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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

Confrontational

Posted on November 20, 2008
United States v. Figueroa, No. 06-1595-cr (2d Cir. November 18, 2008) (Kearse, Sack, Hall, CJJ)In an interesting companion to Brinson v. Walker [blogged below under the title "Confrontation Claws"], the court treated a highly similar issue, this time under both the Confrontation Clause and the federal rules of evidence...

Summary Summary

Posted on November 14, 2008
This week there were three interesting summary orders:In United States v. Solano, No. 07-1656-cr (2d Cir. November 14, 2008), the government repeatedly insisted before trial that a detective had not taken notes when he interviewed the defendant. Mid-trial, the government did an about-face and disclosed that the notes had once existed but had been destroyed...

Confrontation Claws

Posted on November 14, 2008
Brinson v. Walker, No. 06-0618-cr (2d Cir. November 13, 2008) (Kearse, Leval, Sack, CJJ)In this state prisoner?s habeas corpus case, the circuit affirmed the grant of the writ because the state court?s refusal to permit the defense to cross-examine a supposed robbery victim about his racial bias violated the confrontation clause...

Uninformed Consent

Posted on November 14, 2008
United States v. Lopez, No. 081269-cr (2d Cir. November 13, 2008) (McLaughlin, Leval, Pooler, CJJ)Albert Lopez violated his supervised release by failing a drug test, and marshals went to his house to arrest him. After he was cuffed, the marshals took his girlfriend upstairs to get clothes for him...

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False Promise

Posted on November 14, 2008
United States v. Buie, 07-0258-cr (2d Cir. November 13, 2008) (McLaughlin, Leval, Pooler, CJJ)For a drug conviction to be an ACCA predicate, it must be of an offense ?for which a maximum term of imprisonment of ten years or more is prescribed by law.? 18 U...

Driving While Incriminated

Posted on November 12, 2008
United States v. Lopez, No. 06-3730-cr (2d Cir. November 10, 2008) (Kearse, Leval, Cabranes, CJJ) Police officers arrested Lopez for drunk driving. He has a gun in his pocket. Meanwhile, other officers, while looking for Lopez? girlfriend?s identification, found cocaine in her purse...

Summary Summary

Posted on November 09, 2008
Things have been eerily quiet in the circuit - no published decision in a criminal case in nearly two weeks. But there have been a few summary orders of note. First, in United States v. Dean, No. 07-3015-cr (November 7, 2008), the court vacated an above-guideline sentence because, although the district court indicated that it was departing upward on criminal history grounds, it did not "follow the recommended procedure in � 4A1...

The Fugitive

Posted on October 30, 2008
United States v. Zedner, No. 07-1049 (2d Cir. October 28, 2008) (Kearse, Pooler, CJJ, Cote, DJ)While on supervised release, and with his appeal pending, Jacob Zedner received his probation officer?s permission to go to Israel for two weeks to attend his brother?s funeral...

Sir Speedy

Posted on October 26, 2008
United States v. Oberoi, No. 04-4545-cr (2d Cir. October 23, 2008) (Jacobs, Kearse, Katzmann, CJJ)Tejbir Oberoi, proceeding pro se, claimed on appeal that he was denied a speedy trial. He lost the case, but it took the circuit about fifty pages to sort things out...

A Crime of Violins

Posted on October 26, 2008
United States v. Sprysak, No. 07-3353-cr (2c Cir. October 22, 2008) (Newman, Calabresi, Parker, CJJ)Adam Potocki was convicted of conspiracy to sell stolen property, a Stradivarius violin that was later determined to be fake. The court of appeals held that the evidence was insufficient on two elements: whether Potocki believed the violin was worth at least five thousand dollars, and whether the offense involved goods that moved in interstate commerce...

The Ecstasy and the Ecstasy

Posted on October 26, 2008
United States v. Ogando, No. 05-0236-cr (2d Cir. October 20, 2008) (Kearse, Calabresi, Sack, CJJ)Francisco Ogando, a licensed livery cab driver, was convicted of participating in an ecstasy importation and distribution conspiracy. On appeal, the circuit held that the evidence was insufficient...

Buyer's Remorse

Posted on October 26, 2008
United States v. Hawkins, No. 07-3018-cr (2d Cir. October 16, 2008) (Straub, Raggi, CJJ, Sessions, DJ)Alex Luna sold drugs in Danbury, Connecticut, from 2002 to 2005. Warren Hawkins was convicted, after a jury trial, of one count of conspiring with Luna to distribute less than 500 grams of cocaine and less than five grams of crack...

Sexually Charged

Posted on October 26, 2008
United States v. Rivera, No. 06-4946-cr (2d Cir. October 15, 2008) (Jacobs, Kearse, Katzmann, CJJ)Carlos Rivera was convicted of various offenses relating to the sexual exploitation of children. One count involved the production of child pornography, for which Rivera, a recidivist, received a mandatory life sentence...

Slight Change

Posted on October 25, 2008
United States v. Huezo, No. 07-0033-cr (2d Cir. October 14, 2008) (Newman, Walker, Sotomayor, CJJ)Defendant Huezo was convicted, after a jury trial, of money laundering and money laundering conspiracy. The district court granted his post-verdict Rule 29 motion, and the government appealed...

Bonnano Republic

Posted on October 19, 2008
United States v. Massino, No. 07-1618-cr (2d Cir. October 10, 2008) (Hall, Livingston, CJJ, McMahon, DJ) (per curiam)Patrick DeFilippo was convicted of racketeering and other offenses in connection with his involvement with the Bonnano crime family, and the district court sentenced him to forty years? imprisonment...

