Archive | Uncategorized

United States v. Allen, No. 13-0296-cr (2d Cir. Apr. 16, 2014) (Pooler, Parker, and Wesley), available here

United States v. Crandall, No. 12-3313-cr (2d Cir. Apr. 10, 2014) (Walker, Cabranes, and Parker), available here

United States v. Miles, No. 13-1158-cr (2d Cir. Apr. 10, 2014) (Wesley, Carney, and Rakoff) (per curiam), available here

UNITED STATES V. ROSARIO, NO. 12-3963 (2D CIR. APR. 2, 2014) (WESLEY, CARNEY, AND RAKOFF) (SUMMARY ORDER), AVAILABLE HERE

The defendant in this case appealed his jury conviction for conspiracy to distribute and possession with the intent to distribute heroin.  He argued that the evidence was insufficient to support the conspiracy conviction and that other errors denied him a fair trial, including whether the jury should have considered the fact of a prior felony information.  Because the sufficiency claim related to the credibility of cooperating witnesses, the Court deferred to the jury’s credibility determinations and held that the jury had “ample evidence” to find the defendant guilty.

With regard to the prior felony information question, the Court cited the continuing validity of the Supreme Court’s decision in Almendarez-Torres and held that “the fact of a prior felony conviction may be decided by a judge, not a jury, even if that fact …

Here’s a quick summary of noteworthy summary orders recently issued by the Circuit:

United States v. Davis, No. 12-4836-cr (2d Cir. Apr. 2, 2014) (Katzmann, Livingston, and Carter) (summary order), available here

United States v. Marks, No. 12-3788-cr (2d Cir. Mar. 31, 2014) (Parker, Hall, and Livingston) (summary order), available here

This summary order upholds the district court’s decision to …

United States v. Harvey, No. 12-1490-cr (2d Cir. Mar. 26, 2014), available here

Harvey was convicted after a jury trial of one count of illegal re-entry into the United States after he was deported. He argued on appeal that the evidence was insufficient to prove his physical departure from the United States. The Circuit affirmed.

To prove Harvey left the country, the government relied on a 1992 warrant of deportation prepared by an immigration official, which indicated that the official witnessed Harvey depart on a flight from JFK airport to Kingston, Jamaica. That official was unavailable to  testify at Harvey’s 2011 illegal re-entry trial, and the government did not present any other direct evidence that Harvey left the United States in 1992.

Nevertheless, the Circuit held that the evidence permitted a rational juror to conclude that Harvey had in fact left the United States on the date specified in the warrant. The Court ruled …

United States v. Annabi, Nos. 12-4988-cr(L), 12-4990-cr(Con) (2d Cir. Mar. 25, 2014), available here

This published decision holds that where the government fails to invoke an applicable forfeiture provision in the indictment, and fails to correct that error prior to entry of a final judgment, forfeiture must be limited to that authorized by the statute cited as the basis for forfeiture, and of which the defendant had notice.

The facts: A jury convicted Annabi of, among other counts, three counts of mortgage fraud (Counts Seven, Eight, and Nine). The government sought, and the district court ordered, forfeiture of the gross proceeds of the fraudulently obtained loans described in these three counts.

The Indictment sought, on all three counts, forfeiture to the United States, citing the civil forfeiture provision (18 U.S.C. 981(a)(1)(C)), and 28 U.S.C. 2461(c). On  Counts Eight and Nine only, the Indictment also sought forfeiture under the criminal forfeiture provision (18 U.S.C. …

United States v. Gupta, No. 12-4448-cr (2d Cir. Mar. 25, 2014) (Newman, Kearse, and Pooler), available here

Rajat K. Gupta, a former director of The Goldman Sachs Group, was convicted, after a jury trial, of three counts of securities fraud and one count of conspiracy to commit securities fraud, based on insider trading. He was sentenced to 24 months of imprisonment, one year of supervised release, and a fine of $5 million. This published decision affirms the judgment.

Gupta argued on appeal that the trial court (Judge Rakoff) erred (1) by admitting statements of a coconspirator (Raj Rajaratnam), recorded in wiretapped telephone conversations to which Gupta was not a party, and (2) by excluding relevant evidence offered by Gupta.

The Circuit rejected these arguments. It held, first, that Rules 801 and 804 of the Federal Rules of Evidence allowed the admission of Rajaratnam’s recorded statements, both as non-hearsay statements in furtherance of the charged “Rajaratnam-Gupta conspiracy” and under …

United States v. Bussey, No. 13-1180-cr (2d Cir. Mar. 20, 2014) (Raggi, Lynch, and McMahon), available here

This summary was prepared by noted criminal defense attorney Francisco Celedonio, who is also a member of the Board of Directors of Federal Defenders of New York, Inc.:

Bussey appealed his conviction for violating the terms of his supervised release. He argued that the district court lacked jurisdiction because his term of supervision expired before judgment was imposed. The Circuit affirmed.

The facts: Bussey began serving a three-year term of federal supervision on February 9, 2010, upon his release from federal custody for a felon-in-possession conviction. On April 1, 2011, and April 7, 2011, arrests warrants were issued, respectively, by New York State and the United States, for Bussey’s failure to report for state or federal supervision. Bussey was taken into state custody first and remained there until March 8, 2013. He …

PIERRE V. ERCOLE, NO. 12-3506-PR (2D CIR. MAR. 27, 2014) (SACK, LIVINGSTON, AND LOHIER) (SUMMARY ORDER), AVAILABLE HERE

This case involved an ineffective assistance of counsel claim following defendant’s murder conviction.  The defendant argued that his defense lawyer was ineffective for not calling a particular witness at trial and for failing to investigate a possible witness.  The Court disagreed with both arguments. 

The decision whether to call a specific witness, even one that might offer exculpatory evidence, is a question of trial strategy and is not viewed as a lapse in professional representation.  The defendant claimed that the uncalled expert witness could have cast doubt on the state’s pathologist, who opined as to the victim’s date of death.  That date, however, did not coincide with the defendant’s claimed alibi that existed two days later.  According to the Court, the decision to not call the witness was strategic.  It avoided potential cross-examination of the uncalled defense witness by the …

UNITED STATES V. PALMA, NO. 13-2230-CR (2D CIR. MAR. 27, 2014) (SACK, LIVINGSTON, AND LOHIER) (SUMMARY ORDER), AVAILABLE HERE

This defendant claimed that the sentencing court committed procedural error by failing to articulate the reasons for the sentence imposed and not addressing the 3553(a) factors.  On plain error review, the first challenge failed.  The Court explained that even if a sentencing court fails to state in open court the reasons for its sentencing decision, that is not tantamount to establishing plain error.  Moreover, the sentencing court in this case expressly adopted the presentence report, which was detailed.  The report discussed the amount of drugs and money involved in the offense.  The district court even noted the former at the sentencing hearing.  Based upon the totality of circumstances, no plain error existed. 

The Court also disagreed with the 3553(a) claim, noting there is no requirement that the sentencing court mention the factors or explain how each …