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Sunday, October 19th, 2008

Unlucky Strike

United States v. Matthews, No. 07-0699-cr (Wesley, Hall, Gibson, CJJ) (per curiam)

Matthews challenged his life sentence under the federal “three-strikes” statute, 18 U.S.C. § 3559(c), on several grounds. The circuit affirmed.

One “three-strikes” provision requires the defendant to establish that his prior convictions were not “serious violent felonies,” as defined by the statute. The court joined eight other circuits in upholding the constitutionality of this allocation. “Where no fundamental right is at issue, there is no doubt that the legislature may assign to defendants burdens of proof with regard to affirmative defenses.”

Matthews also argued that the burden itself – of producing clear and convincing evidence – violates due process. The court noted that four circuits had found that this standard did not violate due process, but did not resolve the issue here. Matthews could not show, even by a preponderance of the evidence, that his past convictions were …

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Materia Girls

United States v. Ojeikere, No. 07-1970-cr (2d Cir. October 7, 2008) (Newman, Winter, Calabresi, CJJ)

Defendant Ojeikere was convicted of participating in an “advance fee” scheme the tricked its victims into sending money to the defendant and his confederates to release “large sums of money supposedly held in Nigeria.”

On appeal, he challenged the restitution order, which was nearly $700,000. He claimed that his “victims,” although they suffered losses, had hands too dirty to claim restitution, since they all participated in what they believed was a fraudulent scheme to obtain money from Nigeria. The court agreed with Ojeikere in principle only – restitution is not appropriate where the victims are, in effect, co-conspirators.

But restitution “may not be denied simply because the victim had greedy or dishonest motives.” It should only be denied where the victims’ intentions were in pari materia with those of the defendant. Because Ojeikere did not …

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Expert Tease

United States v. Mejia, No. 05-2856-cr (2d Cir. October 6, 2008) (Jacobs, Parker, Hall, CJJ)

Here, the improper admission of “officer expert” testimony resulted in a new trial.

Background

The defendants were convicted of participating in two drive-by shootings in connection with their membership in the MS-13 gang. One defendant was sentenced to sixty-three years’ imprisonment, the other to sixty.

A significant portion of the evidence against them, however, came from a New York State Police investigator who testified about the structure and organization of MS-13, as well as its “methods and activities, modes of communication and slang.” It turned out however, the officer’s sources for much of this information were suspect, including reports from other law enforcement officers, custodial statements from other gang members, internet research, and wiretaps that he listened to.

The Court’s Ruling

The court of appeals reversed, finding that much of the officer’s testimony was improper.…

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Summary Summary

A few more summary orders of interest from earlier this month:

In United States v. Nunez-Gonzalez, No. 05-4064-cr (2d Cir. October 10, 2008), the court remanded for resentencing where a “review of the record leaves us uncertain as to whether the District Court fully considered the sizeable disparity between the sentences of” the defendant and his co-defendant.

In United States v. Mercardo, No. 07-3327-cr (2d Cir. October 7, 2008), the defendant in a drug case argued that he was prejudiced by testimony of an agent who explained that he investigated “violent crimes associated with narcotics use.” The court “caution[ed]” the government about “unnecessarily eliciting testimony about agents’ responsibilities not relevant to the charged crime,” but found the error to be harmless. In addition, the court granted a Regalado remand, even though the defendant was sentenced as a career offender, since it was unclear whether the district court fully understood its …

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Monday, October 6th, 2008

Trial by Error

United States v. Al-Moyad, No. 05-4186-cr (2d Cir. October 2, 2008) (McLaughlin, Parker, Wesley, CJJ)

Defendants Al-Moayad and Zayed were convicted in front of Judge Johnson of conspiring to provide material support to Hamas and Al-Qaeda, designated terrorist organizations. Al-Moayad was also convicted of related substantive offenses. He was sentenced to seventy-five years in prison, while Zayed was sentenced to forty-five years.

The defendants asserted that they were entrapped. Their trial, however, was marred by a string of spectacularly unfair evidentiary rulings that gravely undermined their defense. The court of appeal remanded the case for a new trial before a different judge.

Background

This case arose through the efforts of a confidential informant named Al-Anssi. In November of 2001, Al-Anssi approached the government and offered to furnish – for money – information regarding terrorism. Among ththe possible targets he mentioned was Al-Moayad, whom Al-Anssi described as the imam of a …

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Sunday, October 5th, 2008

Summary Summary

Submitted for your approval – another set of notable summary orders.

In United States v. Davidson, No. 06-4729-cr (2d Cir. October 3, 2008), the court ducked an interesting issue. Davidson was convicted of a drug offense and a related § 924(c) offense and the district judge fined him $300 on each count. However, 18 U.S.C. § 924(c) authorizes only imprisonment, the section oes not mention a fine. The circuit noted that the 924(c) fine was thus “arguably invalid.” But “rather than explore and adjudicate the issue,” it simply struck the fine on that count.

