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Sunday, April 22nd, 2012

Remorse Code

United States v. Aleynikov, No. 11-1126 (2d Cir. April 11, 2012) (Jacobs, Calabresi, Pooler, CJJ)

Sergey Aleynikov, a former Goldman Sachs computer programmer, stole a portion of Goldman’s proprietary high frequency trading (“HFT”) computer code, apparently in preparation for taking a related, but higher paying, job at a startup company.  A jury convicted him of violating 18 U.S.C. § 2314, which makes it a crime to transport stolen “goods” in interstate commerce, and § 1832, which makes it a crime to steal a trade secret that is related to or included in a “product” that is “produced for or placed in” commerce.  Two months ago, the circuit reversed these convictions in a one-line order with an opinion to follow.

And here it is. While we were all expecting a sufficiency-of-the-evidence opinion, the court instead concluded that the indictment charging Aleynikov with those crimes was itself insufficient because it …

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Thursday, April 12th, 2012

Scott Free

United States v. Scott, No. 10-3978-cr (2d Cir. April 6, 2012) (Pooler, Parker, CJJ)

In 2009, two NYPD detectives arrested defendant Scott after witnessing him engage in what they said was a hand-to-hand drug sale. At trial, the district court permitted the detectives to testify, over objection, that they had seen Scott several times before, and had spoken to him several times, for as long as twenty minutes. The circuit, finding that this evidence violated both Rule 404(b) and Rule 403, vacated the judgment and remanded the case for a new trial.

The circuit first concluded that the evidence was indeed Rule 404(b) evidence, and not something else. Rule 404(b) covers other “acts,” not other “bad acts,” and here, the detectives’ description of their prior contacts with Scott clearly would bear adversely on the jury’s assessment of his character. The court distinguished this case from those where the evidence was …

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Friday, April 6th, 2012

DNA Claim IS DOA

United States v. Pitera, No. 10-1564-cr (2d Cir. April 3, 2012) (Jacobs, Miner, Katzmann, CJJ)

In this opinion by the late Judge Miner, the circuit rejected the claim of Thomas Pitera, formerly of the Bonanno crime family, that the district court erroneously rejected his application for DNA testing of “newly discovered” evidence.

Pitera was convicted in 1992 of various racketeering and CCE offenses that were predicated on seven murders, and received a life-plus-thirty-year sentence. Since then, he has regularly sought post-conviction relief. Most pertinent to the issues on this appeal is a 1999 habeas petition in which Pitera unsuccessfully alleged that evidence seized from one Frank Gangi, the main cooperator against him, would prove that Gangi was the “true killer.” The district court denied relief, noting that Gangi had admitted at Pitera’s trial that he was a participant in many of the murders, and explained that he had done them …

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The Lyin’ King

United States v. Oyewumi, No. 10-3427(L) (2d Cir. March 29, 2012) (Wesley, Carney, CJJ, Cedarbaum, DJ)

Defendant-appellant Saeed went through the entire district court process – arrest, trial, safety-valve proffer and sentence – under the name Reginald Davis, a stolen identity. He also, according to a footnote in this opinion,tried to continue using that identity in the circuit, but the court would not permit it. It is his use of that identity that generated the most action on his appeal.

Saeed was arrested in 2009 after law enforcement agents seized a package at Newark Airport that contained 787 grams of heroin. A controlled delivery, followed by some monitored telephone calls, ultimately implicated Saeed. Saeed’s attorney told the government that Saeed might be eligible for safety-valve relief. Warning that Saeed would have to reveal his true identity, the government invited him to a proffer. Saeed attended, and continued to insist that …

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Thursday, March 15th, 2012

PC World

United States v. Roccisano, No. 10-5237-cr (2d Cir. March 14, 2012) (Katzmann, Parkjer, CJJ, Restani, JCIT) (per curiam)

Guideline section 4A1.1(d) adds two criminal history points if the defendant committed the federal offense while under a criminal justice sentence, e.g., probation, parole or supervised release. The defendant here was deported to Italy in 2006 after completing the prison portion of a federal drug sentence that included a five-year term of supervised release. He was found in the United States in 2010, before the term of supervised release had expired, and the district court assessed those points. On appeal, he argued that this was error, because he had never been actively supervised in light of his deportation.

