Archive | Uncategorized

Taveras v. Smith, Docket No. 05-5579-pr (2d Cir. Sep. 11, 2006) (Cardamone, Calabresi, Pooler): This decision answers a very narrow question: May the New York State Appellate Division — the state’s first-tier, “as of right” appellate court — exercise its discretion to dismiss, on fugitive disentitlement grounds, the appeal of an apparently indigent defendant without first appointing counsel? The Circuit, by Judge Calabresi, says no, relying on the “rationale” of Douglas v. California, 372 U.S. 353 (1963), that appellate counsel must be appointed for an indigent defendant who seeks a first-tier, as-of-right appellate review that “(1) involves some consideration of the ‘merits’, and (2) involves claims that have not yet ‘been presented by [appellate counsel] and passed upon by an appellate court.'” Op.9. While counsel likely need not be appointed if New York (like Texas) had an automatic dismissal rule based on a defendant’s flight during the …

United States v. Gregg, Docket No. 03-1229-cr (2d Cir. Sep. 12, 2006) (Feinberg, Sotomayor, Hall) (per curiam): This decision nicely explains the meaning and consequences of a guilty plea for subsequent proceedings arising from the same incident. The Court correctly rejects the district court’s broad-brush ruling that Gregg’s guilty plea in state court to a misdemeanor involving the misuse of his mother’s reduced-fare Metrocard effectively waived his right to challenge the lawfulness of the stop that lead to his arrest (and the recovery of a firearm) in a subsequent federal prosecution for being a felon-in-possession. While a guilty plea “conclusively establishes” the defendant’s guilt, it does not necessarily extinguish all related issues; on the contrary, whether the plea forecloses a future cause of action or legal claim depends primarily on principles of collateral estoppel.

The essential facts are these. Police officers at a subway station saw Gregg …

United States v. McCargo, Docket No. 05-4026-cr (L) (2d Cir. Sep. 13, 2006) (Walker, Jacobs, Wallace): This is a terrible Fourth Amendment decision, even accounting for the general awfulness of the Circuit’s jurisprudence in this area. (Disclosure: Darrell Fields of this Office, on behalf of this and other FPD offices in the Second Circuit, submitted an amicus curiae brief arguing that the stop was unlawful). Essentially, the Court held that the fact that McCargo was at a street corner approximately 200 feet from the scene of a possible crime (i.e., a house in which the occupant had called 911 to report a break-in), in a “high crime” neighborhood, is sufficient to permit the police to throw him against the police car and frisk him under Terry. There is a bit more than that, but nothing that should have made a difference.

The essential facts …

United States v. Muhammad, Docket No. 05-4923-cr (Miner, Wesley, Swaine): This minor opinion upholds a Terry stop justified by (1) an anonymous 911 call describing someone fitting the defendant’s appearance and location as carrying a gun, and (2) the defendant’s (supposed) “headlong flight” when the police car approached him. Although the tip alone would have been insufficient under Florida v. JL, 529 U.S. 266 (2000), the police’s observation of the defendant’s “flight” distinguished this case from JL. Op. 11 (“The officers’ personal observation of Muhammad’s evasive conduct was the additional factor, missing in JL, that corroborated the anonymous tip and provided the objective manifestation that criminal activity was afoot.”).

The Circuit also rejected Muhammad’s claim that he did not flee from the police, but simply tried to avoid crashing into the police car as it cut him off. And, no surprise, despite conflicting testimony, …

United States v. Snow et al., Docket No. 05-0968-cr (L) (2d Cir. Sep. 1, 2006) (Jacobs, Pooler, Gibson): Nothing of interest to non-parties in this fact-based opinion affirming the conviction and sentence of three defendants for various crack and gun-related offenses. The sole point worth mention concerns whether the evidence was sufficient to convict one defendant of (constructively) possessing crack with intent to distribute, where the crack was hidden in the basement of a building in which the defendant co-rented a 2-bedroom apartment. Judge Gibson for the majority ruled that the evidence was sufficient, distinguishing this case from United States v. Rodriguez, 392 F.3d 539, 548 (2d Cir. 2004) (evidence of possession insufficient even though defendant had been in the back seat of a car near where drugs hidden in a box were subsequently found). Op.29-30. Judge Pooler dissents on this point alone, concluding that Rodriguez was …

