United States v. Olmeda, Docket No. 05-4331-cr (2d Cir. Aug. 29, 2006) (Cabranes, Sotomayor, Raggi): This is a fact-intensive opinion dismissing on Double Jeopardy grounds an SDNY indictment (for a § 922(g) violation) that followed upon Olmeda’s guilty plea to an earlier North Carolina indictment that also charged a § 922(g) offense. The earlier indictment (to which Olmeda pled guilty without a plea agreement) charged Olmeda with possessing ammunition “in the Eastern District of North Carolina and elsewhere” on or about June 13, 2002. At the time of that indictment, prosecutors in North Carolina were (1) aware that Olmeda simultaneously possessed ammunition in his New York area home (a search warrant was successfully executed in New York after cops found Olmeda with ammo in North Carolina); (2) not aware (and had no basis to believe) that the ammunition found in North Carolina had traveled in any other …

United States v. Eric Jones, Docket No. 05-2289-cr (2d Cir. August 2, 2006) (Newman, Walker, Katzmann): Others have already sung the praises of this terrific opinion by Judge Newman (click here for Professor Berman’s comments and click here for the Second Circuit Sentencing Blog’s) , but it is new to me since it was decided while I was on vacation. A late blog entry is appropriate because it is a decision that all who practice in this Circuit must read. And it is a decision that cleanses the palate of the unpleasant Guidelines-dominated taste left by the Court’s recent Castillo and Mejia decisions.

In sum, Jones upholds a 15-month “non-Guidelines sentence,” where the advisory range was 30 to 37 months, even though few unusual mitigating facts existed (and several aggravating facts were present) and where the district judge’s principal justification for the below-the-range sentence was simply his …

United States v. Roman Nektalov, Docket No. 05-2780-cr (2d Cir. Aug. 25, 2006) (Meskill, Cabranes, Wesley): This is a fascinating opinion — maybe too interesting for a Friday afternoon. The issue is whether the conscious avoidance doctrine — under which a defendant can be held liable for his “knowledge” of fact X upon a finding that s/he was “aware of a high probability of” fact X’s existence and “consciously avoided confirming that fact,” United States v. Aina-Marshall, 336 F.3d 167, 170 (2d Cir. 2003) — applies in a sting operation leading to a charge of money laundering, where it is the defendant’s belief, rather than his knowledge, that is critical. The Circuit upheld Nektalov’s conviction, holding principally that the district judge properly charged the jury that it can convict the defendant if he consciously avoided “believing” that the cash he was dealing with were proceeds of drug trafficking.…

United States v. Park, Docket No. 05-6158-cr (2d Cir. Aug. 25, 2006) (Cabranes, Straub, Hall): We’re not sure why the Circuit felt the need to publish this opinion in light of Castillo, but what’s a few more trees felled for the cause of justice? In Castillo, the Circuit held that “a non-Guidelines sentence imposed simply because a district court disagreed with the 100:1 ration [is] unreasonable.” Op. 7. Here, the Court confronts “the related question of whether the imposition of a Guidelines sentence for a crack offense is per se unreasonable as a result of the 100:1 ratio,” where the Guidelines range was determined by the fact that crack (as opposed to power) was involved and where the judge imposed a sentence within that range. Id.

And the answer should be obvious in light of Castillo (indeed, one would think that the answer follows necessarily …

United States v. Osameh Al Wahaidy, Docket No. 05-4770-cr (2d Cir. Aug. 24, 2006) (Leval, Jacobs, Rakoff): This case concerns the constitutionality of the International Emergency Economic Powers Act (“IEEPA”), which authorizes the President to regulate financial transactions with foreign countries (or nationals) in times of security crisis and prescribes penalties for violations of executive orders or regulations issued by the President. Defendant was convicted under IEEPA of violating two presidential orders (issued by Bush the First following Iraq’s invasion of Kuwait in 1990) prohibiting transfers of money to persons in Iraq (he transferred approximately $100,000 to persons in Iraq in 1999 and 2000).

Defendant argued that the charges against him must be dismissed because IEEPA unconstitutionally delegates Congress’s authority to define criminal offenses to the President. The district court disagreed, and the Circuit affirms.

