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Saturday, December 18th, 2010

Plain Terror

United States v. Marcus, No. 07-4005-cr (2d Cir. December 7, 2010) (Calabresi, Straub, Wesley, CJJ)

This is Marcus’ second go-round in the circuit. He won the first time, in August of 2008, (see “Sex Post Facto”, posted August 18, 2008). The government got cert, and the Supreme Court reversed, holding that the first panel had used an incorrect plain error standard. In this decision, on remand from the Supremes, Marcus had only a partial win.

The underlying conduct is particularly disturbing. From October of 1998 through June of 1999, Marcus was in a consensual, albeit kinky, sexual relationship with “Jodi.” This nature of the relationship changed in October 1999 when Jodi refused to recruit her sister to become one of Marcus’ “sex slaves.” In response, Marcus “punished” Jodi severely, and began to terrorize her regularly. With this, the relationship became nonconsensual.

In January of 2000, Marcus directed Jodi to move …


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Categories: ex post facto, plain error, Uncategorized

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Monday, December 13th, 2010

PC World

United States v. Bouknight, No. 09-4085-cr (2d Cir. December 7, 2010) (Katzmann, Livingston, CJJ, Korman, DJ)

This latest per curiam was a summary order that, on the government’s motion, the court published. In it, the court holds that a sentence to a conditional discharge in Connecticut state court is a “criminal justice sentence” for purposes of the criminal history enhancement in U.S.S.G. § 4A1.1(d). The court had long ago held that this was true for a New York State conditional discharge. The defense here attempted to distinguish Connecticut from New York by pointing out that in New York a conditional discharge can be revoked, while in Connecticut it can only be modified or enlarged. But, to the circuit, the distinction did not matter. That a Connecticut conditional discharge can be modified is sufficient, because it still means that the sentence has a “supervisory component.”

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Saturday, December 11th, 2010

What You Don’t Know Can Hurt You

United States v. Andino, No. 09-4694-cr (2d Cir. December 3, 2010) (Kearse, Calabresi, Wesley, CJJ)

In 2008, customs officials intercepted a package containing cocaine addressed to “Andino Jose” at an address in the Bronx. After a controlled delivery to that address, the recipient called defendant Andino, who picked up the package and brought it to an adjacent building, where he left it unopened.

Customs agents then placed him under arrest, and Andino admitted that he had been paid to pick up the package and transport it. He said that he knew the package contained drugs, but believed it contained marijuana, not cocaine.

At Andino’s trial, the government sought a jury instruction stating that the government would need to prove only that Andino knew the package contained a controlled substance – any controlled substance – and not specifically cocaine. Andino, on his part, wanted a charge requiring the government to prove …


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Categories: drug quantity, scienter, Uncategorized

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Two Steps Forward

United States v. Capers, No 07-1830-cr (2d Cir. December 1, 2010) (Pooler, Hall CJJ, Trager, DJ)

This decision, which was sub judice for nearly two and one-half years, attempts to sort out the confusion left by the Supreme Court’s decision in Missouri v. Seibert, 542 U.S. 600 (2004).

Seibert involved a two-step interrogation strategy that was calculated to circumvent Miranda. The Missouri officers there had been trained to withhold Miranda warnings and question a suspect until he confessed. They would then Mirandize him, secure a waiver, and elicit a second confession. A four-justice plurality held that this two-step procedure violated Miranda because a suspect “hearing warnings only in the aftermath of interrogation and just after making a confession” would “hardly think he had a genuine right to remain silent.” The plurality identified five factors to be weighed in analyzing the effectiveness of post-interrogation Miranda warnings.

Justice Kennedy concurred in the …

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No Gain, Yes Pain

United States v. Woolf Turk, No 09-5091-cr (2d Cir. November 30, 2010) (Katzmann, Hall CJJ, Jones, DJ)

Ivy Woolf Turk was a principal in a real estate development company. Between 2003 and 2007 she and her partner persuaded investors to lend them $27 million, primarily to renovate apartment buildings in upper Manhattan. They induced the loans by promising that the investors would hold recorded first mortgages on the buildings as collateral. This was a lie – they never recorded the mortgages, so the investors were merely unsecured creditors. At the same time, the developers obtained loans from banks, and those liens were recorded.

Eventually Woolf Turk began defaulting on the victims’ loans. The victims became suspicious and discovered that, despite Woolf Turks’ representations, their mortgages had never been recorded. In May of 2007, the investors sued; only then did they learn that, not only were their mortgages unrecorded, but that …


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Fuller Brush-Off

United States v. Fuller, No. 09-1437-cr (2d Cir. November 30, 2010) (McLaughlin, Straug, Raggi, CJJ)

In 2004, Ross Fuller pled guilty to a sex offense in Missouri and became a registered sex offender. He complied with the applicable registration requirements until June of 2006, when he moved to New York, and failed to register either in Missouri or New York State. Federal authorities arrested Fuller in New York in October of 2007, and he pled guilty to violating the Sex Offender Registration Notification Act (“SORNA”), 42 U.S.C. § 16901, et seq., which makes it a crime to travel in interstate commerce and knowingly fail to register or update a sex offender registration.

