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Sunday, February 12th, 2012

Five and Time

United Sates v. Culbertson, 10-1766-cr (2d Cir. February 3, 2012) (Hall, Lynch, Lohier, CJJ)

Defendant Culbertson was arrested during an investigation into the importation of heroin and cocaine into the United States from Trinidad, after his girlfriend was arrested at the airport. He was charged with offenses that, based on the drug type and quantity alleged – 100 grams or more of heroin and five kilograms or more of cocaine – carried a ten-year mandatory minimum.

Culbertson was a difficult guy – he went through so many appointed attorneys that the district court finally forced him to go pro se- and consistently disputed the quantity of drugs attributable to him. At his plea, Culbertson insisted that the offense involved only “three kilos” of cocaine – that is what he said his girlfriend had been recruited to import, even though she in fact had more than five in her luggage – …

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Categories: right to counsel, Rule 11, Uncategorized

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It Tolls for Thee

United States v. Knight, No. 09-5195-cr (2d Cir. February 1, 2012) (Walker, Straub, Livingston, CJJ)

While a Western District grand jury was investigating defendant’s involvement in a “high yield” investment scheme, the district court granted the government’s application pursuant to 18 U.S.C. § 3292 to toll the statute of limitations while it sought the assistance of Hungarian authorities in obtaining records relating to transfers of some of the scheme’s proceeds into Hungarian bank accounts. The circuit affirmed that order as a proper application of the tolling statute.

Under § 3292, the court must grant the government’s application and suspend the statute of limitations if the application asserts that evidence of an offense being investigated by a grand jury is in a foreign country and it reasonably appears, by a preponderance of the evidence, that such evidence has been officially requested.

The government satisfied the statute here. It gave the district …

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Categories: statute of limitations, tolling, Uncategorized

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Cain is Able

United States v. Cain, 09-0707-cr (2d Cir. January 31, 2012) (Newman, Lynch, CJJ, Restani, JCIT)

This is a case, oddly enough, about trees. Appellant David Cain, Jr., proprietor of David’s Tree Service, assisted by his brother, Chris Cain, a cousin, Jamie Soha, and others, was trying to corner the tree service and logging market in northwestern New York State. To get there, they engaged in acts of violence, extortion and even arson, and were convicted of substantive and conspiracy RICO counts and of other, related crimes.

All convictions were affirmed except for Chris Cain’s on the RICO counts. The circuit found that the district court’s “pattern” instruction was erroneous and, as to Chris Cain, the error, although not flagged below, was plain.

The RICO statute requires proof of a “pattern of racketeering activity” – at least two acts, the last of which occurred within ten years after the commission of …

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Categories: pattern requirement, plain error, RICO, Uncategorized

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Sunday, January 29th, 2012

Land of Enhancements

United States v. Watkins, No. 10-2971-cr (2d Cir. January 26, 2012) (Miner, McLaughlin, Pooler, CJJ)

Anthony Watkins was a 48-year-old homeless career criminal who lived in a baseball dugout in Schenectady, New York. Using a computer from the local public library, and posing as a 38-year-old, he began an on-line relationship with a 15-year-old girl who lived in Connecticut. Eventually he persuaded her to meet, and drove from Schenectady to her home; she sneaked out of her house and had sex with him in the car. Later that night, she ran away with him. He drove her back to New York and they spent the weekend in Schenectady, where they continued to have sexual contact. The girl called her parents from there, and eventually the police, acting on a tip, found them and arrested Watkins.

Watkins pled guilty to one count of transporting a minor in interstate commerce with intent …

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Categories: criminal sex abuse, Uncategorized

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Saturday, January 21st, 2012

Summary Summary

The circuit consistently produces summary orders that are worthy of note. Here are the most recent three:

In L.M. v. United States, No. 10-371-cr (2d Cir. January 17, 2012), the court vacated the sentence that Judge Platt imposed on a cooperator. The facts of the case are truly exceptional. The defendant cooperated for seventeen years, brought down “a number of large-scale international drug dealers, and received several “credible threats of violence.” The government, in its 5K1.1 motion, characterized him as “unique[].” L.M. also underwent an “admirable personal transformation” during this period. Nevertheless, with “little explanation” the district court gave him a-year-and-a-day in prison. The circuit found that the sentence was procedurally unreasonable because it was insufficiently explained. It was “particularly troubling” court did not even mention L.M.’s long period of rehabilitation. The court stopped short of finding that the sentence was substantively unreasonable, calling that a “thorny issue,” but did …

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Parole Evidence

United States v. Barner, No. 10-3700-cr (2d Cir. (Sack, Raggi, CJJ, Eaton, JCIT)

This decision, a government appeal, reverses a district court order suppressing evidence obtained during a parole search.