The Circuit relied principally on Touby v. United States, 500 U.S. 160 …

Disimone v. Phillips, Docket No. 05-6893-pr (2d Cir. Aug. 22, 2006) (Miner, Calabresi, Restani): In this decision, the Circuit (1) reverses the district court’s grant of habeas based on insufficiency of the evidence (on the ground that Disimone failed to raise an insufficiency claim to the state appellate courts and cannot demonstrate cause and prejudice for the procedural default), but (2) remands for further fact finding on Disimone’s Brady claim (specifically, whether defense counsel knew or had reason to know of a witness’s exculpatory statement), which the district court summarily rejected in light of its grant of habeas on insufficiency. Judge Calabresi’s opinion discusses many distinct issues, but this Blog will focus on its fine discussion of the prosecutor’s failure to abide by his obligations under Brady.

The essential facts are these. The victim was stabbed to death during a late-night fight outside a Yonkers nightclub involving …

United States v. Mejia, Docket No. 05-3903-cr (2d Cir. Aug. 22, 2006) (Jacobs, Parker, Oberdorfer): In holding that a sentencing court has no authority to reconsider or reject the Guidelines’ 100:1 treatment of powder vs crack cocaine, the Circuit last week in Castillo specifically rejected the defendant’s argument that § 3553(a)(6) — instructing district courts to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct” — permitted a sentencing court to impose a non-Guidelines sentence when it believed that a Guidelines sentence would produce an unwarranted disparity. The Court explained that “[w]hile the 100:1 ratio clearly produces a disparity, it is one that Congress has mandated [and] one that Congress has continually refused to alter . . . .” Op. 35-36.

More bad news today: In Mejia, litigated by Deirdre von Dornum of this …

United States v. Castillo, Docket No. 05-3454-cr (2d Cir. Aug. 16, 2006) (Katzmann, Sack, Murtha): To those who had hoped that our fair Circuit would have more sense than the First, Fourth, and Seventh Circuits, … think again. In Castillo, the Second Circuit follows those Circuits in vacating and holding unreasonable a sentence based solely on the district court’s policy disagreement with the Guidelines’ 100:1 treatment of powder -vs- crack cocaine. While the Circuit left open the possibility of sentencing “adjustment[s] [based upon] the particularities of the individual defendant or the specific offense,” the same suggestion made in United States v. Anati, Docket No. 05-3800 (2d Cir. July 20, 2006), it firmly concluded that “district courts do not have the authority to reject unilaterally the 100:1 ratio on policy grounds.” Op. 2-3. Click here and here for Professor Berman’s stinging critique of Castillo.…

My lengthy vacation has ended recently, and thus this Blog will soon resume its normal activity. Thank you for your patience and continued interest.…

United States v. Prince Gaines,Docket No. 04-5616 (Jacobs, Parker, Gleeson(D.J.)) : In a close gun-possession case, in which the defendant testified that he had not known of the presence of a gun found hidden (or less hidden) in a gypsy cab seat where he was a passenger, the Court found reversible error in a charge on the defendant’s interest in the case. The district court charged the jury that the defendant “has a deep personal interest in the result of the prosecution,” that this “interest creates a motive for false testimony,” and that “the defendant’s testimony should be scrutinized and weighed with care.”

In a fine opinion, the Court of Appeals held that the charge that the defendant’s interest created a “motive for false testimony” was error because it undermined the presumption of innocence, for it assumed that the defendant was guilty. In addition, after surveying the case …

United States v. Quentin Singletary, Docket No. 05-6145 (2d Cir. July 19, 2006) (Cabranes, Straub, Hall): At his initial sentencing before the decision in Booker, the defendant was given an upward departure to a sentence of 42 months on his conviction for possessing crack with the intent to distribute it. He appealed, and the case was remanded for resentencing under the Supreme Court’s decision in Booker. Upon remand the district court raised the sentence to 57 months’ imprisonment, relying on facts all of which had been in the record before and noting that previously it had “felt constrained” by the guidelines, although since it was departing it had not been constrained in any legal sense, but was required only to impose a reasonable sentence, the same standard that applied post-Booker.

On his second appeal, the defendant argued pursuant to North Carolina v. Pearce…