United States v. Noel Davila, Docket No. 05-2545-cr (2d Cir. Aug. 30, 2006) (Leval, Parker, Sessions): Any opinion that references the severed-horse’s-head-in-bed scene from “The Godfather” is a worthy read. Here, the Circuit principally rejects Davila’s argument that the two statutes under which he was convicted, 18 U.S.C. § 2232a and § 876(c), criminalize only threats of future action and thus that his act of mailing an envelope containing phony anthrax (baby powder) and including a note containing the words “ANTRAX” (sic) and “AKA Bin Laden,” did not fall within their reach. Relying on United States v. Taylor, 2003 WL 22073040 (S.D.N.Y. Sep. 5, 2003), Davila argued that the plain language of these statutes — targeting anyone who “threatens . . . to use a weapon of mass destruction” or mails a communication containing any “threat to injure,” respectively — required this result. He claimed that “the …

United States v. Olmeda, Docket No. 05-4331-cr (2d Cir. Aug. 29, 2006) (Cabranes, Sotomayor, Raggi): This is a fact-intensive opinion dismissing on Double Jeopardy grounds an SDNY indictment (for a § 922(g) violation) that followed upon Olmeda’s guilty plea to an earlier North Carolina indictment that also charged a § 922(g) offense. The earlier indictment (to which Olmeda pled guilty without a plea agreement) charged Olmeda with possessing ammunition “in the Eastern District of North Carolina and elsewhere” on or about June 13, 2002. At the time of that indictment, prosecutors in North Carolina were (1) aware that Olmeda simultaneously possessed ammunition in his New York area home (a search warrant was successfully executed in New York after cops found Olmeda with ammo in North Carolina); (2) not aware (and had no basis to believe) that the ammunition found in North Carolina had traveled in any other …

United States v. Eric Jones, Docket No. 05-2289-cr (2d Cir. August 2, 2006) (Newman, Walker, Katzmann): Others have already sung the praises of this terrific opinion by Judge Newman (click here for Professor Berman’s comments and click here for the Second Circuit Sentencing Blog’s) , but it is new to me since it was decided while I was on vacation. A late blog entry is appropriate because it is a decision that all who practice in this Circuit must read. And it is a decision that cleanses the palate of the unpleasant Guidelines-dominated taste left by the Court’s recent Castillo and Mejia decisions.

In sum, Jones upholds a 15-month “non-Guidelines sentence,” where the advisory range was 30 to 37 months, even though few unusual mitigating facts existed (and several aggravating facts were present) and where the district judge’s principal justification for the below-the-range sentence was simply his …

United States v. Roman Nektalov, Docket No. 05-2780-cr (2d Cir. Aug. 25, 2006) (Meskill, Cabranes, Wesley): This is a fascinating opinion — maybe too interesting for a Friday afternoon. The issue is whether the conscious avoidance doctrine — under which a defendant can be held liable for his “knowledge” of fact X upon a finding that s/he was “aware of a high probability of” fact X’s existence and “consciously avoided confirming that fact,” United States v. Aina-Marshall, 336 F.3d 167, 170 (2d Cir. 2003) — applies in a sting operation leading to a charge of money laundering, where it is the defendant’s belief, rather than his knowledge, that is critical. The Circuit upheld Nektalov’s conviction, holding principally that the district judge properly charged the jury that it can convict the defendant if he consciously avoided “believing” that the cash he was dealing with were proceeds of drug trafficking.…

United States v. Park, Docket No. 05-6158-cr (2d Cir. Aug. 25, 2006) (Cabranes, Straub, Hall): We’re not sure why the Circuit felt the need to publish this opinion in light of Castillo, but what’s a few more trees felled for the cause of justice? In Castillo, the Circuit held that “a non-Guidelines sentence imposed simply because a district court disagreed with the 100:1 ration [is] unreasonable.” Op. 7. Here, the Court confronts “the related question of whether the imposition of a Guidelines sentence for a crack offense is per se unreasonable as a result of the 100:1 ratio,” where the Guidelines range was determined by the fact that crack (as opposed to power) was involved and where the judge imposed a sentence within that range. Id.

And the answer should be obvious in light of Castillo (indeed, one would think that the answer follows necessarily …

United States v. Osameh Al Wahaidy, Docket No. 05-4770-cr (2d Cir. Aug. 24, 2006) (Leval, Jacobs, Rakoff): This case concerns the constitutionality of the International Emergency Economic Powers Act (“IEEPA”), which authorizes the President to regulate financial transactions with foreign countries (or nationals) in times of security crisis and prescribes penalties for violations of executive orders or regulations issued by the President. Defendant was convicted under IEEPA of violating two presidential orders (issued by Bush the First following Iraq’s invasion of Kuwait in 1990) prohibiting transfers of money to persons in Iraq (he transferred approximately $100,000 to persons in Iraq in 1999 and 2000).

Defendant argued that the charges against him must be dismissed because IEEPA unconstitutionally delegates Congress’s authority to define criminal offenses to the President. The district court disagreed, and the Circuit affirms.

The Circuit relied principally on Touby v. United States, 500 U.S. 160 …