Navigation

Federal Defenders of New York Second Circuit Blog


Thursday, January 31st, 2008

Burglar Alarm

United States v. Brown, No. 05-5462-cr (2d Cir. January 30, 2008) (Kearse, Hall, CJJ, Rakoff, DJ)

This opinion deals with a seemingly straightforward issue: whether a New York State conviction for burglary in the third degree is a “crime of violence” under Guidelines section 4B1.2(a). It turns out, however, that the issue has a complication.

In Brown’s case, the district court held that the burglary conviction increased his offense level under U.S.S.G. § 2K2.1(a), which uses the Chapter 4 definition of crime of violence. The complication is that, under this definition, a crime of violence is “an offense . . . that . . . is burglary of a dwelling . . . or otherwise involves conduct that presents a serious potential risk” of injury. The New York statute proscribes burglary of a “building,” which is broader than a “dwelling,” thus third-degree burglary can only be a crime of violence …

Posted by
Categories: crime of violence, Uncategorized

Posted By
Categories: crime of violence, Uncategorized

Continue Reading

Forfeit To Be Tied

United States v. Schlesinger, No. 05-03021-cr (2d Cir. January 30, 2008) (Jacobs, Parker, Wesley, CJJ) (per curiam)

Schlesinger, convicted of mail and wire fraud, made a clever, but unfortunately not clever enough, argument challenging the forfeiture of the proceeds.

The district court had relied on 28 U.S.C. § 2461(c) (2005), which provides that a criminal forfeiture can be alleged in the indictment when “no specific statutory provision is made for criminal forfeiture upon conviction.” Schlesinger pointed out that there is a specific statutory provision for forfeiture of mail and wire fraud offenses, thus § 2461(c) should not apply, but also that the specific provision, 18 U.S.C. § 982(a)(2)(A), applies only to the proceeds of frauds affecting a financial institution, which was not the case here. As the circuit summarized it, although it is not an image one would care to dwell on, Schlesinger argued that the government “falls between two …

Posted by
Categories: fofeiture, Uncategorized

Posted By
Categories: fofeiture, Uncategorized

Continue Reading

Speed Bump

United States v. Abad, No. 06-0338-cr (2d Cir. January 30, 2008) (Jacobs, Parker, Wesley, CJJ) (per curiam)

Here, the court holds that a failure to make a claim under the Speedy Trial Act in the district court results in a waiver of the issue on appeal. Thus, an unpreserved statutory speedy trial claim cannot be reviewed at all, even for plain error.

Comment: This one’s kind of a no-brainer, since the statute expressly so provides. 18 U.S.C. § 3162(a)(2). The only complication is United States v. Sorrentino, 72 F.3d 294, 297 (2d Cir. 1995), in which the court actually reviewed an unpreserved Speedy Trial Act claim for plain error, even though no motion had been made below. The Abad panel devised a double-barreled solution to the conundrum: first, it blamed the lawyers, noting that no party mentioned § 3162(a)(2) in its briefing in Sorrentino, and then, just to make sure, …

Posted by
Categories: speedy trial, Uncategorized, waiver

Posted By
Categories: speedy trial, Uncategorized, waiver

Continue Reading
Tuesday, January 29th, 2008

Summary Summary

The court has not issued a published opinion in a criminal case for a while. But here is the most recent set of summary orders of interest.

In United States v. Matthews, No. 04-1657-cr (2d Cir. January 29, 2008), the court vacated the application of the “street gang” enhancement in 18 U.S.C. § 521 because the government failed to prove that the current federal offense occurred within five years of the predicate offenses, as required by the statute.

United States v. Rodriguez, No. 06-1681-cr (2d Cir. January 28, 2008), vacated the restitution order in a case involving the filing of false tax returns, and ordered further fact-finding on whether the restitution amount should be reduced by the amounts that Rodriguez, the tax preparer, returned to his clients.

And, in United States v. Walker, No. 05-6701-cr (January 23, 2008), the court vacated a $100,000 fine imposed on a defendant whom PSR …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Saturday, January 19th, 2008

Summary Summary

Here’s another group of summary orders of interest:

In United States v. Whitley, No. 05-3359-cr (2d Cir. January 15, 2008), the court accepted a “minimally sufficient” Anders brief.

In United States v. Leonardo, No. 05-1791-cr (2d Cir. January 14, 2008), the court excused the defendant’s waiver of his appeal, and found that the government breached a cooperation agreement by withdrawing its 5K1.1 motion for a reason different from that permitted by the agreement.

United States v. Ramirez, No. 06-2869-cr (2d Cir. January 9, 2008), held that the district court did not err in permitting the defendant to withdraw from a plea agreement – to his ultimate detriment – in light of Booker.

In United States v. John, No. 07-3120-cr (January 8, 2008), the court found no impermissible double counting in an assault case, where the district court added a three-level enhancement for physical contact, rejecting the defendant’s argument that this …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading

OPEN SESAME

Two recent cases provide some guidance on the requirement in 18 U.S.C. § 3553(c) that the district court state in “open court” its reasons for imposing a particular sentence.

1. United States v. Day, No. 05-4285-cr (2d Cir. January 15, 2008) (Jacobs, Pooler, Sack, CJJ) (per curiam) is particularly shocking. Day was originally sentenced to fifteen years’ imprisonment, after having been convicted of one offense with a ten-year mandatory minimum and one with a five-year mando. In 2006, the circuit, in a summary order, vacated the sentence because it appeared from the record that Judge Platt erroneously believed that the two minima had to run consecutively.

