There has been a recent flurry of interesting summary orders. Enjoy!
United States v. Wilke, No. 11-1122-cr (2d Cir. May 31, 2012), contains an interesting discussion of the double jeopardy implications of being convicted of both tghe receipt of and the possession of the same images of child pornography. The court, which has never decided the issue, notes that there “may be substantial support for such a proposition,” and that it might even rise to the level of plain error. Here, however, there was no plain error since there was a “clear possibility” that Wilke was convicted of different conduct for each count. Interestingly, the court also rejected the government’s claim that the imposition of concurrent sentences on two such counts would undercut the prejudice prong of the plain error analysis, calling the claim “problematic.”
United States v. Pena Soltren, No. 11-256-cr (2d Cir. May 31, 2012), examines an “old-law” sentence.” In 1968, Pena Soltren helped hijack a Pan Am flight to Havana. He remained in Cuba for more than forty years, but in 2009 he returned to the United States and was prosecuted for his role in the hijacking. He pled guilty, and the district court sentenced him to fifteen years’ imprisonment “without parole.” Under the sentencing regime in place at the time of the crime, however, that sentence was illegal. The district court had only three options: (1) impose sentence under the general parole statute, under which Pena Soltren would have been eligible for parole after serving one-third of his term of imprisonment; (2) set a modified date for parole eligibility, which could be less than but not more than one-third of the maximum sentence imposed by the court, or; (3) fix a maximum term of imprisonment to be served and delegate to the parole board the task of determining eligibility. The circuit also rejected the claim that this error required resentencing before a different judge.
In United States v. Golding, No. 10-800-cr (2d Cir. May 23, 2012), the court vacated three counts convicting the defendant of being a felon-in-possession. At trial, defense counsel stipulated to the prior conviction but, rather than submitting the stipulation to the jury, the district court withheld it, eliminating the felony element entirely from the jury’s consideration, and only admitting the stip after the jury convicted. The circuit concluded that the district court committed plain error in failing to submit the stipulation to the jury, “regardless of defense counsel’s position regarding the element.”
In United States v. Fuller, No. 09-1437-cr (2d Cir. May 23, 2012), the court reversed a SORNA conviction for failing to register as a sex offender, citing Reynolds v. United States, 132 S.Ct. 975 (2012). Fuller was convicted of a sex offense prior to SORNA’s enactment and traveled interstate before the Attorney General specified that SORNA’s registration requirements applied to persons in his position. Thus, since Fuller was not required to register at the time of his interstate travel, his conduct did not violate SORNA.
United States v. Karimu, No. 11-468-cr (2d Cir. May 22, 2012), vacated a forfeiture order where, based on representations it made during the plea allocution, the government waived its forfeiture allegation.
Finally, in United States v. Pressley, No. 11-2094-cr (2d Cir. May 21, 2012), the court vacated the district court’s order suppressing evidence recovered as the fruit of a canine sniff. Under Illinois v. Caballes, 543 U.S. 405 (2005), a canine sniff is not a search, and only violates the Fourth Amendment if it extends the time of a lawful stop beyond that reasonably necessary to complete the inquiry that prompted the stop. But the district court did not analyze the case under Caballes. Thus, while the sniff here came after a lawful stop based on reasonable suspicion for trespassing, under Caballes its legality turned on whether the officers were still reasonably pursuing their trespass inquiry at the time. The circuit accordingly remanded for further findings of fact.