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Second Circuit Blog 
Case Summaries and Commentary by Attorneys from the Federal Defenders Office in New York City
Post Frequency: 2.4/day Last Entry: March 25, 2016 at 12:33:00 Recent Entries: 391
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Tapped Out
Posted on September 07, 2009United States v. Concepcion, No. 08-3785-cr (2d Cir. August 31, 2009) McLaughlin, Calabresi, Sack, CJJ) On this government appeal, the court reversed a district court order suppressing evidence obtained pursuant to a wiretap. Background One of Concepcion?s former cellmates (the "CI") went to the FBI claiming that Concepcion planned to assist foreign terrorists in attacking the United States...
Delay Gratification
Posted on August 31, 2009United States v. Ray, No. 08-2795-cr (2d Cir. August 27, 2009)(Leval, Cabranes, Livingstone, CJJ)In this decision, the court holds that an unexplained and prejudicial fifteen-year delay in imposing sentence amounted to a Fifth-Amendment due process violation, but did not violate the Sixth Amendment right to a speedy trial...
Out Of Range
Posted on August 30, 2009United States v. Main, No. 08-4088-cr (2d Cir. August 27, 2009) (Walker, Wallace, CJJ)Christopher Main pled guilty to a crack cocaine offense pursuant to a Rule 11(c)(1)(C) agreement that stipulated to maximum sentence of 96 months, which was below the 120 to 150-month guideline range, and provided a ?carve-out? for Main to seek a downward departure...
Summary Summary
Posted on August 29, 2009For your reading pleasure, here are more summary orders of interest:In two related decisions, both captioned United States v. Salvagno, Nos. 06-4201-cr and 06-4202-cr (2d Cir. August 28, 2009), the defendants, who were father and son, complained of a confict of interest between some of their attorneys - they were employed at the same firm - at sentencing...
Khat Man, Two
Posted on August 29, 2009United States v. Hassan, No. 05-6949 (2d Cir. August 21, 2009) (Calabresi, Pooler, CJJ)Hassan was convicted of three conspiracy counts - (1) importation of a controlled substance (2) distribution of a controlled substance, and (3) money laundering - along with forty-one substantive money laundering counts, in connection with his importation of khat into the United States...
PC WORLD
Posted on August 29, 2009The court's latest per curiam ("PC") opinion deals with the narrow definition of "crime of violence" in the illegal reentry guideline, U.S.S.G. § 2L1.2. United States v. Gamez, No. 07-3660-cr (2d Cir. August 20, 2009) (per curiam), holds that the New York State offense of criminal possession of a weapon in the second degree, which makes it a crime to possess various types of firearms "with the intent to use the same unlawfully against another" is not a crime of violence under that section...
Cap?n Crunched
Posted on August 29, 2009United States v. Pizzonia, No. 07-4314-cr (2d Cir. August 19, 2009) (Calabresi, Straub, Raggi, CJJ)Dominick Pizzonia, a one-time captain for the Gambino crime family, was convicted of a racketeering conspiracy and sentenced to fifteen years in prison...
On a Role
Posted on August 28, 2009United States v. Ware, No. 07-5222-cr (2d Cir. August 18, 2009) (Kearse, Sack, Hall, CJJ)For five months in 2001 and 2002, Ware, an attorney, ran a ?pump and dump? scheme, in which entities he controlled issued fraudulent, and supposedly independent, press releases promoting two penny stocks that he owned...
Same S***, Different Day
Posted on August 17, 2009United States v. Parker, No. 08-4199-cr (2d Cir. August 14, 2009) (McLaughlin, Calabresi, Raggi, CJJ)Travious Parker received a 180-month sentence after a jury trial. This sentence comprised a 120-month drug mandatory minimum and mandatory sixty-month consecutive sentence on a § 924(c) count...
Summary Summary
Posted on August 17, 2009Here is the latest collection of summary orders of interest:In United States v. Bender, No. 08-3103-cr (2d Cir. August 14, 2009), the court rejected both substantive and procedural challenges to an upward departure in a child pornography case, even though the district court "should have provided a written statement of the specific reasons for its sentence...
Suffer the Little Children
Posted on August 12, 2009United States v. Freeman, No. 08-1886-cr (2d Cir. August 10, 2009) (Cabranes, Wallace, CJJ)In United States v. Delmarle, 99 F.3d 80 (2d Cir. 1996), the circuit held that it was within the district court?s discretion to apply the guideline enhancement for possessing child pornography that depicted sadistic or masochistic conduct where the image showed a ?young child [subject] to a sexual act that would have to be painful...
You Can?t Bet On It
Posted on August 12, 2009United States v. Battista, No. 08-3750-cr (2d Cir. August 6, 2009) (Walker, Wesley, Wallace, CJJ)James Battista was part of an illegal NBA gambling operation. He pled guilty to conspiring to transmit wagering information, in violation of 18 U.S.C. §§ 371 and 1084, and his sentence included restitution to the NBA...
Going Down!
Posted on August 03, 2009United States v. Perez, No. 08-4131-cr (2d Cir. August 3, 2009) (Newman, Pooler, Parker, CJJ)Here, the circuit concluded that an internal BOP investigation into corrections officers? use of force against an inmate constituted an ?official proceeding? within the meaning of 18 U...
Car, Men, Miranda
Posted on August 02, 2009United Statse v. Plugh, No. 07-2620-cr (2d Cir. July 31, 2009) (Jacobs, Wesley, Hall, CJJ)In September of 2005, FBI agents arrested Gordon Plugh on child pornography charges. In the car, an agent read him his Miranda rights and asked him to sign a waiver form...
