Navigation

Federal Defenders of New York Second Circuit Blog


Sunday, October 30th, 2011

2B, Or Not 2B?

United States v. Bahel, No. 08-3327 (2d Cir. October 26, 2011) (Pooler, Raggi, CJJ, Korman, DJ)

Sanjaya Bahel, a chief procurement officer at the United Nations, was convicted of honest services fraud and bribery offenses in connection with a kickback scheme in which he improperly steered lucrative U.N. procurement contracts to a friend, in exchange for money. This long opinion covers a lot of very fact-specific issues. This post focuses only on the sentencing claim.

Both U.S.S.G. § 2B1.1 and U.S.S.G. § 2C1.1 can apply to fraud convictions. The difference is that § 2C1.1 applies to specifically to “public officials” and carries a higher base offense level. The district court sentenced Bahel under § 2C1.1, over objection; on appeal, and the circuit rejected his claim that the court should have used § 2B1.1.

Under the relevant definition, which is to be “construed broadly,” Bahel was a “public official.” That he …

Posted by
Categories: public official, Uncategorized

Posted By
Categories: public official, Uncategorized

Continue Reading

Family Matters

United States v. Banki, N o. 10-3381-cr (2d Cir. October 24, 2011) (Cabranes, Pooler, Chin, CJJ)

Defendant Banki is an Iranian-born United States citizen. Starting in 2006, his family transferred about $3.4 million from Iran to the United States, all of which was effectuated through the “hawala” system. Banki’s hawala broker used a “matching” system to facilitate these transfers. When he knew that Banki’s family wanted to send money to the United States, he would find someone in the U.S. who wanted to send approximately the same amount to Iran. The U.S.-based contact would transfer into Banki’s account a sum comparable to the amount Banki’s family wished to send. Banki’s hawala broker would then pay an equivalent sum to the U.S.-based contact’s intended recipient, or broker, in Iran. Ultimately, Banki received some 56 hawala-related deposits.

Banki would typically email a family member to confirm receipt of each payment. Although most …

Posted by
Categories: rule of lenity, Uncategorized

Posted By
Categories: rule of lenity, Uncategorized

Continue Reading

Between the Cracks

United States v. Rivera, No. 10-1199 (2d Cir. October 21, 2011) (Katzmann, Chin, CJJ, Gleeson, DJ)

This interesting decision answers an unanswered question in the circuit’s jurisprudence on § 3582(c)(2) motions. The outcome is favorable for Mr. Rivera, but will likely not last. An amended version of U.S.S.G. § 1B1.10 goes into effect on November 1, 2011, that is, at least arguably, intended to render defendants in his situation ineligible for a sentence reduction.

Background

Convicted by a jury, Rivera faced a base offense level of 38 for trafficking in more than 1.5 kilograms of crack cocaine. There were no adjustments, so 38 was also his total offense level. He was in criminal history category IV, so his range would have been 324 to 415 months. But, he was a career offender. The highest offense level in the career offender table is 37, so the district court correctly “borrowed” the …

Posted by
Categories: 3582(c)(2), rule of lenity, Uncategorized

Posted By
Categories: 3582(c)(2), rule of lenity, Uncategorized

Continue Reading
Saturday, October 22nd, 2011

Thorn, Again

United States v. Thorn, No. 11-37-cr (2d Cir. October 20, 2011) (Jacobs, Sack, Raggi, CJJ)

This is Joseph Thorn’s third time in the circuit. Thorn ran an upstate asbestos removal company; he performed dangerous, substandard work, and used the money he earned to grow the business. In 2000, a Northern District jury convicted him of money laundering and environmental crimes, and the district court sentenced him to 65 months’ imprisonment. On the government’s appeal, the circuit vacated the sentence – the guidelines were mandatory then – and on remand the district court downwardly departed to 168 months from what it thought was a 235-month guideline minimum. The government appealed and won again. By this time the guidelines were advisory, however, so while the guideline minimum was now up to 292 months, the district court sentenced Thorn to 144 months.

Three years later, Thorn filed a 2255 motion, seeking to vacate …

Posted by
Categories: cause and prejudice, money laundering, procedural default, Uncategorized

Posted By
Categories: cause and prejudice, money laundering, procedural default, Uncategorized

Continue Reading
Monday, October 10th, 2011

PC World

There have been two interesting per curiams in the past couple of weeks.

Sometimes immigration law and criminal law intersect. They did in Prus v. Holder, No. 10-599-ag (2d Cir. September 28, 2011) (Calabresi, Wesley, Lynch, CJJ). Here, the court held that the New York offense of promoting prostitution in the third degree under Penal Law §§ 20.00 and 230.35 is not an aggravated felony. The term “prostitution” is not defined in the aggravated felony statute. But, under the immigration statute rendering aliens who enter the United States to engage in prostitution inadmissible, prostitution is defined as “promiscuous sexual intercourse for hire.” Since identical words in different parts of the same act are construed to have the same meaning, the same definition should be used in the ag-fel section. But the New York offense of promoting prostitution encompasses a definition of “prostitution” – it includes “sexual conduct” – that is …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading

A Bridge To FARC

United States v. al Kassar, No. 09-1051-cr (2d Cir. September 21, 2011) (Jacobs, Hall, CJJ, Scheindlin, DJ)

Defendants were convicted of various terrorism offenses in connection with a sting operation in which a CI, who was working for the DEA, introduced al Kassar to two undercover DEA agents posing as members of FARC, the left-wing Colombian guerrilla group. The defendants agreed to supply FARC with weapons, including surface to air missiles (“SAM”s) to use against United States military personnel and equipment in Colombia.

