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Wednesday, July 30th, 2008

In Search of Lost Time

United States v. Abiodun, No. 06-5335-cr (2d Cir. July 30, 2008) (Cardamone, Cabranes, Katzmann, CJJ)

Emmanuel Abiodun was one of a group of people who ran a large credit card and identity fraud scheme in which credit reports were illegally downloaded and used to obtain credit cards in the victims’ names. Abiodun himself purchased between 300 and 400 reports and, the district court found, was responsible for a loss of between $1.6 and 2.0 million.

The court also increased his offense level by six levels based on its finding that Abiodun’s conduct involved more than 250 victims. The court included in this number individuals who suffered no actual financial loss, but who spent time securing reimbursement from banks and credit card companies.

On appeal, the circuit agreed that this was appropriate. The fraud guideline defines a victim as anyone “who sustained any part of the actual loss” for which the …

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Glitter and Begay

United States v. Gray, No. 07-3636-cr (2d Cir. July 25, 2008) (Wesley, Hall, CJJ, Koeltl, DJ)

In New York, reckless endangerment in the first degree involves conduct “evincing a depraved indifference to human life” that “creates a grave risk of death to another person.” Nevertheless, under Begay v. United States, 128 S.Ct. 1581 (2008), the circuit here concludes, it is not a “crime of violence.”

Under Begay, which interpreted the Armed Career Criminal Act, 18 U.S.C. § 924(e), an offense must present a degree of risk similar to, and proscribe conduct that is similar in kind to, the offenses listed in the statute – burglary, arson, extortion and offenses involving explosives – to qualify as a “crime of violence.” For “in kind” similarity, the statute must involve conduct that is “purposeful,” “violent,” and “aggressive.”

Here, the court applied this same rubric to the definition of “crime of violence” in sentencing …

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Car Trouble

United States v. Delossantos, No. 06-4713-cr (2d Cir. July 25, 2008) (Feinberg, Miner, Parker, CJJ)

Marino Delossantos was a drug dealer, who was negotiating a deal with an undercover officer. While Delossantos was under surveillance, defendant Rodriguez was seen at the building where Delossantos lived ,and also drove him to and from various locations related to the drug deal. Rodriguez was arrested at the end of one such trip; he made statements and gave consent to search his apartment and car, where officers found drugs and other evidence. He moved to suppress the statements and evidence as the fruit of an illegal arrest, and the district court granted the motion, holding that no probable cause for the warrantless arrest of Rodriguez.

On the government’s appeal, the circuit reversed, holding that the agents had probable cause to arrest Rodriguez without a warrant, based on the available facts. A car passenger is …

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Sunday, July 27th, 2008

Remand Performance

United States v. Ogman, No. 06-0203-cr (2d Cir. July 24, 2008) (Sotomayor, Livingson, CJJ, Preska, DJ) (per curiam)

This published opinion replaces a summary order filed in this case back in April. [It was blogged in that month’s Summary Summary.] The case holds that, in a crack cocaine prosecution, a Regalado remand is not warranted when the defendant was sentenced as a career offender. The range that applies in such cases is the product of the career offender guideline, and not of the 100-to-1 powder to crack ratio.

…

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Warrant Peace

Untied States v. Waker, No. 07-4160-cr (2d Cir. July 22, 2008) (Hall, Livinston, CJJ, McMajon, DJ) (per curiam)

Here, the defendant unsuccessfully argued that various defects invalidated a search warrant.

He first cited two typographic errors – the magistrate accidentally set the execution deadline as April 30, 2004, instead of April 30, 2005, and the agent accidentally post-dated by one day facts in the supporting affidavit. But the court held that “minor errors” are not cause for invalidating a warrant. Here, the dating errors were harmless because “each document in which they occurred contained accurate information from which one could easily establish the correct dates.”

Waker also argued that the warrant’s cross-reference to the applicant’s affidavit violated the Fourth Amendment’s particularity requirement. The court again disagreed. The affidavit was attached, the language of warrant clearly incorporated it, and this is enough under the Fourth Amendment.

