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). … Read more
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 … Read more
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 … Read more
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 … Read more
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 … Read more
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 … Read more
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 … Read more
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 … Read more
United States v. Cavera, No. 05-4591-cr (2d Cir. October 11, 2007) (Cardamone, Calabresi, Pooler, CJJ) Gerard Cavera received an above-Guidelines sentence based on the district court’s view that gun offenses were more serious in densely populated areas like New York city. This opinion is the court’s second attempt to deal with a location-specific reason for … Read more
United States v. Johnson, No. 05-3811-cr (2d Cir. October 10, 2007) (Meskill, Cabranes, Wesley, CJJ) This is pretty much a case about nothing. The only real nugget is in footnote 4. Johnson appealed his 120-month gun sentence – the statutory maximum – on several grounds. As is often true, his case had begun in state … Read more