United States v. Cavera, Docket No. 05-4591-cr (2d Cir. June 6, 2007) (Cardamone, Calabresi, Pooler, C.JJ.). Here, both the government and the defendant argued that an above-Guideline sentence was unreasonable. The Court agreed, and vacated the sentence.

Facts: The facts of this case are fairly straightforward. The defendant was arrested in the midst of a scheme in which guns were purchased in Florida, then transported to New York for sale. He pled guilty to one count of conspiracy, and faced a Guideline sentencing range of twelve to eighteen months’ imprisonment. Judge Sifton, however, imposed a twenty-four months sentence, finding that gun trafficking in urban areas like New York City requires a greater degree of punishment.

Ruling: The Court of Appeals made short work of the district court’s reasoning, holding that “community-specific” considerations cannot support a non-Guideline sentence because injecting regional and local factors into a sentencing results in unwarranted geographic …

United States v. Howard, Docket No. 06-0457-cr (2d Cir. June 5, 2007) (Jacobs, Leval, Sotomayor, C.JJ.). Here, on the government’s interlocutory appeal, the Court reverses the district courts order suppressing evidence obtained from the warrantless searches of two automobiles.

Facts: This case actually involves two unrelated, but factually similar, searches. In each case police officers had probable cause to believe that an automobile contained evidence of drug trafficking. Instead of obtaining search warrants, the officers stopped the automobiles on the highway, then used a ruse to lure the occupants away. In the occupants’ absence, the cars were searched and evidence was seized before the occupants were returned to the cars.

The district court suppressed the fruits of both searches, holding that, for various reasons, the automobile exception of Coolidge v. New Hampshire, 403 U.S. 443 (1971) did not apply.

Ruling: The Court of Appeals rejected all of the district court’s …

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 …