In United States v. Ivan Rosario, 2d Cir. No. 18-1994 (L) (Feb. 23, 2021) (per curiam), the Court (Sack, Chin, and Lohier) reaffirmed the longstanding rule that a district court may impose a 2-level obstruction enhancement under U.S.S.G. § 3C1.1, based on the defendant’s allegedly false trial testimony, only if it “make[s] findings to support all the elements of a perjury violation in the specific case,” namely, “that the defendant (1) willfully and (2) materially (3) committed perjury, which is (a) the intentional (b) giving of false testimony (c) as to a material matter.” Op. 6 (quoting United States v. Dunnigan, 507 U.S. 87 (1993) and United States v. Thompson, 808 F.3d 190 (2d Cir. 2015)). This “rigid requirement of fact-finding” ensures “that courts will not automatically enhance sentences whenever the accused takes the stand and is thereafter found guilty.” Op. 5-6. Because “[a]ny sentence …
1. Sufficiency of evidence of sex trafficking involving underage victim
The defendant was convicted, after trial, of several offenses, including sex trafficking of a minor who was less than 14 years old, in violation of 18 U.S.C. § 1591(a) and (b)(1). She moved unsuccessfully for a judgment of acquittal (Fed.R.Crim.P. 29), arguing the evidence didn’t establish she “had a reasonable opportunity to observe” the underage victim as required by 18 U.S.C. § 1591(c). The Circuit affirms the district court’s denial of the Rule 29 motion. Almonte, 2020 WL 1056786 at *1.
Section 1591(c) states that in a prosecution for sex trafficking under § 1591(a)(1), “in which the defendant had a reasonable opportunity to observe the [underage victim] . . ., the Government need not prove that the defendant knew, or recklessly disregarded the fact, that the person had not attained the age of 18 years.” 18 U.S.C. § 1591(c). …
Categories: 3553(a), obstruction of justice, procedural reasonableness, sex offenses, substantive reasonableness
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 …
Categories: 3553(c), evidence, marital communications privilege, Material Support, material support statute, obstruction of justice, official proceeding, sentencing, sentencing allocution, terrorism
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 …
Categories: 3553(c), evidence, marital communications privilege, Material Support, material support statute, obstruction of justice, official proceeding, sentencing, terrorism
United States v. Archer, No. 10-4684-cr (2d Cir. September 20, 2011) (Newman, Calabresi, Hall, CJJ)
Thomas Archer, a solo-practitioner immigration lawyer in Queens, ran a visa fraud mill. His specialty was the I-687, an amnesty program that permitted certain aliens who were here illegally in the 1980’s to adjust their status and receive a visa. In 2004 and 2005, Archer filed nearly 240 I-687 applications; the DHS denied them all.
Convicted of visa fraud and conspiracy to commit visa fraud, his appeal concerned both trial issues – centered around his claim that he did know know that his assistants were filing forms with false information – and sentencing issues. The circuit affirmed Archer’s conviction, but remanded for resentencing and recalculation of the restitution.
The Trial Issues
At trial, an immigration agent who had reviewed 175 I-687 applications that Archer’s office filed, testified that almost all of them had certain suspicious …
Categories: document enhancement, knowledge, obstruction of justice, restitution, Uncategorized, victims
United States v. Wells, No. 10-1266-cr (2d Cir. April 28, 2011) (Kearse, Sack, Katzmann, CJJ)
The defendants here, Wells and Rhodes, both former prison guards, were convicted of covering up the beating of a prisoner at the Queen Private Correctional Facility (“QPCF”). The episode began when the prisoner commented on the appearance of a female guard in Wells’ presence. Wells beat the prisoner, and the beating was witnessed by Rhodes and three other guards. The QPCF immediately began an internal investigation, and the witnesses, at Wells’ urging, filed false reports. Later, Wells and Rhodes were interviewed by an agent of the Office of the Inspector General and lied to her about what happened.
After a jury trial, Wells was convicted of five offenses relating to obstruction of justice, witness tampering and the making of a false statement. Rhodes was convicted of obstruction of justice and making a false statement.
United States v. Byors, No. 08-4811-cr (2d Cir. October 29, 2009) (Cabranes, Livingston, CJJ, Korman, DJ)
Defendant, while ostensibly raising money for a Vermont marble quarry, made material misrepresentations to his investors. He also converted substantial amounts of their money to pay for his personal expenses, including vacation homes, cars and horses. He pled guilty to multiple fraud and money laundering offenses and was sentenced to 135 months’ imprisonment. On appeal, he raised two unsuccessful challenges to his Guidelines calculations.
He first argued that the district court should have deducted from the loss calculation – about $9 million – the “legitimate business expenditures” that went into his efforts to “capitalize” the quarry business. The circuit disagreed. Under the “plain language” of Application Note 3(E) to the fraud guideline, the loss amount is only offset by any “value” that the victims receive, and not by legitimate expenditures. Byors’ expenditures conferred nothing …
United States v. Perez, No. 08-4131-cr (2d Cir. August 3, 2009) (Newman, Pooler, Parker, CJJ)
Here, the circuit concluded that an internal BOP investigation into corrections officers’ use of force against an inmate constituted an “official proceeding” within the meaning of 18 U.S.C. § 1512. The court rejected the defendants’ sufficiency challenge and affirmed their convictions.
The case arose from the beating of an inmate by a CO in an elevator at the MDC. Two other CO’s watched the beating, although one of them finally put a stop to it, and all three were convicted of violating 18 U.S.C. § 1512(c) by making false statements in the paperwork that they were required to fill out by the BOP’s administrative procedures – various “use-of-force” memoranda.
The BOP investigates every use of force by a staff member. That investigation begins with the use-of-force paperwork, which is reviewed by an After-Action Review Committee …
United States v. Salim, No. 04-2643-cr (2d Cir. December 2, 2008) (Newman, Walker, Sotomayor, CJJ)
With the help of a cellmate, defendant Salim, while awaiting trial for the bombing of the United States embassies in Kenya and Tanzania, abducted an MCC guard and stabbed him in the eye with a sharpened comb, nearly killing him. He pled guilty to conspiracy and attempted murder of a federal official. Although Salim had originally claimed that this was a botched escape attempt, at the Fatico hearing, his story changed. He testified that he abandoned the escape plan as unworkable; rather his goal was to take the guard’s keys, unlock the attorney-client visiting room, and attack his attorneys so that they would withdraw from the case. Salim had indeed, on several occasions, unsuccessfully sought a substitution of counsel from the district court.
The district court credited Salim’s story; it held that the assault was …