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Federal Defenders of New York Second Circuit Blog


Saturday, August 14th, 2010

We Can Recall

United States v. Rojas, No. 09-3007-cr (2d Cir. August 12, 2010) (Jacobs, Wesley, Chin, CJJ)

Nicholas Rojas was convicted of participating in crack conspiracy. On the written verdict form, the jury found that he was involved with five grams or more of a mixture or substance containing “cocaine base.” However, when the courtroom deputy polled the jury, he misread the verdict form, describing the drug as “cocaine,” not “cocaine base.”

The error was discovered only after the poll was completed and the jury had been “discharged” and returned to the deliberation room to “await the thanks of the court for its service.” Although the defense did not consent to having the jury returned to the courtroom to be re-polled, the judge nevertheless recalled the jury. He explained to the recalled jurors what had happened, had the deputy the verdict again, re-polled them, and discharged them again.

On Rojas’ appeal, the …

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A Bad Call

United States v. Gomez, No. 08-3829-cr (2d Cir. August 4, 2010) (Leval, Pooler, Parker, CJJ)

Here, the improper admission of indirect hearsay resulted in a new trial.

Background

Fred Rivas and a confederate sold 5,000 Ecstacy pills to a confidential informant. They were arrested, and Rivas agreed to cooperate. A New York City detective, Michael Ryan, was permitted to testify about the nature of Rivas’ cooperation; specifically, Ryan testified that he asked Rivas to “call the person who had given him that 5,000 pills,” and that Ryan then dialed Gomez’ number from Rivas’ phone and recorded their conversation. The district court denied Gomez’ hearsay objection to this testimony, and the government ended up using it in summation to directly implicate Gomez as the supplier.

The Circuit’s Decision

The court found that Ryan’s testimony constituted prejudicial hearsay, and rejected with unusually strong language the government’s claim that it admitted the testimony …

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Friday, August 13th, 2010

PC World

United States v. Shyne, No. 08-0865-cr (2d Cir. August 5, 2010) (Kearse, Sack, Hall, CJJ) (per curiam)

An unusual discovery issue is the theme of this per curiam opinion.

Three defendants went to trial on bank fraud and money laundering charges. Before trial, the government provided notice that it would offer statements of five other individuals as co-conspirators’ declarations under Fed.R.Evid.801(d)(2)(E), although it was not planning to call them as witnesses. The government also provided Giglio material as to these declarants. In response, the defendants demanded the declarants’ 3500 material – specifically their proffer notes – even though they would not be testifying at trial. The district court denied the application and, here, the circuit affirmed.

The Jencks Act, 18 U.S.C. § 3500, by its very terms applies only to a “witness” who has “testified on direct examination,” and is not “trumped” by Fed.R.Evid 806, which provides that the credibility …

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Coach Bagged

United States v. Broxmeyer, No. 09-1457-cr (2d Cir. August 3, 2010) (Jacobs, Miner, Wesley, CJJ)

Todd Broxmeyer, was a field hockey coach for teenage girls in upstate New York and elsewhere. For many years he engaged in sexual relationships with some of them , relationships that sometimes also involved the exchange of photographs. Eventually the axe fell, and he was tried and convicted of five count s- four relating to child pornography and one of aiding and abetting the transportation of a minor across state lines with the intent to engage in sexual activity. On appeal, he successfully challenged the legal sufficiency of the evidence as to three of the counts of conviction. The court reversed those counts and remanded the case for resentencing on the other two.

A. Production of Child Pornography

In 2007, Broxmeyer began a sexual relationship with A.W., who was then seventeen years old. The relationship …

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Court Reads the Riot Act

United States v. Johnson, No. 08-5245-cr (2d Cir. August 2, 2010) (Cabranes, Parker, CJJ, Amon, DJ)

In this split decision, the majority held that a conviction for the Connecticut offense of “Rioting at a Correctional Institution” is a “violent felony” under the “otherwise involves” clause of the Armed Career Criminal Act (“ACCA”).

In getting there, the majority looked beyond the statute’s title – which “suggests an obvious answer ” – to examine the conduct that the statute actually proscribes. The Connecticut statute provides that a person is “guilty of rioting at a correctional institution when he incites, instigates, organizes, connives at, causes, aides, abets, assists or takes part in any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of such institution.” Connecticut courts have “clarified” the meaning of the statute, holding that it is “specifically directed” at those who lead or plan prison disturbances and …

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Thursday, July 29th, 2010

Our Blips Aren’t Sealed

United States v. Amanuel, No. 06-1103-cr (2d Cir. July 29, 2010) (Cabranes, Katzmann, Hall, CJJ)

After a nearly eight-year journey through both the state and federal courts without being tried, the defendants here will finally have to face the music. In this decision, the circuit vacated most of the district court’s order suppressing the evidence against them.

