United States v. Skelly and Gross, Docket No. 05-4261-cr (L) (2d Cir. March 21, 2006) (Newman, Katzmann, Rakoff (by desig’n)): A rather rambling opinion by one SDNY judge affirming a judgment of conviction rendered by another SDNY judge following a jury trial convicting the two defendants of various counts of securities fraud. The Government’s primary theory at trial was that Skelly and Gross, the principals of Walsh Manning Securities (a registered broker / dealer), engaged in a pump-and-dump scheme wherein they (and the registered reps they employed) “used manipulative techniques to artificially inflate the price of certain thinly-traded securities in which they held a substantial interest, and then used fraudulent and high-pressure tactics to unload the (largely worthless) securities on unsuspecting customers.” Op. 2. This theory was, we are told, “amply supported by the evidence.” Id.

Employing the “kitchen sink” mode of litigation so in favor at One St. …

United States v. Frank Quattrone, Docket No. 04-5007 (2d Cir. March 20, 2006) (Wesley, Hall, Scullin (by designation)): We have not yet had time to read the decision and will do a full summary later. Even a quick look, though, confirms a big (though not total) victory for the defense: The Circuit (1) vacates Quattrone’s conviction because of errors in the district court’s charge to the jury (the charge failed to tell the jury that it had to determine that Quattrone knew that the documents he was asking to be destroyed were the same ones sought by the Government, thus “remov[ing] the defendant’s specific knowledge of the investigatory proceedings and the subpoenas / document requests from the obstruction equation” and “leaving a bare-bones strict liability case”) ; (2) rejects Quattrone’s claim that the evidence was insufficient to sustain the verdict; and (3) remands the case to a …

United States v. DeFonte, Docket No. 06-1046-cr (March 14, 2006) (before Jacobs, Wesley, C.J.J., Koeltl, D.J.)

This interesting per curiam decision holds that a prison inmate retains her attorney-client prvilege with respect to a diary that she maintained while incarcerated.

Facts: Defendant DeFonte, a (former, presumably) correction officer at the MCC, was on trial for crimes that he was charged with having committed in the course of his employment. One of the witnesses against him was to be an inmate, Francia Collazos. Shortly before trial, the government learned, and ultimately obtained possession of, a diary that she maintained in her cell containing her writings about incidents inovling DeFonte and conversations with her own attorney and the prosecutors. When DeFonte’s attorney learned of the diary, he requested that it be turned over to the defense as 3500 and Giglio material. Collazos moved to intervene. She sought a protective order claiming …

Jackson v. Attorney General, Docket No. 05-2766-pr (2d Cir. Feb. 8, 2006) (Walker, Winter, Jacobs): This short habeas-related decision was rendered on February 8, 2006, but not posted on the Circuit’s website until March 10th. No harm — the Court simply holds that a Certificate of Appealability (“COA”) is required to appeal a district court’s denial of a Rule 59(e) motion (seeking to alter or amend a judgment) when the underlying judgment is one that denies or dismisses a § 2254 petition. The Court relied largely on its earlier decision in Kellogg v. Strack, 269 F.3d 100, 103 (2d Cir. 2001), which held that a COA is required to appeal from the denial of a Rule 60(b) motion (seeking relief from a judgment) when the underlying judgment is a denial or dismissal of a habeas petition.…

United States v. Philip Giordano, Docket No. 03-1394 (2d Cir. March 3, 2006) (Jacobs, Sotomayor, Hall): Giordano is the former mayor of Waterbury, Connecticut. He was convicted by a jury of (1) two counts of 18 U.S.C. § 242 (violating someone’s civil rights “under color of [] law”) (the “civil rights counts”); (2) fourteen counts of 18 U.S.C. § 2425 (using a “facility of interstate commerce” to transmit the name or other identifying information of a person under age 16, with the intent to entice or solicit the person to engage in sexual activity) (the “phone counts”); and (3) one § 371 conspiracy count involving the § 2425 violations. On appeal, he raised numerous arguments, three of which are discussed by the Court in this published decision (the remaining arguments are discussed — and rejected — in an unpublished summary order): (1st) that the § 2425 convictions must …

United States v. Fairclough, Docket No. 05-2799-cr (2d Cir. Feb. 17, 2006) (Jacobs, Leval, Straub) (per curiam): The Circuit holds in this short opinion that (1) there is no Ex Post Facto problem when the Booker remedy (i.e., the advisory Guidelines regime) is used to sentence a defendant who committed his offense before Booker was decided in January 2005; and (2) a 48-month non-Guidelines sentence, more than twice the midpoint of the applicable range (21 to 27 months), was reasonable in light of the recidivism (Fairclough “had a relatively uninterrupted string of criminal activity and arrests” from 1998 to 2002) and “seriousness of the offense” concerns (Fairclough did not merely possess a gun, but sold it to an undercover believing that the buyer “was about to do bad with it”) cited by the district court to justify the sentence. No new legal ground is broken on either …

U.S. District Court for the Western District of New York v. Darnyl Parker, Docket No. 04-5175-cr (2d Cir. Feb. 21, 2006) (Walker, Wesley, Hall): In a lengthy opinion touching on rarely encountered issues, the Court concludes that (1) the district court did not err in denying the defendant’s mid-case request that his retained counsel be appointed under the Criminal Justice Act, 18 U.S.C. § 3006A(c), based on a finding that the defendant was not financially unable to pay for counsel; and that (2) the W.D.N.Y.’s practice of inquiring of retained counsel at an early stage of the proceedings whether s/he is “fully retained” (rather than retained only for limited purposes) does not violate § 3006A(c)’s explicit allowance for mid-case appointment of assigned counsel. See18 U.S.C. § 3006A(c) (“If at any stage of the proceedings, . . . the court finds that the person is financially unable …

Sash v. Zenk, Docket No. 04-6206-pr (2d Cir. Feb. 22, 2006) (denial of petition for rehearing) (Sotomayor, Wesley, Brieant (by desig’n)): The Circuit denies Sash’s petition for rehearing in this published opinion. In its earlier opinion, Sash v. Zenk, 428 F.3d 132 (2d Cir. 2005) (click here for this Blog’s discussion), the Circuit upheld as “reasonable” the BOP’s odd & stingy interpretation of the good-conduct time statute, 18 U.S.C. § 3624(b). This statute states in sum and substance that a “prisoner who is serving a term of imprisonment of more than 1 year . . . may receive credit toward the service of the prisoner’s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment.” While Sash read the statute to mean that he should receive up to 54 days of credit for each …

Rodriguez v. Miller, Docket No. 04-6665-pr (2d Cir. Feb. 17, 2006) (Cardamone, McLaughlin, Parker): In this opinion, the Circuit reverses the district court’s denial of Rodriguez’s § 2254 petition and grants the writ. The Court concluded that the state trial court violated Rodriguez’s 6th Amendment right to a public trial when it excluded his mother and brother from the courtroom during the testimony of the state’s sole witness — an undercover cop who claimed to have purchased drugs from Rodriguez in this buy & bust case — without any specific evidence showing that the relatives posed a danger to the undercover’s safety or future effectiveness. Even more: The Court found a 6th Amendment violation even though the trial judge had proposed the alternative of allowing his relatives to remain in the courtroom if they agreed to sit behind a screen that would shield the undercover from their view. …

This Blog now returns after a short vacation. We will catch up with the three or four criminal and habeas cases decided by the Court during our break — none earth-shattering, on first glance — in the next several days.…

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.…