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Federal Defenders of New York Second Circuit Blog


Sunday, June 3rd, 2012

I Second That Amendment

United States v. Decastro, No 10-3773 (2d Cir. June 1, 2012) (Jacobs, Hall, Lynch, CJJ)

In 2002, Angel Decastro moved from Florida to New York to help run his father’s dry-cleaning business. After a violent confrontation with a customer, Decastro requested a handgun license application from the NYPD. He did not submit it, however; he claimed that a desk officer told him that there was “no way” that it would be approved. Instead, he returned to Florida, where he was licensed to own a handgun, and purchased two guns. He left one in Florida and brought the other back to New York. A few years later, he moved back to Florida but left his gun with a relative in the Bronx, planning to retrieve it later. In the interim, the relative’s girlfriend turned the gun in to the police. The police traced it back to Decastro, who was charged …

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That’s What She Said

United States v. Carthen, No. 10-4817-cr (2d Cir. May 23, 2012) (Winter, McLaughlin, Cabranes, CJJ)

Defenant Tyrone Carthen appealed the government’s reliance on hearsay at his supervised release violation hearing. The circuit, finding no error, affirmed.

Carthen was charged with violating his supervised release by beating and threatening his ex-girlfriend, Marquita Cox. The matter was investigated by Carthen’s probation officer, Darcy Zavatsky, who interviewed Cox and other witnesses, and also reviewed various police and court records. At the VOSR hearing, however, the government called only Zavatsky, who was permitted to, over objection, describe what she had learned. Just before the hearing, it emerged that Cox, who had been cooperative at first, was refusing to testify because she did not want to be respnosible for sending Carthen back to jail. Just after the district court decided the case, Cox submitted a letter to the court asserting that she had …

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Lost In Translation

United States v. Batista, No. 10-3284-cr (2d Cir. May 17, 2012) ( Kearse, Cabranes, Sack, CJJ)

Louis Batista, a former New York City police officer, was convicted by an Eastern District jury of participating in a longstanding drug distribution ring based in Bushwick, Brooklyn.

This long opinion affirms this conviction and sentences,  as well as the sentence of one of the cooperating witnesses, and covers relatively little new ground.

However, it has a potentially interesting, if brief, discussion of an issue that does not come up very often, the district court’s handling of a matter under the Court Interpreters Act of 1978, 28 U.S.C. § 1827. At trial, a cooperating witness testified that Batista would warn his co-conspirators of imminent police activity in their area with the Spanish phrase “loco cuidate.” According to the circuit, the meaning of the phrase is ambiguous. It might mean “take care, dude,” …

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Fleeced Hampton

United States v. Litwok, No. 10-1985-cr (2d Cir. April 30, 2012) (Livingson, Lohier, CJJ, Koeltl, DJ)

An Eastern District jury convicted defendant Evelyn Litwok of one count of mail fraud, and three counts of tax evasion – for the years 1995, 1996 and 1997. The circuit found the evidence legally insufficient to support the conviction for the 1996 and 1997 tax evasions, and also found that the mail fraud and the 1995 tax evasion counts were improperly joined. The court remanded for a new trial on those counts.

Background

Litwok seems to have spent a good part of the mid-1990’s involved in financial shenanigans in and around East Hampton. The mail fraud conviction arose from her involvement in a scheme to defraud an insurance company by making false claims for property damage and related losses at her two East Hampton homes. The tax evasion charges arose from private equity …

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Warning Signs

United States v. Williams, No. 11-324-cr (2d Cir. May 17, 2012) (McLaughin, Parker, Wesley, CJJ)

On this government appeal, the circuit reversed a district court order that suppressed a Mirandized statement, after finding that it was the product of an illegal “two-step” interrogation.

Robert Williams was arrested in a Bronx apartment in which law enforcement officers executed a search warrant. The officers found four weapons, but were expecting to uncover many more. One agent, without Mirandizing him, asked Williams who owned the guns they had found, and he said that they were his.  An hour later, the agent took Williams to a police station, where he read Williams his rights. Williams waived, and gave a detailed confession.

The district court suppressed Williams’ initial, un-Mirandized statement as outside the scope of the public safety exception, since it went to who owned the guns the agents found, and not where other guns might …

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Cash Cow

United States v. Wagner-Dano, No. 10-4593-cr (2d Cir. May 14, 2012) (Winter, Livingston, CJJ, Rakoff, DJ)

Melissa Wagner-Dano was a bookkeeper in upstate New York, where she worked for a small town and two large dairy farm cooperatives. She stole more than $1 million from her employers through unauthorized withdrawals from their bank accounts, using used the money for various personal projects. Wagner-Dano covered her tracks by transferring funds among the employers’ accounts. As the scheme unraveled, she blamed the missing funds on computer errors, then repaid some of the money from her personal bank account. Finally, she threw in the towel, admitted her crime and pled guilty to wire fraud.

