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Public Defense

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

Extension Headache

Posted on May 05, 2009
United States v. Vargas, No. 08-1542-cr (2d Cir. May 5, 2009)(Calabresi, Livingston, CJJ, Restani, JCIT)In connection with a drug conviction, Raphael Varas was sentenced to a five-year term of supervised release. In January of 2008, he pled guilty to a supervised release violation...

If You Love Her, Let Her Go

Posted on May 03, 2009
United States v. McGee, No. 07-4509-cr (2d Cir. April 24, 2009)(Leval, Katzmann, Livingston, CJJ)A Rochester police officer responded to 911 call at defendant McGee?s home. When the officer arrived, he saw McGee running away through the backyard. McGee?s girlfriend was outside the house...

Porn At Home

Posted on May 03, 2009
United States v. Polouizzi, No. 08-1830-cr (2d Cir. April 24, 2009)(Leval, Katzmann, Raggi, CJJ)Defendant - referred to in the opinion as Peter Polizzi - was convicted by a jury of eleven counts of possession of child pornography, in violation of 18 U...

Caboose of Discretion

Posted on May 03, 2009
United States v. Borden, No. 08-1625-cr (2d Cir. April 22, 2009: amended opinion) (Cabranes, Hall, CJJ, Sweet, DJ)Every other circuit to consider the question has concluded that a district court?s denial of a crack retroactivity motion under 18 U.S.C...

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Khat Red-Handed

Posted on May 03, 2009
United States v. Abdulle, No. 06-3647-cr (2d Cir. April 22, 2009) (Newman, Sotomayor, Katzmann, CJJ)Defendant Mohamed was convicted of distributing cathinone, the active ingredient in khat leaves, and challenged the sufficiency of the evidence against him...

The Acquittal That Wasn't

Posted on May 03, 2009
United States v. McCourty, No. 07-3862-cr (2d Cir. April 9, 2009) (Miner, Sotomayor, Katzmann, CJJ)BackgroundAt McCourty?s drug trial, one of the counts in the indictment alleged that he possessed with the intent to distribute both a quantity of cocaine and more than five grams of crack...

Straddle Sore

Posted on April 29, 2009
United States v. Josephberg, No. 07-3958-cr (2d Cir. April 9, 2009) (Kearse, Sack, Katzmann, CJJ)Background - Multiple Acts of Tax Fraud and EvasionA ?straddle? is a type of tax shelter transaction involving the simultaneous ownership of a contract to buy a commodity for delivery in a future month and a contract to sell the same amount of the same commodity in a different future month...

Object Permanence

Posted on April 28, 2009
United States v. Marte Robles, No. 07-1013-cr (2d Cir. April 9, 2009)(Straub, Hall, CJJ, Eaton, DJ)(per curiam)In this case, the court was called upon to construe Application Note 4 to U.S.S.G. � 1B1.2. Section 1B1.2(d) provides that a ?conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit...

A Small Triumph

Posted on April 26, 2009
United States v. Hertular, No. 07-1453-cr (2d Cir. April 6, 2009) (Straub, Raggi, CJJ, Session, DJ)Robert Hertular was convicted after a jury trial of running a large-scale cocaine importation ring, obstruction of justice, and misdemeanor assault of a federal officer under 18 U...

Kopp Out

Posted on April 20, 2009
United States v. Kopp, No. 07-797-cr (2d Cir. April 6, 2009) (Kearse, Katzmann, CJJ, Chin, DJ) (per curiam)James Charles Kopp was sentenced to life plus ten after a jury convicted him of killing an abortion provider, in violation of 18 U.S.C. � 248, and discharging a firearm in connection with a crime of violence...

Summary Summary

Posted on April 01, 2009
Here?s the latest crop:In United States v. Ramirez, No. 08-2771 (2d Cir. April 1, 2009), the district court committed a procedural sentencing error in the defendant?s favor by refusing to calculate the applicable Guideline range based on the actual drug quantity and instead deferring to the jury?s finding that less than 500 grams of cocaine was attributable to the defendant...

Publish and Perish

Posted on March 25, 2009
United States v. Samas, No 05-5213-cr (2d Cir. March 24, 2009) (Jacobs, Wesley, Hall, CJJ) (per curiam)This case was originally decided by summary order in December of 2009. On the government?s motion, the court withdrew the summary order and issued this published decision in its place...

Summary Summary

Posted on March 23, 2009
So far, there have been three summary orders of note in March. Let?s take a look.In United States v. Alkhabbaz, No. 07-4679-cr (2d Cir. March 23, 2009), the defendant was convicted of fraud and money laundering offenses. The circuit held that it was error to impose a sentence enhancement for using a minor, since the use of the minor was in connection with the underlying fraud, not the money laundering offense itself...

For Your Information

Posted on March 20, 2009
United States v. Morales, No. 07-4202-cr (2d Cir. March 18, 2009) (per curiam)Morales was charged in a two count drug indictment; one count had a 5-year mandatory minimum, under 21 U.S.C. � 841(b)(1)(B), while the other had a 10-year mando under � 841(b)(1)(A)...

Seizure Disorder

Posted on March 20, 2009
United States v. Simmons, No. 07-5127-cr (2d Cir. March 17, 2009) (Pooler, Sotomayor, Katzmann, CJJ)This appeal tackles an interesting search and seizure issue, a challenge to the discharge of a juror, and a sentencing issue. Simmons prevailed only on the sentencing claim...

