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Federal Defenders of New York Second Circuit Blog


Sunday, September 11th, 2011

Porn Free

United States v. Aumais, No. 10-3160-cr (2d Cir. September 8, 2011) (Jacobs, Winter, McLaughlin, CJJ)

In this interesting opinion, the court weighs in on a subject of national controversy: whether a defendant convicted of possessing or receiving child pornography should be ordered to pay restitution to those depicted in the images. On the facts here the court, largely bucking the national trend, concluded that restitution was not appropriate.

This case involves images of a woman who uses the pseudonym Amy. Her uncle abused her for years when she was a child; he photographed the abuse and the images made their way to the internet. The uncle went to prison, but the images are still widely circulated. The effects of this on Amy have been devastating, and far transcend the harm caused by the abuse itself. She is so fearful of being identified in public from one of the images that …

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Categories: causation, child pornography, restitution, Uncategorized

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Sunday, August 28th, 2011

Big Brother Listens To Big Sister

United States v. Rodriguez, No. 10-2724-cr (2d Cir. August 25, 2011) (Miner, McLaughlin, Pooler, CJJ)

While detained at the MDC, Rodriguez called his sister and asked her to tell their brother to contact Rodriguez’ attorney so that they could discuss whether he should “cop out” before being indicted. He indicated that the sooner he spoke with his attorney the better, and that they should tell the lawyer to tell the prosecutor that he wanted to plead guilty to the “five-to-40″ drug charge in the complaint.

The district court found that the call was not covered by the attorney-client privilege because Rodriguez knew that the BOP was recording it. It allowed the government to play the recording at Rodriguez’ trial, and the circuit affirmed.

First, the court had to decide on a standard of review. Whether the attorney-client privilege applies is reviewed de novo, while a finding that it has been …

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Have Guns, Will Travel

United States v. Nadirashvili, No. 08-4211-cr (2c Cir. August 23, 2011) (Winter, Pooler, Hall, CJJ)

Six-defendant appellants appealed their convictions in a wide-ranging firearms conspiracy that had both international and domestic components. One part of the activity involved trafficking in “foreign defense articles” – here, grenades, warheads, missiles and launchers, amongst other things – under 22 U.S.C. 2278(b), and the other part involved domestic firearms trafficking under 18 U.S.C. § 922(a)(1)(A). Apart from one sentencing glitch, the circuit affirmed.

The opinion contains two interesting discussions of statutory requirements that the criminal activity involve those who are “in the business” of weapons dealing.

First, two defendants argued that there was insufficient evidence to support their § 922(a)(1)(A) convictions because they were aware of only a single gun transaction, and the evidence did not show that they knew the seller was engaged in the business of trafficking in firearms. The court agreed …

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Gone To Pot

United States v. Celaj, No. 10-2792-cr (2d Cir. August 22, 2011)(Miner, Cabranes, Straub, CJJ)

Din Celaj headed a crew that would rob – or try to rob – drug dealers. When successful, they would obtain drugs, which they would themselves sell, money and firearms.

He went to trial on several Hobbs Act robbery and associated 924(c) counts, was convicted, and received a 601-month sentence. On appeal, he made a sufficiency claim as to the jurisdictional element of the Hobbs Act counts where the goal was to steal marijuana. He did so despite entering into a stipulation at trial that “marijuana is grown outside of the state of New York and travels in interstate and foreign commerce to arrive in the New York City area.” The circuit affirmed.

The court began by surveying the area. In Parkes, see “Government Has No Evidence; Court Deems It Sufficient,” posted September 23, 2007, the …

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Saturday, August 27th, 2011

PC World

United States v. Echeverry, No. 10-2828-cr (2d Cir. August 19, 2011) (Winter, Parker, Chin, CJJ) (per curiam)

The facts of this latest per curiam could have been pulled straight from a law school exam. During an ongoing narcotics conspiracy, Echeverry and his accomplice attempted to recover stolen narcotics from a third person; they possessed and brandished a gun but, during the incident, the intended victim grabbed it and discharged it, wounding the accomplice.

The issue was whether Echeverry should get the seven-year brandishing § 924(c) sentence or the ten-year discharge § 924(c) sentence. The district court gave him the longer sentence, holding that if a defendant possesses a firearm during a drug-trafficking offense he is responsible for a subsequent discharge of that firearm, no matter who fires it.

The circuit affirmed. The statute provides that the enhanced sentence applies “if the firearm is discharged,” and “does not require that the …

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Crew Bayou

United States v. Marino, 09-1965-cr (2d Cir. August 18, 2011) (Jacobs, Winter, McLaughlin, CJJ)

Matthew Marino was at the margin of the Bayou Hedge Fund Group disaster – a Ponzi scheme that defrauded its investors of more than $300 million. The fund was opened in 1996 by two principals, who hired Marino’s CPA brother, Daniel Marino, to keep its books. This defendant, Matthew Marino, was hired by Bayou in 2002 and over the next three years took steps to help perpetuate and conceal the fraud. The scheme came crashing down in 2005, and the principals, including Marino’s brother, all pled guilty to fraud charges.

