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Sunday, September 5th, 2010

PC World

United States v. Epstein, No. 09-4025-cr (2d Cir. September 3, 2010) (Miner, Cabranes, Straub, CJJ) (per curiam)

In United States v. Merced – argued and won by our favorite blogger – the circuit held that prior terms of imprisonment for supervised release violations counted toward, and limited, the statutory maximums contained in 18 U.S.C. § 3583(e)(3). Congress “fixed” Merced in 2003’s PROTECT Act. This per curiam holds that the amended statute applies where the underlying offense occurred after the enactment of the new legislation.

Defendant Epstein received a twenty-four month violation sentence, but argued that the district court was obligated to credit him for a prior twelve-month violation sentence. This would have been required under the old statute, per Merced. But the amended statute “eliminate[s] the credit for terms of imprisonment resulting from prior revocations.” This outcome is clearly dictated by the change to the statute, which now indicates that …

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Max Facto

United States v. Ortiz, No. 08-2648-cr (2d Cir. September 1, 2010) (Newman, Pooler, CJJ, Rakoff, DJ)

Closing a an open question, the here court holds that the use of a more onerous guideline that is promulgated after the date of the offense can violate the Ex Post Facto Clause. But it also concludes that in this particular case there was no ex post facto violation.

At Ortiz’ sentencing for firearms and narcotics offenses, the district court used the amended guideline for an obliterated serial number – the Sentencing Commission had increased the enhancement from two to four levels – even though that amendment was adopted after the date of his offense. On appeal, for the first time, he argued that this violated the Ex Post Facto Clause.

The circuit noted that there is a circuit split on whether the retrospective application of a harsher, but non-mandatory, guideline implicates the Ex …


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Southern Discomfort

United States v. Barrie, No. 09-3035-cr (2d Cir. August 31, 2010) (Katzmann, Hall, Chin, CJJ)

Alalim Barrie was convicted of bank fraud and aggravated identity theft in connection with a scheme in which he and his confederates obtained money from banks using counterfeit checks and stolen credit card accounts. Southern District venue was clearly proper with respect to the bank fraud, since Barrie transferred stolen money into banks located in the Bronx. But he argued that there was no Southern District venue for the associated identity theft, since all of the actions that constituted aggravated identity theft occurred outside the district.

While the circuit agreed with Barrie’s view of the facts, it nevertheless affirmed. In a prosecution under 18 U.S.C. § 1028A, venue is proper in “any district where the predicate felony offense was committed, even if the means of identification of another person was not transferred, possessed, or used …


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Categories: right to be present; aggravated identity theft, Uncategorized, venue

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PC World

United States v. Pfaff, No. 09-1702-cr (2d Cir. August 27, 2010)(Jacobs, Winter, McLaughlin, CJJ) (per curiam)

Apprendi rears its head once again in this latest per curiam, this time with respect to a fine.

A jury convicted John Larson, one of the defendants in the KPMG tax shelter case, of twelve counts of tax evasion under 26 U.S.C. 7201, but did not make a finding as to the pecuniary loss Larson caused or the gain he derived from the conduct. At sentencing, the district judge found a “gross pecuniary loss” of more than $100 million. Since 18 U.S.C. § 3571(d) authorizes a fine of up to twice the loss, the judge determined that the statutory maximum fine would be more than $200 million. The court ultimately imposed a $6 million fine.

While no Larson made no Apprendi objection, the circuit found plain error and vacated the fine. Section 3571(b) establishes …


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Monday, August 23rd, 2010

You See Davis

United States v. Bonilla, No. 09-1799-cr (2d Cir. August 13, 2010) (Miner, Cabranes, Wesley, CJJ)

Five months ago, in United States v. Davis, a Second Circuit panel denied the government’s motion for summary affirmance in a criminal case. Davis held that summary affirmance is a “rare exception” that should only be granted where the issues raised by the appellant are truly frivolous. It also noted that summary affirmance in criminal cases is “particularly perilous.” See, An Exercise in Frivolity, posted March 20, 2010.

Here, with Davis’ ink barely dry, a different panel granted a motion for summary affirmance in a criminal case.

Background

Angel Bonilla pled guilty to illegal reentry, and had a past conviction for felony assault, which triggered the 16-level enhancement in U.S.S.G. § 2L1.2(b)(1)(A)(ii). At offense level 21 and criminal history category IV, he faced a Guideline sentencing range of 57 to 71 months.

At sentencing, he …


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Sunday, August 22nd, 2010

PC World

United States v. Green, No. 08-5548-cr (2d Cir. August 13, 2010) (per curiam)

An unconstitutionally vague condition of supervised release is the theme of this most recent per curiam opinion.

