United States v. Sanchez, No. 11-2429-CR (2d Cir. Dec. 4, 2013) (Cabranes, Straub, and Livingston), available here

Defendant pleaded guilty to possession with intent to distribute more than 1 kilogram of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), an offense that carries a 10-year mandatory minimum.  The government filed a prior felony information pursuant to 21 U.S.C. § 851, arguing that defendant’s prior Connecticut narcotics conviction increased his mandatory minimum to 20 years.  Defendant did not object.  Without making any reference to the mandatory minimum, the district court (D. Conn.; Nevas, J.) sentenced defendant to 288 months, a downward variance from the Guidelines range of 360-life.

On appeal, the Circuit accepted the government’s concession that it was clear error to treat defendant’s prior as a qualifying predicate because the Connecticut and federal narcotics laws are not coterminous.  However, the Circuit rejected the government’s argument that the …

United States v. Wiltshire, No. 13-3590-cr (2d Cir. Dec. 1, 2014) (Kearse, Straub, and Wesley), available here

The district court found that defendant violated her supervised release by making false statements to her probation officer and by leaving the district of her supervision without permission. She was sentenced to 90 days in custody, to be served on weekends, to be followed by five years of supervised release.

During the pendency of her appeal, defendant completed her custodial sentence, but her term of supervision had not yet run.

Did the expiration of defendant’s custodial sentence render her appeal moot? The Court said no, because the district court’s judgment directly exposed defendant to two additional years of supervised release. The appeal was thus not moot because a favorable appellate ruling might prompt the district court to reduce defendant’s term of supervised release.

Unfortunately for defendant, however, the Circuit ruled on the merits that the …

United States v. Dantzler, No. 13-2930-cr (2d Cir. Nov. 14, 2014) (Cabranes, Carney and Droney), available here

United States v. Bastian, No. 13-1156-cr (2d Cir. Oct. 29, 2014) (Katzmann, Sack, and Lynch), available here

Defendant pled guilty to conspiracy to distribute crack cocaine and to possessing a firearm in connection with that drug-trafficking offense (18 U.S.C. § 924(c)(1)). But the plea to the gun charge was based on the possession of a different weapon from the one identified in the indictment. On appeal, defendant argued that the district court’s acceptance of the plea constructively amended the indictment and that the court’s failure to inform him of his rights under the Grand Jury Clause prevented him from entering a knowing and voluntary plea.

Because these claims were not raised in the district court, the Circuit reviewed them for plain error only. And defendant could not satisfy that rigorous standard. The Court noted that, while two circuits have held that variations from the specific weapon named in an indictment can constructively amend an indictment, several cases …

United States v. Fazio, Nos. 12-3786-cr, 12-3799-cr, 12-3874-cr (2d Cir. Oct. 22, 2014) (Walker, Leval, and Wesley), available here

Anthony Fazio, Sr., Anthony Fazio, Jr., and John Fazio, Jr., were officers in Local 348 of the United Food and Commercial Workers International Union. They allegedly demanded that business owners employing Local 348 members make payments to the Fazios “to ensure a good working relationship with the union.” The government claimed that the Fazios’ demands for money were accompanied by threats of economic and physical harm.

Following a jury trial in the Southern District of New York (Forrest, J.), defendants were convicted of all counts, which included racketeering conspiracy and extortion conspiracy.  On appeal, they challenged: (1) a ruling admitting evidence that certain witnesses believed that defendants were connected to organized crime, (2) the denial of a requested jury charge that the “fear” element of extortion cannot be satisfied by a threat of loss of economic advantage …

United States v. Zhyltsou, No. 13-803-cr (Wesley,Livingston, and Lohier), available here

United States v. Soler, No. 12-2077-CR (2d. Cir. July 22, 2014) (Katzmann, Walker, and Droney), available
here

United States v. McDonald, No. 12-2056-CR (2d Cir. July 22, 2014) (Cabranes, Sack, and Lynch), Available Here

During deliberations in defendant’s fraud trial, the jury announced that it had reached a guilty verdict. When the jury was polled, Jurors 1-10 so confirmed, but Juror No. 11, asked whether guilty was her verdict, answered “no.” With the parties’ agreement, the trial court (Koeltl, J.) told the jury that he would “send you back to deliberate to see whether you can reach a unanimous verdict, in light of all the instructions I have given you.”

After deliberations resumed, the court told the parties that he had identified a model instruction (Sand ¶ 9.12) applicable where a jury poll reveals a lack of unanimity. The first part of the model instruction tracks what the jury had already been told. The second part, however, contains a modified Allen charge, encouraging the jurors to …

United States v. Komasa, No. 13-1534-cr(L) (2d Cir. Aug. 28, 2014) (Pooler, Hall, and Lohier), available here

United States v. Mergen, No. 12-2873-cr (2d Cir. Aug. 21, 2014) (Katzmann, Jacobs, and Duffy), available here