Wednesday, May 28, 2008

Summary Summary

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.

United States v. Berrios, No. 05-6654-cr (2d Cir. May 27, 2008), sorted out a district court proceeding that can only be described as a train wreck. First, the court vacated one defendant’s sentence because the district judge did not give sufficient reasons for the sentence: it did not calculate the guideline range, mention § 3553(a), adopt the presentence report or address the history and character of the defendant. The circuit did not enforce the appellate waiver, because, during the plea, the district judge did not ascertain that the waiver was knowing and voluntary. Next, the court vacated a second defendant’s conviction in its entirety because the plea colloquy was inadequate - the court did not identify the charges or the maximum and minimum penalties. Third, the court vacated two other defendants’ sentences because the district court did not make sufficient findings as to drug quantity. Finally, a fifth defendant’s sentence was vacated because the record is “devoid of explanation or reasoning for [the] sentence.”

In United States v. Valdez, No. 07-0293-cr (2d Cir. May 14, 2008), the sentence was procedurally unreasonable because the district judge indicated that he believed the he would have to find the guideline range unreasonable before he could impose a below-guideline sentence.

Deficiency Expert

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. He claimed to have read the book more than 100 times, and spent additional hours studying the subject in a law library. Between 2000 and 2004, Ellett failed to pay more than $64,000 in federal income tax based on his belief that, as a “citizen” of New York State who worked for a private employer, he was not subject to taxation.

At trial, his defense was a lack of willfulness, which the jury rejected. On appeal, he argued that due process required that he be given an opportunity to litigate his position within the tax system before being prosecuted for tax evasion. Under this theory, the existence of a tax deficiency, one of the elements of 26 U.S.C. § 7201, could only be established if the government first adjudicated the matter civilly or administratively, which did not happen here.

The circuit disagreed. The tax deficiency element “arises by operation of law the date a tax return is due but not filed; no formal demand or assessment is required.” Thus, the government need not obtain a civil or administrative determination of the tax deficiency before bringing a criminal tax evasion case.

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Tuesday, May 13, 2008

Two For The Price Of One

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.

Douglas had originally been appointed a federal defender. But, once he was indicted on a death-eligible charge, the federal defender requested the appointment of a second attorney, “learned counsel” under 18 U.S.C. § 3005, and the court granted the request. About six months later, the government announced that it would not seek the death penalty, but Douglas asked the court to keep both attorneys on the case. The court rejected the request, but allowed Douglas to choose the attorney he wanted. On appeal, he renewed the claim that he was entitled to two attorneys under 18 U.S.C. § 3005.

The circuit disagreed. The statute, which provides for the appointment of death-qualified counsel once the defendant is indicted for a capital crime, does not say whether the appointment must continue once the government decides not to seek the death penalty. Nonetheless, the court, in a decision of first impression here, joined the First, Third, Ninth and Eleventh Circuits and concluded that, once the government decides not to seek the death penalty, the case is no longer a capital case. The court chose not to follow the Fourth Circuit, which, surprisingly, has a different rule.

It concluded, however, by noting that its holding was only that a district court was not required to continue with two attorneys once the case is no longer capital. This does not preclude the court, in its discretion, from maintaining the dual appointment in a future case.

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Friday, May 09, 2008

Quantum Mechanics

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 § 2K2.1(b)(6) for using a gun in connection with another felony offense), those facts should be proven beyond a reasonable doubt. The circuit noted that the district court did not sentence Martinez for the other offense; it merely determined that the separate offense was relevant to the sentence to be imposed on the offense of conviction, and that Martinez did not receive a sentence longer than the applicable statutory maximum.

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Yanni, Get Your Gun

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. The rival gang sold drugs out of a neighboring building, and was run by a dealer named Yanni. The appeal raised two issues of first impression relating to jury instructions in homicide cases. The court affirmed on those issues, but one defendant won a partial resentencing.

The Homicide

The trial evidence revealed that members of the Cream Team shot and killed Yanni’s cousin, and that this shooting was the culmination of a period of escalating acts of violence between the two groups. On the day of the shooting, heavily armed Cream Team members were looking for Yanni in his building, seeking to retaliate for something Yanni had done the day before. Two Cream Team members, with guns drawn, were walking down the stairs when Yanni’s cousin burst into the stairwell and reached for what they thought was a gun. They shot and killed him.


The defendants’ primary claim on appeal was that the district court erred in refusing to instruct the jury on self-defense. They pointed out that the two shooters both testified that they fired because they thought that the victim was reaching for a gun, and that, even if they were the initial aggressors, they withdrew from the conflict and attempted to communicate their withdrawal to the victim.

The circuit held that, on the facts of this case, the defendants were not entitled to an instruction on self-defense.

