United States v. Ubiera, Docket No. 05-5256-cr (2d Cir. May 15, 2007) (Jacobs, Cardamone, Sotomayor, C.JJ.). Guidelines section 4A1.2(c)(1) excludes convictions for certain petty offenses and those “similar” to them from a defendant’s criminal history score. Here, in a case of first impression, the Court rejected the defendant’s argument that his two New Jersey prior convictions for shoplifting were “similar” to the listed offense of passing bad checks and should not have generated criminal history points.

The Circuit has long used a multi-factor test in determining similarity under 4A1.2(c). The factors include the relative punishments, the elements of the offenses, the level of culpability, the degree to which the commission of the offense predicts recidivism, and any other factor that is “reasonably” relevant to the question.

Ubiera was convicted of stealing $248 worth of merchandise from a Paramus department store in 1999, for which he was fined $553. His second …

United States v. Stewart, Docket No. 05-1989-cr (2d Cir. May 8, 2007) (Kearse, Sotomayor, C.JJ., and Koeltl, D.J.). In this extremely fact-bound opinion, the Court concludes that the district court correctly found, by a preponderance of the evidence, that the defendant procured the unavailability of a hearsay declarant.

The “forfeiture-by-wrongdoing” rule is well established, and has been codified in Rule 804(b)(6) since 1997. The defendant here did not contest the rule itself, nor did he did introduce Crawford into the mix (perhaps his trial was pre-Crawford), but rather challenged only the district court’s finding that the defendant was responsible for the murder of one of the witnesses against him. The Court was utterly unsympathetic to this claim, mapping out the apparently compelling, albeit circumstantial, evidence that the defendant ordered a confederate to do the deed.

More interesting was the defendant’s argument that the forfeiture rule should not be applied because …

Untied States v. Canova, Docket No. 05-6459-cr (2d Cir. May 8, 2007) (Meskill, Newman and Sack, C.JJ.) In this case, for the second time, the Court finds fault with the district court’s lenient treatment of John Canova.

Facts: Canova was convicted after a jury trial of making false statements and various similar offenses, all the result of his efforts to obstruct a Medicare investigation into his pacemaker monitoring business. At his first sentencing, which was post-Booker, the district court imposed a Guideline sentence of one year’s probation and a fine. It arrived at this sentence principally by concluding that there was no loss (the government alleged a $5 million loss) and granting a six-level downward departure for Canova’s “extraordinary record of civil and public service.” On the government’s appeal, the Court vacated the sentence, holding that the district court’s finding of no loss was error. However, the Court remarked that …

United States v. Chirino, Docket No. 06-1207-cr (2d Cir. April 12, 2007) (Kearse, McLaughlin, Straub, C.JJ). In a decision that breaks no new ground, the Court upholds the search of a probationer’s bedroom and dresser – where officers found a firearm -that was based on reasonable suspicion that the defendant was in violation of the terms of his probation.

Here, before the search, the officers had information that the defendant, who was on probation for robbery, was in a street gang. Moreover, he had recently been seen in the company of a fourteen-year-old girl who was missing, and who had been held against her will and sexually abused by members of the same gang. When the officers encountered the defendant, he was in bed, nearly naked, with two other underage girls. The Court’s conclusion that these facts constituted reasonable suspicion should shock no one.

The Court also, unsurprisingly, rejected a …

United States v. Kaplan, Docket No. 05-5531-cr (2d Cir. April 11, 2007)(Feinberg, Leval, Cabranes, C.JJ). Here, improper testimony by a co-conspirator about the defendant’s knowledge of the fraud resulted in the reversal of some, but not all, counts of conviction.

Facts: This case involved a complex insurance fraud scheme, with staged automobile accidents and corrupt doctors, all aided by a corrupt lawyer named Galkovich, who actually filed the claims. In 2001, Galkovich was arrested and risked losing his law license, so other conspirators arranged for his firm to be sold to defendant Kaplan. At trial, Galkovich was permitted to testify, over objection, that his initial conversations with Kaplan led him to conclude that Kaplan knew that the insurance claims were fraudulent (e.g., “I think he knew exactly what he was getting into.”).

