United States v. Shellef, No. 06-1495-cr (2d Cir. November 8, 2007) (Pooler, Sack, Wesley, CJJ) In this decision applying Fed.R.Cr.P 8, the court held that counts were improperly joined against two separate defendants, and that the misjoinders were not harmless. The decision also has an interesting discussion of some unusual wire fraud theories. Defendants Shellef … Read more
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 … Read more
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. … Read more
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 … Read more
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