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Wednesday, May 28th, 2008

Summary Summary

The court has only issued 2 published opinions in criminal cases in the past two weeks. But there has been a flurry of noteworthy summary orders. Here is the latest crop:

In United States v. Creary, No. 06-2233-cr (2d Cir. May 27, 2008), a document fraud case, the court vacated the sentence because the district judge did not make sufficient findings that the case involved 100 or more fraudulent documents.

United States v. Berrios, No. 05-6654-cr (2d Cir. May 27, 2008), sorted out a district court proceeding that can only be described as a train wreck. First, the court vacated one defendant’s sentence because the district judge did not give sufficient reasons for the sentence: it did not calculate the guideline range, mention § 3553(a), adopt the presentence report or address the history and character of the defendant. The circuit did not enforce the appellate waiver, because, during the plea, …

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Deficiency Expert

United States v. Ellett, No. 07-3682-cr (2d Cir. May 23, 2008) (per curiam)

James Ellett was a tax protester, who stopped paying his federal income tax after reading a book called “Vultures in Eagle’s Clothing,” which purported to describe a lawful way of avoiding taxes. He claimed to have read the book more than 100 times, and spent additional hours studying the subject in a law library. Between 2000 and 2004, Ellett failed to pay more than $64,000 in federal income tax based on his belief that, as a “citizen” of New York State who worked for a private employer, he was not subject to taxation.

At trial, his defense was a lack of willfulness, which the jury rejected. On appeal, he argued that due process required that he be given an opportunity to litigate his position within the tax system before being prosecuted for tax evasion. Under this theory, …


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Categories: due process, tax evasion, Uncategorized

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Tuesday, May 13th, 2008

Two For The Price Of One

United States v. Douglas, No. 06-0581-cr (2d Cir. May 13, 2008) (Kearse, Katzmann, CJJ, Rakoff, DJ)

Douglas was convicted of killing a Brink’s employee while attempting to steal money from Citibank ATMS that were serviced by Brink’s. He was sentenced to life in prison.

Douglas had originally been appointed a federal defender. But, once he was indicted on a death-eligible charge, the federal defender requested the appointment of a second attorney, “learned counsel” under 18 U.S.C. § 3005, and the court granted the request. About six months later, the government announced that it would not seek the death penalty, but Douglas asked the court to keep both attorneys on the case. The court rejected the request, but allowed Douglas to choose the attorney he wanted. On appeal, he renewed the claim that he was entitled to two attorneys under 18 U.S.C. § 3005.

The circuit disagreed. The statute, which provides …


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Categories: counsel, death penalty, Uncategorized

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Friday, May 9th, 2008

Quantum Mechanics

United States v. Martinez, No. 06-5502-cr (2d Cir. May 9, 2008) (per curiam).

In this brief per curiam, the court reaffirms that there is only one quantum of proof necessary for sentencing enhancements post-Booker – the preponderance standard.

Specifically, the court rejected Martinez’ argument that where the enhancement requires the sentencing judge to determine that the defendant committed a separate offense (here, the 4-level bump under § 2K2.1(b)(6) for using a gun in connection with another felony offense), those facts should be proven beyond a reasonable doubt. The circuit noted that the district court did not sentence Martinez for the other offense; it merely determined that the separate offense was relevant to the sentence to be imposed on the offense of conviction, and that Martinez did not receive a sentence longer than the applicable statutory maximum.…


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Yanni, Get Your Gun

United States v. Desinor, No. 05-4500-cr (2d Cir. May 8, 2008) (Walker, Straub, Hall, CJJ)

This prosecution arose from a murderous rivalry between two drug gangs. One, the “Cream Team” (footnote 1 of the opinion, which explains the derivation of this name, is a must-read), was populated largely by the defendants on trial. The rival gang sold drugs out of a neighboring building, and was run by a dealer named Yanni. The appeal raised two issues of first impression relating to jury instructions in homicide cases. The court affirmed on those issues, but one defendant won a partial resentencing.

The Homicide

The trial evidence revealed that members of the Cream Team shot and killed Yanni’s cousin, and that this shooting was the culmination of a period of escalating acts of violence between the two groups. On the day of the shooting, heavily armed Cream Team members were looking for Yanni …


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Categories: “engaging in, 924(c), justification, self-defense, Uncategorized

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Thursday, May 8th, 2008

Summary Summary

United States v. Rattoballi, No. 06-5881-cr (2d Cir. May 8, 2008). Rattoballi faced a guideline range of 27 to 33 months’ imprisonment but received a noncustodial sentence. The government appealed, and, in a published decision, the court vacated the sentence. This summary order affirms the 18-month prison sentence imposed on remand. The sentence was reasonable, and did not violate the parsimony clause.

