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Federal Defenders of New York Second Circuit Blog


Sunday, July 13th, 2008

No Sale

United States v. Wallace, No. 05-1424-cr (2d Cir. July 8, 2008) (Jacobs, Kearse, Katzmann, CJJ)

This short opinion holds that a drug purchaser who shares drugs with others socially commits a distribution offense, even though the defendant lacked a commercial purpose, because a distribution can take place without a sale. This is entirely consistent with the statutory language, under which “distribute” means “deliver,” which in turns means “transfer.”

The court also considered, and rejected, two novel arguments.

First, Wallace cited Lopez v. Gonzales, 549 U.S. 47 (2006), to support his claim that proof of commercial dealing is required. Lopez construed the phrase “drug trafficking crime” as used in the immigration statutes, and concluded that “commerce” had to be part of the offense. But that case construed a term – “trafficking” – that is not used in the statute under which Wallace was convicted.

Wallace also sought support in longstanding precedent …

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The Secret Guardin’

United States v. Aref, No. 07-0981-cr (2d Cir. July 2, 2008) (Jacobs, McLaughlin, CJJ, Sand, DJ)

In this terrorism prosecution, the court held that the district court can, for “good cause,” restrict a defendant’s access to discoverable material that might impact on national security concerns.

The court first noted that the relevant legal provisions, the Classified Information Protection Act and Fed.R.Crimp.P 16(d)(1), presuppose, without creating, a privilege against disclosing classified information. The privilege itself arises from the “common-law privilege against disclosure of state secrets,” and the court expressly rejected the notion – advocated by some in Congress – that this privilege does not apply in criminal cases. Rather, the court held, the privilege can apply in a criminal case, but it must “give way” when the evidence at issue is material to a criminal defendant’s right to present a meaningful defense.

First, a district court must decide whether the evidence …

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Lethal Rejection

United States v. Fell, No. 06-2882-cr (2d Cir. June 27, 2008) (Walker, Cabranes, Parker, CJJ)

Donald Fell was not having a good day. During a card game, he killed his mother’s boyfriend, while his buddy, Charles Lee, killed Fell’s mother. Together, they then carjacked a car from a Vermont grocery store, drove to New York, and killed the car’s owner. Eight days later, they were arrested in Arkansas.

After Lee “accidentally[?]” hanged himself in prison, Fell faced a capital trial alone. He did not seriously contest his guilt, and was convicted. After a two-week penalty trial, the jury sentenced him to death, and Judge Sessions imposed that sentence. On appeal, Fell raised a series of challenges to the death sentence, all of which the court of appeals rejected.

Jury Selection

Fell’s primary complaint was that the district court improperly rejected for cause three potential jurors who were in fact qualified …

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Tuesday, July 8th, 2008

CASH AS CACHE CAN

United States v. Jones, No. 05-5879-cr (2d Cir. June 24, 2008) (Leval, Cabranes, Raggi, CJJ)

In 2004, Jones was present in a “gatehouse” – an apartment used solely for the purpose of selling drugs – when Rochester police executed a search warrant. The officers found, inter alia, twenty-two grams of crack residue and $883 in cash hidden in the apartment. Jones admitted “selling a little.” Despite this admission, the jury convicted him only of simple crack possession.

At sentencing, the court held him accountable for possessing forty-seven grams of crack. This comprised the twenty-two grams of crack residue, plus an estimated twenty-five additional grams, which was based on the probable amount that Jones had sold to realize the $883.

The Appeal

Drug Quantity

On appeal, Jones argued, primarily, that it was unreasonable for the court to translate the money into drugs for the purposes of calculating drug quantity under the …

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Sunday, June 22nd, 2008

Summary Summary

Here are June’s first two summary orders of interest.

In United States v. Heredia, No. 07-0849-cr (2d Cir. June 20, 2008), the court agreed that introducing hearsay evidence as a prior consistent statement was error, but found the error to be harmless. In addition, the court condemned some of the prosecutor’s comments in summation – he compared an omission in a stipulation signed by both parties to an omission in the arresting officer’s memo book. This comment “falsely” implicated defense counsel in the government’s error, misrepresented the police officer’s testimony, and attempted to use defense counsel as a witness. Nevertheless, this too was harmless.