The State Court Proceedings

In 2002, New York state police officers obtained a warrant to intercept a digital pager used by the defendants, who were suspected of drug trafficking. The officers were supposed to record the intercepted communications electronically, but did not do so. Instead, they visually monitored a clone pager and entered the intercepted information in a handwritten log. When the warrant expired, they gave 84 pages of this material to a state judge for sealing. Based on the contents of the logs, state prosecutors then obtained a warrant to monitor and …

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Cops Out

United States v. Caracappa, No. 09-1177-cr (2d Cir. July 23, 2010) (Kearse, Sack, Wesley, CJJ)

When last we heard from Stephen Caracappa and Louis Eppolito, two corrupt NYPD detectives who also did hits for the mob, the circuit had vacated a district court order tossing their RICO conspiracy conviction and granting them a new trial on the remaining counts. See Enterprise Rent-A-Cop, posted September 27, 2008. On remand, the district court sentenced Caracappa to life plus 80 and Eppolito to life plus 100. This opinion disposes of the defendants’ appeal. The circuit affirmed.

The opinion treads little new ground, with the exception of one interesting evidentiary issue. An important cooperating witness was Burton Kaplan, who in his day had been a trusted member of the Lucchese Family and the main intermediary between Caracappa/Eppolito and Anthony Cassso, the Lucchese underboss. During his trial testimony Kaplan explained that he would relay law …

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Wednesday, July 28th, 2010

PC World

United States v. DeSilva, No. 09-2988-cr (2d Cir. July 28, 2010) (per curiam)

In this child pornography case, the sentencing court made a clearly erroneous finding of fact in the defendant’s favor. On the government’s appeal, the circuit vacated and remanded.

DeSilva was charged only child pornography offenses, but in the course of the investigation admitted to law enforcement officers that he had sexually abused a friend’s child for more than two years. As part of his bail application, which was unsuccessful, he submitted a psychologist’s report that indicated that if DeSilva were released to his parents and tightly supervised there was little chance that he would abuse another child.

DeSilva ultimately pled guilty to distributing child pornography. His sentencing range was 235 to 240 months’ imprisonment, and he faced a 60-month mandatory minimum. The district court imposed a below-Guideline sentence of 132 months, citing several factors, including the psychologist’s …

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Land of Enhancement

United States v. Tutty, No. 09-2705-cr (2d Cir. July 16, 2010) (Calabresi, Pooler, Chin, CJJ)

In United States v. Dorvee, 604 F.3d 84 (2d Cir. 2010), the court held that the child pornography Guidelines are entitled to less deference because they are not the product of an “empirical approach,” and because they “provide for a series of enhancements that apply in virtually every case,” resulting in enormous sentences “even in run-of-the-mill cases.” See Deconstruction Project, posted May 23, 2010. Here, following on the heels of Dorvee, the court found procedural error in the district court’s refusal to consider a broad-based policy challenge to those Guidelines.

Background

Defendant Jason E. Tutty pled guilty to possessing digital images of child pornography that he had received and distributed over the Internet using a file sharing program. He had no criminal history and no know history of sexual contact with a child. At sentencing, …

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Sunday, July 25th, 2010

PC World

In the current crop of per curiams the court follows the Supreme Court’s lead on two sentencing issues.

United States v. Pickett, No. 09-0683-cr (2d Cir. July 20, 2010) (Winter, Cabranes, Wesley, CJJ) (per curiam), follows Dolan v. United States, 2010 Wl 2346548 (June 14, 2010). Pickett was sentenced to 168 months’ imprisonment after a fraud trial. The court did not impose restitution immediately, holding it open for a more complete accounting of the victims’ losses. It entered a restitution order ninety-eight days later. Under Dolan, a sentencing court that misses the ninety-day statutory deadline for imposing restitution can still do so where it “made clear prior to the deadline’s expiration that it would,” leaving open “only the amount.” Since that is what happened here, the restitution order was proper.

United States v. Mock, No. 09-4154-cr (2d Cir. July 19, 2010) (Wesley, Hall, CJJ, Goldberg, JCIT) (per curiam) applied Dillon …

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Summary Summary

It’s been a while, but here is the latest set of summary orders of interest.

In United States v. Romeo, No. 09-3106-cr (2d Cir. July 19, 2010), the court found plain error in the sentencing court’s fact-finding as to the number of victims, and ordered a Jacobson remand.

In United States v. Timewell, No. 09-2777-cr (2d Cir. July 15, 2010), the court found error in a post-Crosby remand sentence. The district court ruled in the case before the mandate issued, thus it lacked jurisdiction. It also erred in ruling before giving the parties an opportunity to be heard, and misapprehended the terms of the mandate.

In United Sates v. Most, No. 09-6292-cr (2d Cir. June 8, 2010), the court upheld the imposition of the statutory maximum sentence for a supervised release violation. The district court’s reasons – the defendant’s criminal history, repeated violations of supervision and the fact that he …

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