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Saturday, November 17th, 2012

Radio Smack

United States v. Lacey, No. 11-2404-cr (2d Cir. November 7, 2012) (Winter, Straub, Lynch, CJJ)

Defendants Lacey and Henry were convicted after a jury trial of various offenses resulting from their involvement in a mortgage fraud scheme. In the scheme a real estate company, MTC,  would purchase “short-sale” properties from distressed homeowners, then resell them to straw buyers, who would obtain mortgages on the properties, without intending to live in them or make payments. MTC helped the straw buyers complete fraudulent mortgage applications to ensure that they would be approved, and sometimes made a few payments on the loans to further deceive the banks, but eventually the loans defaulted and the lending banks took title to the properties through foreclosure.

One component of the fraud involved radio ads, through which MTC recruited straw buyers. Those ads told buyers that they could earn a fee by buying a house through …

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Categories: mass-marketing, mortgage fraud, restitution, Uncategorized, victim enhancement

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PC World

United States v. Harrison, No. 11-1240-cr (2d Cir. November 6, 2012) (Cabranes, Chin, Carney, CJJ) (per curiam)

The court’s latest per curiam opinion holds that the appellate waiver provision of the standard Southern District plea agreement is enforceable, even in the wake of Dorsey v. United States, 132 S.Ct. 2321 (2012). Thus, although the defendant was sentenced to a 120-month mandatory minimum when, per Dorsey, his minimum should have been lower, he validly waived his right to appeal the sentence.
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Sunday, October 28th, 2012

Stop and Flop

United States v. Wilson, No. 11-915 (2d Cir. October 25, 2012) (Jacobs, Calabresi, Pooler, CJJ)

Defendant Wilson was subject to a car stop near New York’s border with Canada. He was just outside of the St. Regis Mohawk reservation, not a member of the tribe, and the officers who stopped the car – which was registered to a known marijuana dealer – were members of the tribal police department. As tribal officers, under state law they were without authority to exercise police duties outside of the reservation, although one of them was also cross-designated as a U.S. Customers Officer by ICE. After a brief interview, in which Wilson admitted traveling into and out of Canada, and scoring a bit of weed while there, a U.S. Border Patrol Agent, who had arrived after the stop, searched Wilson’s car and found three bags of marijuana.

The district court suppressed the evidence, …

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Categories: car stop, probable cause, Uncategorized

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Saturday, October 27th, 2012

PC World

United States v. Oehne, No. 11-2286 (2d Cir. October 25, 2012) (Kearse, Katzmann, CJJ, Gleeson, DJ) (per curiam)

This latest per curiam looks at the pretrial ruling on a motion to suppress, and the long sentence imposed in a child pornography production and distribution case. Finding no error, the circuit affirms.

The suppression issue involved custodial statements.  Oehne claimed that he unequivocally invoked his right to counsel by telling the agents that he had an attorney in a separate, unrelated case. But the circuit reminded that the right to counsel is “offense specific.” And, since Oehne never requested counsel at all in the case he was being questioned about, he did not invoke his right to counsel.  Nor did he invoke his right to remain silent by not signing the Miranda waiver form. The record here showed not that he refused to sign it – although even that might not …

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Saturday, October 20th, 2012

The Wizards of I.D.

Young v. Conway, No. 11-830-cr (2d Cir. October 16, 2012) (Parker, Hall, Carney, CJJ)

While decisions on state prisoners’ federal habeas corpus petitions are not consistently covered on this site, this particular case is fascinating.  In it, the circuit agrees with the district court that the New York state courts misapplied federal law in finding that the victim of a home invasion robbery had an independent basis for her in-court identification of the petitioner, Rudolph Young.

In reaching this result, the circuit relies heavily on recent scientific findings about eyewitness identification furnished by The Innocence Project, amicus curiae here. Among those highlighted are: [1] even “subtle disguises” can “impair identification accuracy”; [2] the presence of a weapon during the crime “will draw central attention, thus decreasing the ability of the eyewitness to adequately encode and later recall peripheral details”; [3] “high levels of stress have been shown to induce a …

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You Don’t Stay

United States v. Colasuonno, No. 11-1188-cr (2d Cir. October 12, 2012)(Kearse, Walker, Raggi, CJJ)

Answering a question of first impression, here the circuit holds that the automatic stay provisions of the bankruptcy code does not apply to either a restitution order or a probation violation proceeding based on a failure to comply with a restitution order.

