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Federal Defenders of New York Second Circuit Blog


Friday, November 15th, 2013

District Court Did Not Adequately Explain Refusal to Reduce Sentence

United States v. Christie, No. 13-245-cr (2d Cir. Nov. 15, 2013) (Lynch, Chin, and Droney), available here

Defendant moved for a sentence reduction under 18 U.S.C. 3582(c)(2), based on the 2011 Amendments to the Sentencing Guidelines lowering the penalties for crack cocaine offenses. Both the Probation Office and the government agreed that the defendant was eligible for a reduction. But the government argued that the court should decline to reduce the sentence because of the defendant’s firearms offenses and criminal history.
The district court entered an order that stated only that the defendant’s motion was “denied.” The court did not explain the reasons for its decision. 
The Circuit held that the court’s failure to explain its decision made meaningful appellate review impossible. The Circuit noted that the defendant’s sentence was above the now-applicable Guidelines range and that nothing in the record revealed why an above-Guidelines sentence was warranted. Because
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Thursday, November 14th, 2013

Defendant’s Death Leads to Restitution Abatement

United States v. Kuruzovich, No. 12-1789-cr (2d Cir. Nov. 14, 2013) (Hall, Droney, and Restani) (summary order), available here

The defendant was sentenced to one year of imprisonment and about $59,000 in restitution. [Disclosure: the Federal Defenders of New York represented the defendant for a time in the district court.]

While his appeal was pending, but after completing his term of imprisonment, the defendant died. His estate had no assets, the victim no longer sought to benefit from restitution, and counsel for both sides consented to vacating the restitution order. Under these particular circumstances, the Circuit abated the restitution order. 

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District Court Properly Exercised Discretion to Halt Deliberations and Investigate Juror Misconduct

United States v. Purnell, No. 12-4167-cr (2d Cir. Nov. 14, 2013) (Walker, Cabranes, and Lohier) (summary order), available here

This summary order holds that the district court properly exercised its discretion to halt jury deliberations and investigate potential juror misconduct.
During deliberations, the jury sent two notes stating that it was deadlocked. Both times, the district court instructed the jury to continue deliberating. A third note stated that one juror was being “unreasonable” and may have withheld information from the court during voir dire.
Rather than simply deliver another Allen charge, the district court decided to question the juror at issue, who was subsequently removed from the jury. The Circuit held that the court’s decision to act in this manner was a proper exercise of its discretion. Indeed, the Circuit noted, it had recently reversed a court for not investigating credible claims of juror misconduct. See United States v.
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Wednesday, November 13th, 2013

District Court Abused Discretion in Awarding Restitution for Unsubstantiated Losses

United States v. Simmons, No. 12-2187-cr (2d Cir. Nov. 13, 2013) (Katzmann, Leval, and Pooler) (summary order), available here

Convicted of conspiracy to commit bank and wire fraud, the defendant was sentenced to 41 months of imprisonment, $1.3 million in forfeiture, and $1.3 million in restitution to Siren Management Company and Community Preservation Corporation (“CPC”). On appeal, the defendant challenged only the restitution order.
By summary order, the Circuit held that Siren was properly found to be a “victim” for restitution purposes because it was directly harmed by the defendant’s criminal conduct in the course of the fraudulent scheme. The Circuit held that CPC was also a victim for restitution purposes, not a co-conspirator, as the defendant claimed.  
The Circuit agreed with the defendant, however, that the district court abused its discretion by including in Siren’s loss amount more than $250,000 based solely on an unsworn letter from
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Defendant Not Eligible for a Sentence Reduction Under Amendment 599

United States v. Heatley (Jackson), No. 12-2812 (2d Cir. Nov. 13, 2013) (Newman, Hall, and Lynch) (summary order), available here

In this summary order, the Circuit agreed with the district court that the defendant was not eligible for a sentence reduction under 18 U.S.C. 3582(c)(2) and Amendment 599 to the Sentencing Guidelines.
Amendment 599 provides that “when a defendant is convicted of both an underlying offense and a[n] [18 U.S.C.] sec. 924(c) offense for using a firearm in connection with the underlying offense, his sentence on the underlying offense cannot be enhanced for the possession or use of a firearm.”
The defendant could not benefit from this provision because the district court did not apply any enhancements for using or possessing a firearm in connection with his sentence for the count of conspiracy to commit murder. Moreover, even if the court had applied a firearms enhancement to the conspiracy
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It’s Not the Second Circuit, But . . .

