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Sunday, November 29th, 2009

SAMs Club

United States v. Stewart, No. 06-5015 (2d Cir. November 17, 2009) (Walker, Calabresi, Sack, CJJ)

This 191-page opinion – three opinions, actually – deals with the aftermath of the Lynne Stewart trial. The defendants appealed their convictions – without success – while the government appealed the sentences. The court found procedural error with respect to Stewart’s sentence and remanded the case for resentencing.

Background

Beginning in the mid-1990’s, Stewart represented Sheikh Omar Ahmad Abdel Rahman, who was convicted of several terrorism offenses – including the 1993 World Trade Center bombing conspiracy – and sentenced to life in prison. Although based in New York, Rahman was the spiritual leader of the Islamic Group, a terrorist organization that was responsible for acts of violence in Egypt.

In 1997, the Bureau of Prisons imposed restrictive Special Administrative Measures (“SAMs”) on Rahman to prevent him from soliciting acts of violence from prison. The SAMs …

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Saturday, November 14th, 2009

Bye-Bye Baby

United States v. Hasan, No. 08-4921-cr (2d Cir. November 10, 2009) (Cabaranes, Sack, CJJ, Rakoff, DJ)

Syed Hasan was convicted of a number of crimes in connection with his successful scheme to kidnap his infant son and spirit the child off to India. He appealed on a number of grounds. This long opinion covers little new ground, but closes one open question.

In preparation for the kidnapping, Hasan applied for a passport for the child. In the application, he falsely gave his brother’s address in South Carolina as the child’s home address . In fact, the child lived in Brooklyn. On appeal, Hasan challenged his passport fraud conviction, arguing that the South Carolina address was not a “material misstatement.”

The circuit affirmed. It looked at the text of the statute, which makes it a crime to “willfully and knowingly make[] any false statement in an application for a passport,” and …


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The Things We Do For Love

United States v. Caraballo, No. 08-4640-cr (2d Cir. November 5, 2009) (Leval, Raggi, Livingston, CJJ)

Gilberto Caraballo was a large-scale drug supplier in the Sunset Park section of Brooklyn. In September of 2000, he started dating Quincy Martinez, former girlfriend of Jose Fernandez, a dealer who worked for Caraballo. Three months into their relationship, Martinez asked Caraballo to murder Fernandez because he had been abusive toward her. Caraballo answered, “Say no more.”

Caraballo recruited one of his former drug dealers, Aguilar, and Aguilar’s associate, Taylor, to help do the job. Caraballo had previously cut off Aguilar’s supply over an unpaid drug debt, but promised to forgive the debt and resume supplying to him in exchange for the hit. Taylor, who realized that his own sales would increase once Caraballo started supplying Aguilar again, agreed to help and was to receive $5,000 in cash or drugs.

Aguilar, Taylor and Caraballo did …


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Summary Summary

Two summary orders of interest:

In United States v. McDarrah, No. 07-1849-cr (2d Cir. November 5, 2009), a child enticement case, the district court admitted opinion testimony from an FBI agent that was improper in two ways. First, the agent used “we” to preface one of his opinions, which suggested that the opinion was based on his and other agents’ collective knowledge and experience, and thus was “specialized knowledge” and not a “lay” opinion. Second, the agent expressed his opinion that the defendant was in fact guilty of attempted enticement. However, the court found the errors to be harmless.

In United States v. Creary, No. 06-2233-cr (2d Cir. November 3, 2009), the court noted that it is “plain error” for a district court not to adopt the presentence report in open court at sentencing, but not where the report adequately supports any contested enhancements.…

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Tuesday, November 3rd, 2009

Cash and Quarry

United States v. Byors, No. 08-4811-cr (2d Cir. October 29, 2009) (Cabranes, Livingston, CJJ, Korman, DJ)

Defendant, while ostensibly raising money for a Vermont marble quarry, made material misrepresentations to his investors. He also converted substantial amounts of their money to pay for his personal expenses, including vacation homes, cars and horses. He pled guilty to multiple fraud and money laundering offenses and was sentenced to 135 months’ imprisonment. On appeal, he raised two unsuccessful challenges to his Guidelines calculations.

He first argued that the district court should have deducted from the loss calculation – about $9 million – the “legitimate business expenditures” that went into his efforts to “capitalize” the quarry business. The circuit disagreed. Under the “plain language” of Application Note 3(E) to the fraud guideline, the loss amount is only offset by any “value” that the victims receive, and not by legitimate expenditures. Byors’ expenditures conferred nothing …


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Wednesday, October 28th, 2009

Action Jackson

United States v. Jackson, No. 08-5151-cr (2d Cir. 2009) (McLaughlin, Katzmann, CJJ, Korman, DJ)

Here, the circuit concluded that erroneous introduction of prejudicial “other acts” evidence required a new trial.

