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Federal Defenders of New York Second Circuit Blog


Friday, November 14th, 2008

Confrontation Claws

Brinson v. Walker, No. 06-0618-cr (2d Cir. November 13, 2008) (Kearse, Leval, Sack, CJJ)

In this state prisoner’s habeas corpus case, the circuit affirmed the grant of the writ because the state court’s refusal to permit the defense to cross-examine a supposed robbery victim about his racial bias violated the confrontation clause.

Brinson, the petitioner, testified at trial that this was not a robbery, but rather a small – ten-dollar – marijuana sale that had gone bad. He had hoped to raise a defense that the witness’ robbery accusation was false, and was motivated by a racial hatred of African-Americans. Defense counsel had a compelling offer of proof: first, he indicated that the witness had refused to serve African-Americans when he worked as a waiter, and that he was prepared to call the victim’s supervisor if the witness denied it. In addition, an acquaintance of the witness was prepared to …

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Uninformed Consent

United States v. Lopez, No. 081269-cr (2d Cir. November 13, 2008) (McLaughlin, Leval, Pooler, CJJ)

Albert Lopez violated his supervised release by failing a drug test, and marshals went to his house to arrest him. After he was cuffed, the marshals took his girlfriend upstairs to get clothes for him. Once there, they asked the girlfriend if they could search the bedroom. She gave consent and the marshals found a loaded gun under a pillow. Lopez was charged with possessing the gun, and moved to suppress arguing that the search of the bedroom was unreasonable because, although the girlfriend consented, the marshals did not seek his consent.

On appeal, the circuit disagreed. Under the relevant Supreme Court precedents, the Fourth Amendment permits searches consented to by a co-occupant. Nor did Lopez’ case present a situation like that in Georgia v. Randolph, 547 U.S. 103 (2006), which held that where one …

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False Promise

United States v. Buie, 07-0258-cr (2d Cir. November 13, 2008) (McLaughlin, Leval, Pooler, CJJ)

For a drug conviction to be an ACCA predicate, it must be of an offense “for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). David Buie pled guilty to a drug offense in New Jersey that carried a ten-year statutory maximum, but at his plea hearing the judge promised that he would not sentence Buie to more than eight years: “The [eight-year] plea bargain is the maximum. I could go under. I can’t go over.” The court of appeals rejected Buie’s argument that this promise took the conviction out of ACCA, noting that “Supreme Court precedent … requires that we look to the definition of the offense established by the state legislature.” Moreover, this is not the type of situation where a court looks “beyond …

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Wednesday, November 12th, 2008

Driving While Incriminated

United States v. Lopez, No. 06-3730-cr (2d Cir. November 10, 2008) (Kearse, Leval, Cabranes, CJJ)

Police officers arrested Lopez for drunk driving. He has a gun in his pocket. Meanwhile, other officers, while looking for Lopez’ girlfriend’s identification, found cocaine in her purse.

Both were arrested and the car was brought to the 41st Precinct, where officers conducted an inventory search. This produced, in addition to some innocuous personal items, two glassines of cocaine in the center console, and a bag in the trunk that contained cocaine and cocaine trafficking equipment. Later, while arranging for a family member to pick up his personal belongings, an officer looked in the glove compartment of the car and found a second gun.

After a combined suppression hearing and bench trial, Lopez was convicted and received a seventy-month sentence.

On appeal, he challenged the inventory search on the grounds that it was not a …

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Sunday, November 9th, 2008

Summary Summary

Things have been eerily quiet in the circuit – no published decision in a criminal case in nearly two weeks. But there have been a few summary orders of note. First, in United States v. Dean, No. 07-3015-cr (November 7, 2008), the court vacated an above-guideline sentence because, although the district court indicated that it was departing upward on criminal history grounds, it did not “follow the recommended procedure in § 4A1.3(a)(4) for calculating its upward departure, nor, ultimately, did the court settle on an amended Guideline range.” And, in United States v. Feliz-Ramirez, the court considered a Fatico hearing at which the government failed to provide 3500 material that might have contradicted the star witness’ testimony about the defendant’s role in the offense. The court found no error in the district court’s refusal to strike the testimony because the government’s
“inadvertent failure to produce [the material] was harmless error.” …

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Thursday, October 30th, 2008

The Fugitive

United States v. Zedner, No. 07-1049 (2d Cir. October 28, 2008) (Kearse, Pooler, CJJ, Cote, DJ)

While on supervised release, and with his appeal pending, Jacob Zedner received his probation officer’s permission to go to Israel for two weeks to attend his brother’s funeral. While there, he was arrested and was told to remain in the country. Citing this and a lack of funds, Zedner did not return to the United States. The government then moved to dismiss the appeal; a sharply divided panel invoked the fugitive disentitlement doctrine and dismissed the case with prejudice.