United States v. LaDeau, No. 12-6611 (6th Cir. Nov. 4, 2013) (Rogers, Griffin, and Donald), available here 

In this noteworthy ruling, the Sixth Circuit upheld a district court’s decision to dismiss an indictment in a child pornography downloading case based on prosecutorial vindictiveness.  
The defendant was originally charged with one count of possessing child pornography (18 U.S.C. 2252A(a)(5)(A)), which carried a statutory sentencing range of zero to ten years of imprisonment. After the district court granted the defendant’s motion to suppress, the government secured a superseding indictment charging the defendant with a conspiracy offense based on evidence that had been in the government’s possession since before the initial indictment. But rather than charging the defendant in the superseding indictment with conspiracy to possess child pornography, the government charged him instead with conspiracy to receive child pornography – a crime that subjected the defendant to a five-to-twenty-year prison
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Tuesday, November 12th, 2013

Circuit Vacates Forfeiture Order for Plain Error

United States v. Lopez, No. 12-1019-cr (2d Cir. Nov. 12, 2013) (Livingston, Lynch, and Droney) (summary order), available here 

Federal Rule of Criminal Procedure 32.2(b)(2)(C) permits a district judge to enter a general forfeiture order if “before sentencing, the court cannot . . . calculate the total amount of the money judgment.” The rule directs district judges entering such an order to “(i) list[] any identified property; (ii) describe[] other property in general terms; and (iii) state[] that the order will be amended under Rule 32.2(e)(1) when . . . the amount of the money judgment has been calculated.”
Here, the defendant was sentenced to 12 years in prison for conspiracy to distribute drugs. The district court also ordered that he forfeit “[a]ny proceeds gained as a result of [his] criminal activity.” No objection was raised to this forfeiture order in the district court. Nevertheless, the Circuit found
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District Court Failed to Make Sufficient Findings to Support Enhancement for Distributing Child Pornography

United States v. Reed, No. 11-4820-cr (2d Cir. Nov. 12, 2013) (Winter, Pooler, and Chin) (summary order), available here

This summary order holds that the district court’s factual findings were not adequate to support a two-level enhancement under U.S.S.G. 2G2.2(b)(3)(F) for distributing child pornography.
Reed was convicted of one count of receiving child pornography and one count of possessing child pornography. He was sentenced to concurrent terms of ten years of imprisonment on each count.
At sentencing, the district court found that more than 600 files of child pornography were located in “peer-to-peer” sharing folders on the defendant’s computer, and that these files were “being offered for sharing.” On this basis, the court enhanced the defendant’s offense level by two levels under U.S.S.G. 
2G2.2(b)(3)(F), which applies if the offense involved “distribution” of child pornography.
The Circuit held that, under United States v. Reingold, 731 F.3d 204, 229 (2d
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Friday, November 8th, 2013

Circuit Directs District Court to Reconsider Request for Transfer of Supervision

United States v. Murdock, No. 13-3236 (2d Cir. Nov. 8, 2013) (Katzmann, Kearse, and Wesley), available here

This decision concerns a district court’s authority to modify a defendant’s conditions of supervised release to require that supervised release be served in another district.

In 2012, Murdock was convicted in the District of Vermont of interstate transportation of stolen vehicles. He was sentenced to 30 months of imprisonment, to be followed by a three-year term of supervised release. Murdock’s only connection with Vermont was his acquisition in Vermont of the vehicles that were the subject of his conviction. He was born and raised in the Eastern District of Michigan, where he had substantial family and business ties.

As his release date approached, Murdock asked the district court to modify his conditions of supervised release to require that his supervised release be served in the Eastern District of Michigan. Officials in Michigan …

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Thursday, November 7th, 2013

Anonymous Tips Did Not Create Reasonable Suspicion

United States v. Freeman, No. 12-2233 (2d Cir. Nov. 7, 2013) (Pooler, Wesley, and Droney) (as amended), available here

In this important Fourth Amendment decision — required reading for anyone dealing with a search or seizure based on an anonymous tip — the Court held that the police, acting primarily on a pair of anonymous 911 calls from the same caller, lacked reasonable suspicion to stop the defendant. Accordingly, the Court reversed the district court’s decision denying a motion to suppress and vacated the defendant’s conviction for illegally possessing a firearm. Judge Wesley dissented. [Disclosure: the Federal Defenders of New York represents Mr. Freeman.]
These were the facts: On April 27, 2011, around 1:40 a.m, the police responded to two 911 calls from the same caller. The initial call reported that a “Hispanic male, wearing a black hat and a white t-shirt had a gun, near the
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Wednesday, November 6th, 2013

District Court Erred in Denying Motion to Reduce Sentence

In United States v. Bethea, No. 12-961-cr (2d Cir. Oct. 13, 2013) (Winter, Jacobs, and Straub) (per curiam), available here, the Circuit vacated the district court’s decision denying the defendant’s motion to reduce his sentence under 18 U.S.C. 3582(c).

Convicted of distributing cocaine, Bethea was originally sentenced in September 2010 to 80 months of imprisonment, above the then applicable 60-to-71 month Guidelines range. In September 2011, he filed a 3582(c) motion for a reduced sentence based on retroactive amendments to the crack cocaine sentencing guidelines. Everyone believed at the time that the defendant faced a mandatory statutory minimum sentence of 60 months in prison. The district court summarily denied the defendant’s motion for a sentence below 80 months, stating only that, since the original sentencing range of 60-to-71 months was already found inadequate, a further reduction “would only exacerbate the insufficiency.”

The Circuit vacated, holding that the district …

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