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Federal Defenders of New York Second Circuit Blog


Saturday, April 2nd, 2011

Pill Pains

United States v. Quinones, No. 09-4361-cr (2d Cir. March 29, 2011) (Walker, Straub, Katzmann, CJJ)

Antonio Quinones and his son, Herman, were convicted of conspiring to distribute controlled substances. Antonio was also convicted of a money laundering conspiracy. In this opinion, the Court tries to make sense of a confusing Supreme Court money laundering case and displays a rare difference of opinion over a conscious avoidance jury instruction.

Background

Antonio Quinones entered the internet pharmacy business in 2002 and, for several years, ran websites where customers could purchase prescription drugs with virtually no medical oversight. The purchaser would select the drug he wanted and fill out a brief medical questionnaire. This was then submitted to a doctor who reviewed it and approved the order. The doctors were paid per questionnaire reviewed, and often reviewed more than one hundred per day. Once approved, the prescription was transmitted to an actual pharmacy …

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Sunday, March 27th, 2011

Summary Summary

Here are three more summary orders of interest.

United States v. Hernandez, No. 09-4930-cr (2d Cir. March 25, 2011), points out an interesting Guidelines question. Under § 3B1.1, the government bears the burden of proving that the defendant played an aggravating role. And one of the requirements for safety valve consideration is that the defendant not receive an aggravating role enhancement. But the circuit has held that the defendant bears the burden of proving that he qualifies for the safety valve. These conflicting principles have created “uncertainty about where the burden lies with respect to” this aspect of safety valve relief. This opinion, unfortunately, only points out the question but does not answer it.
In United States v. Nelson, No. 09-3308-cr (2d Cir. March 23, 2011), the court considered whether an appeal waiver was knowing and voluntary. The waiver precluded an appeal of any sentence of 137 months’ imprisonment or
…
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Sunday, March 20th, 2011

Get the Point?

United States v. Potes-Castillo, No. 07-5518-cr (2d Cir. March 15, 2011) (Straub, Hall, CJJ, Underhill, DJ)

The defendant here received a 188-month sentence after a jury convicted him of a drug conspiracy. At sentencing, it emerged that he had but one prior conviction: a 2004 New York State conviction for driving with ability impaired by alcohol (“DWAI”) in violation of New York Vehicle and Traffic Law § 1192(1). He was sentenced to a one-year conditional discharge and a fine.

Although he argued at sentencing that the conviction should not count in his criminal history score, the district court disagreed. It assessed him one point for the conviction and two additional points for committing the instant offense while under the conditional discharge. This placed him in Category II and rendered him ineligible for safety valve treatment.

On appeal, the circuit reversed.

Guideline Section 4A1.2(c) contains two lists of misdemeanor and petty …

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Down for the Count

United States v. Desnoyers, No. 10-0447-cr (2d Cir. March 14, 2011) (Jacobs, Wesley, Chin, CJJ)

Mark Desnoyers was convicted of, inter alia, one count of conspiring to both violate the Clean Air Act (“CAA”) and to commit mail fraud, in connection with his asbestos abatement work. The district court, finding both factual and legal problems with the conviction on that count, entered a post-verdict judgment of acquittal. On the government’s appeal, the circuit reversed and reinstated the conviction.

The conviction on the conspiracy count related to asbestos abatement work in eight buildings. But, after trial, the government conceded that seven of the buildings were not subject to the CAA’s asbestos removal regulations. As for the eighth, the evidence was equivocal. The issue – whether that building contained enough asbestos to qualify – was not proven directly at trial because no witness actually took measurements there. Rather, the only evidence was …

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Thoroughly Unappealing

United States v. Buissereth, No. 09-5358-cr (2d Cir. March 15, 2011) (Cabranes, Chin, CJJ, Crotty, DJ)

This decision found great fault with a sentencing that “left much to be desired.” The district court “failed to (1) rule on the numerous filed objections to the PSR; (2) rule on the requests for downward departures and a variance; (3) adopt the findings of the PSR; (4) mention, much less articulate its consideration of, the relevant factors set forth in 18 U.S.C. § 3553(a); or (5) calculate an applicable sentencing range under the Sentencing Guidelines.”

Nevertheless, the sentence was within the range specified in the plea agreement’s waiver clause, and the waiver was otherwise valid. The court accordingly dismissed the appeal. But it did note that,= the waiver did not “relieve the District Court of its responsibility to follow the procedural requirements related to the imposition of sentence,” even if it “preclude[d] this …

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Nothing Special

Morales v. United States, No. 04-0585-pr (2d Cir. March 11, 2011) (Pooler, Hall, Livingston, CJJ)

Although decisions in habeas cases are generally beyond the scope of this blog, this one contains an discussion of an interesting sentencing issue relating to convictions on multi-object conspiracies where there is no special verdict.

