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Tuesday, January 21st, 2014

Evidence Insufficient To Prove Possession of Cocaine

United States v. Clark, No. 12-1221-cr (2d Cir. Jan. 17, 2014) (Newman, Winter, and Droney), available here 

This published decision holds that the trial evidence was insufficient to support the defendant’s conviction for possession of cocaine. Judge Droney dissents.
In response to a 911 call reporting that some men had just left a bar in Lockport, New York, in a white Jeep Cherokee after trying to “jump somebody,” the police found Clark and three others sitting in the Cherokee. They discovered a firearm in the vehicle and arrested Clark. The police placed Clark, alone, in the rear compartment of a police cruiser; he was handcuffed securely behind his back. Though Clark was patted down, no drugs or drug paraphernalia were found. But after Clark was brought to the police station, the police found crack cocaine in the police car between the back of the back-seat cushion and the
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Monday, January 20th, 2014

Seven-Year Resentencing Delay Did Not Violate Due Process

United States v. Kurti, No. 12-3503-cr (2d Cir. Jan. 16, 2014) (Winter, Straub, and Hall) (summary order), available here

This summary was provided by noted criminal defense attorney Francisco Celedonio, who also serves on the Board of Directors of Federal Defenders of New York, Inc.:
This summary order affirms a sentence imposed upon resentencing, after a seven-year delay from the original remand from the Circuit. Kurti argued that the delay violated due process, and also challenged the substantive reasonableness of his sentence. The Circuit held that the delay alone (some of which was occasioned by Kurti) was insufficient to warrant relief, and that Kurti had to demonstrate “some substantial and demonstrable prejudice” from the delay. Because Kurti faced a substantial sentence (the Guidelines range was 360 months-to-life), he could not succeed on either the due process claim or the claim of substantive unreasonableness.
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District Court Was Not Required to Grant “Fast-Track” Departure Motion

United States v. Shand, No. 13-227-cr (2d Cir. Jan. 13, 2014) (Pooler, Parker, and Wesley), available here

This summary has been provided by noted criminal defense attorney Francisco Celedonio, who also serves on the Board of Directors of Federal Defenders of New York, Inc.:

In this illegal reentry case under 8 U.S.C. § 1326(a) and (b)(2), the Circuit affirmed a 77-month sentence imposed following the district court’s (Judge Irizarry’s) denial of a “fast-track” downward departure motion pursuant to U.S.S.G.§ 5K3.1.
Shand was arrested in 2011 after he produced false identification at a traffic stop. ICE determined that he had been previously deported and had reentered without authorization. Shand was thus indicted for being “found in the United States,” in violation of 8 U.S.C. § 1326(a). Shand signed a plea agreement under the EDNY’s “fast-track” program, which yielded an estimate offense level 16 in CHC III, including a  four-level reduction
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Friday, January 17th, 2014

Circuit Reverses Alien’s Section 1326(a) Conviction: Defendant Was Not “Found In” the United States

United States v. Vasquez Macias, No. 12-3908-cr (2d Cir. Jan. 14, 2014) (Pooler, Raggi, and Wesley), available here

The defendant, a citizen of Honduras, was convicted after a jury trial of being “found in the United States” illegally after he was deported from the United States, in violation of 8 U.S.C.§ 1326(a). The Circuit reversed the conviction, holding that the defendant was not in the United States when he was “found,” and that, when he was later discovered in the United States, he was not here voluntarily. Accordingly, the Court held, the conviction “was plainly erroneous and it would constitute manifest injustice to allow it to stand.”
The facts were undisputed. Vasquez Macias (“Vasquez”), an alien, was deported from the United States in 2000, following his conviction for a drug crime. He returned to the United States in 2001 and lived here illegally for about a decade. He then
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Thursday, December 26th, 2013

Pro Se Appeal Fails on All Eight Grounds


United States v. Razzoli, No. 13-126(L) (2d Cir. Dec. 23, 2013) (Raggi, Chin, and Droney) (summary order), available here

Convicted of willfully and forcibly interfering with the performance of duties of Deputy United States Marshals, the defendant appealed pro se. The Court rejected all eight of his arguments:
First, the district court properly denied the defendant’s motion to recall prosecution witnesses for further cross-examination because he had a full opportunity to cross-examine during the government’s case and offered no explanation for failing to question the witnesses more fully at that time. 
Second, the district court properly rejected the defendant’s motion for a new trial based on the alleged destruction of evidence. The defendant did not identify what evidence was destroyed or why he was entitled to a new trial.
Third, trial counsel was not ineffective for not filing an interlocutory appeal from the district court’s denial of his
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Circuit Affirms Top-of-the-Range Sentence for Violation of Supervised Release

United States v. Morris, No. 12-4796-cr (2d Cir. Dec. 23, 2013) (Pooler, Parker, and Chin) (summary order), available here

