Federal Defenders of New York Second Circuit Blog

District Court Properly Admitted Evidence of Witnesses’ Beliefs That Defendants Were Connected To Organized Crime

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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 … Read more

Admission Of Defendant’s Social Media Profile Was Error Absent Sufficient Authentication

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United States v. Zhyltsou, No. 13-803-cr (Wesley,Livingston, and Lohier), available here At defendant’s trial for unlawful transfer of a false identification document, the government introduced a printed copy of a webpage that it claimed was defendant’s profile page from the Russian social network VK.com.  The printout contained defendant’s photograph, as well as information (defendant’s Skype … Read more

Car Parked Outside Victim’s House Is Within Victim’s “Presence” For Purposes of Federal Carjacking Statute

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United States v. Soler, No. 12-2077-CR (2d. Cir. July 22, 2014) (Katzmann, Walker, and Droney), available here The federal carjacking statute, 18 U.S.C. § 2119, criminalizes the forcible taking of an automobile “from the person or presence of another.”  Following decisions by all the other Courts of Appeals to have addressed the question, the Circuit … Read more

Modified Allen Charge Not Required Where Jury Poll Reveals Non-Unanimity

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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 … Read more

District Court Did Not Abuse Discretion by Admitting Documents as “Self-Authenticating,” Despite Government’s Failure to Comply With Rule 902

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United States v. Komasa, No. 13-1534-cr(L) (2d Cir. Aug. 28, 2014) (Pooler, Hall, and Lohier), available here Rule 902 of the Federal Rules of Evidence provides that certain items of evidence are self-authenticating; “they require no extrinsic evidence of authenticity in order to be admitted.” Fed. R. Evid. 902. These items include certified domestic records. But … Read more

Mob Informant Beats Government on Appeal

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United States v. Mergen, No. 12-2873-cr (2d Cir. Aug. 21, 2014) (Katzmann, Jacobs, and Duffy), available here Volkan Mergen worked for years as a paid FBI informant operating inside mob families. In 2006, he participated with mob members in an arson without alerting the FBI in time to abort the crime. Mergen then entered into a … Read more

Excluding Defendant’s Parents from Trial During Victim’s Testimony Did Not Violate Right to Public Trial

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United States v. Ledee, No. 13-2363-cr (2d Cir. Aug. 8, 2014) (Walker, Pooler, and Wesley), available here The defendant was convicted of crimes stemming from participating via webcam in the sexual abuse of an eight-year-old girl by her mother. At trial, the district court granted the government’s motion to close the courtroom during the victim’s … Read more

Cost of Incarceration Is Not a Permissible Factor In Deciding Whether To Impose Imprisonment

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United States v. Park, No. 13-4142-cr (2d Cir. July 9, 2014) (Cabranes, Carney, and Droney) (per curiam), available here Convicted of filing a false corporate tax return, Park was sentenced to three years’ probation, including six months’ home detention. The district court (Judge Block) explained that it was imposing this sentence — below the 15-to-21 month … Read more

Admission of Lineup Identification of Defendant Was, At Most, Harmless Error

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United States v. Reed, No. 13-0359(L) (2d Cir. June 25, 2014) (Jacobs, Calabresi, and Pooler), available here Reed was convicted after trial of various federal charges arising from the shooting and attempted robbery of a rival drug dealer. Reed argued on appeal that the district court should have suppressed a state court lineup identification of him … Read more

Supreme Court’s Peugh Decision Not Retroactive To Cases on Collateral Review

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Herrera-Gomez v. United States, No. 14-1166 (2d Cir. June 17, 2014) (Winter, Walker, and Cabranes) (per curiam), available here Petitioner, a federal prisoner convicted of conspiracy to distribute heroin, moved in the Circuit for leave to file a successive 28 U.S.C. § 2255 motion in the district court based on the Supreme Court’s decision in Peugh … Read more