On appeal, she claimed that several errors in her presentence report rendered her 78-month, top-of-the-range sentence procedurally unreasonable. Wagner-Dano had detailed these objections to the Probation Department, which had explained them in the addendum to the report, but …

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Saturday, June 2nd, 2012

PC World

Here are the court’s three  most recent per curiam opinions:
                               

United States v. David, No. 11-741-cr  (2d Cir. May 17, 2012)  Calabresi, Cabranes, Chin, CJJ) (per curiam)

In this drug case, the circuit remanded for resentencing because the district court acted before two 2011 circuit decisions, Chowdhury and Figueroa, in calculating the marijuana equivalency for the drug BZP.  Defendant David pled guilty to trafficking in large quantities of pills thought to contain the drug Ecstasy.  At sentencing, it emerged that the pills actually contained BZP, a somewhat similar drug often sold as Ecstasy. The district court analogized BZP to Ecstasy for guidelines purposes, and sentenced accordingly.  Strangely, a lab report submitted to the circuit, but not, apparently, the district court, indicated that the pills contained a combination of BZP and two other substances, TFMPP and caffeine.

The circuit noted that Chowdhury…

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Sunday, April 22nd, 2012

Gain? Wait!

United States v. Zangari, No. 10-4546-cr (2d Cir. April 18, 2012) (Cabranes, Pooler, Wesley, CJJ)
In this decision, the court found that the district court’s restitution order, which was based on the defendant’s gain instead of the victims’ loss, was error, but not plain error. It accordingly affirmed.
Defendant Zangari was a securities broker in the securities-lending departments of two major banks.  He engaged in unauthorized stock-loan transactions with financial institutions that had a relationship with one of his co-workers, and received a portion of the kickbacks, approximately $65,000.  His employers  suffered “losses in the form of unrealized profit.”
Zangari pled guilty to a Travel Act conspiracy, and was sentenced under USSG § 2B4.1, the commercial bribery guideline. The PSR used the $65,000 figure as the loss calculation, recommending an enhancement for a loss between $30,000 and $70,000. Although neither bank had submitted a loss affidavit, the PSR
…
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Remorse Code

United States v. Aleynikov, No. 11-1126 (2d Cir. April 11, 2012) (Jacobs, Calabresi, Pooler, CJJ)

Sergey Aleynikov, a former Goldman Sachs computer programmer, stole a portion of Goldman’s proprietary high frequency trading (“HFT”) computer code, apparently in preparation for taking a related, but higher paying, job at a startup company.  A jury convicted him of violating 18 U.S.C. § 2314, which makes it a crime to transport stolen “goods” in interstate commerce, and § 1832, which makes it a crime to steal a trade secret that is related to or included in a “product” that is “produced for or placed in” commerce.  Two months ago, the circuit reversed these convictions in a one-line order with an opinion to follow.

And here it is. While we were all expecting a sufficiency-of-the-evidence opinion, the court instead concluded that the indictment charging Aleynikov with those crimes was itself insufficient because it …

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Thursday, April 12th, 2012

Scott Free

United States v. Scott, No. 10-3978-cr (2d Cir. April 6, 2012) (Pooler, Parker, CJJ)

In 2009, two NYPD detectives arrested defendant Scott after witnessing him engage in what they said was a hand-to-hand drug sale. At trial, the district court permitted the detectives to testify, over objection, that they had seen Scott several times before, and had spoken to him several times, for as long as twenty minutes. The circuit, finding that this evidence violated both Rule 404(b) and Rule 403, vacated the judgment and remanded the case for a new trial.

The circuit first concluded that the evidence was indeed Rule 404(b) evidence, and not something else. Rule 404(b) covers other “acts,” not other “bad acts,” and here, the detectives’ description of their prior contacts with Scott clearly would bear adversely on the jury’s assessment of his character. The court distinguished this case from those where the evidence was …

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Friday, April 6th, 2012

DNA Claim IS DOA

United States v. Pitera, No. 10-1564-cr (2d Cir. April 3, 2012) (Jacobs, Miner, Katzmann, CJJ)

In this opinion by the late Judge Miner, the circuit rejected the claim of Thomas Pitera, formerly of the Bonanno crime family, that the district court erroneously rejected his application for DNA testing of “newly discovered” evidence.

Pitera was convicted in 1992 of various racketeering and CCE offenses that were predicated on seven murders, and received a life-plus-thirty-year sentence. Since then, he has regularly sought post-conviction relief. Most pertinent to the issues on this appeal is a 1999 habeas petition in which Pitera unsuccessfully alleged that evidence seized from one Frank Gangi, the main cooperator against him, would prove that Gangi was the “true killer.” The district court denied relief, noting that Gangi had admitted at Pitera’s trial that he was a participant in many of the murders, and explained that he had done them …

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