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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

If I Had A Hammer

Posted on February 06, 2009
United States v. Pope, No. 08-1007-cr (2d Cir. February 3, 2009) (Cabranes, Livingston, CJJ, Eaton, DJ)Steven W. Pope pled guilty to two counts of bank burglary, in violation of 18 U.S.C. § 2113(a). During one of the burglaries, he broke a side window of a Chase branch with a sledgehammer...

Cashed and Burned

Posted on February 06, 2009
United States v. Varrone, No. 07-4533-cr (2d Cir. January 30, 2009) (Calabresi, Sotomayor, Parker, CJJ)Joseph A. Castello ran a check cashing business. He cashed more than $200 million in checks that exceeded $10,000 - charging a four percent check-cashing fee - for which he was obligated to file currency transaction reports (CTR?s)...

Structural Failure

Posted on February 06, 2009
Gibbons v. Savage, No. 07-3306-pr (2d Cir. January 28, 2009)(McLaughlin, Leval, Pooler, CJJ).At Robert Gibbons? state court trial, the judge closed the courtroom during jury selection, expelling the only spectator, Gibbons? mother. After exhausting his state court appeals, Gibbons filed a 2254 petition, which the district court dismissed...

Child-Like

Posted on February 06, 2009
United States v. Irving, No. 07-1312-cr (2d Cir. January 28, 2009)(Kearse, Sack, Raggi, CJJ)Stefan Irving is a former physician who was convicted, after a jury trial, of child pornography offenses, and several other counts relating to his travel to Mexico and Honduras to engage in sexual acts with children...

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Building Block

Posted on February 06, 2009
United States v. Hurell, No. 06-5653-cr (2d Cir. January 28, 2009) (Kearse, Calabresi, Sack, CJJ) (per curiam)In each of these three consolidated cases, all government appeals, the district court held that New York convictions for burglary in the third degree or attempted burglary in the third degree were not crimes of violence as defined in the career offender provisions of the Sentencing Guidelines...

Summary Summary

Posted on January 25, 2009
Three more quickies:In United States v. Espinal, No. 07-3128-cr (2d Cir. January 21, 2009), there was an inconsistency between the district court's oral statement of the guideline range and the range contained in the written judgment. The court remanded the case for the "ministerial purpose" of amending the judgment to reflect the actual Guideline range that the court used...

Crack a Smile

Posted on January 25, 2009
United States v. McGee, No. 08-1619-cr (2d Cir. January 23, 2009) (Pooler, Raggi, Livingson, CJJ) (per curiam)Darius McGee, convicted of a crack cocaine offense, was a career offender. At his sentencing, however, the district court downwardly departed...

Hart's Desire

Posted on January 25, 2009
United States v. Draper, No. 07-2301-cr (2d Cir. January 20, 2009)(Newman, Calabresi, Sotomayor, CJJ)Defendants Hart and Draper were members of LRP, a drug gang that operated in Brooklyn. In July of 2001, LRP members robbed and murdered a rival. One of the LRP members involved in the killing, Clinton Davy, was picked up and questioned by New York City police officers...

Ship of Fuels

Posted on January 25, 2009
United States v. Ionia Management S.A., No. 07-5801-cr (2d Cir. January 20, 2009) (McLaughlin, Calabresi, Livingston, CJJ)(per curiam)In the 1970's, the United States entered into two international treaties, collectively known as MARPOL, intended to eliminate marine pollution by oil...

Habeas Corpulent

Posted on January 19, 2009
Dolphy v Mantello, No. 03-2738-pr (2d Cir. January 9, 2009) (Jacobs, Hall, CJJ, Arcara, DJ)At Seth Dolphy?s state-court criminal trial, the prosecutor exercised a peremptory challenge against the only African-American member of the jury panel, and Dolphy raised a Batson challenge...

The Rare Necessity

Posted on January 19, 2009
United States v. White, No. 07-1180-cr (2d Cir. January 9, 2009)(Kearse, Sack, Livingston, CJJ)Police officers entered Anthony White?s home in response to a domestic violence call. According to the officers, they found him in the bedroom. He was sitting on the bed loading a sawed-off shotgun that was pointed at the doorway where the officers stood...

On Hold

Posted on January 19, 2009
United States v. Owen, No. 07-4966-cr (2d Cir. January 9, 2009)(Feinberg, Cabranes, Hall, CJJ)This decision addresses one of the procedural complexities that can arise when a defendant changes counsel on appeal while post-verdict motions are pending in the trial court...

