Summary Summary

February turned out to be an interesting month for summary orders. Here are the final four:

In United States v. Santillo, No. 08-4378-cr (2d Cir. February 26, 2009), the court upheld the imposition of a year-and-a-day prison sentence even though both the defendant and the government had stipulated to a sentence of five years’ probation.

In United States v. Navarro, No. 08-0484-cr (2d Cir. February 26, 2009), the court held that the government did not breach its plea agreement by advocating for a Guideline sentence in response to the defendant’s request for a downward variance. The government had promised not to take a position concerning where within the range the court should impose sentence, and merely asking for a within-Guideline sentence was permissible.

In United States v. Bossinger, No. 07-5718-cr (2d Cir. February 25, 2009), the court found “merit” to the defendant’s claim of prosecutorial misconduct in summation. The prosecutor “did a breathtaking variety of things we have repeatedly cautioned the government to avoid.” He – or she, the opinion does not specify – (1) improperly characterized the defense case as, inter alia, a “story,” “drivel,” and “nonsense,” (2) called the defendant’s testimony “lies” more than thirty times in a twenty-four page summation; (3) used sarcasm to attack the defendant’s credibility; and (4) misstated two pieces of evidence. Nevertheless, the court affirmed. The defense only objected to the derogatory comments, making reversal “difficult,” because misconduct that is not objected to will only warrant a reversal if it constituted “flagrant abuse.” Here, the derogatory comments by themselves did not deprive the defendant of fair trial, and the rest of the conduct did not rise to the level of “flagrant abuse.”

Recently, in United States v. Mejia, 545 F.3d 179 (2d Cir. 2008), the court vacated a VICAR conviction due to the government’s improper use of an “officer expert.” See “Expert Tease,” posted October 19, 2008. In this summary order, United States v. Rubi-Gonzalez, No. 07-4424-cr (2d Cir. February 25, 2009), the court vacated the conviction on the same grounds. Rubi-Gonzales was a co-defendant of the defendants in Mejia, but was tried separately after his case was severed out. Here, as in Mejia, the “expert”’s testimony included inadmissible material, transmitted hearsay to the jury in violation of Fed.R.Evid. 703, and, arguably, violated Crawford. The error was not harmless with respect to two elements of the offenses of conviction.