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Federal Defenders of New York Second Circuit Blog


Sunday, October 5th, 2008

Summary Summary

Submitted for your approval – another set of notable summary orders.

In United States v. Davidson, No. 06-4729-cr (2d Cir. October 3, 2008), the court ducked an interesting issue. Davidson was convicted of a drug offense and a related § 924(c) offense and the district judge fined him $300 on each count. However, 18 U.S.C. § 924(c) authorizes only imprisonment, the section oes not mention a fine. The circuit noted that the 924(c) fine was thus “arguably invalid.” But “rather than explore and adjudicate the issue,” it simply struck the fine on that count.

In United States v. Lutz, No. 07-5188-cr (2d Cir. October 3, 2008), the court held that the defendant was not entitled to a Regalado remand where the district judge clearly indicated that “Kimbrough” would not “make any difference to me at this point … I don’t think it would have an impact at all.”

United States …

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Sunday, September 28th, 2008

Good Faith Efforts

United States v. Falso, No. 06-2721-cr (2d Cir. September 24, 2008) (Jacobs, Sotomayor, Livingston, CJJ)

This opinion, a three-way split, adds another confusing piece to the circuit’s oeuvre in reviewing search warrants in child pornography cases. Judges Sotomayor and Jacobs held that the warrant lacked probable cause; Judge Livingston held that it did not. Judges Sotomayor and Livingston held that the agents relied on the warrant in good faith; Judge Jacobs held that the good faith exception should not apply. In the end, Falso’s conviction and thirty-year sentence were affirmed.

Background

All of the evidence against Falso was recovered from a search of his home and a consensual interview that took place there. This led to a 242-count indictment that covered travel with the intent to engage in sexual contact with minors, production of child pornography, receiving child pornography via the internet, and transporting and possessing child pornography – 242 …

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Categories: good faith, probable cause, Uncategorized

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Support Hose

United States v. Kerley, No. 08-1818-cr (2d Cir. September 25, 2008) (Jacobs, Pooler, CJJ, Restani, JCIT)

Clifford Kerley was convicted, after a jury trial, of two counts of willfully evading a child support obligation – one for each of his twin daughters – in violation of 18 U.S.C. § 228(a)(3). On appeal, he successfully argued that the indictment against him was multiplicitous, because it charged him in two counts, even though he had been subject to a single support order. He also prevailed on his argument that the “vulnerable victim” enhancement should not apply.

1. Multiplicity

An indictment is multiplicitous when it charges a single offense as an offense multiple times, in separate counts, when in law and fact, only one crime has been committed. Kerley’s argument that he only committed a single violation of § 228(a)(3) turned on whether the “unit of prosecution” for that offense is the support …

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Categories: multiplicity, Uncategorized, vulnerable victim

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Mea Exculpa

United States v. Spadoni, No. 06-4970-cr (2d Cir. September 25, 2008) (Pooler, Hall, CJJ, Gleeson, DJ)

Here, the defendant successfully argued that the government’s suppression of exculpatory and impeachment material warranted a new trial.

Background

Spadoni was the general counsel for an investment firm, Triumph, that did business with the State of Connecticut. He was a friend of Paul Silvester, who was, for a time, Connecticut State Treasurer. One of Silvester’s duties was to make investment decisions for state pension funds.

In 1998, Silvester asked Spadoni for a campaign donation. By law it could not go to his own campaign, so instead Spadoni donated $100,000 to the state Republican Party. Silvester lost the election, but before he left office decided to invest $150 million in state pension funds with Triumph.

In connection with this investment, Silvester asked Spadoni to pay a one percent finders fee to two of his associates, …

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Benched

United States v. Carmenate, No. 07-2421 (2d Cir. September 24, 2008) (Cabranes, Pooler, Katzmann, CJJ) (per curiam)

Carmenate was charged with bank fraud. His counsel, fearing the consequences of having the jury hear from a witness that he believed was biased, asked for a bench trial. The government agreed, and, at the court’s request, counsel submitted a written jury waiver that bore counsel’s signature, but not the defendant’s. The judge allocuted the defendant extensively, then accepted the waiver. He convicted Carmenate and sentenced him to forty-one months’ imprisonment.

On appeal, the circuit held that the jury waiver was adequate, even if the procedure was less than perfect. Carmenate was present when his counsel asked for a bench trial and when the court asked for a written waiver. He was also present when the judge reviewed the written request and was sufficiently allocuted. While it is true that the judge did …

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Jailhouse Rock

United States v. Cote, No. 07-1852 (2d. Cir. September 24, 2008) (Pooler, Sotomayor, CJJ, Restani, JCIT)

Paul Cote was a prison guard at the Westchester County jail. On October 10, 2000, during an altercation, Cote repeatedly punched and stomped on an inmate’s head while the inmate lay on the floor. The inmate never regained consciousness and died about fourteen months later, in December of 2001.

