United States v. Cullen, No. 06-0607-cr (2d Cir. August 23, 2007) (Cardamone, Straub, CJJ, Koeltl, DJ) (per curiam)

The United States is a signatory to the Convention on International Trade in Endangered Species of Wild Fauna and Flora. The Wild Bird Act, 16 U.S.C. § 4904, prohibits the importation into the United States of any exotic bird of a species covered by the Convention, and violators face civil or criminal penalties.

Thomas Cullen used straw purchasers to import Black Sparrowhawks, an African raptor, into the United States. He was trying to make it look as if the importation were valid under a provision permitting persons who have lived outside the United States for more than one year to import a personally owned pet, even if it is a member of one of the listed species. Cullen was convicted both of importing the birds and of making false statements to the …

United States v. Cole, No. 06-0226-cr (2d Cir. August 9, 2007) (Sack, Parker, Hall, C.JJ)

This case demonstrates the first principle of sentencing thermodynamics: the farther a district court gets from Foley Square – here, the Western District – the more bizarre its rulings are likely to become.

Facts: Patrick Cole was the patron of a garden-variety Ponzi scheme that netted him nearly $1.5 million over four years. He pled guilty to mail fraud under a plea agreement that contained various stipulations about the Sentencing Guidelines, but that left him free to dispute the applicability of the “sophisticated means” enhancement. Cole gave the probation officer who was preparing the presentence report a copy of the plea agreement, and the officer sided with the government on this issue.

Cole also filed timely objections to the report with the district judge but, at sentencing, the judge would not even entertain those objections, …

United States v. Baldwin, No. 06-4265-cr (2d Cir. July 23, 2007) (Jacobs, Wesley, Gibson, CJJ).

Police officers, acting on an anonymous tip, pulled over a car that the defendant was driving. He refused to comply with any of their orders and, when one officer approached the passenger’s side, he sped off. After a chase, the car slammed into an embankment and the defendant was arrested. In the car, the officers found firearms and ammunition along with crack and drug paraphernalia.

Defendant moved to suppress the evidence on the ground that the initial order to stop the car was illegal. The district court denied the motion, holding that the defendant was not seized because he did not submit to the officers’ authority.

On appeal, the court agreed: “We hold that, to comply with an order to stop – and thus to become seized – a suspect must do more than halt …

United States v. Rodriguez, No. 05-3069-cr (2d Cir. July 24, 2007)(Leval, Cabranes, CJJ, Rakoff, DJ).

Ramiro Rodriguez was convicted of narcotics trafficking primarily on the testimony of two cooperating witnesses. One of those witnesses admitted on direct examination that she lied “about everything” when she “first spoke with the government.” The government had not disclosed this to the defense before trial and, when counsel asked to be told about the substance of the lies, the government refused. The district judge, who initially thought the information should be turned over, ultimately declined to force the issue, apparently agreeing with the government that since the lies had not been reduced to writing there was no disclosure obligation.

On appeal, the court made short work both of the government’s intransigence and the district judge’s confusion. “The obligation to disclose information covered by [Brady/Giglio] exists without regard to whether that information has been recorded …

United States v. Santiago, No. 06-5136-cr (2d Cir. July 18, 2007) (Cabranes, Raggi, CJJ, Berman, DJ)

In this case, the defendant received the bottom of an agreed-upon sentencing range – 135 months’ imprisonment – and waived his right to appeal. He nevertheless filed a notice of appeal and counsel filed an Anders brief and motion to withdraw. Counsel also forwarded to the court of appeals a copy of the letter she sent to the client notifying him of her actions. The court, however, concluded that this might not be enough. It noted that the presentence report indicated that the defendant was illiterate and thus that there was a possibility that he might not have understood the documents he received. “At a minimum, when counsel knows or has reason to believe that the client may be illerate, she must make some reasonable effort to contact the defendant in person to explain …

United States v. Lombardozzi, No. 04-0380-cr (2d Cir. July 11, 2007) (Kearse, Sack, Hall, CJJ)

No new ground here. Defendant was charged with various extortion offenses in connection with loans that he, through confederates, extended to a restaurant owner. At trial, over objection, the government entered into evidence a co-defendant’s plea allocution, in which he admitted that he “conspired with others” to use threats of violence to collect a loan.

The court of appeals agreed that this violated Crawford, but found that the error was harmless beyond a reasonable doubt. The government placed little emphasis on the allocution in its summation, and the admissible evidence establishing the existence of the conspiracy – the victim’s testimony and recorded conversations – was “overwhelming.” …

United States v. Sabhnani, Nos. 07-2567-cr, 07-2615-cr (2d Cir. July 6, 2007 ) (Winter, Cabranes, Raggi, CJJ).

In a decision so fact-bound as to be unlikely to serve as precedent for any other case, the court has ordered the defendants’ release on bail despite the horrific nature of the crimes and the strength of the evidence.

In May of 2007, the Sabhnanis, a married couple with homes on Long Island and in Manhattan, were charged with forced labor and harboring illegal aliens, based on allegations that they enslaved and beat two Indonesian woman who were their domestic servants. After numerous bail hearings in the district court, they were ordered detained as flight risks. The couple is extremely wealthy, and has extensive business, financial and personal ties to foreign countries, including some with which the United States has no extradition treaty.

They appealed the detention order, and the court of appeals …

United States v. Kilkenny, No. 05-6847-cr (Cardamone, Walker, Straub, CJJ) (2d Cir. July 5, 2007). Here, the district court used the November 1, 2002, version of the Guidelines to sentence the defendant, rejecting his argument that the November 1, 2000, version should be applied instead. the court of appeals rejected district court’s reasons for using the later, and more onerous Guidelines, and remanded the case for resentencing under the 2000 manual.

Facts:

In September of 2000, the defendant received, a large loan from M&T Bank. However, he had made several false representations about his finances in the loan application, and ultimately defaulted. On May 8, 2002, the bank foreclosed on the loan. The defendant pled guilty to one count of bank fraud – the count alleged that the fraud spanned from “in or about September 2000 through on or about May 8, 2002.”

The defendant also cheated 22 individuals in …