On appeal, he made two arguments, both unsuccessful.

First, when Congress enacted SORNA in 2006, it included a provision, § 16913(d), granting the Attorney General the authority to “specify the applicability of” SORNA to sex offenders convicted before …


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Sunday, December 5th, 2010

Summary Summary

Well, it’s been a while since the court gave us any interesting summary orders, but here are two that are worth noting.

In United States v. Crawford-Bey, No. 09-3309-cr (2d Cir. December 1, 2010), the defendant challenged on appeal the U.S.S.G. § 2D1.1(b)(1) gun possession enhancement. He had given away four guns, in pairs, to other people – conduct that was vaguely related to his drug dealing. But the district court’s finding was quite sparse; it noted only that Crawford-Bey gave away the guns “while he was certainly dealing the drugs.” While the requirements of the enhancement are “not especially difficult to meet,” the court must “be able to specify the basis for its holding.” Here the circuit found the record too thin, and remanded to the district court for “specific findings” on the enhancement.

In United States v. Gomez, No. 09-4412-cr (2d Cir. November 23, 2010), the district court …

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Friday, November 26th, 2010

Payoff Games

United States v. Kalish, No. 08-3374-cr (2d Cir. November 24, 2010) (Newman, Winter, Lynch, CJJ)

Defendant Kalish was convicted of mail and wire fraud in connection with an advance loan fee scheme. The district court ordered him to pay $ 1.2 million in restitution, and also ordered a $ 3.9 million forfeiture.

On appeal, Kalish claimed that the district court should have reduced the forfeiture amount by the amount of the restitution order. The circuit affirmed, finding that the claim was premature. There is no error in imposing both a forfeiture order and a restitution order, since each is authorized by a separate statute.

However, once “some payment has been made by way of restitution, a defendant would be in a position to argue that such a payment should be a credit against any then remaining forfeiture amount.” Since the forfeiture amount represents “ill-gotten gains,” it is “at least arguable” …


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Blame Canada

United States v. Miller, No. 08-1152-cr (2d Cir. November 23, 2010) (Straub, Parker, Livingston, CJJ)

In 1994, Michelle Miller had a son, Robbie, with her former high school boyfriend; they later married. Shortly thereafter, the marriage dissolved. A Vermont family court awarded Miller legal custody of Robbie, and gave the father visitation rights. The following year, Miller, then living in Massachusetts, obtained an ex parte temporary abuse prevention order, which also gave her, temporary full custody of Robbie pending a hearing. Eventually, the Massachusetts court gave the father limited visitation rights in the form of six supervised visits. After the first visit, however, Miller began moving Robbie around to keep him away from the father. In 2001, she took Robbie to Canada knowing that under the Massachusetts court order the father was entitled to at least five more supervised visits.

Miller obtained permanent residency in Canada and, in a Quebec …


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PC World

United States v. Douglas, No. 09-4955-cr (2d Cir. November 23, 2010) (Miner, Katzmann, Hall, CJJ) (per curiam)

Defendant Douglas was trolling a fetish Internet chatroom, and struck up an acquaintanceship with a Vermont police officer posing as “Liz,” a thirty-eight-year-old divorced nurse with a thirteen-year-old daughter, “Anna.” Douglas tried to persuade Liz to bring Anna to him in Alabama so that he could “train” her to be a “sex slave.” There was a lot of back-and-forth, which included Douglas’ offering to help pay for the trip and find Liz a job near where he lived.

Douglas was convicted, after a jury trial, of violating 18 U.S.C. § 2422(b) by using an interstate facility to entice a minor to engage in criminal sexual activity. On appeal, he argued that the statute did not apply to him because he communicated only with a person he believed to be an adult. The circuit …

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Saturday, November 6th, 2010

It’s Not In The Timing

United States v. Davis, No. 09-3636-cr (2d Cir. November 5, 2010) (Newman, Raggi, CJJ, Rakoff, DJ)

Williams Davis was convicted, after a jury trial, of inter alia, producing child pornography, and was sentenced to 120 years’ imprisonment. This opinion address the novel issue of whether the defendant must know that the pornography will be transmitted in interstate commerce at the time he produced it.

This was an unusually ugly case. Davis, who had been convicted in 1991 of sexually assaulting his daughter and niece, and in 2007 of kidnapping and raping a twelve-year-old girl, also sexually abused his step-daughter in 2006, and apparently photographed some of the activity. When his wife found out about the abuse she evicted him from their apartment, but Davis left behind a safe. Eventually, the wife gave the safe to police officers, who opened it and found CD’s containing the child pornography.

Davis was convicted …


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