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Monday, October 8th, 2012

White Out

United States v. White, No. 11-772-cr (2d Cir. August 30, 2012) (Jacobs, Calabresi, Pooler, CJJ)

Here, a divided circuit panel concluded that two evidentiary errors prejudiced the outcome of Lance White’s felon-in-possession trial. The court vacated the conviction and remanded the case for a new trial.


1. Erroneous Preclusion of Others Arrests and Charging Decisions

The case involved the stop of a minivan that contained White and four women. Officers found three firearms, one supposedly in White’s right front pocket. Two others were recovered from a purse belonging to one of the women, Jennings. Initially, all five individuals were charged in state court with possessing all three guns. Eventually the state dropped all charges against three of the women. For Jennings, the state pursued charges only for the guns in her purse. Over White’s objection, the district court granted the government’s motion to preclude White from introducing evidence of …


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Categories: credibility, right to present a defense; Rule 403, Uncategorized

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PC World

United States v. Reyes, No. 10-1400-cr (2d Cir. August 29, 2012) (Katzmann, Wesley, CJJ, Underhill, DJ) (per curiam)

Closing the question left open by United States v. Rosa, 507 F.3d 142, 156 (2d Cir. 2007), this per curiam opinion concludes that it was plain error for the district court to rely solely on the presentence report’s uncontested description of a prior offense in determining whether the defendant was a career offender, where the statute of conviction described some offenses that met the definition of crime of violence and some that did not. Even where the defendant does not contest the PSR’s factual description of the prior offense, the “modified categorical approach” still requires more. The PSR, after all, described only what the defendant did, not what he was convicted of. The circuit accordingly vacated the sentence and remanded for resentencing to give the government the “opportunity to introduce evidence demonstrating …


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Categories: categorical approach, Uncategorized

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One Statute, Indivisible

United States v. Beardsley, No. 11-2206-cr (2d Cir. August 27, 2012) (Newman, Straub, Lynch, CJJ)

For purposes of recidivism enhancements, the statutes underlying prior convictions can be categorized into two distinct groups. “Divisible” statutes are those that identify distinct offenses, some of which would trigger the enhancement and some would not.  “Indivisible” statutes, by contrast, identify a single offense but are worded so broadly as to encompass conduct that might or might not fall within the relevant definition.  This important decision holds that for “indivisible” statutes, the traditional “categorical approach” is the only available means of determining whether the enhancement applies. The more expansive “modified categorical approach” can only be used with divisible statutes, in an effort to ascertain which of the possible predicate offenses the defendant was convicted of.

Here, the particular enhancement was that in a child pornography statute, 18 U.S.C. § 2252A. For offenses involving the …


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Categories: categorical approach, Uncategorized

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Sunday, October 7th, 2012

As Seen On TV

United States v. Salim, No. 10-3648-cr (2d Cir. August 24, 2012) (Walker, Lynch, CJJ)

Mamdouh Salim, incarcerated on terrorism charges, stabbed and nearly killed an MCC guard in a misguided attempt to induce the district court to grant him a change of counsel. For that crime, he pled guilty to conspiracy to murder, and the attempt to murder, a federal official. At his sentencing, the court refused to apply the guidelines’ terrorism enhancement – it sentenced him to 32 years’ imprisonment – then declined to resentence him on a  Crosby remand.  In the circuit’s first decision in the case, which was a cross-appeal, the court rejected Salim’s challenges to his sentence, but agreed with the government that it was error not to apply the terrorism enhancement. See “How Not To Seek A Change of Counsel,” posted December 6, 2008.

This opinion concern’s Salim’s appeal after the resentencing, …


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Categories: plain error, right to be present, Uncategorized

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Sunday, September 9th, 2012

The Thirty Years’ War

United States v. Broxmeyer, No. 10-5283-cr (2d Cir. August 28, 2012) (Jacobs, Winter, Raggi, CJJ)

Former high school athletic coach Todd J. Broxmeyer was originally convicted of five offenses involving child sex abuse and pornography, and received a 40-year sentence. On his first appeal, the circuit found that the evidence was insufficient to support three of the counts, and remanded the case for resentencing. See “Coach Bagged’ posted August 13, 2010.  In this opinion, an unusually bitterly divided panel affirmed the 30-year sentence imposed on the two remaining counts on remand.

The majority began with a long and highly disapproving survey of the totality of the conduct proven at trial – a girls’ field hockey coach, Broxmeyer sexually abused several of his charges over a multi-year period – and Broxmeyer’s sentencing strategy on remand. This included his continuing to dispute all of the allegations against him, disputing the sexual …


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Categories: child pornography, Uncategorized

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You Can Resist

United States v. Davis, No. 10-4104-cr (2d Cir. August 24, 2012) (Walker, Lynch, Droney, CJJ) 

Hoping to evade a drug arrest, Deitron Davis ran from an agent; during the chase the agent frequently caught up to him and struck him with a baton, but Davis – a very big guy – kept running. Eventually, other agents joined in. They caught Davis and pinned him to the ground, stomach down. He struggled and resisted being handcuffed, to no avail, but did not threaten or strike any of the agents. A jury convicted him both of the drug offense and of misdemeanor resisting arrest, in violation of 18 U.S.C. § 111(a). On appeal, however, the circuit agreed that the evidence was legally insufficient to make out this offense.  

