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Sunday, January 25th, 2009

Hart’s Desire

United States v. Draper, No. 07-2301-cr (2d Cir. January 20, 2009)(Newman, Calabresi, Sotomayor, CJJ)

Defendants Hart and Draper were members of LRP, a drug gang that operated in Brooklyn. In July of 2001, LRP members robbed and murdered a rival. One of the LRP members involved in the killing, Clinton Davy, was picked up and questioned by New York City police officers. Over the next several months, Davy implicated another LRP member, Cory Marcano, ultimately giving information that led to Marcano’s arrest. After Marcano’s arrest, Davy was assaulted on three separate occasions for being a “snitch.”

Relevant to this appeal is the third such beating, which occurred on August 8, 2003. Hart, Draper and other LRP members entered Davy’s apartment and beat him with “a clothing iron, electrical cords, and bleach.” They discussed shooting him too, but the police arrived before they had the chance. Two days later, on April …

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Categories: plain error, retaliation, sufficiency, Uncategorized

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Saturday, December 6th, 2008

Hire Today, Gone Tomorrow

United States v. Lee, No. 05-1684-cr (2d Cir. December 3, 2008) (Straub, Hall, CJJ, Haight, DJ)

Here, a divided panel found that a Crawford error required a new trial for two defendants convicted in a murder-for-hire conspiracy, although the evidence was legally sufficient.

Background

Defendant Williams was the head of a crack-cocaine ring operating in the Bronx. Defendant Lee was one of his dealers. The target of the conspiracy was Kawaine Ellis, who stabbed Lee in the chest in June of 2001. In November of 2001, Williams rented three cars at Newark Airport. Lee was pulled over while driving one of them, and was carrying a gun, which he told the police he had for “protection.” Around that same time, Williams spoke to another member of his crew, Jason Lawton, and told him to return a gun to Williams because Lee had “just got bit,” meaning that he had been …

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Categories: Crawford, harmless error, sufficiency, Uncategorized

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Sunday, October 26th, 2008

A Crime of Violins

United States v. Sprysak, No. 07-3353-cr (2c Cir. October 22, 2008) (Newman, Calabresi, Parker, CJJ)

Adam Potocki was convicted of conspiracy to sell stolen property, a Stradivarius violin that was later determined to be fake. The court of appeals held that the evidence was insufficient on two elements: whether Potocki believed the violin was worth at least five thousand dollars, and whether the offense involved goods that moved in interstate commerce.

Background

Potocki was an associate of Krzysztof Sprysak, who was part of a Brooklyn criminal gang known as the “Greenpoint Crew.” Sprysak called Potocki in December of 2005 to tell him that he might have a Stradivarius violin to sell. He said that the violin had been brought from Europe illegally and was stolen. Potocki agreed to show an antiques dealer a picture of the violin so that it could be appraised, and said that the dealer might be …

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Categories: stolen property, sufficiency, Uncategorized

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The Ecstasy and the Ecstasy

United States v. Ogando, No. 05-0236-cr (2d Cir. October 20, 2008) (Kearse, Calabresi, Sack, CJJ)

Francisco Ogando, a licensed livery cab driver, was convicted of participating in an ecstasy importation and distribution conspiracy. On appeal, the circuit held that the evidence was insufficient.

Background

Angel Gomez, a drug courier, was arrested at Kennedy Airport with ecstasy that he had imported from Belgium, and agreed to cooperate. He told the agents that he was supposed to call “Frank” – defendant Ogando – on arrival. He did so, and Ogando said he was right near the airport. Ogando found Gomez and brought him to his car. They did not discuss drugs, money or where they would be going, and were arrested before they got into Ogando’s car.

Ogando was found to have a cellphone – Gomez had been given that number by his handlers – a business card that mentioned Brussels and …

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Categories: conspiracy, drug distribution, sufficiency, Uncategorized

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Saturday, October 25th, 2008

Slight Change

United States v. Huezo, No. 07-0033-cr (2d Cir. October 14, 2008) (Newman, Walker, Sotomayor, CJJ)

Defendant Huezo was convicted, after a jury trial, of money laundering and money laundering conspiracy. The district court granted his post-verdict Rule 29 motion, and the government appealed. A divided appellate panel reversed. It also, however, unanimously wrought an important change in conspiracy law: an elimination of the so-called “slight evidence” rule.

Background

On November 5, 2004, two of Huezo’s co-conspirators drove from Connecticut to New York in a Jeep registered to Heuzo to discuss delivering $1 million to an undercover agent, who was posing as a money launderer. Three days later, Huezo drove one of them back to New York, opened the trunk from the driver’s seat, and the agent recovered a bag containing half of the money. It was packaged in bundles, as is typical for money laundering transactions. The two men returned …

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Categories: conspiracy, money laundering, sufficiency, Uncategorized

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Sunday, July 27th, 2008

Luggage Wreck

United States v. Leerdam, No. 07-1435-cr (2d Cir. July 18, 2008) (Jacobs, Straub, CJJ, Jones, DJ).

