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Federal Defenders of New York Second Circuit Blog


Sunday, February 8th, 2009

Resale Wrongs

United States v. Parker, No. 07-0620-cr (2d Cir. February 3, 2009) (Feinberg, Leval, Cabranes, CJJ)

Recently, the court held that the “buyer-seller” rule did not apply where the defendant, a drug buyer who resold the drugs, clearly had a stake in the seller’s operation. See “Buyer’s Remorse,” posted October 26, 2008.

Here, the court goes over this same material again. The appellants were frequent customers of a large crack distribution operation in Utica, New York. They resold the crack, and the sellers knew it. While this alone is not enough to create conspiracy liability – “mere awareness on the part of the seller that the buyer intends to resell the drugs is not sufficient to show that the seller and buyer share a conspiratorial interest to further the buyer’s resale” – here, there was more.

Specifically, there was evidence that could lead a jury to find that the sellers shared …

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Friday, February 6th, 2009

If I Had A Hammer

United States v. Pope, No. 08-1007-cr (2d Cir. February 3, 2009) (Cabranes, Livingston, CJJ, Eaton, DJ)

Steven W. Pope pled guilty to two counts of bank burglary, in violation of 18 U.S.C. § 2113(a). During one of the burglaries, he broke a side window of a Chase branch with a sledgehammer. Based on this, at sentencing, the court enhanced his offense level by two levels for possessing a “deadly weapon.”

He unsuccessfully challenged this enhancement on appeal. The Guideline, § 2B2.1(b)(4), requires the enhancement if a “dangerous weapon … was possessed.” Here, Pope conceded that the sledgehammer was a dangerous weapon and that he possessed it, but argued that he used it only to facilitate the burglary, and did not intend for it to serve as a weapon. To the circuit, this did not matter. “The fact that he did not use the sledgehammer as a weapon is irrelevant to …

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Cashed and Burned

United States v. Varrone, No. 07-4533-cr (2d Cir. January 30, 2009) (Calabresi, Sotomayor, Parker, CJJ)

Joseph A. Castello ran a check cashing business. He cashed more than $200 million in checks that exceeded $10,000 – charging a four percent check-cashing fee – for which he was obligated to file currency transaction reports (CTR’s). He did not, however, and was convicted by a jury of violating 31 U.S.C. §§ 5313 and 5322(a). On appeal, he challenged a restitution order, and claimed that the forfeiture order violated the Excessive Fines Clause of the Eighth Amendment. The circuit vacated.

The Restitution Order

The restitution order involved a fraud victim, who was induced to send a $300,00 check to a bogus financial firm. This had nothing at all to do with Castello, except that the firm cashed the check at his establishment. When the victim contacted Castello, he falsely represented that he was an …

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Structural Failure

Gibbons v. Savage, No. 07-3306-pr (2d Cir. January 28, 2009)(McLaughlin, Leval, Pooler, CJJ).

At Robert Gibbons’ state court trial, the judge closed the courtroom during jury selection, expelling the only spectator, Gibbons’ mother. After exhausting his state court appeals, Gibbons filed a 2254 petition, which the district court dismissed. The circuit affirmed. In doing so, however, it created a new doctrine – the “trivial structural error.”

The circuit agreed that the state judge deprived Gibbons of his Sixth Amendment right to a public trial, because there was indeed a “closure” of the courtroom – the public was “categorically excluded,” and the courtroom was closed to “all spectators” during jury selection

The court also agreed that the Waller v. Georgia, 467 U.S. 39 (1984) test was satisfied. First, there was no “overriding interest” for the closure. Even though the courtroom was small, space could still have been found for a single …

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Child-Like

United States v. Irving, No. 07-1312-cr (2d Cir. January 28, 2009)(Kearse, Sack, Raggi, CJJ)

Stefan Irving is a former physician who was convicted, after a jury trial, of child pornography offenses, and several other counts relating to his travel to Mexico and Honduras to engage in sexual acts with children. The district court sentenced him to 262 months’ imprisonment, the top of the Guideline range. A 2005 Second Circuit decision disposed of his trial-related claims. This opinion, which arose in the context of the district court’s decision to adhere to the original sentence after a Crosby remand, disposes of his sentencing claims.

Irving’s Guidelines claims are not particularly interesting. First, he unsuccessfully challenged the district court’s choice of Chapter 2 offense conduct guidelines, but the court’s choices were clearly correct under the relevant instructions in the Guidelines manual.

He also challenged the “vulnerable victim” enhancement, claiming that his victims’ vulnerability …

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Building Block

United States v. Hurell, No. 06-5653-cr (2d Cir. January 28, 2009) (Kearse, Calabresi, Sack, CJJ) (per curiam)

In each of these three consolidated cases, all government appeals, the district court held that New York convictions for burglary in the third degree or attempted burglary in the third degree were not crimes of violence as defined in the career offender provisions of the Sentencing Guidelines. Based on an intervening decision, United States v. Brown, 514 F.3d 256 (2d Cir. 2008), the court reversed.