Defendant Green, while serving a long prison sentence for crack cocaine trafficking, was convicted of possessing a weapon and marijuana in prison. As part of his sentence, the judge imposed a condition of supervised release prohibiting him from associating with the Bloods or any other criminal street gang and from “the wearing of colors, insignia, or obtaining tattoos or burn makes relative to” such a gang.

The circuit, upholding the associational prohibition, struck the rest of the condition. The “color prohibition” did not provide Green with “sufficient notice of the prohibited conduct. The range of possible gang colors is vast and indeterminate.” One police department manual’s list of gang colors includes white, blue, black or combination of the two, with …


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Summary Summary

Here are two more summary orders of interest. Probably the last of this Term.

In United States v. Johnson, No. 06-2206-cr (2d Cir. July 28, 2010), the court ordered a resentencing because the district court did not comply correctly with a prior order vacating the sentence. The original order required a de novo resentencing, but the district court did not conduct one. It simply issued a new sentencing opinion imposing the same sentence. The circuit also remanded to different judge because “the number of errors that have attended defendant’s repeated sentencing proceedings could lead a reasonable observer to question the court’s impartiality.”

In United States v. Bonczek, No. 09-3865-cr (2d Cir. August 19, 2010), the court noted that there is a circuit split on the question whether a judge issuing a search warrant in a child pornography case needs to view the images in order to find probable cause. The …

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Saturday, August 21st, 2010

Sorry, Right Number

United States v. Kumar, No. 06-5482-cr (2d Cir. August 12, 2010) (Walker, Sacks, Livingston, CJJ)

Sanjay Kumar and Stephen Richards, officers as a company called Computer Associates, engineered a huge accounting fraud that ended in October of 2000. Had that been the end of the story, their sentence would have been calculated under the November 1998 Guideline Manual (for obscure political reasons there is no November 1999 Manual), and their offense level would have been 30. However, the defendants engaged in additional criminal conduct associated with the government’s investigation of the accounting fraud – obstruction of justice, mainly – between 2002 and 2004.

Eventually, they pled guilty to everything and, in 2006, were sentenced under the November 2005 Guideline manual, which was in effect at the time, and under which the offense level for the fraud offenses had increased dramatically – from 30 to 50.

In this opinion, a divided …


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Saturday, August 14th, 2010

We Can Recall

United States v. Rojas, No. 09-3007-cr (2d Cir. August 12, 2010) (Jacobs, Wesley, Chin, CJJ)

Nicholas Rojas was convicted of participating in crack conspiracy. On the written verdict form, the jury found that he was involved with five grams or more of a mixture or substance containing “cocaine base.” However, when the courtroom deputy polled the jury, he misread the verdict form, describing the drug as “cocaine,” not “cocaine base.”

The error was discovered only after the poll was completed and the jury had been “discharged” and returned to the deliberation room to “await the thanks of the court for its service.” Although the defense did not consent to having the jury returned to the courtroom to be re-polled, the judge nevertheless recalled the jury. He explained to the recalled jurors what had happened, had the deputy the verdict again, re-polled them, and discharged them again.

On Rojas’ appeal, the …

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A Bad Call

United States v. Gomez, No. 08-3829-cr (2d Cir. August 4, 2010) (Leval, Pooler, Parker, CJJ)

Here, the improper admission of indirect hearsay resulted in a new trial.

Background

Fred Rivas and a confederate sold 5,000 Ecstacy pills to a confidential informant. They were arrested, and Rivas agreed to cooperate. A New York City detective, Michael Ryan, was permitted to testify about the nature of Rivas’ cooperation; specifically, Ryan testified that he asked Rivas to “call the person who had given him that 5,000 pills,” and that Ryan then dialed Gomez’ number from Rivas’ phone and recorded their conversation. The district court denied Gomez’ hearsay objection to this testimony, and the government ended up using it in summation to directly implicate Gomez as the supplier.

The Circuit’s Decision

The court found that Ryan’s testimony constituted prejudicial hearsay, and rejected with unusually strong language the government’s claim that it admitted the testimony …


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Friday, August 13th, 2010

PC World

United States v. Shyne, No. 08-0865-cr (2d Cir. August 5, 2010) (Kearse, Sack, Hall, CJJ) (per curiam)

An unusual discovery issue is the theme of this per curiam opinion.

Three defendants went to trial on bank fraud and money laundering charges. Before trial, the government provided notice that it would offer statements of five other individuals as co-conspirators’ declarations under Fed.R.Evid.801(d)(2)(E), although it was not planning to call them as witnesses. The government also provided Giglio material as to these declarants. In response, the defendants demanded the declarants’ 3500 material – specifically their proffer notes – even though they would not be testifying at trial. The district court denied the application and, here, the circuit affirmed.

The Jencks Act, 18 U.S.C. § 3500, by its very terms applies only to a “witness” who has “testified on direct examination,” and is not “trumped” by Fed.R.Evid 806, which provides that the credibility …


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