The court began by noting that “one cannot support a claim of self-defense by a self-generated necessity to kill.” Here, in disputably, the Cream Team defendants were the initial aggressors. The court ducked the question of whether they had provided sufficient evidence of withdrawal and communication, because it held that the defendants failed to establish that the “dangerous situation they had created by setting out to kill Yanni” had dissipated.

For this latter principle, the court turned to state court decisions for “guidance.” A survey of those cases revealed that “a defendant who initiates a violent crime, such as an armed robbery, that results in a fatal shooting may not claim self-defense absent a showing that, at the time the shooting occurred, the dangerous situation created by the initial crime had dissipated.”

Here, the court concluded, the defendants did not meet that burden. When they encountered Yanni’s cousin in the stairwell, they had “already created a dangerous situation, by virtue of their active participation in a conspiracy to commit murder.” There was no evidence that this dangerous situation had abated by the time the Cream Team crew encountered the victim. To the contrary, they were still looking for Yanni and still had their guns drawn.

The “Engaging In” Element

One count of conviction was under 21 U.S.C. § 848(e)(1)(A), which covers murder while “engaging in or working in furtherance” of a drug offense.

The district court charged the jury that the killing had to be “related in some meaningful way” to the drug conspiracy and that “at least one of the defendant’s purposes or motives . . . was because of the narcotics conspiracy.” The court also charged that the drug motive did not need to be the “sole purpose, or even the primary purpose” of the killing.

On appeal, the defendants argued that the court should have charged that the sole or primary purpose of the murder was drug-related. The circuit disagreed. “[T]he government need only prove beyond a reasonable doubt that one motive for the killing . . . was related to the drug conspiracy.” (emphasis in original). The existence of other motives does not affect the government’s ability to satisfy the “engaging in” element. All that is required is that there be a “substantive connection" between the defendant’s role in the murder and his participation in the drug conspiracy.

For these same reasons, the court also rejected a sufficiency challenge as to this element. There was “ample evidence” that the plan to attack Yanni, and the resulting murder of his cousin, were related to the two gangs’ ongoing drug rivalry.

The 924(c) Sentence

One defendant, Wilner Desinor, remained outside the building, armed, during the shooting. He was convicted under 18 U.S.C. § 924(c), but received a ten-year consecutive sentence, instead of the default five, for discharging his gun.

The circuit reversed because there was no finding, either by the judge or the jury, that Desinor had actually discharged his gun. To the contrary, the judge expressly charged the jury that it did not need to make this finding in order to convict under § 924(c).

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Thursday, May 08, 2008

Summary Summary

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. This summary order affirms the 18-month prison sentence imposed on remand. The sentence was reasonable, and did not violate the parsimony clause.

In United States v. Ibarra, No. 06-0742-cr (2d Cir. May 7, 2008), the court held that the district court erred denying the “minor participant” reduction to a drug courier. The defendant “participated in only one of the conspiracy’s two drug hand-offs,” played “lesser role than anyone else involved in the conspiracy,” and his participation was limited to accompanying another defendant, “to whom he was clearly subordinate.”

In United States v. LaFlam, No. 07-0253-cr (2d Cir. May 5, 2008), the court held that a state conviction for cultivation of marijuana was a career offender predicate because it involved the “manufacture” of a controlled substance.

Tuesday, May 06, 2008

Diner Out

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.

The building that Iodice torched had been, at one time, a diner. Its owner had purchased it, vacant, eighteen months before the fire. The diner was “complete and ready to open,” and, but for the fire, the owner was planning to move and reopen it six months later. A co-conspirator testified that the fire was intended to destroy the diner and prevent competition with another one already located near the new location.

The court rejected Iodice’s claim that the diner was not “used in” interstate commerce, as required by 18 U.S.C. § 844(i). The diner was a commercial building that was only temporarily inoperative. “[T]emporarily vacant buildings” can have a sufficient connection to commerce “as long as there was evidence at trial of sufficiently definite plant to return the property to the stream of commerce.” Here, the evidence of the owner’s future plans, coupled with the motive for the fire, sufficed.

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Monday, May 05, 2008

Impact Victim

United States v. Eberhard, No. 05-3431-cr (2d Cir. May 5, 2008) (Jacobs, Calabresi, Sack, CJJ)

Todd Eberhard, a former stock broker, pled guilty to various fraud charges. Under his plea agreement, the stipulated guideline range was 97 to 121 months’ imprisonment. The presentence report added a 4-level aggravating role enhancement, but then recommended a below-guidelines 96-month sentence. Judge Sweet issued a pre-sentencing opinion indicating that he would impose a 151-month sentence. But, at sentencing, after hearing from victims, who asserted their right to address the court under 18 U.S.C. § 3771(a) (2004), which was enacted after Eberhard pled guilty, the judge imposed a 160-month sentence.