More importantly, however, the court noted that there is a circuit split on whether burglary of a building, as opposed to a dwelling, constitutes a crime of violence under the relevant sections. The court not weigh in on the issue here, but rather called upon the Sentencing Commission resolve it, noting that the issue is of “particular significance” in the quest to avoid unwarranted sentencing disparities.…

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Sunday, January 25th, 2009

Summary Summary

Three more quickies:

In United States v. Espinal, No. 07-3128-cr (2d Cir. January 21, 2009), there was an inconsistency between the district court’s oral statement of the guideline range and the range contained in the written judgment. The court remanded the case for the “ministerial purpose” of amending the judgment to reflect the actual Guideline range that the court used.

In Watson v. United States, No. 07-0354-pr (2d Cir. January 21, 2009), the district court summarily dismissed a 2255 motion that claimed ineffectiveness of counsel. The circuit found both that there was an insufficient fatual record for summary dismissal and that the defendant had sufficiently alleged prejudice. It remanded the case for further proceedings.

United States v. Sergentakis, No. 07-0809-cr (2d Cir. Januayr 21, 2009), has an interesting discussion of loss calculation methodology in commercial bribery cases.…

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Crack a Smile

United States v. McGee, No. 08-1619-cr (2d Cir. January 23, 2009) (Pooler, Raggi, Livingson, CJJ) (per curiam)

Darius McGee, convicted of a crack cocaine offense, was a career offender. At his sentencing, however, the district court downwardly departed. It disregarded the career offender guideline range, and sentenced him under the offense level that would otherwise have applied. Subsequently, he moved for a sentence reduction under 18 U.S.C. § 3582(c), seeking the benefit of the retroactive two-point offense level reduction for crack cocaine offenses. Because he had originally been a career offender, however, the district court denied the motion.

Calling the issue a “very close one,” the appellate court disagreed, and remanded the case for reconsideration of the 3582(c) motion. The court noted that McGee’s sentence was indeed “based on” a range that was subsequently lowered by the Sentencing Commission “because the district court premised McGee’s ultimate sentence on the crack …

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Hart’s Desire

United States v. Draper, No. 07-2301-cr (2d Cir. January 20, 2009)(Newman, Calabresi, Sotomayor, CJJ)

Defendants Hart and Draper were members of LRP, a drug gang that operated in Brooklyn. In July of 2001, LRP members robbed and murdered a rival. One of the LRP members involved in the killing, Clinton Davy, was picked up and questioned by New York City police officers. Over the next several months, Davy implicated another LRP member, Cory Marcano, ultimately giving information that led to Marcano’s arrest. After Marcano’s arrest, Davy was assaulted on three separate occasions for being a “snitch.”

Relevant to this appeal is the third such beating, which occurred on August 8, 2003. Hart, Draper and other LRP members entered Davy’s apartment and beat him with “a clothing iron, electrical cords, and bleach.” They discussed shooting him too, but the police arrived before they had the chance. Two days later, on April …

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Ship of Fuels

United States v. Ionia Management S.A., No. 07-5801-cr (2d Cir. January 20, 2009) (McLaughlin, Calabresi, Livingston, CJJ)(per curiam)

In the 1970’s, the United States entered into two international treaties, collectively known as MARPOL, intended to eliminate marine pollution by oil. To give effect to MARPOL, Congress enacted the Act to Prevent Pollution on Ships, 33 U.S.C. § 1908(a) (“APPS”), which authorizes the Coast Guard to issue any regulations necessary to carry out the treaty’s provisions. Under APPS, ships are prohibited from discharging oily waste at sea unless the discharged material is properly filtered. In addition, under C.F.R. § 151.25(a), oil tankers of 150 gross tons and above “shall maintain” an oil record book (“ORB”) to record all transfers and disposals of oily waste generated on the vessel.

This case concerns the M/T Kriton, a 600-foot oil tanker managed by the defendant corporation, which delivered petroleum products along the east cost …

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Monday, January 19th, 2009

Habeas Corpulent

Dolphy v Mantello, No. 03-2738-pr (2d Cir. January 9, 2009) (Jacobs, Hall, CJJ, Arcara, DJ)

At Seth Dolphy’s state-court criminal trial, the prosecutor exercised a peremptory challenge against the only African-American member of the jury panel, and Dolphy raised a Batson challenge. The prosecutor’s supposedly race-neutral explanation for striking the juror was that she was overweight: “[B]ased on my reading and past experience, … heavy-set people tend to be very sympathetic toward any defendant.” When the judge asked him if he was “saying that race had nothing to do with it,” the prosecutor agreed. The defense again objected, noting that the same prosecutor had allowed overweight people on juries in other cases. The judge sustained the strike, holding that “I’m satisfied that is a race neutral explanation, so the strike stands.”

Once his conviction was affirmed in the New York State courts, Dolphy filed a pro se § 2254 petition …

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