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Friday, August 28th, 2009

On a Role

United States v. Ware, No. 07-5222-cr (2d Cir. August 18, 2009) (Kearse, Sack, Hall, CJJ)

For five months in 2001 and 2002, Ware, an attorney, ran a “pump and dump” scheme, in which entities he controlled issued fraudulent, and supposedly independent, press releases promoting two penny stocks that he owned. When other investors acted on the false releases, the stocks went up and Ware sold his shares, earning a profit of more than $200,000. He was convicted of securities and wire fraud offenses, and the district court sentenced him to 97 months’ imprisonment.

On appeal, he represented himself pro se, raising a host of trial and sentencing issues. In this long opinion, which covers little real new ground, the court affirmed the conviction, but remanded for further sentencing findings on a leadership role enhancement.

The trial evidence revealed that Ware had three associates in the scheme: Jones and Epps, two …


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Monday, August 17th, 2009

Same S***, Different Day

United States v. Parker, No. 08-4199-cr (2d Cir. August 14, 2009) (McLaughlin, Calabresi, Raggi, CJJ)

Travious Parker received a 180-month sentence after a jury trial. This sentence comprised a 120-month drug mandatory minimum and mandatory sixty-month consecutive sentence on a § 924(c) count. On appeal, he argued that under United States v. Williams, 558 F.3d 166 (2d Cir. 2009) and United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), he was ineligible for the § 924(c) sentence. The circuit affirmed, because conduct underlying the drug count that carried the ten-year mandatory minimum and that underlying the § 924(c) count occurred on different dates.

Parker was charged in a multi-count indictment that covered several different dates. As pertinent here, the § 924(c) count (Count One), charged that Parker used or possessed a gun in connection with a crack sale (Count Two), a violation of 21 U.S.C. § 841(b)(1)(C), that carried …

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Summary Summary

Here is the latest collection of summary orders of interest:

In United States v. Bender, No. 08-3103-cr (2d Cir. August 14, 2009), the court rejected both substantive and procedural challenges to an upward departure in a child pornography case, even though the district court “should have provided a written statement of the specific reasons for its sentence.”

In United States v. Giordano, No. 07-3487-cr (2d Cir. August 12, 2009), the court affirmed the decision not to resentence the defendant on a Crosby remand, even though the district court had “mischaracterized the record in rejecting” the defendant’s harsh conditions of pretrial confinement – solitary confinement for 23 hours each day – as a “consideration that might justify a decision to resentence.” The court’s “misstatement” did not undermine it’s decision not to resentence, since it also concluded that the original sentence would not have been materially different had it known at the …

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Wednesday, August 12th, 2009

Suffer the Little Children

United States v. Freeman, No. 08-1886-cr (2d Cir. August 10, 2009) (Cabranes, Wallace, CJJ)

In United States v. Delmarle, 99 F.3d 80 (2d Cir. 1996), the circuit held that it was within the district court’s discretion to apply the guideline enhancement for possessing child pornography that depicted sadistic or masochistic conduct where the image showed a “young child [subject] to a sexual act that would have to be painful.”

Here, the defendant challenged the imposition of that same enhancement. He argued that the district court’s findings were inadequate because the court did not specifically use the word “sadistic” in describing the images found in his computer. The circuit held that, under Delmarle, as long as the district court finds that “(1) an image depicts sexual activity involving a minor and (2) the depicted activity would have caused pain to the minor,” the findings are adequate. Since the district court made …


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You Can’t Bet On It

United States v. Battista, No. 08-3750-cr (2d Cir. August 6, 2009) (Walker, Wesley, Wallace, CJJ)

James Battista was part of an illegal NBA gambling operation. He pled guilty to conspiring to transmit wagering information, in violation of 18 U.S.C. §§ 371 and 1084, and his sentence included restitution to the NBA. On appeal he unsuccessfully challenged this order.

Background

The gambling scheme began with a corrupt NBA referee, who would transmit “picks” through an intermediary to Battista, who would then place bets on those games. Battista paid the ref a fee for each game where the ref picked the winner. The ref and the intermediary each pled guilty to wire fraud, while Battista pled guilty to the wagering conspiracy. At sentencing, the district court ordered the three defendants to pay more than $ 200,000 in restitution to the NBA.

The Appeal

On appeal, Battista argued that the NBA was not …


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Monday, August 3rd, 2009

Going Down!

United States v. Perez, No. 08-4131-cr (2d Cir. August 3, 2009) (Newman, Pooler, Parker, CJJ)

Here, the circuit concluded that an internal BOP investigation into corrections officers’ use of force against an inmate constituted an “official proceeding” within the meaning of 18 U.S.C. § 1512. The court rejected the defendants’ sufficiency challenge and affirmed their convictions.

