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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 …

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.…

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 …

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 …

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 …

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 …