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Federal Defenders of New York Second Circuit Blog


Saturday, January 21st, 2012

Parole Evidence

United States v. Barner, No. 10-3700-cr (2d Cir. (Sack, Raggi, CJJ, Eaton, JCIT)

This decision, a government appeal, reverses a district court order suppressing evidence obtained during a parole search.

Barner was released to New York State parole in 2007, and signed a Certificate of Release that included his consent to having his parole officer visit him at home and search and inspect his person, residence and property. Barner was also forbidden from possessing any sort of firearm, ammunition or body armor, and was subject to a curfew.

In early 2008, someone called Barner’s parole officer and told her that Barner had fired a gun at him. She and other officers tried to reach Barner at home that night – during his curfew period – but Barner was not there. This prompted Barner to obtain a parole violation arrest warrant. Two days later, Barner reported for his weekly appointment with …

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Categories: Fourth Amendment, parole search, special needs, Uncategorized

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PC World

United States v. Baker, No. 10-1925-cr (2d Cir. January 12, 2012) (Pooler, Parker, Carney, CJJ) (per curiam)

This latest per curiam affirms an Armed Career Criminal Act (“ACCA”) sentence, rejecting the defendant’s claims that his Vermont prison escape convictions were not ACCA predicates. The statute at issue contains two distinct offenses – failure to report to custody, which is not a predicate, and escape from custody. Baker agreed that his convictions were for escape from custody, but argued that the district court should have looked beyond the charging instruments to determine whether his actual conduct posed a sufficient degree of risk to qualify.

The circuit disagreed. While a sentencing court can, and sometimes must, look beyond the charging instrument, it cannot go beyond the judicial record evidence. Where the defendant pled guilty, the offense is a predicate if the record establishes that his plea necessarily admitted elements of a predicate …

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Categories: ACCA, crime of violence, escape, Uncategorized

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Sunday, January 15th, 2012

Ex Parte Line

United States v. Collins, No. 10-1048-cr (2d Cir. January 9, 2012) (Calabresi, Chin, Carney, CJJ)

A jury convicted defendant Collins of several counts of fraud. The circuit ordered a new trial based on the district court’s handling of a series of jury notes relating to difficulties in deliberations.

Background

Something about this trial inspired great turmoil during jury deliberations. It began with a report, after five days of trying, of difficulty reaching a verdict. The district judge gave a tepid reply, but later that day a CSO heard a disruption in the jury room and, when he entered, one juror told him that another had threatened him. The judge brought the jury in and urged civility.

The next day brought two more notes. One, from Juror 4, indicated that Juror 9 had threatened to “cut off [his] finger” and have her “husband take care of [him].” The second, from the …

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Citizen Gain

Garcia v. USICE, No. 09-4211-pr (2d Cir. December 29, 2011) (Miner, Wesley, Chin, CJJ)

This interesting derivative citizenship decision – although not a criminal case – is a great read, and flags a potentially important issue for defense lawyers.

Carlos Garcia was born in the Dominican Republic, and his family brought him to the United States when he was five years old. He soon became a permanent resident, and lived with his family on West 107th Street in Manhattan.

Four years after the family emigrated, they vacationed in the D.R. and, while they were there, his parents divorced. The divorce decree gave Garcia’ smother “personal guardianship” over him. Despite the divorce, however, the parents continued to live together on West 107th when they returned to New York. One year later, the whole family moved to West 109th Street and, five years later – six years after the divorce – the …

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Saturday, January 14th, 2012

Beware of Greeks Bearing Writs

Skaftouros v. United States, No. 11-0462-cv (2d Cir. December 20, 2011) (Cabranes, Hall, Lohier, CJJ)

Dimitrious Skaftouros is charged in Greece, his native country, with murdering a sixteen-year-old boy after a botched kidnapping. The crime took place in March of 1990; Skaftouros fled Greece that May, and ultimately ended up in the United States. He was arrested here in 2008, and the Greek government then sought his extradition to face the charge of “complicity in the murder of a minor.”

After unsuccessfully challenging his extradition in front of a magistrate judge, Skaftouros filed a habeas corpus petition under 28 U.S.C. § 2241. The district court granted the habeas petition, and also his “motion to dismiss” the extradition proceedings. It held that Skaftouros had not been “charged” with an offense under the extradition treaty with Greece because the warrant was invalid under Greek law and because the Greek statute of limitations …

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Many Unhappy Returns

United States v. Cadet, No. 10-4220-cr (2d Cir. December 20, 2011) (Miner, Cabranes, Wesley, CJJ)

An Eastern District jury convicted Joseph Cadet of 16 tax offenses based on his preparation of dozens of false tax returns for his “clients” between 2003 and 2006. Although the court affirmed his conviction – he challenged only the admission of Rule 404(b) evidence, a perennial loser in this circuit – it vacated and remanded the sentence due to a host of sentencing errors.