Unattached

Posted on October 19, 2008
United States v. Worjloh, No. 06-3129-cr (2d Cir. October 8, 2008) (Parker, Raggi, Hall, CJJ) (per curiam)Although not yet charged with a federal offense, Worjloh was questioned by federal agents while he had state drug charges pending. The state charges were ultimately dismissed, and a federal indictment was returned...

Unlucky Strike

Posted on October 19, 2008
United States v. Matthews, No. 07-0699-cr (Wesley, Hall, Gibson, CJJ) (per curiam)Matthews challenged his life sentence under the federal ?three-strikes? statute, 18 U.S.C. � 3559(c), on several grounds. The circuit affirmed.One ?three-strikes? provision requires the defendant to establish that his prior convictions were not ?serious violent felonies,? as defined by the statute...

Materia Girls

Posted on October 19, 2008
United States v. Ojeikere, No. 07-1970-cr (2d Cir. October 7, 2008) (Newman, Winter, Calabresi, CJJ)Defendant Ojeikere was convicted of participating in an ?advance fee? scheme the tricked its victims into sending money to the defendant and his confederates to release ?large sums of money supposedly held in Nigeria...

Expert Tease

Posted on October 19, 2008
United States v. Mejia, No. 05-2856-cr (2d Cir. October 6, 2008) (Jacobs, Parker, Hall, CJJ)Here, the improper admission of ?officer expert? testimony resulted in a new trial.BackgroundThe defendants were convicted of participating in two drive-by shootings in connection with their membership in the MS-13 gang...

Summary Summary

Posted on October 19, 2008
A few more summary orders of interest from earlier this month:In United States v. Nunez-Gonzalez, No. 05-4064-cr (2d Cir. October 10, 2008), the court remanded for resentencing where a "review of the record leaves us uncertain as to whether the District Court fully considered the sizeable disparity between the sentences of" the defendant and his co-defendant...

Trial by Error

Posted on October 06, 2008
United States v. Al-Moyad, No. 05-4186-cr (2d Cir. October 2, 2008) (McLaughlin, Parker, Wesley, CJJ)Defendants Al-Moayad and Zayed were convicted in front of Judge Johnson of conspiring to provide material support to Hamas and Al-Qaeda, designated terrorist organizations...

Summary Summary

Posted on October 05, 2008
Submitted for your approval - a nother set of notable summary orders.In United States v. Davidson, No. 06-4729-cr (2d Cir. October 3, 2008), the court ducked an interesting issue. Davidson was convicted of a drug offense and a related � 924(c) offense and the district judge fined him $300 on each count...

Good Faith Efforts

Posted on September 28, 2008
United States v. Falso, No. 06-2721-cr (2d Cir. September 24, 2008) (Jacobs, Sotomayor, Livingston, CJJ)This opinion, a three-way split, adds another confusing piece to the circuit?s oeuvre in reviewing search warrants in child pornography cases. Judges Sotomayor and Jacobs held that the warrant lacked probable cause; Judge Livingston held that it did not...

Support Hose

Posted on September 28, 2008
United States v. Kerley, No. 08-1818-cr (2d Cir. September 25, 2008) (Jacobs, Pooler, CJJ, Restani, JCIT)Clifford Kerley was convicted, after a jury trial, of two counts of willfully evading a child support obligation - one for each of his twin daughters - in violation of 18 U...

Mea Exculpa

Posted on September 28, 2008
United States v. Spadoni, No. 06-4970-cr (2d Cir. September 25, 2008) (Pooler, Hall, CJJ, Gleeson, DJ)Here, the defendant successfully argued that the government?s suppression of exculpatory and impeachment material warranted a new trial.BackgroundSpadoni was the general counsel for an investment firm, Triumph, that did business with the State of Connecticut...

Benched

Posted on September 28, 2008
United States v. Carmenate, No. 07-2421 (2d Cir. September 24, 2008) (Cabranes, Pooler, Katzmann, CJJ) (per curiam)Carmenate was charged with bank fraud. His counsel, fearing the consequences of having the jury hear from a witness that he believed was biased, asked for a bench trial...

Jailhouse Rock

Posted on September 28, 2008
United States v. Cote, No. 07-1852 (2d. Cir. September 24, 2008) (Pooler, Sotomayor, CJJ, Restani, JCIT)Paul Cote was a prison guard at the Westchester County jail. On October 10, 2000, during an altercation, Cote repeatedly punched and stomped on an inmate?s head while the inmate lay on the floor...

Conditional Love

Posted on September 28, 2008
United States v. MacMillen, No. 07-3377-cr (2d Cir. September 23, 2008) (Hall, Livinston, CJJ, McMahon, DJ)MacMillen pled guilty to possessing child pornography, and the court sentenced him to seventy-eight months? imprisonment and supervised release for life...

Commitment Issues

Posted on September 28, 2008
United States v. Magassouba, No. 06-2628-cr (2d Cir. September 19, 2008) (Parker, Raggi, Wesley, CJJ)Defendant Magassouba has been in custody since at least August of 2003, when he was ordered detained on heroin trafficking charge that carried a ten-year mandatory minimum sentence...

Krazy Khat

Posted on September 27, 2008
United States v. Hassan, No. 05-6949-cr (2d Cir. September 19, 2008) (Calabresi, Pooler, Sotomayor, CJJ)Defendant 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...

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