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Monday, August 27th, 2012

Finding that “Relevant” Conduct is not “Relevant Conduct,” the Circuit Remands

United States v. Wernick, No. 10-2974-cr (2d Cir. August 8, 2012) (McLaughlin, Sack, Lynch, CJJ)

Defendant Wernick was convicted after trial of, inter alia, one count of child enticement – he persuaded two teenagers to meet with him. At his sentencing, the court factored in three other acts involving the abuse or attempted sex abuse of young children as “relevant conduct.”  The circuit concluded that the acts involving the young children, although clearly “relevant” to Wernick’s sentencing, were not “relevant conduct” under the sentencing guidelines.

The guideline under which Wenick was sentenced, § 2G1.1, has a specific offense characteristic involving the sex abuse of individuals other than those in the count of conviction:  if the “relevant conduct” to the offense of conviction includes “prohibited sexual conduct in respect to more than one victim,” regardless of whether that victim is specified in the count of conviction, each such victim …

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Categories: plain error, relevant conduct, Uncategorized

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Sunday, August 26th, 2012

Brady Violation Allows Defendants to “Squawk” Away

United Statesv v. Mahaffy, No. 09-5349-cr (2d Cir. August 2, 2012) (McLaughlin, Parker, Wesley, CJJ) 

This, the court’s most recent Brady decision, presents a truly shocking instance of prosecutorial misconduct.

Factual Background

The Brady violation was here was  straightforward: the defendants were employees of brokerage houses and a day trading firm called A.B. Watley, accused of securities fraud by running a “frontrunning” scheme. Here’s how it worked: the brokerage houses had “squawk boxes” which, during the day, would transmit internal communications about, amongst other things, client trading orders. The squawks would allow the firms’ traders to find a client to take the other side of the trade. In the scheme, the brokerage defendants would place phone receivers over their squawk boxes and transmit the squawks directly to Watley employees, who would then place trades in the squawked securities before the brokerage houses could execute the customer orders. Watley hoped …

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Categories: Brady, Uncategorized

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Friday, August 24th, 2012

Truman/False Man

United States v. Truman, Sr., No. 11-784-cr (2d Cir. 2012) (Livingston, Lohier, CJJ, Rakoff, DJ)

Jeffrey Truman, Sr., recruited his son, Jeffrey Truman, Jr., to burn down a building that Truman Sr. owned in Oneida, New York.  The was in dire financial straits and the property had a very large insurance policy.

Truman Sr.’s odyssey through the legal system began in state court, where he was tried on arson and fraud charges. That case was dismissed because the state court could not corroborate Jr.’s testimony, as required under state law.

The feds then took up the case, which went to trial after Jr. signed a cooperation agreement. At trial, however, Jr. balked. While he described his own role in setting the fire, he steadfastly refused to implicate his father.  This prompted the government to introduce, over objection, portions of Jr.’s testimony from Sr.’s state court trial, in which Jr. confirmed …

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Categories: credibility, Rule 29, Rule 33, Uncategorized

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Categories: credibility, Rule 29, Rule 33, Uncategorized

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Let’s Get Metaphysical

United States v. Cassesse, No. 10-2210-cr (2d Cir. July 11, 2012, amended July 25, 2012) (Newman, Katzmann, Parker, CJJ)

This case untangles a mathematic quandary left by some unclear statutes: how can a life term of supervised release, imposed on a supervised release violation, be reduced by the number of months of the prison term imposed for that same violation?  Here the district court simply sentenced the defendant to twelve months in prison on the violation to be followed by another life term of supervised release.  Describing the issue as “almost metaphysical,” the circuit affirmed.

Cassesse was originally convicted under a drug statute that carries a maximum possible supervised release term of life, and was sentenced to that, to follow an eighty-seven month term of imprisonment.

After his release to supervision, Cassesse pled guilty in a new federal case – this one involving racketeering – and received a …

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Categories: supervised release, Uncategorized

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Grand Slam

United States v. Gonzalez, No. 11-1490-cr (2d Cir. July 19, 2012) (Jacobs, Kearse, McLaughlin, CJJ)

Omar Gonzalez was originally charged with a narcotics conspiracy in a superseding indictment that alleged his involvement with “mixtures and substances containing a detectable amount of cocaine.” The indictment did not allege a drug quantity, and cited 21 U.S.C. §§ 846 and 841(b)(1)(C), a penalty section that carries no mandatory minimum. Before trial, the government superseded again. The second superseding indictment was identical to the first except it replaced the citation to § 841(b)(1)(C) with a citation to § 841(b)(1)(B), a penalty provision that, in cases involving 500 grams or more of cocaine, has a five-year mandatory minimum; in 500+ gram cases like Mr. Gonzalez’, where the government files a prior felony information, it specifies a ten-year minimum.

During trial, the defense, after seeing the government’s proposed jury instructions, objected, noting that trafficking in …

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Categories: grand jury, indictment, Uncategorized

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Thursday, August 23rd, 2012

Up In Smoke

United States v. Morrison, No. 10-1926(L) (2d Cir. July 16, 2012) (Calabresi, Chin, Carney, CJJ)

After a jury convicted Morrison of violating the Contraband Cigarette Trafficking Act (here, “the Act”), Morrison persuaded the district court to vacate the conviction and dismiss the charges.  On this, the government’s appeal, the circuit reversed.

