UNITED STATES V. TAYLOR, ET. AL., NOS. 11-2201(L), 11-2426(CON), 11-2639(CON) (2D CIR. DEC. 4, 2013) (KEARSE, JACOBS, AND CARNEY), AVAILABLE HERE

This published decision vacated three defendants’ convictions for conspiracy to commit Hobbs Act robbery of a Manhattan pharmacy in 2008 and brandishing of a firearm. The Court remanded for new trials after determining that interrogating agents took undue advantage of one defendant’s diminished mental state and overbore his will in obtaining what was held to be an involuntary confession. The Court further held that admitting the tainted confession at trial, even with a limiting instruction, was not harmless beyond a reasonable doubt as to all three defendants.

According to the opinion, Vasquez drove Taylor, Rosario and a woman named Luana Miller to rob a pharmacy in Manhattan on Christmas Eve in 2008. With Miller already inside posing as a customer after hours, Rosario entered the pharmacy brandishing a gun …

UNITED STATES V. SOLTREN, NO. 12-4755-cr (2D CIR. DEC. 2, 2013) (KEARSE, JACOBS, AND PARKER) (AMENDED SUMMARY ORDER), AVAILABLE HERE

On appeal a second time from the imposition of sentence, this defendant challenged the district court’s decision to impose fifteen years’ custody with the possibility of parole after five years as procedurally and substantively unreasonable pursuant to Booker.  He pleaded guilty to conspiracy to commit air piracy and kidnapping based upon his participation in the hijacking of a 1968 Pan American Airways flight from New York to Puerto Rico.  He remained in Cuba until returning to the United States in 2009, at which time he was arrested.  The district court first sentenced him to fifteen years’ custody without the possibility of parole, which was vacated.  The Court held it was error to impose a sentence that excluded the possibility of parole because it was a benefit that was available for crimes committed in 1968.  Unfortunately for the defendant’s …

United States v. McGeoch, No. 12-5012-cr (2d Cir. Dec. 3, 2013) (Walker, Cabranes, and Parker) (summary order), available here

United States v. Cardona, No. 12-4612-cr (2d Cir. Dec. 3, 2013) (Kearse, Jacobs, and Parker) (second amended summary order), available here

United States v. Grimm, et al., Nos. 12-4310-cr; 12-4365-cr; 12-4371-cr (2d Cir. Nov. 26, 2013) (Kearse, Jacobs, Straub) (unpublished one-page order)

United States v. Quintieri, No. 13-464-cr (2d Cir. Dec. 2, 2013) (Kearse, Jacobs, and Parker) (summary order) (as amended), available here

UNITED STATES V. RESTREPO, NO. 12-2246-cr (2D CIR. NOV. 27, 2013) (LYNCH, CARNEY, AND DRONEY) (SUMMARY ORDER), AVAILABLE HERE

This detailed summary order affirmed defendant’s conviction after trial for a drug related conspiracy and denied seven separate claims of error.  First, the Court disagreed with the defendant’s jury selection challenge, which alleged that the trial court erroneously instructed the jury on how to judge accomplice witness testimony.  The trial court told jurors during jury selection that all testimony, even that of accomplice witnesses, must be accorded the same weight at trial.  Though at odds with the correct standard for evaluating accomplice witness testimony, i.e., drawing the jury’s attention to the possible motivations of accomplice witnesses and instructing jurors to examine those motivations when determining credibility, the error did not prejudice the defendant.  When discussing how to judge witness testimony, the trial court also explained that the trial judge would instruct jurors about the proper …

United States v. Murray, No. 11-0351-cr (2d Cir. Nov. 27, 2013) (Leval, Sack, and Hall), available here

This published decision holds that the district court’s refusal to allow the defendant to present surrebuttal evidence to respond to new evidence introduced by the government on rebuttal denied  him his right to present a meaningful defense. Judge Hall dissents.

A jury found Murray, a firefighter, guilty of four counts relating to the cultivation of marijuana plants in the basement of a Bellerose, Queens, home owned by Cody, a fellow firefighter who knew Murray. The trial was essentially a credibility contest between Cody, who pled guilty and testified for the government, and Murray, who testified in his own defense. Cody claimed that Murray hatched the idea of growing marijuana in Cody’s house and that Murray was intimately involved in the crime. Murray, in contrast, testified that he knew nothing of the marijuana and visited Cody’s home only about five to seven …

UNITED STATES V. LEE, NO. 12-2020-cr (2D CIR. NOV. 26, 2013) (KEARSE, JACOBS, AND PARKER) (SUMMARY ORDER), AVAILABLE HERE

This defendant appealed his 235-month prison term for drug related offenses, which the district court imposed on remand from an earlier appeal.  The Court vacated an earlier judgment and remanded for re-sentencing due to the erroneous denial of a third point for acceptance of responsibility, which the defendant received.  In his second appeal, the defendant asserted procedural error based upon the district court’s refusal to hold a new Fatico hearing on marijuana quantity before re-sentencing and its subsequent imposition of more than one year’s custody despite a jurisdictionally defective indictment, which failed to identify the substance at issue.  The Court rejected both claims.

The Court held that its remand order required only a limited, not de novo, re-sentencing hearing.  The mandate did not “unequivocally” call for de novo re-sentencing and the “spirit” of the order did not clearly convey such an intent.  It vacated only …

UNITED STATES V. WHITE, NO. 12-68-cr (2D CIR. NOV. 26, 2013) (SACK, HALL, AND LIVINGSTON) (SUMMARY ORDER), AVAILABLE HERE

The defendant appealed from his 18 U.S.C. § 1001 conviction and claimed three errors.  First, he was deprived of a fair trial when the prosecutor acted as an “unsworn witness” by eliciting testimony about the prosecutor’s decision not to call the defendant as a grand jury witness in a murder investigation because the defendant falsely disavowed a prior statement to law enforcement regarding the murder.  Second, the district court delivered an erroneous materiality instruction, which told the jury that materiality depended on whether the false statement “could have influenced” the government’s decision.  The defendant argued that the proper instruction was whether the false statement “had the natural tendency to influence” that decision.  Third, the prosecutor made improper remarks during closing argument by using “we” and “our” when discussing the false statement’s impact on the government’s decisions and …

United States v. Simmons, No. 12-1637-cr (2d Cir. Nov. 26, 2013) (Pooler, Lohier, and Carney) (summary order), available here

The panel held that the seizure of a firearm from the defendant’s room did not violate the Fourth Amendment because he gave “implied consent” to the seizure.

The district court found that, by telling police officers the precise location of the gun, the defendant  implicitly consented to them seizing it. The court also found that such consent was given voluntarily.

The Circuit, finding no clear error in these findings, affirmed the denial of the defendant’s motion to suppress.  …