On remand, Judge Platt, without notice to anyone, and in the absence of Day and his counsel, filed an order resentencing him to the same 180-month sentence. The circuit reversed, naturally, holding that the district court violated Day’s constitutional right to be present at …

Posted by
Categories: 3553(c), Uncategorized

Posted By
Categories: 3553(c), Uncategorized

Continue Reading

PORN AGAIN

As the Blog has observed, see Post of 11/29/07: Have You Hugged A Sex Offender Recently?, recently sex offenders fared pretty well in the circuit. Until now. In this most recent crop of cases, sex offenders lost three out of four, and the win was in a summary order, to boot. Here they are:

1. United States v. Hawkins, No. 06-4061-cr (2d Cir. January 16, 2008) (Winter, Straub, Sotomayor, CJJ) (per curiam)

In this case, the court rejected a double-barreled challenge to 18 U.S.C. § 2423(b), which makes it a crime to travel with the intent to engage in illicit sexual conduct, finding that the statute violated neither the Commerce Clause nor the First Amendment. It should be noted that there have been a few cases in other courts claiming that this statute impermissibly impinges on the constitutional right to travel interstate, but that issue remains open in this circuit.…

Posted by
Categories: sex offenses, Uncategorized

Posted By
Categories: sex offenses, Uncategorized

Continue Reading

TRUTH EXTRACTION

United States v. Glover, No. 05-5047-cr (2d Cir. January 4, 2008) (Pooler, Raggi, CJJ, McMahon, DJ)

At this firearms trial, the judge charged the jury, over objection, that “the crucial, hard-core question” to answer was, “Where do you find the truth?” He also instructed: “The only triumph in any case, whether it be civil or criminal, is whether or not the truth [has] triumphed.” One defendant was acquitted; the other was not and appealed.

The circuit affirmed. It agreed that these instructions, in isolation, would be error because they do not ensure that the jury will have a correct understanding of the presumption of innocence or the government’s burden of proof. In addition, the court strongly discouraged their use in the future: “[T]o the extent that a trial court thinks it appropriate in a criminal case to identify for the jury a single ‘crucial, hard-core question,’ that question should be …

Posted by
Categories: burden of proof, jury charge, presumption of innocence, Uncategorized

Posted By
Categories: burden of proof, jury charge, presumption of innocence, Uncategorized

Continue Reading
Friday, January 4th, 2008

Summary Summary

Here is the latest installment of the Blog’s round-up of summary orders of interest. In United States v. Fernandez-Quesada, No. 06-4446-cr (2d Cir. January 4, 2008), the court dismissed a sentencing appeal as moot because the defendant had been released, even though he had a “potentially valid claim” that his sentence was based on an unlawful upward departure. In United States v. Collazo, No. 06-5236-cr (2d Cir. January 3, 2008), a government appeal, the court found the sentence to be procedurally unreasonable where the district court declined to include an aggravating role enhancement in the Guidelines calculations, but did not give adequate reasons. United States v. Johnson, No. 06-4001-cr (January 3, 2008) and United States v. Stewart, No. 06-3411-cr (December 21, 2007), are the court’s first two cases to incorporate Gall and Kimbrough; each contains a cryptic order expressing “no view on the reasonableness vel non” of the sentence imposed, …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Monday, December 31st, 2007

Permanent Waive

United States v. Quinones, No. 04-5554 (2d Cir. December 28, 2007) (Winter, Cabranes, Raggi, CJJ)

This case has lengthy discussions of two important issues. It turns out that the one that has received the less press is actually the more interesting of the two, so we’ll begin with that.

1. Sentencing Error Waived

Facts: In this capital case, the defendants initially faced three counts that exposed them to the death penalty. Two related to murder in aid of racketeering under 18 U.S.C. § 1959; for these, a life sentence was mandatory if death was not imposed. The defendants were acquitted of these counts.

They were convicted only of murder in relation to a continuing drug enterprise (“CCE”) under 21 U.S.C. § 848(e). At the time, that section provided for a mandatory minimum sentence of 20 years’ imprisonment and a maximum of life if death was not imposed. Nevertheless, the defendants …

Posted by
Categories: jury selection, sentencing, Uncategorized, waiver

Posted By
Categories: jury selection, sentencing, Uncategorized, waiver

Continue Reading
Wednesday, December 26th, 2007

Breach Baby

United States v. Griffin, No. 05-4106-cr (2d Cir. December 21, 2007) (Pooler, Sack, Wesley, CJJ)

In this case, a divided panel concluded that the government breached its plea agreement in a child pornography case by twice suggesting that the defendant might not be entitled to a downward adjustment for acceptance of responsibility.

Facts: Defendant Michael Griffin pled guilty to possessing child pornography by using the file-sharing service Kazaaa. His plea agreement left open a number of disputed Guidelines issues, which were the subject of a lengthy evidentiary hearing, but stipulated that the government would not oppose a three-level acceptance of responsibility adjustment. Before sentencing, Griffin filed numerous objections to the Guidelines calculations in the presentence report; most pertinently, he denied knowingly possessing a particularly disturbing video known as “BabyJ,” and also denied telling the FBI, in a post-arrest statement, that he knew that the video had been on his computer.…

Posted by
Categories: breach, plea agreement, sentence, Uncategorized

Posted By
Categories: breach, plea agreement, sentence, Uncategorized

Continue Reading