The case arose from the beating of an inmate by a CO in an elevator at the MDC. Two other CO’s watched the beating, although one of them finally put a stop to it, and all three were convicted of violating 18 U.S.C. § 1512(c) by making false statements in the paperwork that they were required to fill out by the BOP’s administrative procedures – various “use-of-force” memoranda.

The BOP investigates every use of force by a staff member. That investigation begins with the use-of-force paperwork, which is reviewed by an After-Action Review Committee …


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Sunday, August 2nd, 2009

Car, Men, Miranda

United Statse v. Plugh, No. 07-2620-cr (2d Cir. July 31, 2009) (Jacobs, Wesley, Hall, CJJ)

In September of 2005, FBI agents arrested Gordon Plugh on child pornography charges. In the car, an agent read him his Miranda rights and asked him to sign a waiver form. Plugh told the agent that he understood his rights because he was a former correction officer. But he added that he was “not sure” if he should make any statements and wondered whether he needed a lawyer. Plugh refused to sign the form, however, and said that he did not want to sign anything at that time.

During the long ride to headquarters, the agents told Plugh what he was charged with, and he asked them what he should do. The agents told him that they would relay any cooperation to the AUSA. Later, after processing him at their office, the agents told Plugh …

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Transmission Lines

United States v. Bah, No. 07-4370-cr (2d Cir. July 31, 2009) (Jacobs, Walker, Calabresi, CJJ)

Boubacar Bah ran a licensed money transmission business in New Jersey, but did not have an equivalent license in New York. He was convicted of operating an unlicensed money transmitting business, in violation of 18 U.S.C. § 1960, but the circuit reversed, finding that the district court erred in explaining the scope of § 1960 in its jury instructions.

Section 1960 makes it a crime to operate an “unlicensed money transmitting business” in interstate or foreign commerce in a “State where such operation is punishable as a misdemeanor or a felony under State law.” Under New York State law, it is a crime both to receive money for transmission and to transmit it without a license. Only the second of these is covered by § 1960, however, since the federal statute does cover the receipt …

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Summary Summary

Here are two more summary orders of interest.

In United States v. Nash, No. 08-0136 (2d Cir. July 29, 2009), a fraud prosecution, the court remanded the case for further record development on the question whether the “10 or more victims” enhancement should apply.

United States v. Zavala, No. 08-2727-cr (2d Cir. July 27, 2009), remanded the case for findings on whether an aggravating role enhancement was appropriate. The enhancement was based on the defendants’ supervising their daughter, but she was a minor for part of the time. “Specific findings” are necessary “as to acts constituting her participation in the parents’ offenses after she turned 18,” since a minor child is not a “participant” for the purposes of a role enhancement.

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Formula 404

United States v. Mercado, No. 08-1017-cr (2d Cir. July 17, 2009) (Calabresi, Wesley, CJJ, Droney, DJ)

In this split decision, the court upheld the admission of Rule 404(b) evidence – prior firearms sales – on the issue of intent in a drug conspiracy trial. The majority did not delve too deeply into the facts; instead, it rather formulaically noted that the prior transactions showed how the relationship of trust between the defendant and his co-conspirator developed, and rebutted the defendant’s argument that his actions were the innocent acts of a friend. The court also found no error in the district court’s Rule 403 balancing.

Judge Droney dissented, giving a much more complete picture of the facts of the case. The charged conduct involved the defendant, Townsend, and his friends, Jones – a cooperating witness – and Winfree. On the day he was arrested, Townsend drove them on some errands, one …


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Tuesday, July 28th, 2009

INTRODUCING A NEW FEATURE – “PC WORLD”

The circuit is increasingly publishing per curiam (or “PC”) opinions in criminal cases. These opinions tend to either answer open questions or make official rulings that have previously appeared only in non-precedential summary orders. PC’s are generally short and contain little or no reasoning, which render them very much like – except for their precedential value – summary orders. In light of this, the Blog will now gather PC’s in a separate, occasional feature known as “PC World,” so that time and space can be dedicated to the court’s more salient work. With that introduction, here are the first two:

In United States v. Amico, No. 08-1338-cr (2d Cir. July 21, 2009) (per curiam), the court joined the Sixth, Seventh and Tenth Circuits in holding that a 2001 ameliorating amendment to the “gross receipts” provision, codified in the November 1, 2008, guideline manual as U.S.S.G. § 2B1.1(b)(14)(A), is not retroactive. …

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