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Federal Defenders of New York Second Circuit Blog


Thursday, March 10th, 2011

Racket Club

United States v. Applins, No. 07-2193-cr (2d Cir. March 1, 2011) (Miner, Sack, Hall, CJJ)

This decision closes a hole in the Second Circuit’s RICO jurisprudence. The appellants, drug dealers who were members of something called the Elk Block gang, were convicted of RICO conspiracy under 18 U.S.C. § 1962(d) in the Northern District of New York. The trial judge gave confusing jury instructions as to whether, for RICO conspiracy, the existence of an enterprise was an element of the offense.

The defendants pursued this issue on appeal, and the circuit affirmed, holding that “the establishment of an enterprise is not an element of the RICO conspiracy offense.” In a footnote, the court brushed aside its past decisions that seemed to suggest otherwise, deeming the relevant language “dicta.”…

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Information Failure

United States v. Espinal, No. 09-4344-cr (2d Cir. March 7, 2011) (Walker, Straub, Lynch, CJJ)

Here, the district court did not properly follow 21 U.S.C. § 851(b), which sets out the procedures for using a prior felony information to increase the mandatory minimum sentence in a drug case. Because both the defendant and the government were prejudiced, the circuit remanded the case for resentencing.

Background

The government had offered to permit defendant Santo Laiz to plead guilty to a drug offense with a ten-year mandatory minimum and agreed to refrain from filing a prior felony information. But Laiz pled guilty after the deadline, by which time the government had filed the information, which alleged that Laiz had been convicted of a felony drug offense in Massachusetts under the name “Jose Luis Lai.” During Laiz’ guilty plea, the court did not ask him whether he admitted to the conviction.

In his …

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Sunday, March 6th, 2011

Face Time

United States v. Hotaling, No. 09-3935-cr (2d Cir. February 28, 2011) (Newman, Hall, CJJ, Restani, JCIT)

John Hotaling cropped the faces from non-pornographic pictures of minor females and morphed them onto the heads of nude adult women engaged in sexually explicit conduct, including one in which the woman was handcuffed, shackled and tied to a dresser. He pled guilty to violating 18 U.S.C. §§ 2252A and 2256(8)(A), which together make it a crime to possess images containing child pornography where the image “has been created, adapted or modified to appear that an identifiable minor is engaged in sexually explicit conduct.” The district court sentenced him to 78 months in prison, having included in the Guidelines calculation the enhancement for possessing an image that portrayed sadistic or masochistic conduct. On appeal, the circuit rejected Hotaling’s “as applied” challenge to the statute as well as his challenge to the sentencing enhancement.

The …

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Saturday, March 5th, 2011

PC World

As usual, sentencing issues occupy the court in its most recent pair of per curiam opinions.

In Brown v. United States, No. 09-3495-pr (2d Cir. March 1, 2011) (Winter, Livingson, Lynch, CJJ) (per curiam), an appeal of the denial of a § 2255 motion, the court rejected an argument that the Sentencing Guidelines’ treatment of prior convictions affected the application of the Armed Career Criminal Act (“ACCA”). ACCA counts predicate convictions for crimes “committed on occasions different from one another” separately, even if the offenses happened on the same day, were not separated by an intervening arrest and concurrent sentences were imposed on the convictions in a single proceeding. For ACCA, the relevant considerations are only whether the victims and locations were different, and the degree to which the offenses were separated by the passage of time.

Brown had two prior robbery convictions that, under Guidelines section 4A1.2 – which …

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Sunday, February 27th, 2011

Restoration Comedy

United States v. Pescatore, No. 10-0520-cr (2d Cir. February 23, 2011) (Kearse, Winter, Hall, CJJ)

In connection with a plea agreement that covered both a long-running chop-shop operation and an extortion scheme, Michael Pescatore agreed to accept a 132 month sentence, a $2.5 million forfeiture and “no less than $3 million” in restitution. The agreement specified that the prosecutors would recommend that the forfeited assets be transferred to the victims, a process known as “restoration,” but that the ultimate decision lay with the Department of Justice, which would “make its decision in accordance with applicable law.”

At Pescatore’s 2008 sentencing, the court imposed the agreed-upon sentence, including $3 million in restitution, to be paid in full by the end of 2009. The written Judgment reflected this order, but did not contain the names of the victims to whom Pescatore owed restitution or the amounts to which they were entitled. In …

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Rook and Role

United States v. Skys, No. 09-5204-cr (2d Cir. February 23, 2011) (Jacobs, Kearse, Straub, CJJ)

In August of 2007, Eric Skys approached Citigroup and claimed that his company, Kaiser-Himmel Corp., owned 13.4 million shares of Sprint Nextel Corp. stock, with a market value of approximately $240 million. He told Citigroup that transfer of the shares was restricted for another fourteen months, but that he wanted to raise immediate cash by pledging the shares to Citigroup in exchange for an $83 million dollar loan. Citigroup’s due diligence revealed that Skys’ claims were false and that the documents he had presented were forgeries. Skys approached three other financial institutions with the same scheme, again without success. He ultimately pled guilty to securities, wire and bank fraud.

