Here are two more interesting summary orders.
In United States v. Spivack, No. 08-6091-cr (2d Cir. March 18, 2010), the prosecutor allowed a government witness to testify falsely that the defendant was a pedophile. The court characterized this as “outrageous” and as “severe misconduct.” But here, in light of the measures adopted to cure the misconduct and the certainty of conviction in the absence of the misconduct, Spivack was not prejudiced. The court also noted that some of the prosecutor’s comments about the nature of the child pornography in the case were “troubling” given their relationship to the false testimony, but did not rise to the level of misconduct, and that the prosecutor’s closing references to Lolita were “more problematic” – they had no purpose “other than to inflame the jury” – but did not amount to a due process violation.
In United States v. Gjidija, No. 07-3546-cr (2d Cir. March 15, 2010), the court modified a restitution order by deducting $5,000 that was “unattributable to any victim.” It also noted that the defendant could file a 2255 motion arguing that his counsel was ineffective even though he had already successfully filed one arguing that his appellate counsel was ineffective for failing to perfect his appeal. Since the first 2255 merely caused the district court to vacate the sentence and enter a new judgment from which Gjidiaj could appeal, he had not yet collaterally attacked the final judgment.