The district court also permitted Galkovich to testify that both he and others knew about the fraud. The …

We’re back from “spring break,” and are catching up on Second Circuit decisions since our last post.…

We apologize for our recent unannounced hiatus. We expect to resume normal blogging within a week or so. Thank you for your patience.…

United States v. Amerson, Docket No. 05-1423-cr (2d Cir. Mar. 29, 2007) (Calabresi, Katzmann, B.D. Parker, C.JJ.): In this case, the Court upholds, against a Fourth Amendment challenge, the federal program of DNA testing, to which prisoners, those on supervised release, and probationers are subject, as applied to probationers convicted of non-violent crimes. On its face, such a program faces a Fourth Amendment obstacle, since it constitutes a search without any suspicion of wrongdoing, much less probable cause, a search that is ordinarily unreasonable. The Court follows its previous decisions in Roe v. Marcotte, 193 F.3d 72, and Nicholas v. Goord, 430 F.3d 652, in holding that the proper Fourth Amendment test to apply to such a case is the “special needs” test rather than a “reasonableness” test evaluated on the totality of the circumstances. That test, as applied by the Supreme Court, has required …

United States v. Elmore, Docket No. 05-1734-cr(L) (2d Cir. Mar. 29, 2007) (Pooler, Raggi, Sand): This case makes me want to practice in the District of Connecticut. Here, the district court ruled that a Terry stop of the defendant’s vehicle (resulting in the subsequent recovery of a firearm) was not supported by reasonable suspicion because the informant who supplied the tip leading to the stop of the car was (1) “anonymous” and (2) had not given sufficient “predictive information” to justify the stop under cases such as Florida v. J.L., 529 U.S. 266 (2000). The district court categorized the informant as anonymous even though she called a police detective and gave him (1) her full name (“Dorothy Mazza”) (2) cell phone number, and (3) home phone. Op. 3. But while the detective was able to call the informant back on the cell phone number she provided (thus …

United States v. Green, Docket No. 05-3830-cr (2d. Cir. March 13, 2007) (Kearse, Sotomayor, Parker). Here, the circuit accepted a defendant’s claim that the government might not have properly proven a recidivism enhancement – the six-level bump for having a prior drug trafficking conviction under U.S.S.G. § 2K2.1(a)(4)(A) .

In 1996, Michael Green was convicted of attempted criminal possession of a controlled substance in the third degree under N.Y. Penal Law §§ 110.00 & 220.16 (McKinney 1987). Section 220.16, the drug statute (§ 110.00 is the attempt statute), has multiple subsections; pertinent here are Subsection 1, which makes it a crime to possess a “narcotic drug with intent to sell it” and Subsection 12, which makes it a crime to possess more than one-half ounce of a narcotic drug. Subsection 1 triggers the enhancement under 2K2.1(a)(4)(A), because it involves the intent to distribute, but Subsection 12 does not. Green had …

United States v. Siindima, Docket No. 06-2245-cr (2d Cir. March 5, 2007)(Sack, Katzmann, Parker). It has long seemed as if reasonableness review in the Second Circuit was a one-way street permantently running in the wrong direction. Bucking the trend, at last, is Sindima. Here, the Court found that a 36-month probation violation sentence was substantively unreasonable, where the guideline sentencing range was 4 to 10 months.

Sindima’s saga began in 2003, when he was sentenced to three years’ probation on what appears to have been a $9,000 mail fraud. Although both the district court and the appellate court referred to this sentence as a “break,” it in fact was a guideline sentence, not a variance, since the guideline sentencing range was 0 to 6 months’ imprisonment.

About two years into his term of probation, Sindima engaged in an elaborate check-kiting scheme, for which he was arrested by local authorities, but …