…

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RePetition

Nnebe v. United States, No. 05-5713-pr (2d Cir. July 21, 2008)
Pena v. United States, No. 06-0218-pr (2d Cir. July 21, 2008)

This month, the court re-issued decisions in two cases decided in June – one of which the court subsequently withdrew [see prior posts “Role of Certs” and “Withdrawal Symptoms”] – dealing with counsel’s obligation to file a petition for a writ of certiorari.

In Nnebe, an appeal of the denial of a 2255 motion, all parties agreed that appointed counsel violated the court’s CJA plan by failing to seek certiorari despite his client’s request that he do so. At issue here was the appropriate remedy. The government argued that 2255 relief was unavailable, and that this should end the case. Nnebe argued instead that the court should construe the petition as one to recall the mandate and vacate its judgment. The court agreed to do so. Although this …

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Deceptively Simple

United States v. Finnerty, No. 07-1104-cr (2d Cir. July 18, 2008) (Jacobs, Pooler, CJJ, Restani, J)

The New York Stock Exchange functions, essentially, as an auction market. Specialist firms are designated to facilitate the auction of a particular stock by processing the bids to buy and offers to sell it. Specialists also trade for their own firm’s accounts. “Interpositioning” occurs when the specialist interposes himself in the middle of public trades to make a profit for the firm. It is prohibited by NYSE rules.

Defendant Finnerty engaged in thousands of instances of interpositioning, making $4,500,000 in profit for the firm’s account, and thereby inflating his bonus. He was charged with, and convicted of, three counts of securities fraud. After trial, the district court granted his motion for a judgment of acquittal, holding that the government failed to prove that interpositioning was a “deceptive act” under securities law because the government …

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Luggage Wreck

United States v. Leerdam, No. 07-1435-cr (2d Cir. July 18, 2008) (Jacobs, Straub, CJJ, Jones, DJ).

Here, the circuit reversed the convictions of two defendants, Andrea and Julio Lorenzo, who had been convicted in a drug importation and distribution conspiracy, finding that the evidence was legally insufficient.

Background

In July 2005, Francisca Leerdam was recruited to smuggle drugs out of the Dominican Republic. She made three successful trips to the Netherlands, then, in September of 2005, made her first trip to the United States. Her handlers gave her a suitcase, some money, a plane ticket and instructions. She made it through customs at JFK, and eventually met a confederate who took her suitcase and gave her a different one. Later, in Queens, the confederate met up with and spoke to Julio. Leerdam met Andrea, who asked her how it went. Andrea and Julio then took her to a hotel and …

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The Amazing Trace

United States v. Crawford, NO. 06-5059-cr (2d Cir. July 17, 2008) (Sotomayor, Wesley, Wallace, CJJ)

This gun possession case arose when defendant Crawford was arrested by parole officers for violating his curfew and smoking marijuana. The officers claimed that they found a gun and ammunition in his bag. At trial, the government called an interstate commerce nexus expert, but did not introduce testimony about a trace report to demonstrate the gun’s legal chain of custody. Crawford testified that there was no gun in his bag and, in summation, his attorney adopted this “frame-up” theme as the defense. Counsel noted in particular that there was no evidence that the government had traced the gun, an effort to suggest that such a trace would have established that the gun belonged to someone other than Crawford.

During deliberations, the jury sent a note asking “why wasn’t the gun traced to the original owner?” …

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Summary Summary

So far, a bunch of interesting summary orders this month. Here’s the roundup:

In United States v. Pryce, No. 07-2210-cr (July 25, 2008), a marijuana trafficking case, the court vacated the sentence and remanded for findings on the scope of the defendant’s participation in the conspiracy.

United States v. Gumbs, No. 06-4708-cr (July 24, 2008), upheld a finding that the defendant’s false claim of United States citizenship to pretrial services warranted a sentence enhancement for obstruction of justice.

In United States v. Marucilli, No. 08-1145-cr (July 23, 2008), the court vacated the defendant’s conviction in a housing fraud case because the district court erroneously instructed the jury that the money that funded the housing subsidy was the property of the United States. This “improperly took out of the hands of the jury the factual issue of whether the United States exercised ‘sufficient supervision and control’ over the funds to support …

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