Navigation

Federal Defenders of New York Second Circuit Blog


Friday, April 6th, 2012

The Lyin’ King

United States v. Oyewumi, No. 10-3427(L) (2d Cir. March 29, 2012) (Wesley, Carney, CJJ, Cedarbaum, DJ)

Defendant-appellant Saeed went through the entire district court process – arrest, trial, safety-valve proffer and sentence – under the name Reginald Davis, a stolen identity. He also, according to a footnote in this opinion,tried to continue using that identity in the circuit, but the court would not permit it. It is his use of that identity that generated the most action on his appeal.

Saeed was arrested in 2009 after law enforcement agents seized a package at Newark Airport that contained 787 grams of heroin. A controlled delivery, followed by some monitored telephone calls, ultimately implicated Saeed. Saeed’s attorney told the government that Saeed might be eligible for safety-valve relief. Warning that Saeed would have to reveal his true identity, the government invited him to a proffer. Saeed attended, and continued to insist that …

Posted by
Categories: false statements, materiality, safety valve, Uncategorized

Posted By
Categories: false statements, materiality, safety valve, Uncategorized

Continue Reading
Thursday, March 15th, 2012

PC World

United States v. Roccisano, No. 10-5237-cr (2d Cir. March 14, 2012) (Katzmann, Parkjer, CJJ, Restani, JCIT) (per curiam)

Guideline section 4A1.1(d) adds two criminal history points if the defendant committed the federal offense while under a criminal justice sentence, e.g., probation, parole or supervised release. The defendant here was deported to Italy in 2006 after completing the prison portion of a federal drug sentence that included a five-year term of supervised release. He was found in the United States in 2010, before the term of supervised release had expired, and the district court assessed those points. On appeal, he argued that this was error, because he had never been actively supervised in light of his deportation.

The circuit rejected this argument, joining at least five other circuits in holding that a term of supervised release is not extinguished by the defendant’s deportation. The court also noted that the amended version …

Posted by
Categories: criminal history, supervised release, Uncategorized

Posted By
Categories: criminal history, supervised release, Uncategorized

Continue Reading
Friday, March 9th, 2012

Not Much Moore

United States v. Moore, No. 10-2740-cr (2d Cir. February 22, 2012) (Jacobs, Cabranes, Livingston, CJJ)
This decision marks the circuit’s latest effort to sort out a “two-step” interrogation in the wake of Missouri v. Seibert, 542 U.S. 600 (2004).
Chauncy Moore, having evaded a Connecticut police officer who had a warrant for Moore’s arrest, tossed a gun onto the roof of a house. He was apprehended on the warrant early the next day, but did not receive Miranda warnings. He spent the morning in a police station lockup, but was not brought to court due to a paperwork glitch. Later that day, still at the precinct, Moore twice asked to speak with a detective, but none was around. In the afternoon, he was moved to a cell with a pay phone, from which he spotted a narcotics officer he knew, Ronald Pine, and called him over. Pine
…
Posted by
Categories: Miranda, right to counsel, Uncategorized

Posted By
Categories: Miranda, right to counsel, Uncategorized

Continue Reading
Sunday, March 4th, 2012

No Gain, Yes Pain

United States v. Hsu, No. 09-4152-cr (2d Cir. February 17, 2012) (Winter, Lynch, Carney, CJJ)

Norman Hsu, a prominent, if corrupt, political fundraiser, used the connections he made in politics to run a giant Ponzi scheme. He pled guilty to mail and wire fraud, and was convicted by a jury of campaign finance fraud. In all, the district court imposed a 292-month guideline sentence.

The main, but not only, issue on his appeal concerned an interesting sentencing issue. The district court found that the Ponzi scheme caused a loss of between $50 million and $100 million, but in doing so included earnings that the victims reinvested in the scheme – even though those earnings were invented as part of the scheme – in the intended loss. The circuit agreed that this was permissible.

Normally, in fraud cases, the guidelines measure the amount of principal the victims lost, and not the …

Posted by
Categories: loss calculation, Uncategorized

Posted By
Categories: loss calculation, Uncategorized

Continue Reading

Rehab? No, No, No.

United States v. Gilliard, No. 11-1088 (2d Cir. February 16, 2012) (Wesley, Lohier, CJJ, Rosenthal, DJ)

Tapia v. United States, 131 S.Ct. 2382 (2011), held that the district court cannot impose or lengthen a prison sentence based on the defendant’s rehabilitative needs. Here, the circuit joins the national trend of reading Tapia narrowly.

Troy Gilliard, sentenced before Tapia came down, faced a 57 to 71 month range for heroin trafficking; both the defendant and the government sought a within-guideline sentence, and probation recommended 65 months, also within the range. In imposing sentence, the court mentioned Gilliard’s criminal history, the seriousness of the offense, the need for specific deterrence, and also mentioned Gillard’s rehabilitative needs – he had both substance abuse and medical issues – while in custody, noting that it was “important” that he be “sentenced in such a way that you are able to address those problems.” Taking into …

Posted by
Categories: procedural reasonableness, rehabilitation, Uncategorized

Posted By
Categories: procedural reasonableness, rehabilitation, Uncategorized

Continue Reading

Off The Waterfront

United States v. Coppola, No. 10-0065-cr (2d Cir. February 14, 2012) (Raggi, Lynch, Wallace, CJJ)

This very long, and very fact-bound mob-related RICO appeal covers very little new ground. However, it has an interesting discussion of the applicability of Skilling to extortion cases.