Background

Cote was originally tried in state court, before the inmate died; he was acquitted of first-degree assault, and convicted of a lesser offense, second-degree assault. Hewas sentenced to three months’ imprisonment.

Subsequently, Cote’s counsel learned of a federal civil rights investigation into the incident. The feds moved quite slowly and, nearly five years after the event, notified counsel that an indictment was forthcoming. Counsel wanted time to persuade the government not to pursue the case; on counsel’s advice, Cote executed an agreement tolling the …

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Conditional Love

United States v. MacMillen, No. 07-3377-cr (2d Cir. September 23, 2008) (Hall, Livinston, CJJ, McMahon, DJ)

MacMillen pled guilty to possessing child pornography, and the court sentenced him to seventy-eight months’ imprisonment and supervised release for life. On appeal, he complained about two of the conditions of his supervised release: a prohibition on his being anywhere “where children are likely to congregate,” and his probation officer’s ability to address “third-party risk issues” with MacMillen’s employers.

The circuit found no abuse of discretion. The court found the first condition was not overbroad, because it was expressly limited only to places where children are likely to congregate; there is simply nothing in the condition that indicates that MacMillen is forbidden from entering areas where children are unlikely to be. Nor is the condition improperly vague; it gives adequate notice of what conduct is prohibited.

MacMillen next complained that the third-party risk condition …

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Commitment Issues

United States v. Magassouba, No. 06-2628-cr (2d Cir. September 19, 2008) (Parker, Raggi, Wesley, CJJ)

Defendant Magassouba has been in custody since at least August of 2003, when he was ordered detained on heroin trafficking charge that carried a ten-year mandatory minimum sentence. Between approximately January of 2004 and May of 2005 he was subject to various competency evaluations, all of which concluded that he was not competent to stand trial, but that he could be restored to competency through appropriate medication. Since Magassouba refused to take any medication, his evaluators recommended that he be medicated involuntarily.

Although the competency evaluations themselves ended in May of 2005, the district court’s final order in the matter, and subject of this appeal, was not entered until May of 2006. In that order, the court directed that Magassouba be re-hospitalized for continued treatment, and that he be forcibly mediated.

Magassouba raised a host …

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Saturday, September 27th, 2008

Krazy Khat

United States v. Hassan, No. 05-6949-cr (2d Cir. September 19, 2008) (Calabresi, Pooler, Sotomayor, CJJ)

Defendant Hassan was convicted of three conspiracy counts – (1) importation of a controlled substance (2) distribution of a controlled substance, and (3) money laundering – along with forty-one substantive money laundering counts, in connection with his importation of khat into the United States. On appeal, the circuit reversed the substantive money laundering counts due to insufficient evidence, and remanded the remaining counts for a new trial because of a seriously flawed jury instruction.

Background

Khat is the common name for the leaf of a plant that grows in East Africa and the Arabian Peninsula. When ingested, it produces a mild stimulant effect. Khat is subject to a unique and truly bizarre regulatory scheme. While khat itself is not a controlled substance, the stimulants sometimes present in the leaves are. When first harvested, khat often …

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Savage Love

United States v. Savage, No. 06-4097-cr (2d Cir. September 18, 2008) (Pooler, Livingston, CJJ, Kaplan, DJ)

Lavon Savage pled guilty to possessing a gun. At issue was whether his offense level should be enhanced for a prior “controlled substance offense,” based on his conviction under Connecticut General Statute § 21a-277(b), which makes it a crime to, inter alia, sell a controlled substance. Connecticut defines the “sale” of a controlled substance as “any form of delivery, which includes barer, exchange or gift, or offer therefore.” This definition is broader than the guideline definition of “controlled substance offense,” which does not include offenses involving the mere offer of a controlled substance.

The circuit concluded that Savage should not have received the enhancement. It agreed that the Connecticut statute criminalizes conduct – an offer to furnish drugs – that falls outside the guideline definition of “controlled substance offense.” Moreover, under the limitations of …

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Enterprise Rent-A-Cop

United States v. Eppolito, No. 06-3280-cr (2d Cir. September 17, 2008) (Kearse, Sack, Hall, CJJ)

Louis Eppolito and Stephen Caracappa were NYPD detectives who, for many years, also worked for the Lucchese organized crime family – and occasionally other Mafia families – on the side. They were were convicted of RICO conspiracy and other offenses after a jury trial. Judge Weinstein granted the defendants’ post-verdict Rule 29 motion on the RICO conspiracy, finding that the prosecution was time-barred by the applicable statute of limitations. He also granted a conditional new trial on the remaining counts, in the event the dismissal of the RICO conspiracy was not overturned on appeal.

On the government’s appeal, the circuit reversed and remanded the case for sentencing.

Background

The trial evidence revealed that, in the early 1980’s, while working for the NYPD, the defendants gave law enforcement information and other assistance to the Lucchese family. …

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