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Wednesday, November 21st, 2007

Control Freak

United States v. Carlo, No. 06-2420-cr (2d Cir. November 19, 2007) (Kearse, Katzmann, CJJ, Rakoff, DJ)

This short per curiam opinion discusses the sufficiency of the evidence in a wire fraud prosecution, where the prosecution proceeded on an unusual theory. The defendant Carlo and others defrauded real estate developers by making misrepresentations about Carlo’s efforts to obtain funding for the developers’ projects. In response to the developers’ requests, Carlo falsely assured them that loans were imminent, when in fact they were not. Here, the government did not allege that Carlo defrauded the developers out of any specific money or property, but rather out of their right to control their own assets, which the court held was a permissible theory of fraud. Carlo’s deception harmed the developers by depriving them of material information necessary to determine whether to proceed with their development projects, and this continued or increased the risk that …

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Categories: fraud, property, Uncategorized

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Sunday, November 18th, 2007

To Life!

United States v. Freeman, No. 05-5529-cr (2d Cir. November 14, 2007) (Straub, Katzmann, Parker, CJJ)

Michael Freeman was convicted of drug trafficking, robbery and gun possession, but acquitted of two homicide counts. The district court nevertheless imposed a life sentence, based on its preponderance finding that Freeman committed the murders of which he was acquitted.

The court rejected various challenges to the sentence. It held – again – that the statutory maximum for violating 18 U.S.C. § 924(c) is life, thus the life sentence was legal. It also held that the district court had complied with the circuit’s requirement that it “consider” the acquittal, and that the district court properly found that Freeman himself committed the murders.

Freeman also challenged an evidentiary ruling. At trial, the court admitted a redacted version of his confession that contained only the inculpatory part, but omitted exculpatory statements suggesting that some of his actions …

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Categories: acquitted conduct, life, Rule 106, rule of completeness, sentence, Uncategorized

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Venue Wish Upon A Star

United States v. Rommy, No. 06-0520 (2d Cir. November 6, 2007) (Jacobs, Walker, Raggi, CJJ).

Henk Rommy, a Dutch national, was tried in this district on charges that he managed a vast ecstasy importation scheme from Europe. The scheme’s ties to this district were quite thin – although the goal was to get the drugs to New York, only five things actually occurred here: a call from a cooperating witness in Manhattan to Rommy in the Netherlands; a second call between Rommy and the New York informant about one year later, although there was a dispute as to who initiated it; a call to a local FBI agent from Rommy and the informant, both in Europe, although there was a dispute as to whether Rommy or the informant placed the call; and, finally, two calls from the agent in Manhattan to Rommy in Europe.

At trial, Rommy claimed lack of …

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Categories: manufactured venue, Miranda, MLAT, Sixth Amendment, Uncategorized, venue

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Friday, November 2nd, 2007

SUMMARY SUMMARY

The Summary Summary is our periodic round-up of summary orders of interest. So, here we go:

United States v. Zavala, No. 05-7001-cr (2d Cir. November 1, 2007). Here, the district court applied cumulative aggravating role enhancements under U.S.S.G. § 3B1.1, giving both the 4-point enhancement under subsection (a) and the 2-point bump under subsection (c). The government conceded that this was error, and also agreed that the court failed to make adequate factual findings.

United States v. Duran-Colon, No. 06-0974-cr (2d Cir. October 31, 2007), has an interesting discussion of the use of uncharged Rule 404(b) conduct introduced into evidence to show how the relationship between two co-conspirators developed. It noted that, at a jury trial, if “the uncharged conduct is highly similar to the charged offense, such evidence may be unduly prejudicial insofar as it suggests to the jury the defendant’s propensity to commit the offense.” This case, however, …

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The Good Shepard

United States v. Rosa, No. 05-3621-cr (2d Cir. October 30, 2007) (Kearse, Sack, CJJ, Mills, DJ)

The Armed Career Criminal Act (ACCA) requires increased penalties for defendants in federal gun possession cases who have three prior convictions for serious drug offenses or “violent felonies.” This case concerns the “categorical approach” to determining whether a prior conviction resulting from a guilty plea was to an offense that qualified as a “violent felony.”

In 1991, Rosa pled guilty to robbery in the first degree, an offense he committed when he was 15, in violation of N.Y. Penal Law § 160.15(4), which makes it an offense to commit a robbery and display “what appeared to be” a firearm. The government contended that this conviction was an ACCA predicate as an “act of juvenile delinquency … involving the use or carrying of a firearm.” Two other ACCA predicates were not in dispute.

The district …

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Categories: ACCA, categorical approach, Shepard, Uncategorized, Y.O., youthful offender adjudication

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Who’s SORA Now?

Willette v. Fischer, No. 06-1422-pr (2d Cir. October 29, 2007) (Meskill, Newman, Sotomayor, CJJ)

Although the Blog does not regularly report on decisions in state prisoners’ habeas corpus proceedings, this nifty case has relevance to federal criminal practice.