Background

Morrison managed a tobacco shop on the Unkechauge Indian Nation’s reservation on Long Island. Mostly, the shop sold untaxed cigarettes,  both in small over-the-counter sales and large wholesale transactions to “Big Customers,” whom Morrison knew were reselling the smokes off reservation.  The government ultimately charged him racketeering offenses predicated on his sale of contraband cigarettes. Morrison filed multiple motions for judgments of acquittal and dismissal, and ultimately persuaded the district court that Section 471 of New York’s Tax Law, which served as the legal predicate for the claimed violation of the Act, was void for vagueness …

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Categories: Uncategorized, vagueness

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Friday, August 17th, 2012

Trust Fun

United States v. Zaleski, No. 11-660-cr (2d Cir. July 13, 2012) (Newman, Lohier, Droney, CJJ)

This fascinating opinion considers whether the defendant, Alan Zaleski, from whom a large quantity of  legally possessed firearms and ammunition were seized, should be permitted get them back from the government and sell them through a third party trustee, even though as a convicted felon, he is no longer permitted to possess them himself, even constructively.  While the district court denied his motion for a return of the property under Fed.R.Cr.P 41(g), the circuit remanded to give Zaleski a second bite at the apple.

The Facts

Among the weapons seized from Zaleski’s home were several illegal items.  He ultimately pled guilty to possessing (1) machine guns (2) a gun with an obliterated serial number and (3) a variety of unregistered devices. Until then, he was not a felon. 

The remaining items seized, which he …

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Categories: constructive possession, Rule 41(g), Uncategorized

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Thursday, August 16th, 2012

Upstairs, Downstairs

United States v. Voustianiouk, No. 10-4420-cr (2d Cir. July 12, 2012) (McLaughlin, Pooler, Parker, CJJ)

In 2009, federal agents armed with a search warrant for the first-floor apartment of an apartment building in the Bronx, instead searched the second-floor apartment. The circuit agreed with the defendant that this search violated the Fourth Amendment’s warrant requirement.  It vacated his conviction and sentence.

Background

This case began as an investigation by I.C.E. agents who learned of an IP address associated with a file-sharing network implicated in child pornography. Ultimately, the IP addressed was traced to Voustianiouk; the internet service provider indicated that his address was “2424 Cambreleng Avenue, Apartment 1,” in the Bronx. An agent, Raab, confirmed that Voustianiouk lived at that address, although he could not confirm which apartment. He eventually obtained a warranted to search “Apt. 1” in that building, which the warrant described as “a ground floor apartment …

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Categories: Exclusionary Rule, search warrant, Uncategorized

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Penalty Blocks

United States v. Jacques, No. 11-2142-cr (2d Cir. July 9, 2012) (Winter, Chin, Droney, CJJ)

In this capital case, the district court entered an order excluding some evidence that the government intended to offer at the penalty phase. On this, the government’s interlocutory appeal, the circuit reversed in part and affirmed in part.

Background

Michael Jacques was charged with the kidnaping, rape and murder of a young girl. In the death notice, the government included aggravating factors that it would seek to prove at the penalty phase: allegations of prior rapes, and an attempt to obstruct justice by influencing the testimony of a victim/witness. The district court permitted evidence of two of the prior rapes – one of a juvenile and one of an adult – but struck three of the prior rape allegations, all of which involved juveniles (J2, J3 and J4), finding that the conduct was …

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Friday, August 10th, 2012

Cache Landing

United States v. Ramos, No. 10-4802-cr (2d Cir. July 2, 2012) (Winter, Raggi, Chin, CJJ)

This long opinion in a child pornography (“cp”) case tackles two interesting issues.

Background

James Ramos was on New York State parole for a sex offense; to secure his release, he agreed to a search condition, to “promptly, fully and truthfully” reply to his PO’s questions, and to “fully” comply with the PO’s instructions.  He also, obviously, had to agree to stay away from “pornographic materials.” After five years, the PO told Ramos that two new conditions, polygraph testing and GPS monitoring, were being added to his supervision. Ramos protested at first, but eventually gave in.

Before his first polygraph examination, Ramos told the examiner that he had viewed forbidden materials, including cp, on his computer several times since his release. He took the test, which was inconclusive, then signed a form admitting what he …

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Categories: child pornography, interstate commerce, self-incrimination, Uncategorized

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Thursday, August 9th, 2012

Caveat Loquens

United States v. Stewart, No. 10-3185 (2d Cir. June 28, 2012) (Winter, Calabresi, Sack, CJJ)

This opinion appears to shut the door on the long-running series of appeals in the Lynne Stewart case. Stewart was convicted after trial of conspiracy to defraud the United States, providing material support to the killing or kidnapping of persons in a foreign country and making false statements. Underlying these convictions were her efforts to smuggle messages to and from her client, Sheikh Omar Ahman Ali Abdel Rahman, who was then serving a terrorism-related life sentence. 

Stewart was originally sentenced to 28 months’ imprisonment. The government appealed, and the circuit vacated the sentence with instructions to the district court to: determine whether Stewart had committed perjury in her trial testimony;  consider applying the abuse-of-trust enhancement; clarify whether it had applied the terrorism enhancement (having found that it “plainly” applied in Stewart’s case) and; and “further …

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