Background

Zedner’s was surely the longest-running criminal case in this circuit. The offense involved his trying to negotiate multi-million dollar “bonds” that were riddled with misspellings and that were purportedly issued by the “Ministry of Finance of U.S.A.” The case itself began in 1996, when he was indicted for attempted bank fraud. After prolonged competency …

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Sunday, October 26th, 2008

Sir Speedy

United States v. Oberoi, No. 04-4545-cr (2d Cir. October 23, 2008) (Jacobs, Kearse, Katzmann, CJJ)

Tejbir Oberoi, proceeding pro se, claimed on appeal that he was denied a speedy trial. He lost the case, but it took the circuit about fifty pages to sort things out.

Background

Oberoi was a dentist who defrauded insurance companies by making false reimbursement claims for procedures he never performed. He was first charged with mail and healthcare fraud in a complaint October of 1999. An indictment was returned against him about two months later; it charged 34 counts of mail fraud and 123 counts of making false statements in connection with health care benefits.

The case had a tortured procedural history, including competency proceedings, six or seven changes of counsel, and three interlocutory appeals. The trial was finally set for January of 2004, by which time Oberoi had made, and lost, a motion for …

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A Crime of Violins

United States v. Sprysak, No. 07-3353-cr (2c Cir. October 22, 2008) (Newman, Calabresi, Parker, CJJ)

Adam Potocki was convicted of conspiracy to sell stolen property, a Stradivarius violin that was later determined to be fake. The court of appeals held that the evidence was insufficient on two elements: whether Potocki believed the violin was worth at least five thousand dollars, and whether the offense involved goods that moved in interstate commerce.

Background

Potocki was an associate of Krzysztof Sprysak, who was part of a Brooklyn criminal gang known as the “Greenpoint Crew.” Sprysak called Potocki in December of 2005 to tell him that he might have a Stradivarius violin to sell. He said that the violin had been brought from Europe illegally and was stolen. Potocki agreed to show an antiques dealer a picture of the violin so that it could be appraised, and said that the dealer might be …

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The Ecstasy and the Ecstasy

United States v. Ogando, No. 05-0236-cr (2d Cir. October 20, 2008) (Kearse, Calabresi, Sack, CJJ)

Francisco Ogando, a licensed livery cab driver, was convicted of participating in an ecstasy importation and distribution conspiracy. On appeal, the circuit held that the evidence was insufficient.

Background

Angel Gomez, a drug courier, was arrested at Kennedy Airport with ecstasy that he had imported from Belgium, and agreed to cooperate. He told the agents that he was supposed to call “Frank” – defendant Ogando – on arrival. He did so, and Ogando said he was right near the airport. Ogando found Gomez and brought him to his car. They did not discuss drugs, money or where they would be going, and were arrested before they got into Ogando’s car.

Ogando was found to have a cellphone – Gomez had been given that number by his handlers – a business card that mentioned Brussels and …

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Buyer’s Remorse

United States v. Hawkins, No. 07-3018-cr (2d Cir. October 16, 2008) (Straub, Raggi, CJJ, Sessions, DJ)

Alex Luna sold drugs in Danbury, Connecticut, from 2002 to 2005. Warren Hawkins was convicted, after a jury trial, of one count of conspiring with Luna to distribute less than 500 grams of cocaine and less than five grams of crack. After the verdict, the district court granted Hawkins’ Rule 29 motion, finding that, although Hawkins bought drugs from Luna with intent to resell them, there was insufficient evidence to establish that Hawkins participated in Luna’s conspiracy. On the government’s appeal, the circuit reversed.

Background

In February 2005, Hawkins spoke with a another Luna co-conspirator about purchasing five grams of cocaine. They discussed price, quality, and how Hawkins would raise the money, but the sale did not take place. A few days later, Hawkins spoke with Luna and said that some of his co-workers …

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Sexually Charged

United States v. Rivera, No. 06-4946-cr (2d Cir. October 15, 2008) (Jacobs, Kearse, Katzmann, CJJ)

Carlos Rivera was convicted of various offenses relating to the sexual exploitation of children. One count involved the production of child pornography for which Rivera, a recidivist, received a mandatory life sentence. His primary argument on appeal was that the district court incorrectly charged the jury on the definition of “lascivious” with respect to that count. Finding no error, the court of appeals affirmed.

At issue were six photographs that Rivera took of a sixteen-year old boy lying naked on a hotel bed, in various suggestive poses. The statute, 18 U.S.C. § 2251(a), prohibits coercing or enticing a minor to engage in “sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” “Sexually explicit conduct” is defined to include the “lascivious exhibition of the genitals or pubic area of any person.”…

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