Defendant Michael Coppola spent three decades rising through the ranks of the Genovese crime family, ultimately becoming a captain. The particular conduct that resulted in his conviction, and sixteen-year sentence, related to the family’s criminal control of the New York and New Jersey waterfronts in general, and over the longshoremen’s union – ILA Local 1235, in particular. The family used intimidation and fear to extort money from the both the union and trucking companies doing business at the docks. The family also controlled the union directly, through three successive local presidents who were in the family’s pocket.

On appeal, Coppola challenged the validity of the extortion RICO …

Posted by
Categories: extortion, Uncategorized

Posted By
Categories: extortion, Uncategorized

Continue Reading
Saturday, March 3rd, 2012

Summary Summary

Four more summary orders of note:

In United States v. Magner, No. 11-0751-cr (2d Cir. January 25, 2012), a child pornography case, the court voided a special condition of supervised release prohibiting the defendant from using an electronic device to access “pornography of any kind,” including any “website depicting images of nude adults or minors.” The condition was overbroad, as it included “materials that are not by any normal definition obscene, pornographic, or even erotic, such as art museum websites containing works of art.”

United States v. Echeverri, No. 11-0303-cr (2d Cir. February 16, 2012), found that a within-guideline, ninety-seventh month child pornography sentence was insufficiently explained, and hence procedurally unreasonable, where the district court justified the sentence only by observing that it had considered the statute and arguments of counsel and had concluded that a “low end” sentence was appropriate.

In United States v. Fann, No. 11-0540-cr (2d Cir. …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Sunday, February 12th, 2012

Five and Time

United Sates v. Culbertson, 10-1766-cr (2d Cir. February 3, 2012) (Hall, Lynch, Lohier, CJJ)

Defendant Culbertson was arrested during an investigation into the importation of heroin and cocaine into the United States from Trinidad, after his girlfriend was arrested at the airport. He was charged with offenses that, based on the drug type and quantity alleged – 100 grams or more of heroin and five kilograms or more of cocaine – carried a ten-year mandatory minimum.

Culbertson was a difficult guy – he went through so many appointed attorneys that the district court finally forced him to go pro se- and consistently disputed the quantity of drugs attributable to him. At his plea, Culbertson insisted that the offense involved only “three kilos” of cocaine – that is what he said his girlfriend had been recruited to import, even though she in fact had more than five in her luggage – …

Posted by
Categories: right to counsel, Rule 11, Uncategorized

Posted By
Categories: right to counsel, Rule 11, Uncategorized

Continue Reading

It Tolls for Thee

United States v. Knight, No. 09-5195-cr (2d Cir. February 1, 2012) (Walker, Straub, Livingston, CJJ)

While a Western District grand jury was investigating defendant’s involvement in a “high yield” investment scheme, the district court granted the government’s application pursuant to 18 U.S.C. § 3292 to toll the statute of limitations while it sought the assistance of Hungarian authorities in obtaining records relating to transfers of some of the scheme’s proceeds into Hungarian bank accounts. The circuit affirmed that order as a proper application of the tolling statute.

Under § 3292, the court must grant the government’s application and suspend the statute of limitations if the application asserts that evidence of an offense being investigated by a grand jury is in a foreign country and it reasonably appears, by a preponderance of the evidence, that such evidence has been officially requested.

The government satisfied the statute here. It gave the district …

Posted by
Categories: statute of limitations, tolling, Uncategorized

Posted By
Categories: statute of limitations, tolling, Uncategorized

Continue Reading

Cain is Able

United States v. Cain, 09-0707-cr (2d Cir. January 31, 2012) (Newman, Lynch, CJJ, Restani, JCIT)

This is a case, oddly enough, about trees. Appellant David Cain, Jr., proprietor of David’s Tree Service, assisted by his brother, Chris Cain, a cousin, Jamie Soha, and others, was trying to corner the tree service and logging market in northwestern New York State. To get there, they engaged in acts of violence, extortion and even arson, and were convicted of substantive and conspiracy RICO counts and of other, related crimes.

All convictions were affirmed except for Chris Cain’s on the RICO counts. The circuit found that the district court’s “pattern” instruction was erroneous and, as to Chris Cain, the error, although not flagged below, was plain.

The RICO statute requires proof of a “pattern of racketeering activity” – at least two acts, the last of which occurred within ten years after the commission of …

Posted by
Categories: pattern requirement, plain error, RICO, Uncategorized

Posted By
Categories: pattern requirement, plain error, RICO, Uncategorized

Continue Reading
Sunday, January 29th, 2012

Land of Enhancements

United States v. Watkins, No. 10-2971-cr (2d Cir. January 26, 2012) (Miner, McLaughlin, Pooler, CJJ)

Anthony Watkins was a 48-year-old homeless career criminal who lived in a baseball dugout in Schenectady, New York. Using a computer from the local public library, and posing as a 38-year-old, he began an on-line relationship with a 15-year-old girl who lived in Connecticut. Eventually he persuaded her to meet, and drove from Schenectady to her home; she sneaked out of her house and had sex with him in the car. Later that night, she ran away with him. He drove her back to New York and they spent the weekend in Schenectady, where they continued to have sexual contact. The girl called her parents from there, and eventually the police, acting on a tip, found them and arrested Watkins.

Watkins pled guilty to one count of transporting a minor in interstate commerce with intent …

Posted by
Categories: criminal sex abuse, Uncategorized

Posted By
Categories: criminal sex abuse, Uncategorized

Continue Reading