Appellant Marino, on his part, pled to one count of misprision of felony, covering his actions between January and August of 2005, a period during which investors lost $60 million in the Bayou scheme. He received a twenty-one month prison sentence. This appeal concerns only his …

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Tamper Proof

United States v. Simels, No. 09-5117-cr (2d Cir. August 12, 2011) (Newman, Calabresi, Hall, CJJ)

Former defense attorney Robert Simels appealed his conviction, after a jury trial, of various counts relating to a witness-tampering scheme, and his fourteen-year sentence. The circuit dismissed two minor counts as insufficient but otherwise affirmed.

The case arose from Simels’ representation of one Shaheed Khan, a Guyanese narcotics trafficker, who was detained at the MCC. The case against Simels had three main components. First, he lied to prison officials in an effort to speak to another prisoner, David Clarke, whom he believed to be a witness against Khan, by saying he was Clarke’s attorney. Second, an associate of Khan’s, Selwyn Vaughn, had several conversations with Simels, in which Simels discussed bribing and threatening potential witnesses against Khan. Vaughn had approached the DEA when he learned that Simels was reaching out to him, and wore a …

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Categories: Sixth Amendment, Uncategorized, wiretaps

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Ex-Facto Knife

United States v. Riggi, No. 09-4391-cr (2d Cir. August 10, 2011) (Jacobs, Wesley, Chin, CJJ)

Philip Abramo’s case has been running for several years. He was originally convicted after trial of murder and racketeering charges, and received a life sentence. But the circuit reversed, finding that the admission of eight of his co-conspirators’ plea allocutions violated Crawford. See The Three Racketeers, posted September 6, 2008. On remand, Abramo pled guilty to reduced charges, carrying an eighteen-year statutory maximum. His plea agreement used the 2008 guideline manual, under which his range exceeded eighteen years, making eighteen years his guideline sentence. It also contained an appeal waiver, under which Abramo agreed not to challenge any sentence of eighteen years or less.

At sentencing, Abramo pointed out a potential ex post facto violation. The Commission increased significantly the guidelines for murder conspiracy in 1990, but the conspiracy to which he pled guilty ended …

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Sunday, August 21st, 2011

Custody Battle

United Stateds v. FNU LNU, No. 10-419-cr (2d Cir. August 9, 2011)

(Jacobs, Calabresi, Lohier, CJJ)

Defendant, traveling under the name Sandra Calzada, arrived at JFK on a flight from the DR. A border patrol agent noticed that Calzada had an open arrest warrant, and flagged her for secondary inspection. An “armed guard” escorted her to the secondary inspection room, from which she was not free to leave, and the agent questioned her for 90 minutes without first reading the Miranda warnings.

The interrogation included questions about her pedigree, passport and the like. Eventually, the agent found some discrepancies: she did not look like the photograph on the original passport application, gave inconsistent biographic information, and could not recall any of her addresses in Puerto Rico, where she said she was born.

The district court refused to suppress the statements, holding that Miranda warnings were not required during a “routine …

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Reversal of Fortune

United States v. Plugh, No. 10-2815-cr (2d Cir. August 8, 2011) (Jacobs, Livingston, CJJ, Rakoff, DJ)

This about-face arises from a supervening Supreme Court decision.

In its original opinion in this case, a divided panel held that the defendant had successfully invoked his Miranda rights by declining to sign a waiver-of-rights form. See “Car, Men, Miranda,” posted July 31, 2009. The circuit affirmed, on a government appeal, suppression of the defendant’s statements, viewing the case as an application of Davis v. United States, 512 U.S. 452 (1994), which held that a suspect must “unambiguously” invoke his Miranda rights to cut off questioning.

But a 2010 case, Berghuis v. Thompkins, 130 S. Ct. 2250 (2010), held that the Davis “unambiguous” standard should control not just the “cut-off,” but also the initial invocation of the rights. There, Court found that the suspect’s refusal to sign was not an “unambiguous” invocation of his …

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Sunday, August 14th, 2011

Rowe, Rowe, Rowe, You’re Toast

United States v Jackson, No. 07-0263-cr (2d Cir. August 4, 2011)

Leval, Lynch, CJJ, Korman, DJ)

Appellant Derrick Rowe, charged with a drug-related murder, had three trials. At the first, he was convicted of only drug trafficking and possession of ammunition, but the jury hung on three other counts – murder, § 924(c) and § 924(j). The court sentenced him to 32 years. At the second, the jury hung on all of the remaining counts. At the third, Rowe was convicted of the three open counts and received a 45-year concurrent sentence.

On appeal, his primary claim was that, at the third trial, the district court erred in allowing the government to play portions of his some of his prison phone calls without allowing him to play other portions under the Fed. R. Evid. 106 “rule of completeness.” The circuit found no abuse of discretion. In he first conversation, Rowe …

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