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United States v. Kaid, Docket No. 05-4480-cr (2d Cir. September 12, 2007) (Calabresi, Raggi, Hall, CJJ) (per curiam)

Two years after his client was convicted, defense counsel filed an affirmation stating that he was absent for twenty minutes during the testimonial portion of the trial. At issue was whether this constituted ineffectiveness. The district court had decided, rather than try to reconstruct the events years later at a hearing, that it would assume the facts to be true. It held that the absence did not constitute a Sixth Amendment violation. The Circuit, expressing some skepticism about whether the absence had been adequately established at all, nevertheless agreed. The court rejected the invitation to treat the absence as per se ineffectiveness, a doctrine that is reserved for extreme situations, such as where the attorney is not an attorney at all or has been implicated in the defendant’s crimes.

Instead, the court …

United States v. Cullen, No. 06-0607-cr (2d Cir. August 23, 2007) (Cardamone, Straub, CJJ, Koeltl, DJ) (per curiam)

The United States is a signatory to the Convention on International Trade in Endangered Species of Wild Fauna and Flora. The Wild Bird Act, 16 U.S.C. § 4904, prohibits the importation into the United States of any exotic bird of a species covered by the Convention, and violators face civil or criminal penalties.

Thomas Cullen used straw purchasers to import Black Sparrowhawks, an African raptor, into the United States. He was trying to make it look as if the importation were valid under a provision permitting persons who have lived outside the United States for more than one year to import a personally owned pet, even if it is a member of one of the listed species. Cullen was convicted both of importing the birds and of making false statements to the …

United States v. Cole, No. 06-0226-cr (2d Cir. August 9, 2007) (Sack, Parker, Hall, C.JJ)

This case demonstrates the first principle of sentencing thermodynamics: the farther a district court gets from Foley Square – here, the Western District – the more bizarre its rulings are likely to become.

Facts: Patrick Cole was the patron of a garden-variety Ponzi scheme that netted him nearly $1.5 million over four years. He pled guilty to mail fraud under a plea agreement that contained various stipulations about the Sentencing Guidelines, but that left him free to dispute the applicability of the “sophisticated means” enhancement. Cole gave the probation officer who was preparing the presentence report a copy of the plea agreement, and the officer sided with the government on this issue.

Cole also filed timely objections to the report with the district judge but, at sentencing, the judge would not even entertain those objections, …

United States v. Baldwin, No. 06-4265-cr (2d Cir. July 23, 2007) (Jacobs, Wesley, Gibson, CJJ).

Police officers, acting on an anonymous tip, pulled over a car that the defendant was driving. He refused to comply with any of their orders and, when one officer approached the passenger’s side, he sped off. After a chase, the car slammed into an embankment and the defendant was arrested. In the car, the officers found firearms and ammunition along with crack and drug paraphernalia.

Defendant moved to suppress the evidence on the ground that the initial order to stop the car was illegal. The district court denied the motion, holding that the defendant was not seized because he did not submit to the officers’ authority.

On appeal, the court agreed: “We hold that, to comply with an order to stop – and thus to become seized – a suspect must do more than halt …