The circuit affirmed the sentence. First, it rejected an ex post facto challenge to the application of § 3771(a). District courts have always had the discretion to consider victim statements, and there is nothing about the new legislation - which requires district courts to hear from the victims of financial crimes - that implicates the Ex Post Facto Clause. The new legislation did not create a new crime, aggravate or increase the penalty for an existing crime, or alter the rules of evidence to dilute the quantum of evidence necessary for the government to secure a conviction.

The court also rejected an interesting due process claim: Eberhard argued that the government violated the plea agreement by presenting victim testimony that made sentencing arguments “by proxy” that the government was barred from making in the plea agreement. The circuit disagreed, since nothing in the plea agreement prevented the government from presenting victim impact testimony and the victims’ pleas for a harsher sentence “were incidental to presentation of facts.”

Finally, Eberhard argued that the court should not have imposed an aggravating role enhancement. Unfortunately for him, he did not contest the enhancement at sentencing and the circuit deemed it “waived.”

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Saturday, May 03, 2008

Summary Summary

This batch of summary orders of interest wraps up April. Here we go:

In United States v. Moya, No. 05-2432-cr (2d Cir. April 30, 2008), the district court erred in imposing a 2-level aggravating role enhancement. Where the defendant is not a manager or supervisor, but there are five or more participants, the district court’s choice is between a 3-level enhancement or no enhancement at all. “Compromise outcomes” are not permitted.

In United States v. Dono, No. 07-5333-cr (2d Cir. April 23, 2008), the district court erred in setting bail for two alleged members of an organized crime family who were charged with a crime of violence. The defendants did not overcome the statutory presumption of dangerousness, and the bail condition ordering them to stay away from the victims and not associate with other crime family members did “not ensure that they will comply.”

United States v. Desroches, No. 06-3196-cr (2d Cir. April 14, 2008), not surprisingly, rejected the defendant’s claims that he was a immune from federal prosecution as a “Sovereign American,” and because his prosecution had not been “authorized by the State of Vermont.”

In United States v. Johnson, No. 06-2026-cr (2d Cir. April 13, 2008), the defendant was convicted of felony murder in front of Judge Korman, who sentenced him to 30 years’ imprisonment on a finding that the murder was reckless, not intentional. After winning his appeal on Batson grounds, he was retried and reconvicted, this time in front of Judge Johnson, who, although the facts had not changed, sentenced him to life in prison. The circuit vacated the sentence. Judge Johnson should have determined whether the murder was reckless or intentional, and should have explained in more detail his reasons for imposing a drastically higher sentence after retrial.

Friday, May 02, 2008

State of Disagreement

United States v. Williams, No. 05-4416-cr (2d Cir. April 25, 2008) (Calabresi, Cabranes, CJJ, Korman, DJ)

Here, the court vacated two below-guideline sentences that seemed to have been imposed largely in order to minimize a perceived disparity between the sentence recommended by the guidelines and the sentence that would have been meted out in state court.

Williams and Shuler sold crack together in Yonkers. They were first charged in state court, then the case was transferred to federal court. For reasons that are not clear, they were separately charged and their cases were handled by different district judges.

Williams was sentenced first, by Judge McMahon. He faced a 70 to 87 month range (now it would be 57 to 70 due to the crack guideline amendments) but the judge, persuaded by Williams’ attorney that the plea offer from Westchester County D.A.’s office’s would have been between 12 and 66 months, sentenced him to 36 months’ imprisonment. She characterized the disparity between the guideline range and the likely state sentence was “unwarranted.” Later, Judge Brieant sentenced Shuler. Although the judge had intended to impose a 70-month sentence, he instead gave him 40 months, to avoid a disparity with Williams.

The government appealed, and won. Focusing largely Williams, the circuit found the 36-month sentence to be procedurally unreasonable. First, the district judge erred by not treating the guidelines as a “starting point,” and by instead deciding to rely her “personal policy” of conforming to what she viewed as the likely state court sentence. The judge focused on the wrong disparity - § 3553(a)(6) is intended to eliminate disparity on a “national,” not a local, level.

The appellate court was also concerned with basing a federal sentence on the pleading policies of a particular district attorney, since New York has sixty-two of them. Such a practice could easily increase, rather than decrease, sentencing disparities within the federal districts in New York State. Finally, the circuit was concerned about the district court’s reliance on hearsay representations as to what would have happened in state court.

The court also vacated Shuler’s sentence, “if only because” it vacated Williams’. The court identified some other problems, however. While it agreed with Judge Brieant that avoiding disparities among “persons who are engaged in the same misconduct together” is permissible, the court was concerned that he relied too heavily on Williams’ sentence “without making his own assessment of an appropriate sentence.”

The court’s parting shot was to question the “assignment practice” that created Judge Briant’s “predicament.” “[I]t seems difficult on any score to justify the assignment of the Williams and Shuler cases to different judges.” The court suggested that, on remand, one judge take both cases.

