There have been two interesting per curiams in the past couple of weeks.
Sometimes immigration law and criminal law intersect. They did in Prus v. Holder, No. 10-599-ag (2d Cir. September 28, 2011) (Calabresi, Wesley, Lynch, CJJ). Here, the court held that the New York offense of promoting prostitution in the third degree under Penal Law §§ 20.00 and 230.35 is not an aggravated felony. The term “prostitution” is not defined in the aggravated felony statute. But, under the immigration statute rendering aliens who enter the United States to engage in prostitution inadmissible, prostitution is defined as “promiscuous sexual intercourse for hire.” Since identical words in different parts of the same act are construed to have the same meaning, the same definition should be used in the ag-fel section. But the New York offense of promoting prostitution encompasses a definition of “prostitution” – it includes “sexual conduct” – that is clearly broader. Since the New York offense includes acts other than the “specific act of sexual intercourse,” it is not an aggravated felony.
United States v. Leslie, No. 10-2994-cr (2d Cir. October 3, 2011) (Calabresi, Wesley, Lynch, CJJ) (per curiam) rejected the argument that a defendant’s incarceration, standing alone, should be treated as a withdrawal from the conspiracy for sentencing purposes. Leslie was the architect of a bank fraud scheme that capitalized on a flaw in the People’s Bank ATM system. He not only devised the scheme, he also taught others how to do it. Leslie started serving a four-year state bank fraud sentence in 2005, but during his incarceration others continued the scheme. In 2009, Leslie was transferred to federal custody and pled guilty to the same scheme. The total loss was more than $300,000, but Leslie argued that he was only responsible for the losses incurred until his July 1, 2005, incarceration, although he admitted that he had taken no affirmative steps to withdraw from the conspiracy, such as cooperating with law enforcement or telling his co-conspirators that he had abandoned it. While the circuit agreed that incarceration could be some evidence of withdrawal, the defendant had the burden of showing something more, even for sentencing purposes. “The defendant’s imprisonment is but one factor to consider in deciding whether withdrawal occurred.”