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Saturday, February 19th, 2011

Abbott Hole

United States v. Tejada, No. 07-5289-cr (2d Cir. February 9, 2011) (Leval, Raggi, CJJ, Gleeson, CJ)

The defendant here received a 120-month drug sentence and a consecutive 60-month § 924(c) sentence. On appeal, he argued that this was illegal under the court’s decisions in Williams and Whitley. And indeed it was. However, as this decision recognizes, those cases were abrogated by the Supreme Court in Abbot v. United States, 131 S.Ct. 18 (2010).

At issue is an inscrutable phrase in § 924(c): “Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law,” a person convicted of violating § 924(c) must receive a specified mandatory minimum sentence and that sentence must be consecutive to any other term of imprisonment. Whitley held that this language meant that the § 924(c) sentence did not apply if the defendant received a higher …

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Attempting Offer

United States v. Sabir, No. 07-1968-cr (2d Cir. February 4, 2011) (Winter, Raggi, CJJ, Dearie, DJ)

Rafiq Sabir, an American doctor, was convicted of conspiring to and attempting to provide material support – in the form of his own medical services – to al Qaeda. Sabir raised a multitude of issues on appeal, including a challenge to the constitutionality of the material support statute and complaints about the racial composition of the jury, the trial court’s evidentiary rulings, and the government’s rebuttal summation.

But of particular interest are the opinion’s discussion of sufficiency of his conviction for attempt, an issue that the court does not not often consider in depth, and the diverging views of the two opinions on the issue.

The case against Sabir arose from a terrorism investigation of Sabir’s longtime friend, Tarik Shah, that began in 2001. An FBI CI “Saeed,” cultivated a relationship with Shah, in …

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Sunday, February 13th, 2011

The Chose Tattoo

United States v. Greer, No. 09-4362-cr (2d Cir. February 4, 2011) (Walker, Cabranes, CJJ, Koeltl, DJ)

Michael Greer was convicted of possessing a gun and its ammunition. The gun was recovered in a trash can along with the keys to a Hyundai Sonata, while the ammunition was found in the car itself. The Sonata had been rented by someone named Tangela Hudson, and a police officer testified that Greer had a tattoo on his left arm that said “Tangela.” On appeal, he argued that using the tattoo to connect him to the car violated his Fifth Amendment right against self-incrimination.

The circuit agreed that the tattoo was “testimonial.” The mere exhibition of a physical trait is not testimonial because it is not a communication that contains an assertion of fact or belief. But here, the tattoo was “used to a very different end” – not to identify Greer, but rather …

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Categories: Fifth Amendment, self-incrimination, Uncategorized

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Saturday, January 29th, 2011

Swept Away

United States v. Hassock, No. 09-5193-cr (2d Cir. January 28, 2011) (Miner, Parker, Raggi, CJJ)

In November of 2009, the district court granted Hassock’s motion to suppress the gun that he was charged with possessin, finding that it was the fruit of an unreasonable search of his bedroom. On the government’s appeal, the circuit agreed that the search could not be justified under the “protective sweep” doctrine and affirmed.

Background

In late 2008, an informant told an ICE agent named Christopher Quinn that someone known as “Basil” – in reality, Hassock – had a gun in his basement apartment in the Bronx. Quinn and other members of an inter-agency task force were unable to identify “Basil,” so on November 25, 2008, they went to the location specified by the informant. Their purpose was to conduct a “knock and talk” – that is, to interview the residents, try to confirm the …

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PC World

This week’s per curiam opinions both deal with sentencing matters.

First is United States v. Johnson, No. 08-4093-cr (2d Cir. January 28, 2011) (Kearse, Winter, Hall, CJJ) (per curiam).

Here, three defendants challenged the district court’s denial of their crack resentencing motions under 18 U.S.C. § 3583(c)(2). After a trial, the district court found that each defendant was personally responsible for their organization’s total sales, approximately 88 kilograms. The district court sentenced two defendants to life in prison; for the third, the court downwardly departed to fifteen years. The circuit held that the district court properly denied the § 3583(c)(2) motions, because the ameliorating amendment did not change the base offense level for offenses involving 4.5 kilograms or more of crack.

On appeal, the defendants tried to persuade the circuit that they were not actually responsible for that quantity. But the circuit found no error in the district court’s drug …

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You Can’t Go Home … Again

United States v. English, No. 10-3258-cr (2d Cir. January 18, 2011) (Kearse, Winter, Hall, CJJ).