In United States v. Lutz, No. 07-5188-cr (2d Cir. October 3, 2008), the court held that the defendant was not entitled to a Regalado remand where the district judge clearly indicated that “Kimbrough” would not “make any difference to me at this point … I don’t think it would have an impact at all.”

United States …

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Sunday, September 28th, 2008

Good Faith Efforts

United States v. Falso, No. 06-2721-cr (2d Cir. September 24, 2008) (Jacobs, Sotomayor, Livingston, CJJ)

This opinion, a three-way split, adds another confusing piece to the circuit’s oeuvre in reviewing search warrants in child pornography cases. Judges Sotomayor and Jacobs held that the warrant lacked probable cause; Judge Livingston held that it did not. Judges Sotomayor and Livingston held that the agents relied on the warrant in good faith; Judge Jacobs held that the good faith exception should not apply. In the end, Falso’s conviction and thirty-year sentence were affirmed.

Background

All of the evidence against Falso was recovered from a search of his home and a consensual interview that took place there. This led to a 242-count indictment that covered travel with the intent to engage in sexual contact with minors, production of child pornography, receiving child pornography via the internet, and transporting and possessing child pornography – 242 …

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Support Hose

United States v. Kerley, No. 08-1818-cr (2d Cir. September 25, 2008) (Jacobs, Pooler, CJJ, Restani, JCIT)

Clifford Kerley was convicted, after a jury trial, of two counts of willfully evading a child support obligation – one for each of his twin daughters – in violation of 18 U.S.C. § 228(a)(3). On appeal, he successfully argued that the indictment against him was multiplicitous, because it charged him in two counts, even though he had been subject to a single support order. He also prevailed on his argument that the “vulnerable victim” enhancement should not apply.

1. Multiplicity

An indictment is multiplicitous when it charges a single offense as an offense multiple times, in separate counts, when in law and fact, only one crime has been committed. Kerley’s argument that he only committed a single violation of § 228(a)(3) turned on whether the “unit of prosecution” for that offense is the support …

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Mea Exculpa

United States v. Spadoni, No. 06-4970-cr (2d Cir. September 25, 2008) (Pooler, Hall, CJJ, Gleeson, DJ)

Here, the defendant successfully argued that the government’s suppression of exculpatory and impeachment material warranted a new trial.

Background

Spadoni was the general counsel for an investment firm, Triumph, that did business with the State of Connecticut. He was a friend of Paul Silvester, who was, for a time, Connecticut State Treasurer. One of Silvester’s duties was to make investment decisions for state pension funds.

In 1998, Silvester asked Spadoni for a campaign donation. By law it could not go to his own campaign, so instead Spadoni donated $100,000 to the state Republican Party. Silvester lost the election, but before he left office decided to invest $150 million in state pension funds with Triumph.

In connection with this investment, Silvester asked Spadoni to pay a one percent finders fee to two of his associates, …

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Benched

United States v. Carmenate, No. 07-2421 (2d Cir. September 24, 2008) (Cabranes, Pooler, Katzmann, CJJ) (per curiam)

Carmenate was charged with bank fraud. His counsel, fearing the consequences of having the jury hear from a witness that he believed was biased, asked for a bench trial. The government agreed, and, at the court’s request, counsel submitted a written jury waiver that bore counsel’s signature, but not the defendant’s. The judge allocuted the defendant extensively, then accepted the waiver. He convicted Carmenate and sentenced him to forty-one months’ imprisonment.

On appeal, the circuit held that the jury waiver was adequate, even if the procedure was less than perfect. Carmenate was present when his counsel asked for a bench trial and when the court asked for a written waiver. He was also present when the judge reviewed the written request and was sufficiently allocuted. While it is true that the judge did …

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Jailhouse Rock

United States v. Cote, No. 07-1852 (2d. Cir. September 24, 2008) (Pooler, Sotomayor, CJJ, Restani, JCIT)

Paul Cote was a prison guard at the Westchester County jail. On October 10, 2000, during an altercation, Cote repeatedly punched and stomped on an inmate’s head while the inmate lay on the floor. The inmate never regained consciousness and died about fourteen months later, in December of 2001.

Background

Cote was originally tried in state court, before the inmate died; he was acquitted of first-degree assault, and convicted of a lesser offense, second-degree assault. Hewas sentenced to three months’ imprisonment.

Subsequently, Cote’s counsel learned of a federal civil rights investigation into the incident. The feds moved quite slowly and, nearly five years after the event, notified counsel that an indictment was forthcoming. Counsel wanted time to persuade the government not to pursue the case; on counsel’s advice, Cote executed an agreement tolling the …

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