The defendant violated supervised release by leaving the judicial district without permission. He was sentenced to 14 months of imprisonment, the top of the advisory range, and a new 22-month term of supervised release.
The Circuit held that this sentence was procedurally and substantively reasonable. First, the sentencing court did not improperly consider that the defendant left the district by using false identification, even though the defendant never specifically pled guilty to that conduct. The defendant’s use of an alias to leave the district, the Circuit held, was “relevant to the traveling violation,” and supported the district court’s conclusion that he had a “continued disrespect … [for] the law.” 
The 14-month sentence was also substantively reasonable. The district court found that this sentence was necessary to achieve “specific deterrence,” and
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District Court Did Not Commit Plain Error By Excluding Evidence of Lenders’ Negligence

United States v. Isola, No. 12-3484-cr (2d Cir. Dec. 23, 2013) (Pooler, Parker, and Chin) (summary order), available here

Convicted of wire fraud, the defendant claimed that the district court committed by plain error by not allowing him to present evidence concerning the negligence of the financial institutions he defrauded. He argued that the evidence was relevant to the materiality element of wire fraud. The Circuit disagreed, holding that “evidence of a particular lender’s unreasonableness is irrelevant to the materiality of Isola’s false statements because materiality is an objective question.”
The Circuit also rejected the defendant’s arguments that his 37-month prison sentence was procedurally and substantively unreasonable. First, the Court disagreed with the defendant’s claim that the sentencing court  improperly conflated the standard for a below-Guideline “variance” with the stricter standard for a downward “departure.” Second, the Court held that the sentence — the bottom of the Guidelines range
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Wednesday, December 25th, 2013

Evidence of Drug Trafficking in Arizona Was Admissible Against Defendant Charged With Conspiring to Distribute Drugs in Vermont “and Elsewhere.”

United States v. DeLaRosa, No. 12-4188-cr (2d Cir. Dec. 20, 2013) (Cabranes, Wesley, and Livingston) (summary order), available here

DeLaRosa was convicted of conspiring with John Brooker and others to distribute drugs in Vermont “and elsewhere” from 2006 to “on or about June 16, 2009.” On appeal, he argued principally that the district court erred by admitting evidence of drug trafficking in Arizona that took place after Brooker’s arrest on June 16, 2009.
The Circuit held that the evidence was properly admitted. The evidence was not offered to prove  prior bad acts under Fed. R. Evid. 404(b), but rather as direct evidence of the single drug-trafficking conspiracy orchestrated by DeLaRosa. Trial testimony showed that the conspiracy’s goal was to acquire narcotics from distributors in New York, Florida, and Arizona and to deliver the drugs to customers in Vermont, New York, and Massachusetts. The conspiracy did not end just because
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Evidence Sufficient To Support Drug Conspiracy Conviction

United States v. Gonzalez, No. 12-5075-cr (2d Cir. Dec. 20, 2013) (Pooler, Parker, and Wesley) (summary order), available here

Gonzalez was convicted of conspiracy to distribute and possess with intent to distribute cocaine base. He argued on appeal that the evidence was insufficient to prove his guilt. But the Circuit affirmed, holding that the testimony of three witnesses reasonably established the defendant’s agreement with others to distribute cocaine base. An undercover officer testified that, on various occasions when he purchased crack from persons other than Gonzalez, the defendant played a significant role in approving the drug sales. Also, a cooperating witness testified that when she would order crack from Gonzalez someone else would deliver the drugs to her. Another witness testified that she saw Gonzalez assist in the preparation for cooking powder cocaine into crack, and in weighing the crack alongside a narcotics supplier on a scale Gonzalez had
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Failure to Order Competency Hearing Was Not Abuse of Discretion

United States v. Harry, No. 12-3623-cr (2d Cir. Dec. 19, 2013) (Pooler, Parker, and Wesley) (summary order), available here

Convicted of threatening to harm the family of a United States Probation Officer, the defendant was sentenced principally to 46 months of imprisonment. He argued on appeal that the district court should have ordered a competency hearing in response to his erratic behavior. He also claimed that the court improperly excluded certain evidence at trial.
The Circuit affirmed. First, it held that, though the defendant was indisputably mentally ill, the district court was not required to hold a competency hearing. The record showed that the court properly assured itself that the defendant had an understanding of the proceedings and was fully able to participate in his defense. 
The Court also upheld the district court’s decision to exclude from evidence certain voicemail messages, which included discussions of the defendant’s participation in
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Tuesday, December 17th, 2013

Comparing Defendants with Different Criminal Histories Did Not Give Rise to Procedural Error at Sentencing


UNITED STATES V. JOHNSON, NO. 12-5094-cr (2D CIR. DEC. 16, 2013) (KATZMANN, WINTER, AND CALABRESI) (SUMMARY ORDER), AVAILABLE HERE

The defendant in this appeal challenged his sentence as procedurally and substantively unreasonable. He pleaded guilty to being a felon in possession of firearms and received 3 years’ prison. At sentencing, the district court compared him to another defendant with a less serious criminal history and stated that their sentences had to be similar because both were equally involved in the offense. The Court held that no procedural error occurred as a result of the comparison made between what the defendant contended were differently situated defendants. Relying on United States v. Williams, 524 F.3d 209, 216 (2d Cir. 2008), the Court reiterated that a district court can consider “factors beyond the scope of § 3553(a), as long as the outside factors ‘are not inconsistent with those listed in § 3553(a) and are logically applied …

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