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 … Read more
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 … Read more
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 … Read more
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 … Read more
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 … Read more
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), … Read more
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, … Read more
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 … Read more
United States v. Daye, No. 08-1012-cr (2d Cir. July 10, 2009) (Miner, Raggi, Livingston, CJJ) Bruce Daye received an 180-month ACCA sentence. On appeal, he raised challenges to the use of all of his prior convictions as ACCA predicates, and the court sent the case back for further findings. 1. Escape One of Daye’s prior … Read more
United States v. Pearson, No. 07-0142-cr (2d Cir. July 2, 2009) (Miner, Katzmann, Raggi, CJJ) (per curiam) Title 18, U.S.C. § 2259 provides that, in sex abuse cases, restitution is mandatory for the full amount of any loss to the victim, including the costs of medical or psychiatric care. Here, in a case of first … Read more