The Facts

Police officers responding to a “shots fired” call in Queens encountered Jackson and others outside the target apartment building. Jackson fled, and has he ran, one of the officers claimed to see what looked like the butt of a gun in his pocket. Jackson was arrested later coming out of a different building. He was unarmed, but the police found a gun in a trash can in the courtyard that separated the two buildings. Jackson was charged with being a felon in possession of that gun.

The next day, the police executed a search warrant in the target apartment and found guns, drugs, bulletproof vests and cash. Jackson was not charged with possessing those items, but at 11:15 …


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Tuesday, October 27th, 2009

Summary Summary

Two more summary orders of interest:

In United States v. Howard, No. 08-0944-cr (2d Cir. October 26, 2009), the court, when considering the denial of a motion to suppress wiretap evidence, questioned whether the district court correctly rejected without a hearing the defendant’s claim that the government illegally began tapping his phone before it obtained a wiretap order. One record was “troubling,” in that it seemed to support the defendant’s claim, and the government’s explanation – that the record was a “data entry error” – was unconvincing. The court noted that “[i]f we were in the district court’s position, we would have conducted a hearing to delve further into this bare explanation,” although it was not an abuse of discretion to decline to do so.

In United States v. Carrasco-Abreu, No. 08-4420-cr (2d Cir. October 20, 2009), the court held that an alien who failed to leave the the country …

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Drug Abuse

United States v. Wright, No 08-0322-cr (2d Cir. October 19, 2009) (Jacobs, McLaughlin, Parker, CJJ)

Here, the circuit held that the admission of defendant McCallum’s two prior drug convictions – which it termed “propensity evidence in sheep’s clothing” – during his federal crack trafficking trial was an abuse of discretion. It also found the error to be harmless, however, and affirmed.

McCallum was a member of a drug crew in Spring Valley, New York. At trial, the government sought to offer into evidence his two prior convictions for possession and attempted sale of cocaine, arguing that they were admissible under Rule 404(b) to show his knowledge and intent. The district court allowed the evidence, but did not explain why it believed it was admissible.

The circuit began by noting that its “inclusionary approach” to Rule 404(b) does not give the government “carte blanche” to offer “any prior act of the …

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PC World

Here are the two most recent PC’s.

In United States v. Bell, No. 08-5506-cr (2d Cir. October 20, 2009) (Miner, Cabranes, CJJ, Rakoff, DJ) (per curiam), the court reversed the district court’s grant of a new trial under F.R.Cr.P. 33 and remanded the case for sentencing.

After the defendant was convicted of attempted murder of a federal officer, assault and discharging a firearm in connection with those offenses, the lower court concluded that it had given the jury an erroneous definition of the term “intentional” that did not clearly distinguish between intentional and accidental conduct. The circuit disagreed, holding that the district court’s chosen language – that the defendant’s act must have been the product of his “conscious objective rather than the product of a mistake or accident” was not error. The appellate court was equally unimpressed with the district court’s alternative reason for granting a new trial: the uncontested …

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Wednesday, October 14th, 2009

A Matter of Substance

United States v. Rigas, No. 08-3485-cr (2d Cir. October 5, 2009) (Feinberg, Winter, Cabranes, CJJ)

When we last heard about the Rigas père et fils – former senior officers at Adelphia Communications who were convicted of conspiracy, securities, wire and bank fraud – the circuit affirmed the majority of their convictions, but reversed a single count of bank fraud for insufficient evidence. United States v. Rigas, 490 F.3d 208 (2d Cir. 2007). Probably because the court remanded the case for resentencing, the 2007 opinion did not address the defendants’ long prison sentences: twenty years for the father and fifteen for the son, where the Guideline recommendation for each was life.

This case is the appeal from the remand. The decision covers little new ground, but provides very helpful guidance from the court on the standard it applies when reviewing a sentence for substantive reasonableness.

To get there, however, the court …


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Sunday, October 11th, 2009

Summary Summary

Here’s a fairly large crop of summary orders of interest.

In United States v. Smith, No. 07-5740-cr (2d Cir. October 8, 2009), the court agreed that it was error to admit a picture of the defendant’s tattoo – which depicted the skull, arms and ribcage of a skeleton firing a weapon – in a homicide case. Other than to show propensity, the evidence was irrelevant. The error, however, was harmless.

In United States v. Jackson, No. 08-0541-cr (2d Cir. October 2, 2009), the court found no error in allowing the government to prove two assaults through hearsay at a supervised release violation hearing. The government justified the hearsay by asserting that the victims were no longer cooperating with the authorities – one had recanted and the other had indicated that she was afraid of the defendant. The court found that the government conclusively demonstrated the reliability of the hearsay.

In …

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