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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

Summary Summary

Posted on July 27, 2008
So far, a bunch of interesting summary orders this month. Here?s the roundup:In United States v. Pryce, No. 07-2210-cr (July 25, 2008), a marijuana trafficking case, the court vacated the sentence and remanded for findings on the scope of the defendant?s participation in the conspiracy...

Bank Failure

Posted on July 16, 2008
United States v. Carlton, No. 07-2344-cr (2d Cir. July 16, 2008) (Winter, Miner, Cabranes, CJJ) In June of 2004, after a hearing, Judge Robinson found that Carlton, who was on supervised release for a bank robbery, had committed another one. He sentenced Carlton to 30 months? imprisonment...

Discovery Channel

Posted on July 13, 2008
United States v. Siraj, No. 07-0224-cr (2d Cir. July 9, 2008) (Jacobs, Straub, CJJ, Jones, DJ)This case holds that, under Fed.R.Crim.P 16(a)(1)(B)(i), a defendant is not entitled to discovery of police reports that memorialize his statements to an undercover officer...

No Sale

Posted on July 13, 2008
United States v. Wallace, No. 05-1424-cr (2d Cir. July 8, 2008) (Jacobs, Kearse, Katzmann, CJJ)This short opinion holds that a drug purchaser who shares drugs with others socially commits a distribution offense, even though the defendant lacked a commercial purpose, because a distribution can take place without a sale...

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The Secret Guardin'

Posted on July 13, 2008
United States v. Aref, No. 07-0981-cr (2d Cir. July 2, 2008) (Jacobs, McLaughlin, CJJ, Sand, DJ)In this terrorism prosecution, the court held that the district court can, for ?good cause,? restrict a defendant?s access to discoverable material that might impact on national security concerns...

Lethal Rejection

Posted on July 13, 2008
United States v. Fell, No. 06-2882-cr (2d Cir. June 27, 2008) (Walker, Cabranes, Parker, CJJ)Donald Fell was not having a good day. During a card game, he killed his mother?s boyfriend, while his buddy, Charles Lee, killed Fell?s mother. Together, they then carjacked a car from a Vermont grocery store, drove to New York, and killed the car?s owner...

CASH AS CACHE CAN

Posted on July 08, 2008
United States v. Jones, No. 05-5879-cr (2d Cir. June 24, 2008) (Leval, Cabranes, Raggi, CJJ)In 2004, Jones was present in a ?gatehouse? - an apartment used solely for the purpose of selling drugs - when Rochester police executed a search warrant. The officers found, inter alia, twenty-two grams of crack residue and $883 in cash hidden in the apartment...

Summary Summary

Posted on June 22, 2008
Here are June's first two summary orders of interest.In United States v. Heredia, No. 07-0849-cr (2d Cir. June 20, 2008), the court agreed that introducing hearsay evidence as a prior consistent statement was error, but found the error to be harmless...

Affirm Stance

Posted on June 22, 2008
United States v. Walker, 06-0594-cr (2d Cir. June 19, 2008) (Jacobs, Leval, Cabranes, CJJ)The evidence at Walker's drug trial included: (1) recordings of two drug-related meetings with a cooperating co-defendant in which they discussed both past and future drug activity and in which the cooperator gave Walker money to pay for a previous shipment; (2) Walker's two detailed confessions about his drug dealing activities; and (3) the testimony of four of his associates...

Feckless Enganderment

Posted on June 22, 2008
United States v. Legros, No. 05-2828-cr (2d Cir. June 17, 2008) (Jacobs, Calabresi, Sack, CJJ)When police officers responded to a ?shots fired? radio call, they encountered three men. One of them, Legros, ran off, and tossed a gun along the way. That gun matched several spent shell casings recovered from the scene...

Shipping Bricks

Posted on June 22, 2008
United States v. Bermudez, No. 06-5119-cr (2d Cir. June 17, 2008) (Walker, Calabresi, CJJ, Underhill, DJ)Richie Bermudez was convicted, after a jury trial, of being a felon in possession of a firearm. On appeal, he challenged an evidentiary ruling, as well as the district court?s jury selection method...

Withdrawal Syptoms

Posted on June 18, 2008
Today the court withdrew the opinion in Nnebe v. United States, No. No. 05-5713-pr (2d Cir. June 12, 2008), blogged below under the title "Role of Certs."

You Can't Get A Ten With A Gun

Posted on June 16, 2008
United States v. Whitley, No. 06-0131-cr (2d Cir. June 16, 2008) (Newman, Sack, Parker, CJJ)BackgroundWhitley used a gun to rob a grocery store; during the robbery, the gun accidentally went off. He was convicted after a jury trial of robbery, possessing the firearm as a previously convicted felon, and discharging that same firearm in connection with a crime of violence, under 18 U...

Out of Hindsight

Posted on June 15, 2008
Parisi v. United States, No. 06-1148-pr (2d Cir. June 13, 2008) (Winter, Hall, CJJ, Oberdorfer, DJ)In this 2255 appeal, the defendant unsuccessfully argued that his counsel was constitutionally ineffective for failing to move for dismissal based on a Speedy Trial Act violation...

Recuse Me

Posted on June 15, 2008
United States v. Hasarafally, No. 06-4239-cr (2d Cir. June 12, 2008) (Cardamone, Sotomayor, Raggi, CJJ)The defendant moved in the circuit to disqualify the entire justice department from representing the government on this appeal, because the judgment under review was rendered by Judge Mukasey, who is now Attorney General...

