United States v. Dmitry Proshin, Docket No. 04-5308-cr (2d Cir. Feb. 16, 2006) (Kearse, Cardamone, Cabranes) (per curiam): Sometimes one reads a decision and wonders, “Why in the world did the Court decide to publish this?” This opinion is a good example. The Circuit upholds a 6-level enhancement under U.S.S.G. § 2L2.1(b)(2), concluding that the district court’s factual determination that Proshin’s crime (conspiring to produce, and producing, false identification documents) involved between 25 and 99 fraudulent documents was not clearly erroneous.

The opinion is fact-specific and breaks no legal ground whatsoever. The Court simply points out that although no evidence placed Proshin physically at the Brooklyn location where 27 fraudulent documents were found, ample evidence linked Proshin with the co-conspirator who operated out of that location. Op. 7-8.…

United States v. Titemore, Docket No. 05-1380-cr (2d Cir. Feb. 9, 2006) (Walker, Calabresi, Straub): In an opinion of little use to us city folks (and perhaps of only slightly greater relevance to our rural kin given its highly fact-specific nature), the Court rejects Titemore’s effort to suppress evidence (a rifle) seized after a state trooper, standing near “a principal entrance to [Titemore’s] home [after approaching it] using a route [through his property] that other visitors could be expected to take,” saw it in plain view. After an encyclopedic survey of the law regarding “curtilage” (one that took us back to those dreamy law school days), see Op. 12-21, and a mind-numbing discussion of minutiae regarding the layout of Titemore’s house and property, id. 5-9, the Court ruled that regardless of whether this area constitutes “curtilage” under the common law, Titemore had no reasonable expectation of privacy …

United States v. Osama Awadallah, Docket No. 05-2566-cr (2d Cir. Jan. 26, 2006) (Feinberg, Parker, Cudahy (by desig’n)): A very fine opinion by Judge Parker that (1) upholds Judge Scheindlin’s pretrial ruling limiting the testimony of grand jurors the Government proposed to call as witnesses at Awadallah’s perjury trial, and (2) rejects the Government’s request to remove Judge Scheindlin from the case because of her alleged bias in favor of the defense. Much has already been said about the removal issue (see here and here for example), so this Blog will concentrate on the evidentiary ruling.

The essential facts are simple. Awadallah was arrested shortly after September 11, 2001, on a material witness warrant based on allegations that he knew and had contact with some of the 9/11 hijackers. Eventually, he was called before a grand jury in the SDNY and asked by the prosecutor (1) whether he …

United States v. Song, Docket No. 05-1802-cr (2d Cir. Jan. 27, 2006) (Cabranes, Sack, Amon (by desig’n): The Circuit upholds Song’s conviction for transporting illegal aliens in this short opinion. The Court agreed with Song that the district court erred — badly, badly erred — when it precluded him from testifying about certain statements made to him by persons “who had allegedly hired [him] to serve as a tour guide after he had responded to a [Korean language] advertisement seeking ‘drivers’ for unspecified purposes.” Song wanted to use these statements to “demonstrate the motivation behind [his] actions,” — i.e., to show that he did not knowingly transport illegal aliens. Since Song was not offering these statements for their truth — indeed, his defense was that these false statements induced him to believe that he was driving some tourists around — they should not have been barred …

United States v. Holguin, Docket No. 04-5277-cr (2d Cir. Jan. 26, 2006) (Winter, Straub, Raggi): In this opinion, the Circuit finally and unsurprisingly slams the door on Booker-based challenges to the district court’s determination of a defendant’s eligibility for the safety valve under 18 U.S.C. § 3553(f). Here, Holguin argued inter alia that in light of Booker, the fact that the district court determined that he was an organizer or leader within the meaning of U.S.S.G. § 3B1.1 did not disqualify him from safety-valve relief under 18 U.S.C. § 3553(f)(4) because this provision itself “should be deemed advisory after Booker because the Supreme Court struck down the mandatory nature of the Guidelines” in its entirety. Op. 3. The Circuit rejected this argument, concluding that neither Booker nor the Apprendi-Blakely line of cases was implicated because “judicial fact-finding as to whether a defendant was a supervisor or …

United States v. Ford, Docket No. 03-1774 (2d Cir. Jan. 19, 2006) (Winter, Katzmann, Raggi): “[R]estraint must be exercised in defining the breadth of the conduct prohibited by a federal criminal statute.” Op. 14. Hallelujah — we just wish this maxim were applied more frequently in non-white collar cases.

In this case, the Circuit vacates Ford’s conviction for accepting a bribe under 18 U.S.C. § 666(a)(1)(B) — punishing those who “corruptly . . . accept . . . anything of value . . . intending to be influenced . . . .” in the performance of their duties — because the trial court’s instructions to the jury failed to properly convey the intent requirement of the statute, at least as it applies to recipients of a bribe. Specifically, the instructions “appear to have told the jury that [§ 666’s] intent requirement was fully satisfied by the recipient’s …

Messiah v. Duncan, Docket No. 04-5311-pr (2d Cir. Jan. 19, 2006) (Cabranes and Sack) (Jacobs, concurrence): The Circuit rejects a § 2254 petitioner’s Batson challenge to his state murder conviction. Petitioner Messiah claimed principally that the trial judge failed to rule on his Batson challenge with respect to the prosecutor’s strike of an African-American juror named Woodbury. The record showed that at the first round of jury selection, the prosecution used peremptories against 5 panelists, including Woodbury. Defense counsel objected, claiming that the striking of Woodbury was racially motivated. The court then asked the prosecutor to explain why he struck Woodbury, and he responded that he removed Woodbury because he was a social worker and had a wife who worked for a law firm. After a brief exchange between defense counsel and the court on a somewhat unrelated topic, the court announced, “That’s five, five by the People,” …

United States v. Sheikh, Docket No. 05-1747-cr (2d Cir. Amended Jan. 13, 2006) (Sotomayor, Meskill, Kaplan (by desig’n)): When the Court issued the original version of this decision last week, we pointed out that it included dicta seemingly undercutting the Supreme Court’s decision in Harris v. United States, 536 U.S. 545 (2002). (Click here for our earlier discussion). As the Court originally stated, “So long as the facts found by the district court do not trigger a mandatory minimum sentence authorized by the verdict or increase the sentence beyond the statutory maximum authorized by the verdict, the district court does not violate a defendant’s Fifth and Sixth Amendment rights by imposing a sentence based on facts not alleged in the indictment.” Op. at 4.

Alas, that anti-Harris dicta is no more. The Court today amends its decision to clarify that when it refered to “a …

United States v. Martha Stewart and Peter Bacanovic, Docket Nos. 04-3953(L) (2d Cir. Jan. 6, 2005): Yet another reminder of the White Album’s timelessness:

Don’t forget me martha my dear
Hold your head up you silly girl look what you’ve done
When you find yourself in the thick of it
Help yourself to a bit of what is all around you
Silly girl.

Martha Stewart’s troubles began when she helped herself to a bit too much information regarding Sam Waksal’s sale of his ImClone stock. And when she found herself in the thick of an SEC investigation into the questionable timing of her sale of that stock, she (allegedly) concocted a ridiculous story instead of just telling the truth. We all know the end result.

The Circuit today affirms her conviction in a 74-page opinion rejecting each argument raised by Stewart and co-defendant Peter Bacanovic. Having labored through the …