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Federal Defenders of New York Second Circuit Blog


Friday, October 26th, 2007

“Might” Makes Right

United States v. Zhang, No. 05-6662-pr (2d Cir. October 23, 2007) (Winter, Cabranes, CJJ, Korman, DJ)

During a plea allocution, advising a defendant that he might be deported was good enough, even though ICE believed that deportation was mandatory.

Zhang, a chemist, manufactured and sold an illegal bodybuilding supplement, DNP. One of his customers died after taking Zhang’s concoction, while another was in a coma for ten days. Zhang ultimately pled guilty to one count of mail fraud. During the plea allocution, the prosecutor stated that Zhang was subject to “possible” deportation as a result of the plea. The magistrate judge echoed this, saying that the plea “could” result in his deportation. Similar equivocal statements about the possibility of deportation were made by the prosecutor and district judge at Zhang’s sentencing.

Once sentenced, however, Zhang was served a notice by ICE indicating that he faced mandatory deportation as a result …

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Wednesday, October 24th, 2007

BYE-BYE, BRUTON?

United States v. Williams, No. 05-6036-cr (2d Cir. October 23, 2007) (Newman, Walker, Straub, CJJ).

In this curious but very troubling case, the court seems to have concluded, sub silentio, that Crawford trumps Bruton.

Brothers Bobby and Michael Williams were tried for a drug-related triple homicide. Neither brother testified. At trial, over objection, the court permitted two civilian witnesses to testify that, after the shootings, Bobby made statements to them admitting his involvement in the shootings. Some of those statements implicated Michael. On appeal, Michael argued that the admission of Bobby’s statements violated the Confrontation Clause and Fed.R.Evid. 804(b)(3).

Obviously, Michael’s Confrontation Clause claim raises Bruton issues; indeed, this is the classic Bruton situation – the out-of-court statement of one defendant is used against a co-defendant. But here, the court never even got to Bruton. It held that Bobby’s out of court remarks were not “testimonial” under Crawford, and thus …

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Monday, October 22nd, 2007

Attempt-ation

United States v. Gaqliardi, No. 06-4541-cr (2d Cir. October 22, 2007) (Walker, Calabresi, Sack, CJJ).

This case shuts the door on number of common challenges to convictions under 18 U.S.C. § 2422(b), which makes it a crime to entice a minor to engage in an illegal sexual act, or to attempt to do so. In relatively short order, the court held that: (1) because the statute prohibits attempts, it covers sting operations in which there is no minor victim (here the court joins six other circuits); (2) the statute is not vague, in that its various terms – entice, persuade, coerce, etc., – although not defined, are words in common usage that have ordinary meanings (joining five other circuits); (3) the statute does not criminalize speech that is protected First Amendment and hence is not overbroad.

Gagliardi also made some novel arguments, which the court also rejected. The five-year mandatory …

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Tuesday, October 16th, 2007

Location, Location, Location

United States v. Cavera, No. 05-4591-cr (2d Cir. October 11, 2007) (Cardamone, Calabresi, Pooler, CJJ)

Gerard Cavera received an above-Guidelines sentence based on the district court’s view that gun offenses were more serious in densely populated areas like New York city. This opinion is the court’s second attempt to deal with a location-specific reason for imposing a non-Guideline sentence. Confusingly, both attempts have been in this same case.

The first opinion here, back in June, held unequivocally that a district court’s “reliance on community-specific characteristics, such as population density, to impose a non-Guidelines sentence constituted legal error and rendered [the] sentence unreasonable.” This opinion held that it was always inappropriate to use “community-specific” considerations as the basis for deviating from the Guidelines, because such sentences would lead to unwarranted regional disparities in sentencing. Judge Calabresi concurred in the result, but disagreed with the majority’s analysis, rejecting the “broad language . …

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Saturday, October 13th, 2007

Steal This Footnote

United States v. Johnson, No. 05-3811-cr (2d Cir. October 10, 2007) (Meskill, Cabranes, Wesley, CJJ)

This is pretty much a case about nothing. The only real nugget is in footnote 4.

Johnson appealed his 120-month gun sentence – the statutory maximum – on several grounds. As is often true, his case had begun in state court, but was later transferred to federal court. Johnson pointed out that had the state prosecution gone forward, he could not have received more than seven years’ imprisonment. On appeal he argued that the district court was required to sentence him so as to take into account (1) the disparity between his sentence and his co-defendant’s, a claim that the court has already rejected, and (2) the disparity between his federal sentence and the sentence he would have received in the state court.

The court rejected this second claim as well, holding that a district …

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SUMMARY SUMMARY

Summary orders do not have precedential effect. But, those filed after January 1, 2007, can now be cited as long as certain citation requirements are met. See Fed.R.Ap.Proc. 32.1 and Second Circuit Local Rule 32.1. In light of this, starting October 2007, the Second Circuit Blog is introducing a new feature, called Summary Summary. In it we briefly comment on summary orders of interest.

So, here we go!