Global Warming

Posted on March 14, 2009
United States v. Yauri, No. 08-1105-cr (2d Cir. March 12, 2009)(Sack, Wesley, CJJ, Kahn, DJ) (per curiam)In Yauri?s money laundering plea agreement, the government agreed to a two-level reduction for a ?global disposition" and to a loss amount of ?more than $30,000...

Same Claim, Different Day

Posted on March 14, 2009
United States v. Pitcher, No. 05-3182-pr (2d Cir. March 11, 2009) (Wesley, Hall, CJJ, Oberdorder, DJ) (per curiam)In 1999, Pitcher went to trial on a heroin distribution charge. He was convicted, sentenced to 121 months? imprisonment, and appealed. In a 2001 summary order, the court of appeals rejected his claim that his counsel had been ineffective for counseling him to reject the government?s efforts to sign him up as a cooperator, and affirmed...

Rehearing Loss

Posted on March 14, 2009
United States v. Owen, No. 07-4966-cr (2d Cir. March 9, 2009) (Feinberg, Cabranes, Hall, CJJ)Defendant Owen has had a Rule 33 motion pending in the district court for quite some time. This is circuit?s third opinion in the case. In the first, Owen I, it held that the district court erred in granting the motion based on newly discovered evidence, but remanded for consideration of an ineffectiveness claim...

Coffe, Tea or Jail?

Posted on March 14, 2009
United States v. Delis, No. 08-0641-cr (2d Cir. March 5, 2009) (McLaughlin, Calabresi, Livingston, CJJ)On a flight from Zurich to JFK, Pierre Delis, upset that the meal service ran out of chicken, got into a scuffle with a flight attendant during which, at a minimum, he pushed her hand away from his face...

Off-Whitley

Posted on March 14, 2009
United States v. Williams, No. 07-2436-cr (2d Cir. March 5, 2009) (Pooler, Hall, CJJ, Trager, DJ)Title 18 U.S.C. � 924(c) provides for consecutive mandatory minimum sentences for the use or possession of a firearm in connection with a drug offense or crime of violence except "to the extent that a greater minimum sentence is otherwise provided by ...

Trust Fun

Posted on March 14, 2009
United States v. Friedberg, No. 08-3763-cr (2d Cir. March 2, 2009) (Pooler, Katzmann, CJJ, Preska, DJ)Daniel Friedberg was Grand Secretary of an Odd Fellows lodge for eighteen years. During that time, he embezzled nearly $600,000 of the organization?s funds...

Summary Summary

Posted on March 02, 2009

Let The Burglar Beware

Posted on February 25, 2009
United States v. Johnson, No. 08-2296-cr (2d Cir. February 25, 2009) (Cabranes, Wesley, CJJ, Korman, DJ) (per curiam)Defendant Johnson stole a firearm during a burglary, and pled guilty to being a felon in possession of that same gun. At sentencing, he received a four-level enhancement for possessing it in connection with ?another felony,? the burglary...

Re: Possessed

Posted on February 24, 2009
United States v. Ayon-Robles, No. 07-0785-cr (2d Cir. February 24, 2009) (Jacobs, Wesley, CJJ, Arcara, DJ) (per curiam)Recently, in an immigration case, Alsol v. Mukasey, 548 N.Y.S.2d 207 (2d Cir. 2009), the court held that a second state-court conviction for simple drug possession was not an ?aggravated felony? under the relevant immigration statute, 8 U...

Flaw-Of-The-Case

Posted on February 22, 2009
United States v. Carr, No. 06-5490-cr (2d Cir. February 19, 2009) (Kearse, Sack, Kaztmann, CJJ)Carr was convicted after a jury trial of racketeering, drug and firearms offenses. At his original sentencing, since the racketeering predicate was murder, the then-mandatory guidelines prescribed a life sentence, and that is what he received, plus five years on a � 924(c) count...

Double Trouble

Posted on February 22, 2009
United States v. Reyes, No. 06-3699-cr (2d Cir. February 19, 2009)(Leval, Cabranes, Livingston, CJJ) (per curiam)Defendant Reyes participated in the beating of the victim with, amongst other things, a baseball bat. The beating left the victim with severe brain damage - his wife told the court that he would ?never wake up again...

Dont Speak!

Posted on February 22, 2009
United States v. Gutierrez, No. 08-3581-cr (2d Cir. February 11, 2009)(Cabranes, Sotomayor, CJJ, Rakoff, DJ)Before Gutierrez was sentenced, his counsel filed a sentencing memorandum outlining five separate grounds for a below-guideline sentence. The government?s written response sought a guideline sentence...

Sorry, Wrong Number

Posted on February 22, 2009
United States v. Poindexter, No. 07-1151-pr (2d Cir. February 10, 2009) (Walker, Calabresi, Katzmann, CJJ) (per curiam)In 1995, Melvin Poindexter was charged with a cocaine conspiracy, with no drug quantity specified in the indictment. He therefore faced a 20-year maximum, but no mandatory minimum...

Summary Summary

Posted on February 22, 2009
In the past month or so, there have been only two summary orders of interest. Here they are:Guidelines section 4A1.2(c)(2) lists offenses that are too petty to count in the criminal history score, and instructs that offenses ?similar to? those on the list are also excluded...

Resale Wrongs

Posted on February 08, 2009
United States v. Parker, No. 07-0620-cr (2d Cir. February 3, 2009) (Feinberg, Leval, Cabranes, CJJ)Recently, the court held that the ?buyer-seller? rule did not apply where the defendant, a drug buyer who resold the drugs, clearly had a stake in the seller?s operation...

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