Barner was released to New York State parole in 2007, and signed a Certificate of Release that included his consent to having his parole officer visit him at home and search and inspect his person, residence and property. Barner was also forbidden from possessing any sort of firearm, ammunition or body armor, and was subject to a curfew.

In early 2008, someone called Barner’s parole officer and told her that Barner had fired a gun at him. She and other officers tried to reach Barner at home that night – during his curfew period – but Barner was not there. This prompted Barner to obtain a parole violation arrest warrant. Two days later, Barner reported for his weekly appointment with …

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Categories: Fourth Amendment, parole search, special needs, Uncategorized

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PC World

United States v. Baker, No. 10-1925-cr (2d Cir. January 12, 2012) (Pooler, Parker, Carney, CJJ) (per curiam)

This latest per curiam affirms an Armed Career Criminal Act (“ACCA”) sentence, rejecting the defendant’s claims that his Vermont prison escape convictions were not ACCA predicates. The statute at issue contains two distinct offenses – failure to report to custody, which is not a predicate, and escape from custody. Baker agreed that his convictions were for escape from custody, but argued that the district court should have looked beyond the charging instruments to determine whether his actual conduct posed a sufficient degree of risk to qualify.

The circuit disagreed. While a sentencing court can, and sometimes must, look beyond the charging instrument, it cannot go beyond the judicial record evidence. Where the defendant pled guilty, the offense is a predicate if the record establishes that his plea necessarily admitted elements of a predicate …

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Categories: ACCA, crime of violence, escape, Uncategorized

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Sunday, January 15th, 2012

Ex Parte Line

United States v. Collins, No. 10-1048-cr (2d Cir. January 9, 2012) (Calabresi, Chin, Carney, CJJ)

A jury convicted defendant Collins of several counts of fraud. The circuit ordered a new trial based on the district court’s handling of a series of jury notes relating to difficulties in deliberations.

Background

Something about this trial inspired great turmoil during jury deliberations. It began with a report, after five days of trying, of difficulty reaching a verdict. The district judge gave a tepid reply, but later that day a CSO heard a disruption in the jury room and, when he entered, one juror told him that another had threatened him. The judge brought the jury in and urged civility.

The next day brought two more notes. One, from Juror 4, indicated that Juror 9 had threatened to “cut off [his] finger” and have her “husband take care of [him].” The second, from the …

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Citizen Gain

Garcia v. USICE, No. 09-4211-pr (2d Cir. December 29, 2011) (Miner, Wesley, Chin, CJJ)

This interesting derivative citizenship decision – although not a criminal case – is a great read, and flags a potentially important issue for defense lawyers.

Carlos Garcia was born in the Dominican Republic, and his family brought him to the United States when he was five years old. He soon became a permanent resident, and lived with his family on West 107th Street in Manhattan.

Four years after the family emigrated, they vacationed in the D.R. and, while they were there, his parents divorced. The divorce decree gave Garcia’ smother “personal guardianship” over him. Despite the divorce, however, the parents continued to live together on West 107th when they returned to New York. One year later, the whole family moved to West 109th Street and, five years later – six years after the divorce – the …

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Saturday, January 14th, 2012

Beware of Greeks Bearing Writs

Skaftouros v. United States, No. 11-0462-cv (2d Cir. December 20, 2011) (Cabranes, Hall, Lohier, CJJ)

Dimitrious Skaftouros is charged in Greece, his native country, with murdering a sixteen-year-old boy after a botched kidnapping. The crime took place in March of 1990; Skaftouros fled Greece that May, and ultimately ended up in the United States. He was arrested here in 2008, and the Greek government then sought his extradition to face the charge of “complicity in the murder of a minor.”

After unsuccessfully challenging his extradition in front of a magistrate judge, Skaftouros filed a habeas corpus petition under 28 U.S.C. § 2241. The district court granted the habeas petition, and also his “motion to dismiss” the extradition proceedings. It held that Skaftouros had not been “charged” with an offense under the extradition treaty with Greece because the warrant was invalid under Greek law and because the Greek statute of limitations …

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