On a brighter note, the court speculated that the “real reason” that Judge McMahon imposed such a low sentence was her “understandable desire to ameliorate” the federal crack-v-powder sentencing disparity. It reminded her that she has the discretion to do so on remand.

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Rejection Letter

United States v. Negron, 06-3614-cr (2d Cir. April 24, 2008) (Jacobs, Kearse, Pooler, CJJ) (per curiam)

Defendant Silverio, who was sentenced to 272 months (22 years, 8 months) in prison, had been offered, and rejected, a plea agreement with a binding sentencing recommendation of 17 years. On appeal, he argued that district court erred in refusing to consider the terms of the rejected agreement at sentencing.

Not surprisingly, the appellate court disagreed. There is nothing in § 3553(a) - or circuit precedent - that requires a district court to do so. Accordingly, finding no substantive or procedural defect with the sentence, the court affirmed.

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Youthful Indiscretion

United States v. Parnell, No. 06-4551-cr (2d Cir. April 23, 2008) (Winter, Straub, Sack, CJJ) (per curiam)

In this case, the court again holds that a New York youthful offender adjudication (a “y.o.”) - here, it was for attempted burglary in the second degree - must be included in the defendant’s criminal history score under the sentencing guidelines and, where applicable, can trigger the “career offender” enhancement.

There is nothing new or surprising about this. What is interesting about this case is its strong dicta that a y.o is not a predicate under the Armed Career Criminal Act (ACCA). Indeed, the circuit cites with approval United States v. Fernandez, 390 F. Supp.2d 277 (S.D.N.Y. 2005) (litigated and won by this very blogger), which so held, and notes that, here, the district court followed Fernandez in declining to sentence Parnell under ACCA, a sentence, not incidentally, that the government did not appeal.

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Thursday, May 01, 2008

Government’s “Question[able],” “Troub[ling]” and “Disingenous” Conduct Results in an Affirmance. Huh?

United States v. Blech, No 05-3600-cr (2d Cir. April 23, 2008) (Sotomayor, Parker, Hall, CJJ).

Two defendants who were convicted of securities and related frauds appealed on the ground that their cases were misjoined, and one advanced a Brady claim. The court affirmed, but only out of apparent deference to the district court’s findings under the “abuse of discretion” standard.

The Severance Issue

This case went to trial on a thirteen-count indictment that alleged two separate fraud schemes. The first involved appellant Brandon, who, along with others, defrauded customers of Credit Bancorp of more than $200,000,000. The second scheme involved appellant Wexler, who also defrauded Credit Bancorp customers, but in a different way. The district court denied their severance motions, and both were convicted.

The defendants’ severance claim was unusually strong. Although the two schemes shared some participants, and both targeted Credit Bancorp customers, they were otherwise completely distinct. Nevertheless, the appellate court found no error.

The court held that the joinder was permissible under Rule 8(b), even though the two schemes were not - and could not - have been charged as a single conspiracy. Rule 8(b) was still satisfied because the indictment alleged a sufficient overlap in parties and transactions. Nor were the defendants prejudiced by the joinder; the court cited the small risk of “spillover prejudice” and the district court’s limiting instructions.

Nevertheless, the court noted, “[W]e question the government’s decision to try the two conspiracies together.” Neither defendant knew of the other’s activities, it did not appear that one scheme would have been admissible background evidence during the trial of the other had they been severed, and the government unfairly “lump[ed] together all of the conspirators during its rebuttal summation.” So why did it affirm? The district court did not abuse its discretion “given the flexibility of the standard.”

The Brady Claim

Many, many months before trial, the government produced more than two hundred boxes of discovery. One week before trial, it provided to defendant Brandon exculpatory information - the grand jury testimony of a cooperating witness. It waited until the eve of trial to turn over even more Brady material - the FBI agent’s notes of that cooperator’s debriefing. These materials supported Brandon’s claim that he was unaware of the unlawful aims of the conspiracy with which he was charged.

Nevertheless, the circuit found no Brady violation, even though the government “disingenuous[ly]” argued that the material was not exculpatory. In fact, the court concluded that the evidence “quite obviously could be viewed as” favorable to Brandon. The government also disingenuously argued that the evidence was not exculpatory because there was other evidence of guilt, another ridiculous assertion that the court rejected.

But it still affirmed, because the district court found no bad faith (it seems that, here, the government reserved its bad faith for its appellate briefs), and “we do not go to far as to overturn that conclusion.” The court also noted that there was “no probability” that the late disclosure affected the outcome of Brandon’s case. It did provide, however, a stern warning that the government “should have” complied with Brady, but that, of course, gets Brandon nowhere.


Enough of the free passes! If the court is really serious about curtailing such sharp practice on the part of the government, it needs to start reversing convictions in cases like this.

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