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 … Read more
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 … Read more
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 … Read more
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 … Read more
United States v. Castello, No. 09-2784-cr (2d Cir. July 7, 2010) (Jacobs, Winter, McLaughlin, CJJ) Joseph Castello was convicted of failing to file CTRs in connection with his check cashing business. When last we heard from him, see Cashed and Burned, posted 2/6/2009, the circuit vacated a 12 million dollar-plus forfeiture order and remanded for … Read more
United States v. Woltmann, No. 10-413 (2d Cir. July 6, 2010) (Jacobs, Winter, Walker, CJJ) Once again, Judge Platt’s unconventional way of doing business has resulted in a sentencing remand to a different judge. Here, the issue was his treating the guideline range in a plea agreement as binding, while ignoring a 5K1.1 letter and … Read more
United States v. Kaiser, No. 07-2365-cr (2d Cir. July 1, 2010) (Jacobs, Calabresi, Pooler, CJJ) Mark Kaiser was convicted after a jury trial of securities fraud-related offenses in connection with an accounting fraud scheme at USF, a large food product distributor. The circuit, finding error in the conscious avoidance instruction and in an evidentiary ruling, … Read more
United States v. Wilson, No. 07-1320-cr (2d Cir. June 30, 2010) (Jacobs, Miner, Livingston, CJJ) An Eastern District jury convicted Ronell Wilson of capital crimes for the murder of two NYPD detectives during a botched undercover gun buy; it also unanimously voted to sentence him to death. On appeal, a divided panel vacated the death … Read more
United States v. Ramirez, No. 07-2912-cr (Calabresi, Cabranes, Parker, CJJ) (2d Cir. June 29, 2010) In this case, the circuit found that the district court erred in applying the “impeachment by contradiction” doctrine. But since the error was harmless, it affirmed. Background At his drug conspiracy trial, defendant Jose Luis Rodriguez testified that he was … Read more
United States v. Malki, No. 08-4417-cr (2d Cir. June 29, 2010) (Newman, Raggi, Hall, CJJ) In this rare choice-of-guideline appeal, the circuit vacated the sentence and remanded for resentencing under a different guideline. Background Defendant Malki entered the United States illegally in 1978. He eventually obtained political asylum, permanent residence status and United States citizenship, … Read more