The facts are fairly straightforward. A jury convicted Colasuonno of bank fraud offenses; he then pled guilty to an unrelated tax fraud. At a consolidated proceeding the district court imposed a noncustodial sentence, which included about $781,000 in restitution to the IRS on the tax case.  Colasuonno seemed to show little enthusiasm for making restitution payments. After two years, even with district court intervention, he had paid only about $6,600, even though his monthly income during that period was more than $7,000.

In July of 2009, Colasuonno and his wife filed a Chapter …

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Categories: probation violation, restitution, Uncategorized

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Sunday, October 14th, 2012

PC World

United States v. Ageloff, No. 11-2474-cr (2d Cir. October 10, 2012) (Pooler, Wesley, Lohier, CJJ) (per curiam)

This short per curiam opinion affirms the district court’s authority, under the All Writs Act, 28 U.S.C. 1651, to retrain a convicted defendant’s property – here, some $536,000 of Ageloff’s money – in anticipation of ordering restitution. Preventing a defendant from “frustrating collection of the restitution debt” is a legitimate goal that may be furthered under the Act.  Here, the defendant had agreed that his fraud caused a loss of $80 million or more and, later, was convicted of laundering millions of dollars in proceeds from the same scheme. Nor was it an answer that Ageloff wanted the money to pay for counsel; the restraining order did not arbitrarily interfere with his opportunity to retain counsel, and he was “ably represented by CJA counsel.” 

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Bail Doubt

United States v. Briggs, No. 12-2988-cr (2d Cir. October 5, 2012) (Calabresi, Carney, CJJ)

Antonio Briggs, charged in a large, multi-defendant drug conspiracy, was ordered detained in September of 2010, and remains in jail today. In this appeal, he claimed that this lengthy pretrial detention deprived him of due process. 

The circuit, although clearly concerned with the length of the delay, held that there was as yet no due process violation. However, the court directed that the district court either commence his trial, or set reasonable bail for him, on or before February 1, 2013.

The circuit noted that the reasons cited by the district court for detaining Briggs in the first instance were sound: it was a presumption case, and both Briggs’ sentencing exposure and the strength of the government’s evidence supported the initial detention order. And here, much of the two-plus-year-delay, although not necessarily Briggs’ fault, resulted from “repeated motions,” …

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You’ve Been Trumped

United States v. Carter, No. 11-3605-cr (2d Cir. September 28, 2012) (Leval, Cabranes, Katzmann, CJJ)

The “parsimony clause” of 18 U.S.C. § 3553(a) requires that the court impose a sentence that is not “greater than necessary” to serve the goals of sentencing. Many offense statutes, however, contain a  mandatory minimum sentence: a “blunt directive that may require judges to give sentences that they consider unduly punitive.”

On this appeal, Carter, who received a ten-year mandatory drug sentence – five years doubled due to his prior felony conviction – argued that this minimum did not bind the district court because the drug statute did not expressly override the parsimony clause.  The circuit disagreed, and affirmed.

Carter relied on 18 U.S.C. § 3551(a), which states that, “except as otherwise specifically provided,” a sentence must comport with § 3553(a). He also noted that many other statutes that prescribe a mandatory minimum contain …

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Barnes Ignoble

United States v. Barnes, No. 10-3099-cr (2d Cir. September 4, 2012) (Kearse, Parker, Hall, CJJ).

Tuere Barnes and his co-defendants faced a thirty-eight count superseding indictment charging them with racketeering and several violent crimes in aid of it, including murder. The case moved fairly slowly – the original indictment was from 2004 and the superseder dropped in 2006. But by late 2007, it emerged that Barnes and his CJA attorney were not getting along. The district court conducted several hearings about this between November 2007 and March of 2008. By that time, Barnes’s position was that he did not want his CJA attorney, did not want to proceed pro se, did not want a different CJA attorney, and would not consent to a psychiatric evaluation.

A few months later, in July of 2008, Barnes formally asked the court to allow him to proceed pro se. In …

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Bad Sport

United States v. Mason, No. 11-544 (2d Cir. September 4, 2012, (Walker, Pooler, Livingston, CJJ)

In this part of the country, the “lawful sporting purposes” provision of U.S.S.G. § 2K2.1(b)(2) and Application Note 6 – a downward adjustment that the defendant bears the burden of proving – is rarely invoked. Indeed, this decision is only the Circuit’s second look at it.  Here, the court concludes that the district court misapplied the provision, but that the error was harmless.

Rodney Mason, resident of Vermont, pled guilty to being a felon in possession. He had four firearms and, in connection with his sentencing hearing, introduced some evidence that, at least for three of them, he kept the guns for hunting purposes. The district court nevertheless refused to apply the enhancement, finding that Mason had not shown that he actually used the guns for hunting.  This was error because the focus of …

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