Morales was a “Director of Security” for the Latin Kings street gang. In 1995, he was convicted of multiple RICO and VICAR counts as well as two drug counts: a conspiracy to possess with intent to distribute marijuana, heroin, cocaine and cocaine base, and a substantive count of possessing with the intent to distribute 50 grams or more of crack cocaine. He received six life sentences, one of which was on the drug conspiracy count. Although it was a multiple-object conspiracy count, the jury did not return a special verdict as to which drugs Morales conspired to possess, and the …

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Meet The Press

United States v. Treacy, No. 09-3939-cr (2d Cir. March 9, 2011) (McLaughlin, Hall, CJJ, Restani, JCIT)

James J. Treacy, former COO and President of the parent company of Monster.com, was convicted of securities fraud and related offenses based on a scheme in which he backdated stock options. On appeal, the circuit held that the district court violated Treacy’s confrontation rights by restricting his cross-examination of a Wall Street Journal reporter who had written an article about the backdating of options at Monster that seemingly contained false exculpatory statements made by Treacy, but that the error was harmless. The court also found that the district court improperly calculated the forfeiture amount with respect to one of the options grants.

The Confrontation Issue

At trial, the government introduced into evidence a WSJ article that opined that the odds were one in nine million that a pattern of options grants as favorable or …

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Friday, March 11th, 2011

A Good-Faith-Based Decision

United States v. Clark, No. 09-3462-cr (2d Cir. March 8, 2011) (Sack, Raggi, Lynch, CJJ)

In the district court, defendant Clark moved to suppress physical evidence and statements obtained after execution of a search warrant, and the district court granted the motion. On this, the government’s appeal, the circuit agreed that the warrant was defective – it did not establish probable cause – but that, contrary to the district court’s conclusion, the good faith exception applied. The court accordingly reversed and remanded.

Background

Local police officers in Niagara Falls, New York, obtained a warrant from a city court judge to search Clark and “1015 Fairfield Ave, being a multi family dwelling” for drugs and drug dealing paraphernalia. The supporting affidavit disclosed that an informant of “unknown reliability” told them that Clark was selling cocaine there, and that Clark had “full control” over the location. The affidavit also described two controlled …

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Dead Again

United States v. Qurashi, No. 10-348-cr (2d Cir. March 8, 2011) (Newman, Walker, Pooler, CJJ)

Imran Quarashi and his brother, Adnan, purchased $3 million insurance policies on Adnan’s life from two different insurance companies. They then faked Adnan’s death, falsely asserting that he had died in a car accident in Pakistan, and the insurers paid Quarashi on the policies. A few years later, Adnan returned to the United States and assumed a new identity, Hassan Khan, and Quarashi purchased eight $10 million insurance policies on Khan’s life. When he claimed that Khan had been killed in a traffic accident in Pakistan, the insurance companies balked, opened an investigation, and Quarashi was ultimately charged with fraud.

Quarashi pled guilty – Adnan is still a fugitive – and was sentenced to 108 months’ imprisonment. On appeal he challenged the district court’s inclusion of prejudgment interest on the restitution order. Noting that this …

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Thursday, March 10th, 2011

Summary Summary

It’s been a while since the court issued an interesting summary order. But here are three that caught my eye.

In United States v. Gjuraj, No. 09-1736-cr (2d Cir. March 11, 2011), the court remanded for clarification where it was not clear that the district court understood its authority to impose the federal sentence concurrently to an undischarged term of imprisonment, where the undischarged state sentence had yet to begin.

In United States v. Alkhabbaz, No. 09-5271-cr (2d Cir. March 10, 2011), the defendant’s original sentence included a reduction for acceptance of responsibility, and the government did not appeal. The defendant was resentenced after a remand, and this time the court denied him the adjustment because, in the interim, he had jumped bail. On appeal, the court held that under the cross-appeal rule – under which “an appellate court may not alter a judgment to benefit a nonappealing party,” and …

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Peter Paul and Money

United States v. Paul, No. 09-3191-cr (2d Cir. March 7, 2011) (Cabranes, Chin, CJJ, Crotty, DJ)

Defendant Peter Paul pled guilty to securities fraud, in connection with a stock manipulation scheme that permitted him to fraudulently obtain multi-million dollar margin loans, which he never repaid, from two brokerage houses. The district court sentenced Paul principally to 120 months’ imprisonment and more than $11.4 in restitution.

He raised three main claims on appeal, all without success.

At a pretrial conference, the district judge remarked that he had a reputation for giving a Guideline sentence after trial but for being lenient with defendants who pled guilty. The judge also remarked that the twenty-five months Paul spent fighting extradition in Brazil – he apparently fled there as his scheme was unraveling – would not be credited if he did not plead guilty. On appeal, Paul claimed that these remarks violated Fed.R.Cr.P. 11(c)(1), which …

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