In United States v. Ibarra, No. 06-0742-cr (2d Cir. May 7, 2008), the court held that the district court erred denying the “minor participant” reduction to a drug courier. The defendant “participated in only one of the conspiracy’s two drug hand-offs,” played “lesser role than anyone else involved in the conspiracy,” and his participation was limited to accompanying another defendant, “to whom he was clearly subordinate.”

In United States v. LaFlam, No. 07-0253-cr (2d Cir. May 5, 2008), the court held that a state conviction for cultivation of …

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Tuesday, May 6th, 2008

Diner Out

United States v. Iodice, No. 06-2680-cr (2d Cir. May 6, 2008) (Straub, Pooler, Sotomayor, CJJ).

John Iodice appealed his arson conviction on the ground that there was insufficient evidence of the requisite nexus to interstate commerce. The circuit affirmed.

The building that Iodice torched had been, at one time, a diner. Its owner had purchased it, vacant, eighteen months before the fire. The diner was “complete and ready to open,” and, but for the fire, the owner was planning to move and reopen it six months later. A co-conspirator testified that the fire was intended to destroy the diner and prevent competition with another one already located near the new location.

The court rejected Iodice’s claim that the diner was not “used in” interstate commerce, as required by 18 U.S.C. § 844(i). The diner was a commercial building that was only temporarily inoperative. “[T]emporarily vacant buildings” can have a sufficient …


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Categories: arson, interstate commerce, Uncategorized

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Monday, May 5th, 2008

Impact Victim

United States v. Eberhard, No. 05-3431-cr (2d Cir. May 5, 2008) (Jacobs, Calabresi, Sack, CJJ)

Todd Eberhard, a former stock broker, pled guilty to various fraud charges. Under his plea agreement, the stipulated guideline range was 97 to 121 months’ imprisonment. The presentence report added a 4-level aggravating role enhancement, but then recommended a below-guidelines 96-month sentence. Judge Sweet issued a pre-sentencing opinion indicating that he would impose a 151-month sentence. But, at sentencing, after hearing from victims, who asserted their right to address the court under 18 U.S.C. § 3771(a) (2004), which was enacted after Eberhard pled guilty, the judge imposed a 160-month sentence.

The circuit affirmed the sentence. First, it rejected an ex post facto challenge to the application of § 3771(a). District courts have always had the discretion to consider victim statements, and there is nothing about the new legislation – which requires district courts to hear …


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Categories: due process, ex post facto, Uncategorized, victim impact

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Saturday, May 3rd, 2008

Summary Summary

This batch of summary orders of interest wraps up April. Here we go:

In United States v. Moya, No. 05-2432-cr (2d Cir. April 30, 2008), the district court erred in imposing a 2-level aggravating role enhancement. Where the defendant is not a manager or supervisor, but there are five or more participants, the district court’s choice is between a 3-level enhancement or no enhancement at all. “Compromise outcomes” are not permitted.

In United States v. Dono, No. 07-5333-cr (2d Cir. April 23, 2008), the district court erred in setting bail for two alleged members of an organized crime family who were charged with a crime of violence. The defendants did not overcome the statutory presumption of dangerousness, and the bail condition ordering them to stay away from the victims and not associate with other crime family members did “not ensure that they will comply.”

United States v. Desroches, No. 06-3196-cr …

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Friday, May 2nd, 2008

State of Disagreement

United States v. Williams, No. 05-4416-cr (2d Cir. April 25, 2008) (Calabresi, Cabranes, CJJ, Korman, DJ)

Here, the court vacated two below-guideline sentences that seemed to have been imposed largely in order to minimize a perceived disparity between the sentence recommended by the guidelines and the sentence that would have been meted out in state court.

Williams and Shuler sold crack together in Yonkers. They were first charged in state court, then the case was transferred to federal court. For reasons that are not clear, they were separately charged and their cases were handled by different district judges.

Williams was sentenced first, by Judge McMahon. He faced a 70 to 87 month range (now it would be 57 to 70 due to the crack guideline amendments) but the judge, persuaded by Williams’ attorney that the plea offer from Westchester County D.A.’s office’s would have been between 12 and 66 months, …


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Categories: disparity, procedural reasonableness, sentence, Uncategorized

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Rejection Letter

United States v. Negron, 06-3614-cr (2d Cir. April 24, 2008) (Jacobs, Kearse, Pooler, CJJ) (per curiam)

Defendant Silverio, who was sentenced to 272 months (22 years, 8 months) in prison, had been offered, and rejected, a plea agreement with a binding sentencing recommendation of 17 years. On appeal, he argued that district court erred in refusing to consider the terms of the rejected agreement at sentencing.

Not surprisingly, the appellate court disagreed. There is nothing in § 3553(a) – or circuit precedent – that requires a district court to do so. Accordingly, finding no substantive or procedural defect with the sentence, the court affirmed.


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