It has been a while, but here are three more summary orders of interest.
In United States v. Mancuso, No. 10-2420-cr (2d Cir. June 30, 2011), the court identified several sentencing errors in connection with a prosecution for environmental crimes. First, the district court erred in applying the multi-object conspiracy guideline, U.S.S.G. § 1B1.2(d). When a defendant is convicted of multi-object conspiracy, this section requires the court to sentence as if the defendant had been convicted on a “separate count of conspiracy for each offense that the defendant conspired to commit.” The sentencing court is to sit as the trier of fact and determine, using the reasonable doubt standard, whether it “would convict the defendant of conspiring to commit the particular objects” Here, the district court did not make any specific findings under this section, so the circuit remanded the case for further findings. Second, the district court committed plain error in applying the four-level enhancement for permitless disposal of a hazardous substance, because the relevant offense statutes did not involve permits. Third, the court made insufficient findings to support the obstruction of justice enhancement as to one defendant’s testimony, because it did not make an explicit finding that the defendant’s false testimony was willful.
United States v. Doe, No. 10-2095-cr (2d Cir. June 29, 2011), involves a complicated interaction between two unnamed litigants. One defendant, Roe, who appears to be an attorney, filed a civil RICO suit against the other, Doe, in the Southern District, which included sealed and confidential materials from Doe’s Eastern District criminal case, including the fact that Doe had cooperated with the government. Judge Glasser eventually enjoined Roe from disseminating confidential information about Doe. Several hearings and orders followed, all restricting Roe’s ability to disseminate information about Doe. On appeal, the circuit rebuffed a First Amendment challenge to an order permanently enjoining Roe from disseminating Doe’s presentence report, since that order contained adequate findings that releasing proof of Doe’s cooperation would put him at risk. That same order also concluded that Roe had deliberately defied the order sealing Doe’s PSR, a finding that the circuit also upheld. The circuit also upheld an Eastern District order preventing Roe from disclosing other sealed or confidential information about Doe.
Finally, in United States v. Sleiman, No. 10-1865-cr (2d Cir. June 28, 2011), the circuit did not make adequate findings to support its use of the November 1, 2001, guideline manual in a money laundering case. The November 1, 2000, manual would have resulted in a sentencing range about half as long as that recommended by the next year’s book. The circuit ordered a Jacobson remand: the district court must either determine that the government has proven that the offense conduct extended into the time period covered by the November 1, 2001, manual or resentence the defendant under the 2000 manual.