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United States v. Grimm, et al., Nos. 12-4310-cr; 12-4365-cr; 12-4371-cr (2d Cir. Nov. 26, 2013) (Kearse, Jacobs, Straub) (unpublished one-page order)

United States v. Quintieri, No. 13-464-cr (2d Cir. Dec. 2, 2013) (Kearse, Jacobs, and Parker) (summary order) (as amended), available here

UNITED STATES V. RESTREPO, NO. 12-2246-cr (2D CIR. NOV. 27, 2013) (LYNCH, CARNEY, AND DRONEY) (SUMMARY ORDER), AVAILABLE HERE

This detailed summary order affirmed defendant’s conviction after trial for a drug related conspiracy and denied seven separate claims of error.  First, the Court disagreed with the defendant’s jury selection challenge, which alleged that the trial court erroneously instructed the jury on how to judge accomplice witness testimony.  The trial court told jurors during jury selection that all testimony, even that of accomplice witnesses, must be accorded the same weight at trial.  Though at odds with the correct standard for evaluating accomplice witness testimony, i.e., drawing the jury’s attention to the possible motivations of accomplice witnesses and instructing jurors to examine those motivations when determining credibility, the error did not prejudice the defendant.  When discussing how to judge witness testimony, the trial court also explained that the trial judge would instruct jurors about the proper …

United States v. Murray, No. 11-0351-cr (2d Cir. Nov. 27, 2013) (Leval, Sack, and Hall), available here

This published decision holds that the district court’s refusal to allow the defendant to present surrebuttal evidence to respond to new evidence introduced by the government on rebuttal denied  him his right to present a meaningful defense. Judge Hall dissents.

A jury found Murray, a firefighter, guilty of four counts relating to the cultivation of marijuana plants in the basement of a Bellerose, Queens, home owned by Cody, a fellow firefighter who knew Murray. The trial was essentially a credibility contest between Cody, who pled guilty and testified for the government, and Murray, who testified in his own defense. Cody claimed that Murray hatched the idea of growing marijuana in Cody’s house and that Murray was intimately involved in the crime. Murray, in contrast, testified that he knew nothing of the marijuana and visited Cody’s home only about five to seven …

UNITED STATES V. LEE, NO. 12-2020-cr (2D CIR. NOV. 26, 2013) (KEARSE, JACOBS, AND PARKER) (SUMMARY ORDER), AVAILABLE HERE

This defendant appealed his 235-month prison term for drug related offenses, which the district court imposed on remand from an earlier appeal.  The Court vacated an earlier judgment and remanded for re-sentencing due to the erroneous denial of a third point for acceptance of responsibility, which the defendant received.  In his second appeal, the defendant asserted procedural error based upon the district court’s refusal to hold a new Fatico hearing on marijuana quantity before re-sentencing and its subsequent imposition of more than one year’s custody despite a jurisdictionally defective indictment, which failed to identify the substance at issue.  The Court rejected both claims.

The Court held that its remand order required only a limited, not de novo, re-sentencing hearing.  The mandate did not “unequivocally” call for de novo re-sentencing and the “spirit” of the order did not clearly convey such an intent.  It vacated only …

UNITED STATES V. WHITE, NO. 12-68-cr (2D CIR. NOV. 26, 2013) (SACK, HALL, AND LIVINGSTON) (SUMMARY ORDER), AVAILABLE HERE

The defendant appealed from his 18 U.S.C. § 1001 conviction and claimed three errors.  First, he was deprived of a fair trial when the prosecutor acted as an “unsworn witness” by eliciting testimony about the prosecutor’s decision not to call the defendant as a grand jury witness in a murder investigation because the defendant falsely disavowed a prior statement to law enforcement regarding the murder.  Second, the district court delivered an erroneous materiality instruction, which told the jury that materiality depended on whether the false statement “could have influenced” the government’s decision.  The defendant argued that the proper instruction was whether the false statement “had the natural tendency to influence” that decision.  Third, the prosecutor made improper remarks during closing argument by using “we” and “our” when discussing the false statement’s impact on the government’s decisions and …

United States v. Simmons, No. 12-1637-cr (2d Cir. Nov. 26, 2013) (Pooler, Lohier, and Carney) (summary order), available here

The panel held that the seizure of a firearm from the defendant’s room did not violate the Fourth Amendment because he gave “implied consent” to the seizure.

