Friday, November 2nd, 2007


The Summary Summary is our periodic round-up of summary orders of interest. So, here we go:

United States v. Zavala, No. 05-7001-cr (2d Cir. November 1, 2007). Here, the district court applied cumulative aggravating role enhancements under U.S.S.G. § 3B1.1, giving both the 4-point enhancement under subsection (a) and the 2-point bump under subsection (c). The government conceded that this was error, and also agreed that the court failed to make adequate factual findings.

United States v. Duran-Colon, No. 06-0974-cr (2d Cir. October 31, 2007), has an interesting discussion of the use of uncharged Rule 404(b) conduct introduced into evidence to show how the relationship between two co-conspirators developed. It noted that, at a jury trial, if “the uncharged conduct is highly similar to the charged offense, such evidence may be unduly prejudicial insofar as it suggests to the jury the defendant’s propensity to commit the offense.” This case, however, arose from a bench trial, so there was no error.

In United States v. Raftopoulos, No. 05-5963-cr (2d Cir. October 29, 2007), the court upheld a sentence that included lifetime supervised release for a sex offender. However, it remanded the case for clarification of one of the conditions – that prohibiting the defendant from being in a park or other such areas without prior approval from his probation officer. The condition did not contain language limiting the restriction to areas “in which children are likely to congregate,” and the court was concerned that, without it, the probation officer would have “too much discretion in interpreting an ambiguous supervised release condition,” an impermissible delegation of judicial power.

United States v. Williams, No. 05-6036-cr (2d Cir. October 23, 2007), contains a helpful discussion of Fed.R.Evid 803(3), which permits statements of a declarant’s then-existing state of mind.

We close with two interesting harmless error cases. In United States v. Alvarez, No. 06-0107-cr (2d Cir. October 19, 2007), the court held that a procedural error in the calculation/imposition of sentence was harmless. And, in United States v. Nadal, No. 06-2924-cr (2d Cir. October 16, 2007), the court held that the defendant was not prejudiced by the absence of a written statement of reasons in the Judgment, required by 18 U.S.C. § 3553(c)(2) for above-Guideline sentences. Here, since the oral statement of reasons was adequate, a remand on this ground would have been “futile.”

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