United States v. Watson, No. 05-6184-cr (October 3, 2007)(summary order). During deliberations, a juror became convinced that the government’s main witness was the same man who had raped the juror’s daughter the year before, and the court discharged her. The court of appeals held there was “good cause” under for the discharge under Fed.R.Crim.Proc 23.1.

United States v. Tyson, No. 06-1727-cr (October 12, 2007)(summary order). Tyson appealed several aspects of his sentence, including an obstruction of justice enhancement. The court held that …

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Saturday, October 6th, 2007

Why Oh, Why Oh, Y.O?

United States v. Jackson, Docket No. 06-5928-cr (2d Cir. October 5, 2007) (Miner, Cabranes, CJJ, Crotty, DJ) (per curiam)

This case continues the court’s seemingly relentless, and highly questionable, line of cases upholding the use of New York State youthful offender adjudications (“Y.O.”’s) as sentencing enhancers.

In United States v. Sampson, 385 F.3d 183 (2d Cir. 2004), the court held that a Y.O. constituted a prior drug felony for purposes of the sentencing enhancements contained in 21 U.S.C. §§ 841(b) and 851.

Here, Jackson, whose Y.O doubled a five-year mandatory minimum, tried to capitalize on a potential hole in Sampson. He argued that the Sampson court’s observation that the defendant served his Y.O. sentence in an adult institution created a requirement that district courts find this to be true before enhancing a drug sentence based on a Y.O.

The court disagreed. A finding of fact on this question is not …

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Et Tu, Brute – NOT!

United States v. Brutus, Docket No. 06-2710-cr (2d Cir. October 2, 2007) (Jacobs, Walker, Calabresi, CJJ)

Waline Brutus testified at her drug importation trial. During the charge, Judge Glasser instructed the jury, in relevant part, that she had a “deep personal interest in the outcome of the case” that “creates a motive to testify falsely.”

Following in the footsteps of its recent decision in United States v. Gaines, 457 F.3d 238 (2d Cir. 2006), the court held that this instruction was error. This case is significant because there had been a tension between Gaines and United States v. Tolkow, 532 F.2d 853 (2d Cir. 1976), which upheld very similar language. Here, the court very neatly cuts through the confusion and overrules Tolkow, creating a “prophylactic rule” that any “instruction that the defendant’s interest in the outcome of the case creates a motive to testify falsely impermissibly undermines the presumption of …

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GET YOUR STASH HOUSE IN ORDER

United States v. Wilson, Docket No. 05-5985-cr (2d Cir. September 24, 2007) (Jacobs, Katzmann, Hall, CJJ) (per curiam)

This short decision disposes of a sufficiency claim that has not yet arisen in this Circuit relating to “stash house” prosecutions under 21 U.S.C. § 856(a)(2).

Wilson shared two apartments with a drug dealer – the tools of his trade were in open view all over the place. She argued that the evidence was legally insufficient because the government did not prove that she herself intended that the premises would be used for an unlawful purpose.

The Circuit made short work of this. The phrase “for the purpose” in § 856(a)(2) refers to the purpose of the person who is permitted to engage in drug activity in the premise, and not she who permits him. By contrast, § 856 (a)(1) makes it a crime for the person controlling the premises to have …

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OBJECT LESSONS

United States v. Villafuerte, Docket No. 06-1292-cr (2d Cir. September 21, 2007) (Walker, Cabranes, CJJ, Goldberg, DJ)

United States v. Hirlman, Docket No. 05-3677 -cr (2d Cir. September 27, 2007) (Winter, Walker, Sack, CJJ)

These two cases, although not related, together provide new insights into an extremely important area – the need to preserve sentencing issues for appeal.

Villafuerte is a very disturbing case. For nearly two decades, the conventional wisdom in the Second Circuit has been that appellate claims relating to the procedural aspects of sentencing – e.g., whether the court understood its departure authority, made adequate legal findings in support of an enhancement, or gave the defendant an opportunity to allocute – would be reviewed on appeal, even where there was no specific objection pointing out the procedural failing.

Villafuerte changes all that. In this case, the Circuit holds that the most common post-Booker claims about procedural unreasonableness …

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IF THE CRIME DOESN’T FIT THEY CAN’T FORFEIT

United States v. Capoccia, No. 06-0669-cr (2d Cir. September 19, 2007) (Sotomayer, Katzmann, CJJ, Gertner, DJ)

In this case, the district court erred in ordering forfeiture of the proceeds of conduct that occurred prior to the date of the conduct with which the defendant was charged. The decision turned on a very narrow reading of the indictment, as well as on the nature of the statute under which the defendant was charged.

At issue was money that Capoccia, a lawyer, misappropriated from a credit counseling/debt reduction service that he founded. Capoccia was convicted of misappropriating unearned client retainer fees, failing to give complete refunds to clients who withdrew from the program, and embezzling client escrow funds that was supposed to be paid to credit card companies to settle clients’ debts.

Capoccia was charged with interstate transportation of stolen money under 18 U.S.C. § 2314. While the indictment referenced a “scheme” …

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