Steven Willette, a convicted sex offender in New York State, was tried and convicted, inter alia, of multiple violations of New York’s Sex Offender Registration Act (SORA). During 1997 and 1998, Willette was living with his girlfriend but, on the four occasions that he was supposed to report his address (SORA prescribed ninety-day intervals), he falsely stated that he was still living with his father. Willette was found guilty of four SORA counts of failing to report change of address. He received a six-month misdemeanor sentence on the first SORA count, and three consecutive felony sentences on the others, for a total of ten and one half to twenty-one years’ imprisonment.

Here, …

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Categories: double jeopardy, multiple punishments, Sex offender registration, Uncategorized

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Sunday, October 28th, 2007

Score: Form 1; Substance 0

United States v. Rutkoske, No. 06-4067-cr (2d Cir. October 25, 2007) (Newman, Winter, Katzmann, CJJ).

This stock fraud decision deals primarily with the timeliness of a superseding indictment.

An initial indictment not naming Rutkoske was filed on December 11, 2003; S1, the first superseder, was filed on April 6, 2004. It named Rutkoske, and described a single overt act within the five-year statute of limitations. Suspiciously, that act occurred “on or about April 9, 1999,” making the indictment timely by only about three days. After repeatedly being pressed by the defendant to pin down the details of the April 9 act, the government superseded again, in July of 2005. S2 charged Rutkoske with the same offenses as S1, but the government dropped the April 9 overt act and instead alleged two others, on April 15 and April 16, 1999. When Rutkoske moved to dismiss S2 as untimely under the five-year …

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Categories: loss calculation, relation back, statute of limitations, superseding indictment, timeliness, Uncategorized

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Saturday, October 27th, 2007

We Value Your Opinion

United States v. Tsekhanovich, No. 05-4809-cr (2d Cir. October 24, 2007) (Miner, Cabranes, Straub, CJJ) (per curiam)

Treading no new ground, the court reminds us that a lay person can give opinion testimony if it is both based on his first-hand perceptions and rationally derived from them.

Here, a cooperating witness in a fraud case was permitted to describe several conversations that he had with the defendant, and explain what he thought certain of the defendant’s comments meant. There was a solid foundation for the testimony – the witness had known the defendant for years – and the witness did not “speculate about the general knowledge or intent” of the defendant. Rather, his testimony was limited to discrete matters.

…

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Friday, October 26th, 2007

“Might” Makes Right

United States v. Zhang, No. 05-6662-pr (2d Cir. October 23, 2007) (Winter, Cabranes, CJJ, Korman, DJ)

During a plea allocution, advising a defendant that he might be deported was good enough, even though ICE believed that deportation was mandatory.

Zhang, a chemist, manufactured and sold an illegal bodybuilding supplement, DNP. One of his customers died after taking Zhang’s concoction, while another was in a coma for ten days. Zhang ultimately pled guilty to one count of mail fraud. During the plea allocution, the prosecutor stated that Zhang was subject to “possible” deportation as a result of the plea. The magistrate judge echoed this, saying that the plea “could” result in his deportation. Similar equivocal statements about the possibility of deportation were made by the prosecutor and district judge at Zhang’s sentencing.

Once sentenced, however, Zhang was served a notice by ICE indicating that he faced mandatory deportation as a result …

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Wednesday, October 24th, 2007

BYE-BYE, BRUTON?

United States v. Williams, No. 05-6036-cr (2d Cir. October 23, 2007) (Newman, Walker, Straub, CJJ).

In this curious but very troubling case, the court seems to have concluded, sub silentio, that Crawford trumps Bruton.

Brothers Bobby and Michael Williams were tried for a drug-related triple homicide. Neither brother testified. At trial, over objection, the court permitted two civilian witnesses to testify that, after the shootings, Bobby made statements to them admitting his involvement in the shootings. Some of those statements implicated Michael. On appeal, Michael argued that the admission of Bobby’s statements violated the Confrontation Clause and Fed.R.Evid. 804(b)(3).

Obviously, Michael’s Confrontation Clause claim raises Bruton issues; indeed, this is the classic Bruton situation – the out-of-court statement of one defendant is used against a co-defendant. But here, the court never even got to Bruton. It held that Bobby’s out of court remarks were not “testimonial” under Crawford, and thus …

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Monday, October 22nd, 2007

Attempt-ation

United States v. Gaqliardi, No. 06-4541-cr (2d Cir. October 22, 2007) (Walker, Calabresi, Sack, CJJ).

This case shuts the door on number of common challenges to convictions under 18 U.S.C. § 2422(b), which makes it a crime to entice a minor to engage in an illegal sexual act, or to attempt to do so. In relatively short order, the court held that: (1) because the statute prohibits attempts, it covers sting operations in which there is no minor victim (here the court joins six other circuits); (2) the statute is not vague, in that its various terms – entice, persuade, coerce, etc., – although not defined, are words in common usage that have ordinary meanings (joining five other circuits); (3) the statute does not criminalize speech that is protected First Amendment and hence is not overbroad.

Gagliardi also made some novel arguments, which the court also rejected. The five-year mandatory …

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