At sentencing, his presentence report described additional, albeit uncharged, fraudulent conduct. Skys solicited investments in a fake software company and also cheated a Florida dentist out …

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Tuesday, February 22nd, 2011

PC World

United States v. Chowdhury, No. 09-3442-cr (2d Cir. February 22, 2011) (Cabranes, Chin, CJJ, Crotty, DJ) (per curiam)

The controlled substance known as BZP, when combined with another chemical, known as TFMPP, which is not a controlled substance, is frequently sold as MDMA (ecstasy) and has a somewhat similar effect on the user. However, there is no Guideline in U.S.S.G. § 2D1.1 for BZP or the BZP/TFMPP combination.

When sentencing for a drug “not specifically referenced” in the Guidelines, application note 5 to § 2D1.1 directs the use of the “most closely related” controlled substance, and gives three criteria for comparison – chemical structure, effect on the central nervous system and potency.

In this opinion, the court affirms the district court’s conclusion that BZP/TFMPP is most closely related to ecstasy.…

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Sunday, February 20th, 2011

The Youth Won’t Set You Free

United States v. Conca, No. 09-4475-cr (2d Cir. February 15, 2011) (Miner, Straub, Livingston, CJJ)

The Second Circuit has long held that a New York State youthful offender adjudication (a “y.o.”), counts as an adult conviction in the Sentencing Guidelines. In this long opinion, which covers absolutely no new ground, the court says so again.

In New York, first offenders between sixteen and nineteen years old are eligible for treatment as a youthful offender. If granted, the conviction is set aside and replaced with a y.o. adjudication, which carries more lenient penalties, is not treated as a conviction and does not trigger certain civil disabilities. However, unlike a juvenile offender, if sentenced to imprisonment, a youthful offender serves the sentence in an adult facility.

Conca received a long federal sentence for failing to register as a sex offender. Both in the district court and in the court of appeals he …

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Saturday, February 19th, 2011

PC World

United States v. Acoff, No. 10-285-cr (2d Cir. February 10, 2011, amended February 11, 2011) (Calabresi, Lynch, CJJ, Murtha, DJ)

In this case, the defendant was convicted of a crack cocaine offense that, under the old law, carried a five-year mandatory minimum. But the district court refused to impose it. He gave the defendant fifteen months, holding that the 100-to-1 penalty ratio between crack cocaine and powder “does not make any sense at all.”

The court held that the below-minimum sentence was illegal and vacated it. It also, as it has in a few other recent opinions, rejected the argument that the 2010 Fair Sentencing Act, under which the sentence would have been lawful, applied retroactively.

Of particular note in this decision, however, are the concurring opinions.

Judge Calabresi, in his, suggested a means for courts to address statutory schemes – such as the old crack cocaine penalties – that, …

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Abbott Hole

United States v. Tejada, No. 07-5289-cr (2d Cir. February 9, 2011) (Leval, Raggi, CJJ, Gleeson, CJ)

The defendant here received a 120-month drug sentence and a consecutive 60-month § 924(c) sentence. On appeal, he argued that this was illegal under the court’s decisions in Williams and Whitley. And indeed it was. However, as this decision recognizes, those cases were abrogated by the Supreme Court in Abbot v. United States, 131 S.Ct. 18 (2010).

At issue is an inscrutable phrase in § 924(c): “Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law,” a person convicted of violating § 924(c) must receive a specified mandatory minimum sentence and that sentence must be consecutive to any other term of imprisonment. Whitley held that this language meant that the § 924(c) sentence did not apply if the defendant received a higher …

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Attempting Offer

United States v. Sabir, No. 07-1968-cr (2d Cir. February 4, 2011) (Winter, Raggi, CJJ, Dearie, DJ)

Rafiq Sabir, an American doctor, was convicted of conspiring to and attempting to provide material support – in the form of his own medical services – to al Qaeda. Sabir raised a multitude of issues on appeal, including a challenge to the constitutionality of the material support statute and complaints about the racial composition of the jury, the trial court’s evidentiary rulings, and the government’s rebuttal summation.

But of particular interest are the opinion’s discussion of sufficiency of his conviction for attempt, an issue that the court does not not often consider in depth, and the diverging views of the two opinions on the issue.

The case against Sabir arose from a terrorism investigation of Sabir’s longtime friend, Tarik Shah, that began in 2001. An FBI CI “Saeed,” cultivated a relationship with Shah, in …

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