The circuit rejected this argument, joining at least five other circuits in holding that a term of supervised release is not extinguished by the defendant’s deportation. The court also noted that the amended version …

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Friday, March 9th, 2012

Not Much Moore

United States v. Moore, No. 10-2740-cr (2d Cir. February 22, 2012) (Jacobs, Cabranes, Livingston, CJJ)
This decision marks the circuit’s latest effort to sort out a “two-step” interrogation in the wake of Missouri v. Seibert, 542 U.S. 600 (2004).
Chauncy Moore, having evaded a Connecticut police officer who had a warrant for Moore’s arrest, tossed a gun onto the roof of a house. He was apprehended on the warrant early the next day, but did not receive Miranda warnings. He spent the morning in a police station lockup, but was not brought to court due to a paperwork glitch. Later that day, still at the precinct, Moore twice asked to speak with a detective, but none was around. In the afternoon, he was moved to a cell with a pay phone, from which he spotted a narcotics officer he knew, Ronald Pine, and called him over. Pine
…
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Sunday, March 4th, 2012

No Gain, Yes Pain

United States v. Hsu, No. 09-4152-cr (2d Cir. February 17, 2012) (Winter, Lynch, Carney, CJJ)

Norman Hsu, a prominent, if corrupt, political fundraiser, used the connections he made in politics to run a giant Ponzi scheme. He pled guilty to mail and wire fraud, and was convicted by a jury of campaign finance fraud. In all, the district court imposed a 292-month guideline sentence.

The main, but not only, issue on his appeal concerned an interesting sentencing issue. The district court found that the Ponzi scheme caused a loss of between $50 million and $100 million, but in doing so included earnings that the victims reinvested in the scheme – even though those earnings were invented as part of the scheme – in the intended loss. The circuit agreed that this was permissible.

Normally, in fraud cases, the guidelines measure the amount of principal the victims lost, and not the …

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Rehab? No, No, No.

United States v. Gilliard, No. 11-1088 (2d Cir. February 16, 2012) (Wesley, Lohier, CJJ, Rosenthal, DJ)

Tapia v. United States, 131 S.Ct. 2382 (2011), held that the district court cannot impose or lengthen a prison sentence based on the defendant’s rehabilitative needs. Here, the circuit joins the national trend of reading Tapia narrowly.

Troy Gilliard, sentenced before Tapia came down, faced a 57 to 71 month range for heroin trafficking; both the defendant and the government sought a within-guideline sentence, and probation recommended 65 months, also within the range. In imposing sentence, the court mentioned Gilliard’s criminal history, the seriousness of the offense, the need for specific deterrence, and also mentioned Gillard’s rehabilitative needs – he had both substance abuse and medical issues – while in custody, noting that it was “important” that he be “sentenced in such a way that you are able to address those problems.” Taking into …

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Off The Waterfront

United States v. Coppola, No. 10-0065-cr (2d Cir. February 14, 2012) (Raggi, Lynch, Wallace, CJJ)

This very long, and very fact-bound mob-related RICO appeal covers very little new ground. However, it has an interesting discussion of the applicability of Skilling to extortion cases.

Defendant Michael Coppola spent three decades rising through the ranks of the Genovese crime family, ultimately becoming a captain. The particular conduct that resulted in his conviction, and sixteen-year sentence, related to the family’s criminal control of the New York and New Jersey waterfronts in general, and over the longshoremen’s union – ILA Local 1235, in particular. The family used intimidation and fear to extort money from the both the union and trucking companies doing business at the docks. The family also controlled the union directly, through three successive local presidents who were in the family’s pocket.

On appeal, Coppola challenged the validity of the extortion RICO …

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Saturday, March 3rd, 2012

Summary Summary

Four more summary orders of note:

In United States v. Magner, No. 11-0751-cr (2d Cir. January 25, 2012), a child pornography case, the court voided a special condition of supervised release prohibiting the defendant from using an electronic device to access “pornography of any kind,” including any “website depicting images of nude adults or minors.” The condition was overbroad, as it included “materials that are not by any normal definition obscene, pornographic, or even erotic, such as art museum websites containing works of art.”

United States v. Echeverri, No. 11-0303-cr (2d Cir. February 16, 2012), found that a within-guideline, ninety-seventh month child pornography sentence was insufficiently explained, and hence procedurally unreasonable, where the district court justified the sentence only by observing that it had considered the statute and arguments of counsel and had concluded that a “low end” sentence was appropriate.

In United States v. Fann, No. 11-0540-cr (2d Cir. …

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