 3rd, 2019

Second Circuit affirms convictions arising from a person’s alleged attempt to join ISIS in Syria. But it vacates consecutive prison sentences (of 420 months) as procedurally unreasonable because of the judge’s deficient statement of the reasons for the sentence.

Second Circuit affirms convictions arising from a person’s alleged attempt to join ISIS in Syria.  But it vacates consecutive prison sentences (of 420 months) as procedurally unreasonable because of the judge’s deficient statement of the reasons for the sentence: United States v. Pugh, No. 17-1889-cr, __F.3d__, 2019 WL 4062635  (Aug. 29, 2019). 

In United States v. Pugh, the Second Circuit rules (against the defendant) on the marital communications privilege. And it finds there was sufficient evidence of an “attempt” to provide material support to a foreign terrorist organization (18 U.S.C. § 2339B(a)(1)), and of obstruction and attempted obstruction of an official proceeding (18 U.S.C. § 1512(c)(1) and (c)(2)).

The Circuit does, however, vacate the (consecutive) sentence because of the inadequacy of the Judge’s explanation. In addition, a separate concurring opinion explicates concern about the overuse of obstruction of justice charges. Pugh, 2019 WL 2019 WL 4062635 at …

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Categories: 3553(c), evidence, marital communications privilege, Material Support, material support statute, obstruction of justice, official proceeding, sentencing, terrorism

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Thursday, August 22nd, 2019

Second Circuit Grants Habeas Relief in State Murder Case Based on Right to Present a Complete Defense

In Scrimo v. Lee, No. 17-3434 (2d Cir. Aug. 20, 2019), the Second Circuit ordered the grant of a writ of habeas corpus, undoing the defendant’s 2002 second-degree murder conviction.

Defendant Paul Scrimo was convicted of second-degree murder following trial in New York state court and sentenced to 25 years to life. Briefly, the defendant was charged with strangling a woman in her apartment early in the morning, after drinking with her and a man named John Kane at various bars. The chief evidence against the defendant was the testimony of John Kane. Kane admitted that he was with the victim and the defendant on the night of the murder, and in the victim’s apartment during the crime. Kane claimed that he saw the defendant strangle the victim after she insulted him.

There was little to corroborate Kane’s account of the murder and, in fact, other evidence pointed to …

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Categories: cumulative impact, evidence, harmless error, right to present a defense; Rule 403, state

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Friday, June 22nd, 2018

SDNY Judge Issues Guidelines Regarding Use of 302 Forms in Criminal Trials

An FYI for counsel who will be cross-examining witnesses in SDNY Judge Katherine B. Forrest’s Courtroom.  Judge Forrest has issued “Guidelines Regarding Appropriate Use of 302 Forms in Criminal Trials.”  You can read the Guidelines here and may need to plan ahead where you need to use a 302 to complete the impeachment of a witness.

In the eight-page document, the Court addresses what it sees as the “most common issues related to the proper use of 302s.”  After discussing how the Federal Rules of Evidence apply to the use of 302s, the Court concludes: “It is clear that statements included in 302s are therefore classic hearsay without — in and of themselves — requisite indicia of reliability.”  Because the Court views mention that the witness’s statements contained in the 302 were written down by an FBI agent as “giving [the statement] an indicia of reliability,” it will preclude counsel …

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Categories: 3500 Material, cross-examination, evidence, impeachment

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Thursday, December 14th, 2017

Second Circuit on the Exclusion Non-Hearsay Evidence Concerning the Advice of Counsel Defense

Yesterday, in a published opinion, the Second Circuit reversed the convictions in an off-label drug importing case because the district court erroneously excluded evidence concerning the advice of counsel defense. The opinion in United States v. Scully, No. 16-3073 (Pooler, Lynch, Cogan (by designation) (appeal from Spatt, J., EDNY) is available here. The opinion touches on hearsay issues that arise beyond the fraud context.

The defendants in Scully were charged with fraud, conspiracy, and drug importation counts resulting from a “parallel importing” scheme: that is, the defendants’ company would import foreign versions of FDA-approved drugs and sell them at a reduced rate. One of the defendants cooperated and, at trial, the other defendant (Scully) advanced an advice-of-counsel defense. The defense sought to introduce evidence of an attorney’s legal advice through Scully’s own testimony, and elicited the following exchange during its direct examination of Scully:

Q. Did Mr.

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Categories: evidence, fraud, hearsay, jury instructions, Uncategorized

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Wednesday, November 23rd, 2016

Engelmayer (SDNY) Finds Juvenile Should Not be Prosecuted as an Adult

No Second Circuit decisions today.

But yesterday there was a decision out of the SDNY on the issue of whether a juvenile should be transferred for prosecution as an adult.