The wording of § 111(a) is notoriously vexing: where the defendant “forcibly assaults resists, opposes, impedes, intimates, or interferes with” a …

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Categories: assault, Uncategorized

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Categories: assault, Uncategorized

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Saturday, September 8th, 2012

The Tipping Point

United States v. Contorinis, No. 11-3-cr (2d Cir. August 17, 2012) (Winter, Hall, Chin, CJJ)

In this appeal from an insider trading conviction, the defendant unsuccessfully challenged the jury instructions in which the district court defined “material, nonpublic information.”

Contorinis was a portfolio manager at a hedge fund, who befriended an investment banker at UBS. From late 2005 to January of 2006, the banker was providing information to several of his friends, Contorinis included, about the potential sale of the Alberstons grocery chain.  Contorinis bought and sold large blocks of Albertsons stock for his fund based on this information. The Albertsons deal had lots of false starts, but when it was finally publicly announced as a go, Contorinis sold all of the fund’s Albertsons stock making a net profit of $3 million.

Contorinis’ defense at trial was that, although he and the banker spoke often, the banker never gave him …


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Categories: insider trading, Uncategorized

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The Cartridge Family

United States v. Graham, No. 09-2819-cr (2d Cir. August 15, 2012) (Cabranes, Livingston, Carney, CJJ)

Title 18, U.S.C. § 844(h) makes it a separate offense to use “an explosive” to commit a federal felony. During an attempted extortion of one of his fellow-gang members – a dispute over some robbery proceeds – defendant Graham fired a cartridge from his 9-millimeter semi-automatic into the ground. A jury convicted defendant Graham under this section, amongst other offenses; his 50-year sentence included the ten-year mandatory consecutive sentence that the statute requires.

On appeal, however, the circuit agreed that the single cartridge in his semi-automatic handgun did not constitute an “explosive.” It reversed the conviction on the § 844(h) count and remanded the case for resentencing.

Superficially, it would seem like firing a bullet might well trigger the statute (bad pun, I know). Section 844(j) defines “explosive” for purposes of § 844(h) as, …


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Categories: explosives, firearms, statutory construction, Uncategorized

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Friday, August 31st, 2012

Family Plot

United States v. Antico, 10-5026-cr (2d Cir. August 14, 2012) (Pooler, Livingston, Lohier, CJJ)

Mario Gulinello won $1.6 million at a horse race.  Defendant Antico was convicted of conspiring with members of the Genovese crime family to rob him of that money, one of the predicates of a racketeering conviction. On appeal, Antico argued that the evidence was legally insufficient. A divided circuit affirmed.

As is usual in sufficiency cases, this decision is very fact specific, but the facts here are kind of unusual. About four years after Gulinello won the money, two members of the Genovese family took him for a drive. They pulled up next to Antico’s car, and said “Hey, Tico, say hello to my friend Mario.” The entire encounter lasted only a few seconds. Gulinello had been told that Antico was a “good guy,” who had recently been released from jail.  This was Gulinello’s only …

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Categories: robbery, Uncategorized

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Categories: robbery, Uncategorized

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“The Truth” Didn’t Set Him Free

United States v. Williams, No. 11-676-cr (2d Cir. July 16, 2012, amended August 15, 2012) (Sack, Livingston, Lynch, CJJ)

At Malik Williams’ gun trial, the prosecutor, in rebuttal summation, said, “this is not a search for reasonable doubt, this is a search for truth.”  The circuit noted, and indeed the government conceded, that this statement “was improper and should not have been made.” A statement like that “has the potential to distract the jury from the bedrock principles that even if the jury strongly suspects that the government’s version of events is true, it cannot vote to convict unless it finds that the government has actually proved each element of the charged crime beyond a reasonable doubt” and that under the presumption of innocence the jury must acquit even if it cannot “independently find the truth.”   

Nevertheless, this “unwise and erroneous” remark was not plain error.  The remark …


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Categories: prosecutorial misconduct, summation, Uncategorized

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Monday, August 27th, 2012

A Bronx Tale

United States v. Davis, No. 10-3424-cr (2d Cir. August 8, 2012) (Leval, Raggi, Chin, CJJ)

Appellant Davis attempted to rob a drug dealer in Elmont, Queens. Once inside the dealer’s house, he shot and killed the dealer’s girlfriend, and shot at (but missed) the dealer’s mother. He was tried, convicted and sentenced on this – along with other offenses not challenged on appeal – in the Southern District

On appeal, he argued that there was no Southern District venue for the Elmont attempted robbery and associated weapons offenses. The circuit affirmed.

The opinion begins with a long and interesting discussion of venue, culminating with the circuit’s rule that for venue to lie there must be more than “some activity in the situs district” – there must be “substantial contacts.” Whether these exist depends on “the site of the defendant’s acts, the elements and nature of the crime, the locus …

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Categories: Uncategorized, venue

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