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 … Read more
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 … Read more
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 … Read more
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 … Read more
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 … Read more
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 … Read more
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 … Read more
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 … Read more
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 … Read more
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 … Read more