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United States v. Elfgeeh, No. 06-0638-cr (2d Cir. February 14, 2008) (Kearse, Sack, CJJ, Mills, DJ)

Abad Elfgeeh, assisted by his nephew, Aref, ran a money-transfer business out of an ice cream parlor in Brooklyn that funneled money to Yemen and a host of other countries. Although the case had early on been linked to a large-scale terrorism investigation, the defendants were charged only with financial crimes. The district judge took pains to keep the issue of terrorism out of the trial, and the main issues on appeal related to the defendants’ concerns that the trial was nevertheless tainted by its specter.

A. The Terrorism Stuff

1. Testimony

During the trial, an FBI agent mentioned terrorism in response to two of a defense attorney’s questions on cross-examination. The district judge promptly instructed the jury that this was a case about “banking,” and “ha[d] noting to do with terrorism.” Later, when …

The court has not issued a published opinion in a criminal case for a while. But here is the most recent set of summary orders of interest.

In United States v. Matthews, No. 04-1657-cr (2d Cir. January 29, 2008), the court vacated the application of the “street gang” enhancement in 18 U.S.C. § 521 because the government failed to prove that the current federal offense occurred within five years of the predicate offenses, as required by the statute.

United States v. Rodriguez, No. 06-1681-cr (2d Cir. January 28, 2008), vacated the restitution order in a case involving the filing of false tax returns, and ordered further fact-finding on whether the restitution amount should be reduced by the amounts that Rodriguez, the tax preparer, returned to his clients.

And, in United States v. Walker, No. 05-6701-cr (January 23, 2008), the court vacated a $100,000 fine imposed on a defendant whom PSR …

Here’s another group of summary orders of interest:

In United States v. Whitley, No. 05-3359-cr (2d Cir. January 15, 2008), the court accepted a “minimally sufficient” Anders brief.

In United States v. Leonardo, No. 05-1791-cr (2d Cir. January 14, 2008), the court excused the defendant’s waiver of his appeal, and found that the government breached a cooperation agreement by withdrawing its 5K1.1 motion for a reason different from that permitted by the agreement.

United States v. Ramirez, No. 06-2869-cr (2d Cir. January 9, 2008), held that the district court did not err in permitting the defendant to withdraw from a plea agreement – to his ultimate detriment – in light of Booker.

In United States v. John, No. 07-3120-cr (January 8, 2008), the court found no impermissible double counting in an assault case, where the district court added a three-level enhancement for physical contact, rejecting the defendant’s argument that this …

Here is the latest installment of the Blog’s round-up of summary orders of interest. In United States v. Fernandez-Quesada, No. 06-4446-cr (2d Cir. January 4, 2008), the court dismissed a sentencing appeal as moot because the defendant had been released, even though he had a “potentially valid claim” that his sentence was based on an unlawful upward departure. In United States v. Collazo, No. 06-5236-cr (2d Cir. January 3, 2008), a government appeal, the court found the sentence to be procedurally unreasonable where the district court declined to include an aggravating role enhancement in the Guidelines calculations, but did not give adequate reasons. United States v. Johnson, No. 06-4001-cr (January 3, 2008) and United States v. Stewart, No. 06-3411-cr (December 21, 2007), are the court’s first two cases to incorporate Gall and Kimbrough; each contains a cryptic order expressing “no view on the reasonableness vel non” of the sentence imposed, …