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Federal Defenders of New York Second Circuit Blog


Sunday, July 27th, 2008

Luggage Wreck

United States v. Leerdam, No. 07-1435-cr (2d Cir. July 18, 2008) (Jacobs, Straub, CJJ, Jones, DJ).

Here, the circuit reversed the convictions of two defendants, Andrea and Julio Lorenzo, who had been convicted in a drug importation and distribution conspiracy, finding that the evidence was legally insufficient.

Background

In July 2005, Francisca Leerdam was recruited to smuggle drugs out of the Dominican Republic. She made three successful trips to the Netherlands, then, in September of 2005, made her first trip to the United States. Her handlers gave her a suitcase, some money, a plane ticket and instructions. She made it through customs at JFK, and eventually met a confederate who took her suitcase and gave her a different one. Later, in Queens, the confederate met up with and spoke to Julio. Leerdam met Andrea, who asked her how it went. Andrea and Julio then took her to a hotel and …

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The Amazing Trace

United States v. Crawford, NO. 06-5059-cr (2d Cir. July 17, 2008) (Sotomayor, Wesley, Wallace, CJJ)

This gun possession case arose when defendant Crawford was arrested by parole officers for violating his curfew and smoking marijuana. The officers claimed that they found a gun and ammunition in his bag. At trial, the government called an interstate commerce nexus expert, but did not introduce testimony about a trace report to demonstrate the gun’s legal chain of custody. Crawford testified that there was no gun in his bag and, in summation, his attorney adopted this “frame-up” theme as the defense. Counsel noted in particular that there was no evidence that the government had traced the gun, an effort to suggest that such a trace would have established that the gun belonged to someone other than Crawford.

During deliberations, the jury sent a note asking “why wasn’t the gun traced to the original owner?” …

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Summary Summary

So far, a bunch of interesting summary orders this month. Here’s the roundup:

In United States v. Pryce, No. 07-2210-cr (July 25, 2008), a marijuana trafficking case, the court vacated the sentence and remanded for findings on the scope of the defendant’s participation in the conspiracy.

United States v. Gumbs, No. 06-4708-cr (July 24, 2008), upheld a finding that the defendant’s false claim of United States citizenship to pretrial services warranted a sentence enhancement for obstruction of justice.

In United States v. Marucilli, No. 08-1145-cr (July 23, 2008), the court vacated the defendant’s conviction in a housing fraud case because the district court erroneously instructed the jury that the money that funded the housing subsidy was the property of the United States. This “improperly took out of the hands of the jury the factual issue of whether the United States exercised ‘sufficient supervision and control’ over the funds to support …

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Wednesday, July 16th, 2008

Bank Failure

United States v. Carlton, No. 07-2344-cr (2d Cir. July 16, 2008) (Winter, Miner, Cabranes, CJJ) In June of 2004, after a hearing, Judge Robinson found that Carlton, who was on supervised release for a bank robbery, had committed another one. He sentenced Carlton to 30 months’ imprisonment. About a year later, the government indicted Carlton for that same robbery and the case was randomly assigned to Judge Robinson. Carlton asked the judge to recuse himself, but he refused. A jury convicted Carlton, and the judge sentenced him to 600 months’ imprisonment. On appeal, he argued that it was error for the judge not to recuse himself, but the circuit disagreed. Nothing that the judge said or did at the supervised release revocation would cause his “impartiality reasonably to be questioned.” Moreover, the judge did not have “personal knowledge of disputed evidentiary facts concerning the proceeding.” Judge Robinson’s knowledge did not …

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Sunday, July 13th, 2008

Discovery Channel

United States v. Siraj, No. 07-0224-cr (2d Cir. July 9, 2008) (Jacobs, Straub, CJJ, Jones, DJ)

This case holds that, under Fed.R.Crim.P 16(a)(1)(B)(i), a defendant is not entitled to discovery of police reports that memorialize his statements to an undercover officer.

Defendant Siraj was convicted of various offenses relating to his scheme to blow up a subway station in Manhattan. He was dealing largely with an undercover police officer, who would report their conversations to his handler; the handler would then memorialize Siraj’s statements in written reports. The government did not turn over those reports to the defense as pretrial discovery.

The relevant provision, Rule 16(a)(1)(B)(i), requires disclosure of “any relevant written or recorded statement by the defendant.” The court held that this did not cover the reports at issue. Oddly enough, however, the court did not analyze the claim under the language of Rule 16(a)(1)(B)(i) itself. Instead, it looked …

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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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