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United States v. Rodriguez, No. 05-3069-cr (2d Cir. July 24, 2007)(Leval, Cabranes, CJJ, Rakoff, DJ).

Ramiro Rodriguez was convicted of narcotics trafficking primarily on the testimony of two cooperating witnesses. One of those witnesses admitted on direct examination that she lied “about everything” when she “first spoke with the government.” The government had not disclosed this to the defense before trial and, when counsel asked to be told about the substance of the lies, the government refused. The district judge, who initially thought the information should be turned over, ultimately declined to force the issue, apparently agreeing with the government that since the lies had not been reduced to writing there was no disclosure obligation.

On appeal, the court made short work both of the government’s intransigence and the district judge’s confusion. “The obligation to disclose information covered by [Brady/Giglio] exists without regard to whether that information has been recorded …

United States v. Santiago, No. 06-5136-cr (2d Cir. July 18, 2007) (Cabranes, Raggi, CJJ, Berman, DJ)

In this case, the defendant received the bottom of an agreed-upon sentencing range – 135 months’ imprisonment – and waived his right to appeal. He nevertheless filed a notice of appeal and counsel filed an Anders brief and motion to withdraw. Counsel also forwarded to the court of appeals a copy of the letter she sent to the client notifying him of her actions. The court, however, concluded that this might not be enough. It noted that the presentence report indicated that the defendant was illiterate and thus that there was a possibility that he might not have understood the documents he received. “At a minimum, when counsel knows or has reason to believe that the client may be illerate, she must make some reasonable effort to contact the defendant in person to explain …

United States v. Lombardozzi, No. 04-0380-cr (2d Cir. July 11, 2007) (Kearse, Sack, Hall, CJJ)

No new ground here. Defendant was charged with various extortion offenses in connection with loans that he, through confederates, extended to a restaurant owner. At trial, over objection, the government entered into evidence a co-defendant’s plea allocution, in which he admitted that he “conspired with others” to use threats of violence to collect a loan.

The court of appeals agreed that this violated Crawford, but found that the error was harmless beyond a reasonable doubt. The government placed little emphasis on the allocution in its summation, and the admissible evidence establishing the existence of the conspiracy – the victim’s testimony and recorded conversations – was “overwhelming.” …

United States v. Sabhnani, Nos. 07-2567-cr, 07-2615-cr (2d Cir. July 6, 2007 ) (Winter, Cabranes, Raggi, CJJ).

In a decision so fact-bound as to be unlikely to serve as precedent for any other case, the court has ordered the defendants’ release on bail despite the horrific nature of the crimes and the strength of the evidence.

In May of 2007, the Sabhnanis, a married couple with homes on Long Island and in Manhattan, were charged with forced labor and harboring illegal aliens, based on allegations that they enslaved and beat two Indonesian woman who were their domestic servants. After numerous bail hearings in the district court, they were ordered detained as flight risks. The couple is extremely wealthy, and has extensive business, financial and personal ties to foreign countries, including some with which the United States has no extradition treaty.

They appealed the detention order, and the court of appeals …

United States v. Kilkenny, No. 05-6847-cr (Cardamone, Walker, Straub, CJJ) (2d Cir. July 5, 2007). Here, the district court used the November 1, 2002, version of the Guidelines to sentence the defendant, rejecting his argument that the November 1, 2000, version should be applied instead. the court of appeals rejected district court’s reasons for using the later, and more onerous Guidelines, and remanded the case for resentencing under the 2000 manual.

Facts:

In September of 2000, the defendant received, a large loan from M&T Bank. However, he had made several false representations about his finances in the loan application, and ultimately defaulted. On May 8, 2002, the bank foreclosed on the loan. The defendant pled guilty to one count of bank fraud – the count alleged that the fraud spanned from “in or about September 2000 through on or about May 8, 2002.”

The defendant also cheated 22 individuals in …

United States v. Martignon, No. 04-5649-cr (2d Cir. June 13, 2007) (Pooler, Sack, CJJ., and Garaufis, DJ).

In 2004, Jean Martignon was charged under 18 U.S.C. § 2319A, which makes it a crime to manufacture, publish or distribute “bootleg” recordings of musical performances; that is, those made without the consent of the performers. Martignon moved to dismissed the indictment, arguing that the statute violated the Copyright Clause, because live performances were unfixed, and hence not “writings,” and because the statute protected them in perpetuity, rather than for a limited time. The district court agreed, and granted the motion. Martignon also made a First Amendment argument, which the court did not get to.