The defendants in this case, charged with narcotics and firearms offenses, sought bail from a magistrate and two district judges. Each time they were ordered detained. This opinion is the result of their effort to get the circuit to release them. The circuit affirmed.

The defendants were arrested in April of 2010. They faced a twenty-plus kilogram cocaine conspiracy charge and two firearms offenses. They first sought bail from a magistrate judge. At the hearing, the AUSA cited several factors indicating that the defendants were a danger, including characterizing a gun recovered from the defendants’ stash house as appearing to be a machine gun. The magistrate ordered the defendants detained finding that they had not overcome the presumption that they posed a danger to the community.

The defendants then appealed to the Part I judge, …

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Saturday, January 22nd, 2011

Belgian Awful

United States v. Weingarten, No. 09-1043-cr (2d Cir. January 18, 2011) (Cabranes, Wesley, Livingston, CJJ)

Defendant Weingarten, who sexually abused one of his daughters for years, successfully challenged the applicability of 18 U.S.C. § 2423(b), which makes it a crime to travel in “foreign commerce” with the intent to engage in sexual activity that would be illegal in the United States, to one of the counts of conviction.

Background

Weingarten, a United States citizen, moved his family to Antwerp, Belgium, in 1984. Starting in about 1991, he began sexually abusing his oldest daughter, who was then nine or ten. The abuse went on for years – the daughter moved for England for a time – but when she returned to Belgium it resumed. In 1997, Weingarten moved the family to Israel, but the abuse continued. He also brought her to Brooklyn, to visit his father, and abused her there, too.…

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Wednesday, January 5th, 2011

PC World

United States v. Brown, No. 09-4991 (2d Cir. January 5, 2011) (Calabresi, Sack, Katzmann, CJJ) (per curiam)

The court’s latest per curiam holds that assaulting a correction officer, in violation of Conn. Gen. Stat. § 53a-167c(a), satisfies the “catch-all” definition of “violent felony” in the Armed Career Criminal Act. Under Circuit law, an offense qualifies under the catch-all if it is both similar “in kind” and in “degree of risk posed” to the listed offenses of burglary, arson, extortion and the use of explosives.

The Connecticut offense is similar “in kind” because it requires the offender to intentionally prevent an officer from performing his duties, primarily in a prison setting, where “the act of injuring an employee for the purpose of preventing her from performing her official duties tends to entail especially violent consequences.”

As for the degree of risk posed, the court noted that the statute only applies where …

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Tuesday, January 4th, 2011

Be Careful What You Fish For

United States v. Bengis, No. 07-4895-cr (2d Cir. January 4, 2011) (Feinberg, Cabranes, Hall, CJJ)

Three defendants pled guilty to various offenses arising from their South African lobster fishing businesses; they illegally harvested large numbers of rock lobsters from South African waters for export to the United States, conduct that violated both South African and United States law. This opinion addresses the government’s appeal of the district court’s legal conclusion that South Africa was not entitled to restitution. The Circuit reversed.

The district court had first held that South Africa did not have a property interest in the illegally harvested lobsters. The appellate court disagreed. Under South African law, lobsters caught illegally are not the property of those who caught them. They are subject to seizure by the government, which can then sell them and keep the proceeds. Thus, the defendants’ conduct, which included evading the seizure of overharvested lobsters, …

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Over-VI’ed

United States v. Preacely, No. 09-2580-cr (2d Cir. December 21, 2010) (Raggi, Lynch, Wallace, CJJ)

In this unusual, three-opinion decision the majority remanded for resentencing, finding that the record was ambiguous as to whether the district judge understood his departure authority.

Background

Jamar Preacely pled guilty to a five-year-mando crack conspiracy pursuant to a cooperation agreement. Twenty-seven years old when he was arrested, he had sustained several drug convictions when he was younger, and was categorized by the Sentencing Guidelines as a “career offender.”

He spent about two years in custody on the federal case, then was released on bail. For the next three years, it seems, Preacely turned his life around. He entered and excelled at several rehabilitation programs, stopped using drugs, and actively cooperated in several criminal investigations.

At sentencing, as a career offender, he faced an offense level of 31 and was automatically placed in criminal history …

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