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Federal Defenders of New York Second Circuit Blog


Saturday, January 19th, 2008

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 …

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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.…

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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 …

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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, …

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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 …

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Categories: jury selection, sentencing, Uncategorized, waiver

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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.…

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Wednesday, December 19th, 2007

Summary Summary

Welcome to yet another installment of the blog’s roundup of summary orders of interest.

In Mickens v. United States, No. 06-0140-pr (2d Cir. December 19, 2007), the court held that defense counsel’s failure to communicate a plea offer to his client was unreasonable, satisfying the first prong of the Strickland ineffectiveness test, although second prong was not satisfied because there was no credible evidence that the defendant would have accepted the offer. In United States v. Turner, No. 06-0967-cr (2d Cir. December 17, 2007), the court remanded for resentencing where the government breached the plea agreement in four different ways; the court ordered that the case be sent back to a different judge, which it always does when the government has breached a plea agreement. In United States v. Miley, No. 06-1105-cr (2d Cir. December 13, 2007), the court affirmed an above-Guideline sentence of 48 months’ imprisonment (the range was …

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Blurry Vision Leads to Clear Error

United States v. Lin Guang, No. 05-4724(L)-cr (2d Cir. December 13, 2007) (McLaughlin, Wesley, CJJ, Sessions, DJ)

Two defendants in an extortion case raised a host of garden-variety challenges to their conviction, to little effect, and to their sentence, one of which prevailed.

During one of the extortions, a victim was beaten and a caustic substance was sprayed into his eyes, briefly blinding him. Once he rinsed it out, his eyes felt better, but from that point on he found it painful to read for long periods of time, and thus had stopped reading the newspaper. Based on this account, the district court imposed a six-level Guideline enhancement for permanent injury, which is defined as “loss or substantial impairment of the function of a bodily member, organ, or mental faculty that is likely to be permanent.”

The circuit held that the district court’s finding that the impairment, as described, was …

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Monday, December 17th, 2007

Not-So-Fast Track

United States v. Liriano-Blanco, No. 06-2919-cr (2d Cir. December 11, 2007) (Walker, Calabresi, Sack CJJ)

In this unusual case, the circuit entertained an appeal despite a waiver. Liriano-Blanco pled guilty to illegal reentry under a plea agreement in which he agreed to waive any appeal of a sentence of 60 months or less, with a Guideline range of 57 to 71 months. At his sentencing, he asked for a below-Guidelines sentence to avoid “the disparity caused by the existence of fast-track programs in other districts.” The district judge was sympathetic to this argument, and agreed that there was an unwarranted disparity. He indicated that he would like to give a four-level downward departure for this, but thought that he was not permitted to. Erroneously believing that Liriano-Blanco could appeal the sentence, the judge invited him to do so: “Hopefully, maybe, the Second Circuit may disagree with me and [I’ll] be …

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Underprivileged

In re Grand Jury Subpoena Dated July 6, 2005, No. 05-6891-cv (2d Cir. November 16, 2007, posted December 10, 2007) (Pooler, Parker, Wesley, CJJ)

In January of 2005, an Eastern District AUSA contacted counsel for the unnamed appellant, a former mortgage broker, and advised that appellant was the subject of a grand jury investigation. Appellant proffered on January 12, 2005, and, sometime after that date, surreptitiously recorded his telephone conversations with another broker, who was also a subject of the investigation. At later proffer, appellant told the government about the tapes, which he said he had made “on advice of counsel to protect himself.” When the government subpoenaed those recordings, appellant resisted, claiming that they were privileged. The district court ordered compliance, and the circuit affirmed.

Appellant’s primary claim was that the recordings were work product. The circuit concluded that the recordings were “fact” work product, that is, the result …

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Friday, December 7th, 2007

SUMMARY SUMMARY

Welcome to the Blog’s periodic roundup of summary orders of interest.

In United States v. Rodriguez, No. 06-1681 (November 29, 2007), the court vacated a restitution order for further factfinding in a case involving the filing of fraudulent tax returns.

In United States v. Perez, No. 06-1040 (2d Cir. November 27, 2007), the court, yet again, bounced an Anders brief. Here it ordered counsel to file a supplemental brief that either (1) addressed the court’s Guidelines findings and calculations and the reasonableness of the sentence, or (2) explained why a discussion of reasonableness was unnecessary. If the brief really lacked all of these things, one wonders what it actually said!…

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