United States v. Samuel Ness, Docket No. 05-4401-cr (2d Cir. Oct. 10, 2006) (Winter, Calabresi, Pooler): This decision confirms a split among the Circuits concerning the meaning of the concealment element of the “transaction” and “transportation” money laundering statutes, 18 U.S.C. § 1956(a)(1)(B)(i) & (1)(2)(B)(i). Specifically, while some Circuits have ruled that the defendant has “conceal[ed] or disguise[d] the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity” only where s/he has attempted to create a false appearance that the funds are legitimate, e.g., United States v. Cuellar, 441 F.3d 329 (5th Cir. 2006), the Second Circuit has ruled that the concealment element is satisifed merely by a showing that defendant has engaged in conduct designed to conceal the identity of the funds, see United States v. Gotti, 459 F.3d 296 (2d Cir. 2006).

Applying Gotti to …

Steve Sady of the Oregon FPD has made available the latest version of his article, “Developments in Federal Search and Seizure Law” (click here for a link to the PDF version). The article outlines in detail all the key issues in search and seizure law, with an emphasis on “trac[ing] recent developments in selected areas and juxtapos[ing] the lead cases [(often pro-Government)] with federal court cases in which the defendant prevailed.” Although most of the examples of favorable lower court cases are from the Ninth Circuit, Steve’s article should prove invaluable in “encourag[ing] creative use of the available precedents that may make a decisive difference for our clients in state or federal court.” So print it out, read it on the subway, and dream of the Ninth Circuit!…

United States v. Giovanelli, Docket No. 04-5763-cr (2d Cir. Sep. 27, 2006) (Calabresi, Pooler, Parker) (per curiam): This opinion principally holds that when a defendant is constructed of “endeavoring” to obstruct an on-going criminal investigation (here, by passing secret grand jury information to a target of the investigation) under 18 U.S.C. § 1503’s “omnibus” clause, Section 2J1.2(c) of the Guidelines — the general obstruction Guideline that requires, via cross-reference, the use of Section 2X3.1 (accessory after the fact) whenever the “offense involved obstructing the investigation or prosecution of a criminal offense” — governs. Giovanelli argued that because he was convicted only of endeavoring to obstruct rather than actually obstructing, § 2J1.2(c) (and a fortiori § 2X3.1) was not implicated. Cf. United States v. Aguilar, 515 U.S. 593, 601-02 (1995) (explaining that “endeavoring” prong of § 1503 “makes conduct punishable where the defendant acts with an intent …

United States v. Stinson, Docket No. 05-5336-cr (2d Cir. Sep. 26, 2006) (Winter, Cabranes, Pooler) (per curiam): This very short opinion clarifies that, post-Booker, litigants still cannot appeal from a district court’s discretionary refusal to depart (subject only to the “misapprehension of authority to depart” exception). Though this is well-settled law, e.g., United States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005), some of you out there (and you know who you are) apparently have not gotten the message. So stop raising those “failure to depart” arguments!…

United States v. Rangolan, Docket No. 04-5126-cr (2d Cir. Sep. 21, 2006) (Calabresi, Parker, Wesley): Another great win by Ed Zas of this Office. The Circuit vacates on sufficiency grounds Rangolan’s criminal contempt conviction for violating 18 U.S.C. § 401(1), prohibiting “[m]isbehavior of any person in [the court’s] presence or so near thereto as to obstruct the administration of justice.” Essentially, Rangolan was convicted under § 401(1) for approaching a juror, during a civil trial in which Rangolan was a plaintiff, in the cafeteria of the courthouse, at 9:15 a.m. (and thus before the trial session started that day), and showing the juror a document supporting Rangolan’s claims. The cafeteria was on the 1st floor, while the trial was occurring on the 10th floor.

The Circuit vacates the conviction, finding that Rangolan’s contumacious act did not occur “in the court’s presence or so near thereto” within the meaning …

United States v. Sloley, Docket No. 05-1748-cr (2d Cir. Sep. 15, 2006) (Walker, Cardamone, Sotomayor): This is an odd opinion that fails to answer what appears to be the central question on appeal: Whether the Government may refuse to move for the 3rd acceptance point, under U.S.S.G. § 3E1.1(b), for reasons other than the timeliness of the defendant’s guilty plea and its effect on the Government’s need to prepare for trial. (Disclosure: Colleen Cassidy of this Office litigated the case on appeal). The opinion chooses to answer, instead, some peripheral questions not really subject to serious dispute: (1) a Government motion is generally required to get the 3rd point under § 3E1.1(b); and (2) the Government’s refusal to file such a motion may not be based on unconstitutional motives and, in the case of a plea agreement, may not be rooted in bad faith. Because the Government’s …

