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 … Read more
United States v. Whitley, Docket No. 05-3359-cr (2d Cir. September 17, 2007) (Straub, Pooler, Parker, CJJ) (per curiam) Once – or rather twice – again, in these consolidated appeals, the Circuit has bounced Anders briefs. Here the court was dissatisfied with the briefs’ treatment of the reasonableness of the sentence. One “merely recite[d] the legal … Read more
United States v. Dionisio, Docket No. 06-0908-cr (2d Cir. September 17, 2007) (Calabresi, Wesley, CJJ, Oberdorfer, DJ) This case presented a question open that the Circuit has never addressed: does jeopardy attach to counts that were dismissed with prejudice by the government pursuant to a plea agreement? Reviewing the framework set by a line of … Read more
United States v. Becker, Docket No. 06-1274-cr (2d Cir. September 13, 2007) (Calabresi, Parker, Wesley, CJJ) At Becker’s stock fraud trial, the government introduced into evidence the plea allocutions of eleven (yes, eleven) of his co-defendants, supposedly for the “limited purpose” of establishing that the conspiracy charged in the indictment existed. The Circuit concluded that … Read more
United States v. Kaid, Docket No. 05-4480-cr (2d Cir. September 12, 2007) (Calabresi, Raggi, Hall, CJJ) (per curiam) Two years after his client was convicted, defense counsel filed an affirmation stating that he was absent for twenty minutes during the testimonial portion of the trial. At issue was whether this constituted ineffectiveness. The district court … Read more
United States v. Owen, Docket No. 06-1078-cr (2d Cir. September 4, 2006 [sic]) (Parker, Raggi, Wesley, CJJ) In case you were wondering, Rule 33 applies only to “newly discovered” evidence, and not “newly available” evidence. Facts: Lance Owen and two co-defendants loaded five years worth of marijuana into a truck from a warehouse in the … Read more
United States v. Hall, No. 05-6919-cr (2d Cir. August 30, 2007) (Calabresi, Raggi, Hall [no apparent relation], CJJ) (per curiam) This case adds yet another wrinkle to the Circuit’s ever-evolving Anders jurisprudence. Here, the defendant appealed a below-Guidelines sentence and counsel filed a detailed Anders brief. In that brief, counsel correctly pointed out that the … Read more
United States v. Razmilovic, No. 06-4198-cr (2d Cir. August 27, 2007) (Miner, Kaztmann, CJJ, Murtha, DJ). Here, the district court’s precipitate grant of a mistrial barred the reprosecution of the defendants under the Double Jeopardy Clause. At the end of a six-week fraud trial, and only 3 days of deliberation, the jury sent out a … Read more
United States v. Cullen, No. 06-0607-cr (2d Cir. August 23, 2007) (Cardamone, Straub, CJJ, Koeltl, DJ) (per curiam) The United States is a signatory to the Convention on International Trade in Endangered Species of Wild Fauna and Flora. The Wild Bird Act, 16 U.S.C. § 4904, prohibits the importation into the United States of any … Read more
United States v. Parkes, No. 05-1486-cr (2d Cir. August 15, 2007) (Jacobs, McLaughlin, Calabresi, CJJ). In a sterling example of the alchemy of result-oriented jurisprudence, here the court finds sufficient evidence of an effect on interstate commerce, even though there was none. Otis Parkes and two others planned and carried out 2003 robbery attempt in … Read more