Here, the circuit reversed the convictions of two defendants, Andrea and Julio Lorenzo, who had been convicted in a drug importation and distribution conspiracy, finding that the evidence was legally insufficient.

Background

In July 2005, Francisca Leerdam was recruited to smuggle drugs out of the Dominican Republic. She made three successful trips to the Netherlands, then, in September of 2005, made her first trip to the United States. Her handlers gave her a suitcase, some money, a plane ticket and instructions. She made it through customs at JFK, and eventually met a confederate who took her suitcase and gave her a different one. Later, in Queens, the confederate met up with and spoke to Julio. Leerdam met Andrea, who asked her how it went. Andrea and Julio then took her to a hotel and …

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Categories: intent, knowledge, sufficiency, Uncategorized

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Saturday, April 12th, 2008

For Your Consideration

United States v. Hardwick, No. 04-1369-cr (2d Cir. April 11, 2008) (Winter, Walker, Sotomayor, CJJ)

Glen Hardwick was convicted after a jury trial of conspiracy to commit and aiding/abetting murder-for-hire in violation of 18 U.S.C. § 1958. Virtually all of the evidence of the “consideration” element of the offense came from the plea allocution of Hardwick’s brother, which was admitted into evidence over objection, although not a Confrontation Clause objection. The appellate court held that this Sixth Amendment violation was plain error, but that there was legally sufficient evidence on this element. It accordingly did not reverse the conviction; it vacated and remanded for a new trial.

Facts: Most of the action here involved Glenn Hardwick’s brother, Stacey, who had an ongoing drug and gun trafficking relationship with an undercover police officer. At one point, Stacey contacted the UC and asked him to kill someone who had pulled a gun …

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Categories: Crawford, plea allocution, sufficiency, Uncategorized

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Thursday, April 3rd, 2008

Medicareless

United States v. Wexler, No. 06-1571-cr (2d Cir. April 3, 2008) (Miner, Raggi, CJJ, Rakoff, DJ)

David Wexler was a Manhattan dermatologist who ran a prescription mill. He would prescribe painkillers to patients whom he did not examine or treat, often with the understanding that either the prescriptions or the medications would be sold to others. The prescription mill was also the fuel for an ongoing Medicare fraud in which he would, for these same patients, bill the government for multiple procedures that he did not perform. Wexler was convicted after a jury trial of narcotics and fraud counts and was sentenced principally to 20 years’ imprisonment. On appeal, the majority of a divided panel reversed his conviction on the most serious drug count, concluding that the evidence was insufficient, and remanded the case for resentencing.

Wexler had a patient named Barry Abler, for whom he wrote numerous prescriptions for …

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Categories: conspiracy, sufficiency, Uncategorized

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Tuesday, March 11th, 2008

Another Fine Meth

United States v. Tran, No. 05-5644-cr (2d Cir. March 10, 2008) (Sack, Sotomayor, Hall, CJJ)

Defendant Tran was stopped by customs officers while crossing the border from Canada, ostensibly to go to a casino in New York. Customs agents found several bags of pills hidden in the interior roof lining of his rented car, but Tran repeatedly denied knowing that the drugs were there.

There were more than 40,000 pills, weighing more than 10 kilograms. A chemical analysis of 29 of the pills revealed that they contained ecstasy (in concentrations ranging from 15 to 28%) and d-methamphetamine (in concentrations ranging from 5.6 to 6.9%). At trial, a DEA chemist testified that these tests accurately reflected the amount and percentage of the drugs in all of the pills.

Tran testified, and explained that he did not know that there were drugs in the car. He was convicted, and sentenced to 235 …

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Saturday, October 6th, 2007

GET YOUR STASH HOUSE IN ORDER

United States v. Wilson, Docket No. 05-5985-cr (2d Cir. September 24, 2007) (Jacobs, Katzmann, Hall, CJJ) (per curiam)

This short decision disposes of a sufficiency claim that has not yet arisen in this Circuit relating to “stash house” prosecutions under 21 U.S.C. § 856(a)(2).

Wilson shared two apartments with a drug dealer – the tools of his trade were in open view all over the place. She argued that the evidence was legally insufficient because the government did not prove that she herself intended that the premises would be used for an unlawful purpose.

The Circuit made short work of this. The phrase “for the purpose” in § 856(a)(2) refers to the purpose of the person who is permitted to engage in drug activity in the premise, and not she who permits him. By contrast, § 856 (a)(1) makes it a crime for the person controlling the premises to have …

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