All of the criminal conduct occurred outside of the United States – mostly in Lebanon, Spain, Bulgaria and Romania. The district court denied the defendants’ motions to dismiss the indictment on jurisdictional grounds, and in this opinion, the circuit affirmed.

There is a presumption that acts of Congress do not apply extraterritorially, but even if the statute is not explicit, an intent can be inferred from the …

Posted by
Categories: extraterritorial jurisdiction, Uncategorized

Posted By
Categories: extraterritorial jurisdiction, Uncategorized

Continue Reading
Saturday, October 8th, 2011

Aliens vs. Predator

United States v. Archer, No. 10-4684-cr (2d Cir. September 20, 2011) (Newman, Calabresi, Hall, CJJ)

Thomas Archer, a solo-practitioner immigration lawyer in Queens, ran a visa fraud mill. His specialty was the I-687, an amnesty program that permitted certain aliens who were here illegally in the 1980’s to adjust their status and receive a visa. In 2004 and 2005, Archer filed nearly 240 I-687 applications; the DHS denied them all.

Convicted of visa fraud and conspiracy to commit visa fraud, his appeal concerned both trial issues – centered around his claim that he did know know that his assistants were filing forms with false information – and sentencing issues. The circuit affirmed Archer’s conviction, but remanded for resentencing and recalculation of the restitution.

The Trial Issues

At trial, an immigration agent who had reviewed 175 I-687 applications that Archer’s office filed, testified that almost all of them had certain suspicious …

Posted by
Categories: document enhancement, knowledge, obstruction of justice, restitution, Uncategorized, victims

Posted By
Categories: document enhancement, knowledge, obstruction of justice, restitution, Uncategorized, victims

Continue Reading
Wednesday, October 5th, 2011

No Need to Remand Me

United States v. Elbert, No. 10-72-cr (2d Cir. September 19, 2011)(Jacobs, Cabranes, CJJ, Kravitz, DJ)

A recent anomaly in circuit practice has been its treatment of cases where the district court did not provide a written statement of reasons for the sentence that complies with 18 U.S.C. § 3553(c)(2). In cases where appellate counsel files a merits brief, counsel can waive a remand for a statement of reasons. But, where counsel files an Anders brief, under United States v. Hall, 499 F.3d 152 (2d Cir. 2007), failure to provide a statement of reasons always necessitates a remand.

Until now. This decision abrogates Hall to the “limited extent that it uniformly require remand in these circumstances.” Hall was based on the court’s understanding that the statement of reasons “assists” the BOP and the Sentencing Commission “in the collection of data.” While that is “no doubt for the good,” its effect is …

Posted by
Categories: Anders, statement of reasons, Uncategorized

Posted By
Categories: Anders, statement of reasons, Uncategorized

Continue Reading
Tuesday, October 4th, 2011

Re: Joinder

United States v. Page, No. 10-3150-cr (2d Cir. September 16, 2011) (Walker, Hall, Chin, CJJ)

Defendant was tried on five drug counts and a felon-in-possession count. In the district court, he moved to sever the gun count so that the jury considering the drug charges would not learn that he had a felony conviction. The court denied the motion and the circuit, finding no prejudice, affirmed.

Background

In 2007 and 2008, Page was selling drugs – first crack, then heroin – in Norwich, Connecticut. During this time, he became involved in an altercation outside a bar, and brandished a gun; to avoid trouble, he stashed the gun at his girlfriend’s apartment. Agents raided the apartment the next day and found the gun and some drugs.

Page ultimately faced a six-count indictment; the first five counts alleged drug offenses – although the government ultimately dropped one of these – and count …

Posted by
Categories: bifurcation, joinder, severance, Uncategorized

Posted By
Categories: bifurcation, joinder, severance, Uncategorized

Continue Reading
Sunday, September 11th, 2011

Tipper Gored

United States v. Gansman, No. 10–0731-cr (2d Cir. September 9, 2011) (Cabranes, Chin, CJJ, Keenan, DJ)

From 2005 to 2007, James Gansman, an attorney at Ernst and Young, was having an affair with one Donna Murdoch. Perhaps as part of their “pillow talk,” Gansman – the “tipper” – would pass Murdoch material, non-public information, on which Murdoch – the “tippee” – traded profitably. Gansman was ultimately prosecuted for securities fraud under the “misappropriation” theory – as described by the Supreme Court, this occurs when a defendant misappropriates confidential information for securities trading purposes, in breach of a duty owed to the source of the information.Liability can attach even if the defendant does not trade on it himself.

Gansman, whose defense was that he did not intend to commit securities fraud, sought a jury instruction under SEC Rule 10b5-2, asking the court to instruct that Gansman shared information with Murdoch as …

Posted by
Categories: misappropriation theory, securities law, Uncategorized

Posted By
Categories: misappropriation theory, securities law, Uncategorized

Continue Reading

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 …

Posted by
Categories: causation, child pornography, restitution, Uncategorized

Posted By
Categories: causation, child pornography, restitution, Uncategorized

Continue Reading