The Appellate Court’s Decision

On the government’s appeal, the Court of Appeals reversed. Since the government conceded that Section 2319A could not have been enacted under the Copyright Clause, the court had to decide whether Congress had the …

United States v. Salazar, No. 06-0198-cr (2d Cir. June 13, 2007) (per curiam) (Sack, B.D. Parker, Hall, C.JJ.).

The headline says it all. Or almost. The court notes that the Guidelines say that the preponderance standard is “appropriate” to Guidelines findings, U.S.S.G. § 6A1.3, comment., and concludes: “[T]he discretion afforded district judges by Booker applies only to their consideration of a Guidelines range as one of the § 3553(a) factors after that range has been calculated. Booker does not affect a district judge’s obligation to perform a Guidelines calculation or the burden of proof applicable to facts relevant to sentencing upon which that Guidelines calculation is made.”…

United States v. Bearam, Docket No. 05-2823-cr (2d Cir. June 8, 2007) (Cardamone, Straub, Wallace C.JJ.) Here, the Court applies Missouri v. Seibert, 542 U.S. 600 (2004), for the first time, joining the parade of courts that have limited Seibert to cases involving a deliberate “two-step” interrogations. The Court also vacates a sentence where the district court made inadequate findings as to narcotics quantity and the defendant’s role.

Facts: Agents executed a search warrant at a Brooklyn restaurant that Bearam managed. They found crack and powder cocaine, heroin and marijuana. Bearam was seated at a table near a closet where some of the drugs were found. When an agent asked Bearam about some of the drugs, Bearam said it was “bad coke.” Bearam was not read his Miranda rights before this questioning; the agent testified that he had asked Bearam whether he had been read his rights and Bearam replied: …

United States v. Cavera, Docket No. 05-4591-cr (2d Cir. June 6, 2007) (Cardamone, Calabresi, Pooler, C.JJ.). Here, both the government and the defendant argued that an above-Guideline sentence was unreasonable. The Court agreed, and vacated the sentence.

Facts: The facts of this case are fairly straightforward. The defendant was arrested in the midst of a scheme in which guns were purchased in Florida, then transported to New York for sale. He pled guilty to one count of conspiracy, and faced a Guideline sentencing range of twelve to eighteen months’ imprisonment. Judge Sifton, however, imposed a twenty-four months sentence, finding that gun trafficking in urban areas like New York City requires a greater degree of punishment.

Ruling: The Court of Appeals made short work of the district court’s reasoning, holding that “community-specific” considerations cannot support a non-Guideline sentence because injecting regional and local factors into a sentencing results in unwarranted geographic …

United States v. Howard, Docket No. 06-0457-cr (2d Cir. June 5, 2007) (Jacobs, Leval, Sotomayor, C.JJ.). Here, on the government’s interlocutory appeal, the Court reverses the district courts order suppressing evidence obtained from the warrantless searches of two automobiles.

Facts: This case actually involves two unrelated, but factually similar, searches. In each case police officers had probable cause to believe that an automobile contained evidence of drug trafficking. Instead of obtaining search warrants, the officers stopped the automobiles on the highway, then used a ruse to lure the occupants away. In the occupants’ absence, the cars were searched and evidence was seized before the occupants were returned to the cars.

The district court suppressed the fruits of both searches, holding that, for various reasons, the automobile exception of Coolidge v. New Hampshire, 403 U.S. 443 (1971) did not apply.

Ruling: The Court of Appeals rejected all of the district court’s …

United States v. Ubiera, Docket No. 05-5256-cr (2d Cir. May 15, 2007) (Jacobs, Cardamone, Sotomayor, C.JJ.). Guidelines section 4A1.2(c)(1) excludes convictions for certain petty offenses and those “similar” to them from a defendant’s criminal history score. Here, in a case of first impression, the Court rejected the defendant’s argument that his two New Jersey prior convictions for shoplifting were “similar” to the listed offense of passing bad checks and should not have generated criminal history points.

The Circuit has long used a multi-factor test in determining similarity under 4A1.2(c). The factors include the relative punishments, the elements of the offenses, the level of culpability, the degree to which the commission of the offense predicts recidivism, and any other factor that is “reasonably” relevant to the question.

Ubiera was convicted of stealing $248 worth of merchandise from a Paramus department store in 1999, for which he was fined $553. His second …