The district court found that, by telling police officers the precise location of the gun, the defendant  implicitly consented to them seizing it. The court also found that such consent was given voluntarily.

The Circuit, finding no clear error in these findings, affirmed the denial of the defendant’s motion to suppress.  …

United States v. Rowley, No. 12-3975 (2d Cir. Nov. 26, 2013) (Kearse, Jacobs, Parker) (summary order), available here

This summary order reaffirms that the Fair Sentencing Act does not apply to defendants who were convicted and sentenced before August 3, 2010. See United States v. Diaz, 627 F.3d 930, 931 (2d Cir. 2010).

The one noteworthy aspect of the summary order is that the Court, apparently for the first time, explicitly rejected the Sixth Circuit’s contrary decision in United States v. Blewett, 719 F.3d 482 (6th Cir. 2013). The panel noted that Blewett “arguably contradicted” binding Sixth Circuit precedent and has since been vacated pending rehearing en banc. The panel further stated that Blewett appeared to be “wrongly decided” and that every circuit to consider Blewett “has declined to follow its lead.” …

United States v. Doyle, No. 11-5265-cr (2d Cir. Nov. 26, 2013) (Kearse, Jacobs, and Straub) (summary order), available here

Doyle pled guilty to wire fraud and was sentenced to 72 months of imprisonment and $880,000 in restitution. On appeal, he argued that the district judge violated Fed. R. Crim. P. 11(c)(1) by participating in plea discussions. He noted that the court warned him that there would be a deadline for “acceptance of responsibility points” and that, if he intended to plead guilty, he should do so “before June 21” so that the could receive the extra third point for acceptance of responsibility.

The panel found no reversible plain error because the defendant could not show that, but for the alleged remarks, he would not have pled guilty. The Court noted that the defendant pled guilty nearly three weeks after the announced June 21 “deadline” and had not shown a reasonable probability that he …

United States v. Howe, No. 12-4394-cr (2d Cir. Nov. 25, 2013) (Pooler, Raggi, and Wesley) (summary order), available here

Convicted of receiving and possessing child pornography, Howe was sentenced to 180 months of imprisonment. On appeal, he argued that the district court should have suppressed the evidence against him because (1) the police lacked probable cause to seize his laptop computer without a warrant; (2) the delay between seizure of his laptop and the issuance of a federal warrant to search the computer was  unreasonable; and (3) no probable cause existed to support issuance of the federal warrant to search the laptop.

The panel rejected all three arguments. First, probable cause existed to seize the laptop because a police officer had “viewed the Sample Pictures folder” on the computer, which contained a “lascivious” image.

Second, though the government’s delay in seeking the federal search warrant was “quite lengthy,” it was not constitutionally unreasonable …

United States v. King, No. 12-2262-cr (2d Cir. Nov. 25, 2013) (Pooler, Raggi, and Wesley) (summary order), available here

This summary order affirms the district court’s ruling that the defendant was not eligible for a reduced sentence under 18 U.S.C. 3582(c) and U.S.S.G. 1B1.10.

The defendant pled guilty in 1999, pursuant to a Rule 11(c)(1)(C) plea agreement, to two racketeering offenses: conspiracy to shoot a rival gang member and conspiracy to distribute cocaine and cocaine base. He was sentenced to 20 years of imprisonment, below the life term called for by the applicable Guidelines.

The panel held that the defendant was not eligible for a reduced sentence because his sentence was not “based on” a range that has subsequently been lowered by the Sentencing Commission. 18 U.S.C. 3582(c)(2). Rather, the sentence was based on the plea agreement, which did not expressly use a Guidelines sentencing range to establish the term of imprisonment, …