First, the district court imposed a 41-month prison sentence and a three-year term of supervised release on each of the 16 counts of conviction. But the statutory maximum term of imprisonment for each violation of 26 U.S.C. § 7206(2) was three years’ imprisonment to be followed by one year of supervised release.

The court also made several incorrect restitution rulings. First, the restitution order included losses sustained by New York City …

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“Vigor” Mortis

United States v. Bourke, No. 09-4704-cr (2d Cir. December 14, 2011) (Pooler, Hall, CJJ)

Defendant Bourke was convicted of violating the Foreign Corrupt Practices Act, the Travel Act, and § 1001 atfer his involvement in a complex bribery scheme arising from the late 1990’s privatization of Azerbaijan’s state-owned oil company, SOCAR. Although it noted that that Bourke “vigorously attack[ed]” his conviction, the circuit affirmed.

Bourke mounted several unsuccessful challenges to the jury instructions. First, the district court was not required to instruct the jury that it needed to agree unanimously on the specific overt act committed in furtherance of the conspiracy charge. The “jury did not need to agree on a single overt act to sustain a conspiracy conviction,” and the overt act “need not [even] be a crime.” Nor did the district court err in giving a conscious avoidance instruction – there was “ample evidence to support a conviction” …

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Wednesday, January 4th, 2012

PC World

Several Interesting per curiams rounded out 2011:
In United States v. Steppello, No. 10-4527-cr (2d Cir. December 23, 2011) (Jacobs, Cabranes, Wesley, CJJ) (per curiam) the court reversed a Northern District order granting suppression of cocaine seized from the defendant’s person when arrested, and, later, from his home pursuant to a search warrant, and his post-arrest statements. The district court had found that the initial arrest of the defendant was not supported by probable cause, and that everything else was a tainted fruit. But the circuit found “significant errors” in the district court’s assessment of the evidence. First, it “failed to examine the totality of the circumstances, and instead, considered individual facts in isolation.” Second, the court “failed to evaluate the facts in light of the training and experience of the arresting agents.” The district court also erred in discounting the reliability of information provided by an otherwise untested informant
…
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Sunday, November 20th, 2011

Making a Skilling in Albany

United States v. Bruno, No. 10-1887-cr (2d Cir. November 16, 2011) (Parker, Chin, CJJ, Korman, DJ)

The story of Joe Bruno, former New York State Senate Majority Leader, is fairly well known. Having seemingly turned his position into a veritable cesspool of self-interested profiteering, he was ultimately convicted of two counts “honest services” fraud – the jury hung on a third, and acquitted him of several others. Consistent with the law at the time, however, the fraud was charged only as a failure to disclose various conflicts of interest.

While Bruno’s appeal was pending, the Supreme Court decided United States v. Skilling, 130 S.Ct. 2896 (2010), which held that the honest services statute criminalizes only fraudulent schemes that are effectuated through bribery or kickbacks. In light of Skilling, was inevitable that Bruno’s convictions would have to be tossed. The only real suspense was whether the Circuit would acquit him or …

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Saturday, November 12th, 2011

Bed Gub

United States v. Simmons, No. 10-1526-cr (2d Cir. October 26, 2011) (Winter, Pooler, Parker, CJJ)

New York City police officers accompanied an individual to his apartment in the Bronx to retrieve his belongings. He was moving out because his roommate, defendant Simmons, had pulled a gun on him during an argument a few days earlier.

Inside the apartment, the officers found Simmons in his bedroom; the door was ajar, he was lying in bed and there was a “shiny object” next to him. Simmons got up and the officers pulled him out of the bedroom and into the hall. They asked him about his dispute with the roommate and the gun. Simmons told the officers the gun was in his bedroom and they went in, retrieved it, and arrested him.

The circuit found that the officers’ questions to Simmons about the gun were covered by the “public safety” exception to …

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Summary Summary

Well, it’s taken months, but at last there are three summary orders worth noting. So, in reverse order, here they are:

United States v. Persing, no. 10-638-cr (2d Cir. August 26, 2011), concerned the district court’s admission of a loan-shark’s computer records. Those records revealed the extent of his business, and other evidence showed that the defendant intervened to try to have those same loans repaid. The government argued he was trying to take over the business, while the defendant argued that he was trying to protect the debtors from the loan-shark. In order for the records to be admissible as a co-conspirator’s declarations, the district court needed to find that there was a single conspiracy that included both the loan-shark and the defendant. The district court did not; in fact, most of its findings on the question, although kind of confusing, seemed to support the defendant’s theory. The circuit …

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