Role of Certs

Posted on June 15, 2008
This pair of decisions, both arising from 2255 motions, gives helpful guidance on counsel?s obligations to file a petition for a writ of certiorari.In Pena v. United States, No. 06-0218-pr (2d Cir. June 12, 2008) (Jacobs, Parker, Wesley, CJJ)(per curiam), the court held that a retained attorney was not ineffective for failing to advise his client of the right to seek certiorari...

Hollywood Accounting

Posted on June 15, 2008
United States v. Leonard, No. 05-5523-cr (2d Cir. June 11, 2008) (Kearse, Calabresi, Katzmann, CJJ)In this case, the court concludes that interests in film production companies were ?investment contracts,? and hence securities, under federal securities law...

Allocution Lessons

Posted on June 14, 2008
United States v. Gonzalez, No. 07-4824-cr (2d Cir. June 11, 2008) (Newman, Walker, Pooler, CJJ)In this case, the circuit sets out the procedure that a district court should follow when it realizes that it has sentenced a defendant without first giving him an opportunity to allocute...

The Loan Arranger

Posted on June 14, 2008
United States v. Confredo, No. 06-3201-cr (2d Cir. June 10, 2008) (Newman, Winter, Parker, CJJ)This case takes on the difficult question of fixing the loss amount under the sentencing guidelines when the case involves fraudulently obtained that loans have been partially repaid...

Breach Blanket Bingo

Posted on June 14, 2008
United States v. Bell, No. 07-0715-cr (2d Cir. June 10, 2008) (Jacobs, Calabresi, Sack, CJJ) (per curiam)In this case, the circuit had to sift through competing claims as to which party breached the plea agreement.Defendants Brumer and Klein pled guilty to various offenses relating to healthcare fraud...

Nostab

Posted on June 06, 2008
United States v. Todd, No. 05-5525-cr (2d Cir. June 5, 2008) (per curiam)In this ?reverse-Batson? decision, the court upheld the district court?s decision to re-seat a white juror against whom the defendants, all members of minority groups, had exercised a peremptory challenge...

Summary Summary

Posted on June 04, 2008
This crop of summary orders of interest closes out May 2008.In United States v. McCargo, No. 07-0626-cr (2d Cir. May 30, 2008), the defendant escaped from a halfway house, then months later was found to be in possession of a firearm. The court held that the gun possession was properly deemed "in connection with" the escape - triggering a four-level enhancement - because escape is a continuing offense and the defendant admitted that he acquired the gun for "protection...

Pimentel Loaf

Posted on June 04, 2008
United States v. Habbas, No. 05-6142-cr (2d Cir. May 30, 2008) (Leval, Sack, CJJ, Garaufis, DJ)This confusing opinion attempts to sort through the defendant?s claim that the government breached a plea agreement. But because of the imprecise way it is written, it is hard to know what really happened...

Summary Summary

Posted on May 28, 2008
The court has only issued 2 published opinions in criminal cases in the past two weeks. But there has been a flurry of noteworthy summary orders. Here is the latest crop:In United States v. Creary, No. 06-2233-cr (2d Cir. May 27, 2008), a document fraud case, the court vacated the sentence because the district judge did not make sufficient findings that the case involved 100 or more fraudulent documents...

Deficiency Expert

Posted on May 28, 2008
United States v. Ellett, No. 07-3682-cr (2d Cir. May 23, 2008) (per curiam)James Ellett was a tax protester, who stopped paying his federal income tax after reading a book called ?Vultures in Eagle?s Clothing,? which purported to describe a lawful way of avoiding taxes...

Two For The Price Of One

Posted on May 13, 2008
United States v. Douglas, No. 06-0581-cr (2d Cir. May 13, 2008) (Kearse, Katzmann, CJJ, Rakoff, DJ)Douglas was convicted of killing a Brink's employee while attempting to steal money from Citibank ATMS that were serviced by Brink?s. He was sentenced to life in prison...

Quantum Mechanics

Posted on May 09, 2008
United States v. Martinez, No. 06-5502-cr (2d Cir. May 9, 2008) (per curiam).In this brief per curiam, the court reaffirms that there is only one quantum of proof necessary for sentencing enhancements post-Booker - the preponderance standard.Specifically, the court rejected Martinez? argument that where the enhancement requires the sentencing judge to determine that the defendant committed a separate offense (here, the 4-level bump under � 2K2...

Yanni, Get Your Gun

Posted on May 09, 2008
United States v. Desinor, No. 05-4500-cr (2d Cir. May 8, 2008) (Walker, Straub, Hall, CJJ)This prosecution arose from a murderous rivalry between two drug gangs. One, the ?Cream Team? (footnote 1 of the opinion, which explains the derivation of this name, is a must-read), was populated largely by the defendants on trial...

Summary Summary

Posted on May 08, 2008
United States v. Rattoballi, No. 06-5881-cr (2d Cir. May 8, 2008). Rattoballi faced a guideline range of 27 to 33 months? imprisonment but received a noncustodial sentence. The government appealed, and, in a published decision, the court vacated the sentence...

Diner Out

Posted on May 06, 2008
United States v. Iodice, No. 06-2680-cr (2d Cir. May 6, 2008) (Straub, Pooler, Sotomayor, CJJ).John Iodice appealed his arson conviction on the ground that there was insufficient evidence of the requisite nexus to interstate commerce. The circuit affirmed...

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