In United States v. Cammacho, No. 07-2370-cr (2d Cir. June 3, 2008), the court held that the sentencing record seemed to indicate that the district court incorrectly believed that it was required to make a supervised release violation sentence consecutive. The case was remanded for clarification.…

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Affirm Stance

United States v. Walker, 06-0594-cr (2d Cir. June 19, 2008) (Jacobs, Leval, Cabranes, CJJ)

The evidence at Walker’s drug trial included: (1) recordings of two drug-related meetings with a cooperating co-defendant in which they discussed both past and future drug activity and in which the cooperator gave Walker money to pay for a previous shipment; (2) Walker’s two detailed confessions about his drug dealing activities; and (3) the testimony of four of his associates.

In addition, a DEA agent testified, and it was this testimony that was the subject of the appeal. Here, the circuit agreed that the government elicited “numerous” instances of “improper testimony” from the agent. This included: (1) highly prejudicial statements about the DEA’s investigation of Walker; (2) information the agent developed that “corroborated” Walker’s guilt, such as hearsay reports from other agents that drug customers had implicated Walker; (3) lengthy testimony that cooperating witnesses and other …

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Feckless Enganderment

United States v. Legros, No. 05-2828-cr (2d Cir. June 17, 2008) (Jacobs, Calabresi, Sack, CJJ)

When police officers responded to a “shots fired” radio call, they encountered three men. One of them, Legros, ran off, and tossed a gun along the way. That gun matched several spent shell casings recovered from the scene. A jury convicted Legros of being a felon in possession of a firearm.

At sentencing, he received the statutory maximum, 120 months; this was a guideline sentence – the range was 110 to 137 – that included a four-level enhancement for possessing the gun in connection with another felony offense. The theory advanced by the probation department (obviously just serving as a mouthpiece for the government) was that Legros had been shooting at someone named Christopher Passius, in a gang-related retaliation.

Legros contested the enhancement and, at a sentencing hearing, the government introduced, through a police officer, …

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Shipping Bricks

United States v. Bermudez, No. 06-5119-cr (2d Cir. June 17, 2008) (Walker, Calabresi, CJJ, Underhill, DJ)

Richie Bermudez was convicted, after a jury trial, of being a felon in possession of a firearm. On appeal, he challenged an evidentiary ruling, as well as the district court’s jury selection method.

The Evidentiary Ruling

Police officers were watching Bermudez on the street in a high-crime area of the Bronx. The officers were in an unmarked car, and three of them overheard him tell an associate that he had “fresh bricks back at his apartment.” Shortly thereafter, they saw him open the trunk of his car and give a gun to someone named Delgado, at which point both were arrested. Delgado pled guilty to gun possession, was sentenced to seventy months’ imprisonment, and did not appeal.

Bermudez went to trial, and his first jury hung. At the retrial, he introduced Delgado’s testimony from …

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Monday, June 16th, 2008

You Can’t Get A Ten With A Gun

United States v. Whitley, No. 06-0131-cr (2d Cir. June 16, 2008) (Newman, Sack, Parker, CJJ)

Background

Whitley used a gun to rob a grocery store; during the robbery, the gun accidentally went off. He was convicted after a jury trial of robbery, possessing the firearm as a previously convicted felon, and discharging that same firearm in connection with a crime of violence, under 18 U.S.C. § 924(c)(1)(A)(iii). Because he was an armed career criminal, the felon-in-possession count subjected him to a fifteen-year mandatory minimum sentence (18 U.S.C. § 924(e)), and the district court also sentenced him to a ten-year consecutive sentence for discharging the gun, as required by § 924(c)(1)(A)(iii). This part of the sentence was the subject of his appeal.

The Court’s Ruling

Section 924(c)(1)(A)(iii), in pertinent part, provides that “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other …

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Sunday, June 15th, 2008

Out of Hindsight

Parisi v. United States, No. 06-1148-pr (2d Cir. June 13, 2008) (Winter, Hall, CJJ, Oberdorfer, DJ)

In this 2255 appeal, the defendant unsuccessfully argued that his counsel was constitutionally ineffective for failing to move for dismissal based on a Speedy Trial Act violation.

Facts

In 2001, Parisi was charged, in a complaint, with child pornography-related offenses. Although, under the Speedy Trial Act, the government had thirty days within which to indict him, the indictment was not filed until nearly 200 days later. During that period, counsel executed three “stipulations” seeking sixty-day continuances for plea negotiations. Each stipulation agreed that the ends of justice to be served by the delay would outweigh defendant’s and the public’s right to a speedy trial. The district court “so ordered” each stipulation.

In 2003, Parisi pled guilty under a plea agreement that included an appellate waiver, and received a 150-month sentence. He later filed a …

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