Taveras v. Smith, Docket No. 05-5579-pr (2d Cir. Sep. 11, 2006) (Cardamone, Calabresi, Pooler): This decision answers a very narrow question: May the New York State Appellate Division — the state’s first-tier, “as of right” appellate court — exercise its discretion to dismiss, on fugitive disentitlement grounds, the appeal of an apparently indigent defendant without first appointing counsel? The Circuit, by Judge Calabresi, says no, relying on the “rationale” of Douglas v. California, 372 U.S. 353 (1963), that appellate counsel must be appointed for an indigent defendant who seeks a first-tier, as-of-right appellate review that “(1) involves some consideration of the ‘merits’, and (2) involves claims that have not yet ‘been presented by [appellate counsel] and passed upon by an appellate court.'” Op.9. While counsel likely need not be appointed if New York (like Texas) had an automatic dismissal rule based on a defendant’s flight during the …

United States v. Gregg, Docket No. 03-1229-cr (2d Cir. Sep. 12, 2006) (Feinberg, Sotomayor, Hall) (per curiam): This decision nicely explains the meaning and consequences of a guilty plea for subsequent proceedings arising from the same incident. The Court correctly rejects the district court’s broad-brush ruling that Gregg’s guilty plea in state court to a misdemeanor involving the misuse of his mother’s reduced-fare Metrocard effectively waived his right to challenge the lawfulness of the stop that lead to his arrest (and the recovery of a firearm) in a subsequent federal prosecution for being a felon-in-possession. While a guilty plea “conclusively establishes” the defendant’s guilt, it does not necessarily extinguish all related issues; on the contrary, whether the plea forecloses a future cause of action or legal claim depends primarily on principles of collateral estoppel.

The essential facts are these. Police officers at a subway station saw Gregg …

United States v. McCargo, Docket No. 05-4026-cr (L) (2d Cir. Sep. 13, 2006) (Walker, Jacobs, Wallace): This is a terrible Fourth Amendment decision, even accounting for the general awfulness of the Circuit’s jurisprudence in this area. (Disclosure: Darrell Fields of this Office, on behalf of this and other FPD offices in the Second Circuit, submitted an amicus curiae brief arguing that the stop was unlawful). Essentially, the Court held that the fact that McCargo was at a street corner approximately 200 feet from the scene of a possible crime (i.e., a house in which the occupant had called 911 to report a break-in), in a “high crime” neighborhood, is sufficient to permit the police to throw him against the police car and frisk him under Terry. There is a bit more than that, but nothing that should have made a difference.

The essential facts …

United States v. Muhammad, Docket No. 05-4923-cr (Miner, Wesley, Swaine): This minor opinion upholds a Terry stop justified by (1) an anonymous 911 call describing someone fitting the defendant’s appearance and location as carrying a gun, and (2) the defendant’s (supposed) “headlong flight” when the police car approached him. Although the tip alone would have been insufficient under Florida v. JL, 529 U.S. 266 (2000), the police’s observation of the defendant’s “flight” distinguished this case from JL. Op. 11 (“The officers’ personal observation of Muhammad’s evasive conduct was the additional factor, missing in JL, that corroborated the anonymous tip and provided the objective manifestation that criminal activity was afoot.”).

The Circuit also rejected Muhammad’s claim that he did not flee from the police, but simply tried to avoid crashing into the police car as it cut him off. And, no surprise, despite conflicting testimony, …

United States v. Snow et al., Docket No. 05-0968-cr (L) (2d Cir. Sep. 1, 2006) (Jacobs, Pooler, Gibson): Nothing of interest to non-parties in this fact-based opinion affirming the conviction and sentence of three defendants for various crack and gun-related offenses. The sole point worth mention concerns whether the evidence was sufficient to convict one defendant of (constructively) possessing crack with intent to distribute, where the crack was hidden in the basement of a building in which the defendant co-rented a 2-bedroom apartment. Judge Gibson for the majority ruled that the evidence was sufficient, distinguishing this case from United States v. Rodriguez, 392 F.3d 539, 548 (2d Cir. 2004) (evidence of possession insufficient even though defendant had been in the back seat of a car near where drugs hidden in a box were subsequently found). Op.29-30. Judge Pooler dissents on this point alone, concluding that Rodriguez was …