Transmission Lines
Posted on August 02, 2009United States v. Bah, No. 07-4370-cr (2d Cir. July 31, 2009) (Jacobs, Walker, Calabresi, CJJ)Boubacar Bah ran a licensed money transmission business in New Jersey, but did not have an equivalent license in New York. He was convicted of operating an unlicensed money transmitting business, in violation of 18 U...
Summary Summary
Posted on August 02, 2009Here are two more summary orders of interest.In United States v. Nash, No. 08-0136 (2d Cir. July 29, 2009), a fraud prosecution, the court remanded the case for further record development on the question whether the "10 or more victims" enhancement should apply...
Formula 404
Posted on August 02, 2009United States v. Mercado, No. 08-1017-cr (2d Cir. July 17, 2009) (Calabresi, Wesley, CJJ, Droney, DJ)In this split decision, the court upheld the admission of Rule 404(b) evidence - prior firearms sales - on the issue of intent in a drug conspiracy trial...
INTRODUCING A NEW FEATURE - "PC WORLD"
Posted on July 28, 2009The circuit is increasingly publishing per curiam (or "PC") opinions in criminal cases. These opinions tend to either answer open questions or make official rulings that have previously appeared only in non-precedential summary orders. PC's are generally short and contain little or no reasoning, which render them very much like - except for their precedential value - summary orders...
No Escape
Posted on July 10, 2009United States v. Mills, No. 07-0308-cr (2d Cir. June 26, 2009) (Kearse, Sack, Livingston, CJJ) (per curiam)Gary Mills was convicted of violating 18 U.S.C. § 922(g), and received a 188-month sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA)...
Summary Summary
Posted on July 10, 2009Interesting summary orders have been piling up. Here is the latest crop:In United States v. Strand, No. 08-3730-cr (2d Cir. July 8, 2009), the court held that the district court lacked the authority to impose a drug sentence lower than the mandatory minimum to ?adjust? for time served on state sentences for related conduct, where the state sentences had been fully discharged several years before the federal sentences were imposed...
Daye of the Weak
Posted on July 10, 2009United States v. Daye, No. 08-1012-cr (2d Cir. July 10, 2009) (Miner, Raggi, Livingston, CJJ)Bruce Daye received an 180-month ACCA sentence. On appeal, he raised challenges to the use of all of his prior convictions as ACCA predicates, and the court sent the case back for further findings...
Back to the Future
Posted on July 10, 2009United States v. Pearson, No. 07-0142-cr (2d Cir. July 2, 2009) (Miner, Katzmann, Raggi, CJJ) (per curiam)Title 18, U.S.C. § 2259 provides that, in sex abuse cases, restitution is mandatory for the full amount of any loss to the victim, including the costs of medical or psychiatric care...
Unlucky Day
Posted on June 21, 2009United States v. Lucky, No. 08-1939-cr (2d Cir. June 19, 2009) (Calabaresi, Katzmann, CJJ, Eaton, J CIT)Damon Lucky appealed the denial of his Speedy Trial Act (STA) dismissal motion. The circuit, finding only 69 days of nonexcluded time, one short of the magic number, affirmed...
Gray's Anatomy
Posted on June 20, 2009United States v. Jass, No. 06-4899-cr (2d Cir. June 16, 2009) (Walker, Cabranes, Raggi, CJJ)Defendant Leight began sexually abusing his daughter when she was four years old. Jass, his girlfriend, entered the household four or five years later and joined in...
Gambling Problem
Posted on June 20, 2009United States v. Ivezaj, No. 06-3112-cr (2d Cir. June 11, 2009) (Feinberg, Miner, Parker, CJJ)Six defendants were convicted of racketeering and related offenses arising from their efforts to break the hold that New York City?s traditional organized crime families had on illegal gambling...
Timewell Spent
Posted on June 04, 2009United States v. Timewell, No. 07-4587-cr (2d Cir. June 1, 2009) (Miner, Raggi, Livingston, CJJ)Here, the circuit held that the district court?s reasons for denying a Crosby remand rendered the sentence procedurally unreasonable. It remanded the case for reconsideration, with instructions...
Reduction Ad Absurdum
Posted on May 29, 2009United States v. Savoy, No. 08-4800-cr (2d Cir. May 27, 2009)(per curiam)After a 1998 jury trial on crack distribution charges, Demetric Savoy faced a guideline sentencing range of 188 to 235 months? imprisonment, and received a sentence at the bottom of the range...
Citizen Feign
Posted on May 14, 2009United States v. Tureseo, No. 07-2933-cr (2d Cir. May 14, 2009)(Miner, Cabranes, CJJ, Berman, DJ)Juan Tureseo was deported in 1997, after an assault conviction. Immigration agents found him in the United States in 2006, at which time he insisted he was a United States citizen named Danny Ortega...
Summary Summary
Posted on May 10, 2009There have been five summary orders of interest in the past month or so. Here they are:In United States v. Al Manware, No. 08-2235-cr (2d Cir. May 4, 2009), the court ordered resentencing on a supervised release violation because the district court did not provide the defendant an opportunity to allocute before imposing sentence...
The Pursuit of Happy Ness
Posted on May 10, 2009United States v. Ness, No. 05-4401-cr (2d Cir. May 8, 2009) (Winter, Calabresi, Pooler, CJJ)Samuel Ness was convicted of money laundering offenses in connection with his armored car business, which received and distributed millions of dollars in narcotics proceeds...
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