Judge Paul Engelmayer decided that a juvenile who was almost 18 years old at the time he was indicted for committing a number of violent offenses should not be prosecuted as an adult. The decision, United States v. C.F., Male Juvenile (15 Cr 445), can be found here. In it, Engelmayer gives a thorough break-down of the six factors that courts consider in the balancing test laid out under The Juvenile Justice and Delinquency Prevention Act (JJDPA), 18 U.S.C. §§ 5031-504.

Under JJDPA, the court must find that the transfer of a juvenile to adult status is in the “interest of justice.” This “interest of justice” standard is determined by balancing six factors : 1.) “the age and social …

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Categories: evidence, juvenile facility, Y.O.

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Wednesday, April 27th, 2016

In Summary Order, Second Circuit rejects claims that bank records and tax returns erroneously were admitted into evidence, that the government improperly interfered with defense access to witnesses, and that the government made improper statements during summation.

United States v. Tavarez, No. 15-1395 (2d Cir. Apr. 27, 2016) (Katzmann, Cabranes, and Kaplan).

Tavarez was convicted after a jury trial of one count of conspiracy to distribute and possess with intent to distribute cocaine. He argued on appeal that: (1) the district court abused its discretion by admitting Tavarez’s bank records and tax returns into evidence; (2) the government impaired his right to a fair trial by improperly interfering with his access to witnesses, including by not granting them use immunity; and (3) the government’s statements during summation denied him a fair trial. The Court rejected all three claims.

First, the Court agreed with the district court that Tavarez’s bank records were relevant and that their probative value was not outweighed by any risk of unfair prejudice. The evidence showed that Tavarez deposited and withdrew large sums of cash at relevant times, despite reporting no income or …

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Categories: evidence, summation

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Categories: evidence, summation

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Wednesday, April 20th, 2016

Circuit Affirms Convictions of Madoff Co-Conspirators

The Circuit issued no published criminal decisions today. But it did issue three summary orders, including a 30-page decision (does that still qualify as a “summary” order?) affirming the fraud-related convictions of five former employees of Bernie Madoff’s investment company.

  1. United States v. Bonventre, No. 14-4714-cr(L) (2d Cir. Apr. 20, 2016) (Walker, Raggi, and Droney)

Five former employee of Bernard L. Madoff Investment Securities were convicted after trial of multiple counts of conspiratorial and substantive securities fraud, bank fraud, and related charges for their participation in a massive scheme to defraud thousands of investors of tens of billions of dollars. On appeal, the defendants challenged various trial court rulings, the sufficiency of the evidence, the government’s trial conduct, and the judgments of forfeiture. The Court rejected all of their claims.

Bill of Particulars

First, the Court held that the district court did not err by denying a request for …

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Categories: evidence, forfeiture, government misconduct, joinder, sufficiency

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Wednesday, September 10th, 2008

Romeo and “Julie”

United States v. Joseph, No. 06-5911-cr (2d Cir. September 9, 2008) (Newman, Walker, Sotomayor, CJJ)

Dennis Joseph, through an internet chat room called “I Love Older Men,” met “Julie,” an FBI agent posing as a thirteen-year-old girl. He began exchanging messages with her describing sexual acts he wanted to perform with her, and over time, they made a plan to meet at a café in Manhattan. As the meeting date grew closer, Joseph balked, but “Julie” made him promise that he would really show up. He did, and was arrested. In a post-arrest statement, he indicated that he had no intention of having sex with “Julie.”

Joseph was charged with enticement, under 18 U.S.C. § 2422(b). At trial, he pursued a lack-of-intent defense. Both he and his wife described him as having a proclivity for muscular women, and asserted that he used the internet primarily for role-playing purposes. Indeed, Joseph …

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Categories: evidence, jury charge, Uncategorized

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Thursday, February 7th, 2008

Dismembers Only

United States v. Pepin, No. 06-1462-cr (2d Cir. February 6, 2008) (Walker, Calabresi, Sack, CJJ)

Humberto Pepin is awaiting a capital trial in the Eastern District of New York, where he is charged, inter alia, with murdering two individuals who crossed him, in ways real or imagined, in the course of his drug dealing enterprise. In a series of pretrial rulings, Judge Weinstein (1) precluded from the penalty phase evidence that Pepin had abused his girlfriend’s children and (2) precluded from both the guilt and penalty phases evidence that Pepin dismembered his victims after he killed them. The government appealed, and the circuit affirmed on the child abuse, but reversed on the dismemberment.

Child Abuse

Judge Weinstein held primarily that the evidence of the child abuse, a non-statutory aggravator, was not relevant to future dangerousness, the theory relied on by the government in the death notice. The judge reasoned that, …

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Categories: death penalty, evidence, Rule 402, Uncategorized

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