Crosswalk Puzzle

Posted on January 19, 2009
United States v. Stewart, No. 07-3003-cr (2d Cir. January 8, 2009) (Winter, Miner, Cabranes, CJJ)Brett Stewart was a passenger in a livery cab that stopped at a red light. Two police officers claimed that the cab?s front wheels ended up in the crosswalk, a traffic violation...

Summary Summary

Posted on January 17, 2009
Here are two summary orders of interest:In United States v. Mammedov, No. 06-2971-cr (2d Cir. December 30, 2008), the court vacated a restitution order where the district court failed to set a payment schedule and, at least implicitly, ordered that the full amount be paid immediately...

Crack Under Pressure

Posted on January 17, 2009
United States v. Williams, No. 08-1065-cr (2d Cir. January 7, 2009) (Hall, Livingston, Gibson, CJJ)Here, the defendant, Saquan Lewis, unsuccessfully appealed the district court's denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c) based on the retroactive amendment to the Guideline for offenses involving crack cocaine...

Nothing In Store

Posted on January 17, 2009
United States v. Uddin, No. 07-3121-cr (2d Cir. January 6, 2009) (Kearse, Sack, Katzmann, CJJ)Mohammed Uddin owned a small grocery store in Manhattan, and used it to commit food stamp fraud between 2003 and 2006 by dispensing cash in exchange for food stamps...

Lies My Broker Told Me

Posted on January 17, 2009
United States v. Kelley, No. 06-5536-cr (2d Cir. January 5, 2009) (per curiam)Kevin Kelley, a stock broker, was convicted of securities and wire fraud based on his fraudulent activities with respect to four separate securities. For each of them he would either (1) purchase stocks for his clients without their authorization (2) do so without disclosing his own interest in the company or (3) misappropriate client funds for his own use...

Dogged Determination

Posted on December 24, 2008
United States v. Hayes, No. 07-0063-cr (2d Cir. December 24, 2008) (Miner, McLaughlin, Pooler, CJJ)On the morning of September 3, 2002, Derrick Hayes overdosed on cocaine. After he was put in an ambulance, his girlfriend gave local police officers permission to search the house...

Summary Summary

Posted on December 18, 2008
span style="font-family: verdana;"There were some interesting summary orders this week.br /br /In span style="color: rgb(0, 204, 204);"United States v. Romero/span, No. 06-1199-cr (2d Cir. December 18, 2008), the district court imposed a $10,000 fine, observing that the debt would make the defendant eligible for work in prison...

Taking Stock

Posted on December 18, 2008
span style="font-family: verdana;"span style="color: rgb(0, 204, 204);"United States v. Elgindy/span, No. 06-4081-cr (2d Cir. December 17, 2008) (Sack, Katzmann, CJJ, span style="font-weight: bold;"Rakoff/span, DJ)br /br /Defendants Elgindy and Royer were convicted of securities fraud-based racketeering counts, as well as related extortion charges relating to a complex stock manipulation scheme...

Restoration Drama

Posted on December 17, 2008
span style="font-family: verdana;"span style="color: rgb(0, 204, 204);"United States v. Bullock/span, No. 07-3059-cr (2d Cir. December 17, 2008) (span style="font-weight: bold;"Jacobs/span, Minor, Sotomayor, CJJ)br /br /Bullock, a previously convicted felon, was convicted, after a jury trial, of possessing ammunition...

Summary Summary

Posted on December 10, 2008
Here is the latest crop of summary orders of interest:In United States v. Cardenas, No, 06-5601-cr (2d Cir. December 9, 2008), the court remanded for an evidentiary hearing as to whether an ?oral cooperation agreement? existed. The defendant alleged that there was, and there was not ?overwhelming evidence to the contrary...

Run-On Sentence

Posted on December 08, 2008
United States v. Chavez, No. 05-4679-cr (2d Cir. December 8, 2008) (Kearse, Calabresi, Sack, CJJ)Jaime Chavez was convicted after a jury trial of a drug conspiracy and a § 924(c) offense, and faced a 50-year mandatory minimum: due to a prior conviction there was a 20-year minimum on the drug charge; and, because the gun had a silencer, he faced a 30-year mandatory consecutive sentence for the gun...

Take It To The Banc

Posted on December 07, 2008
United States v. Cavera, No. 05-4591-cr (2d Cir. December 4, 2008) (en banc)Gerard Cavera pled guilty to participating in a scheme in which guns were purchased in the South then transported to New York City for sale. At sentencing, the district court imposed a sentence six months longer than the top of the Guideline range, and an above-Guideline fine, based on two ?location specific? concerns...

Who?s Your Daddy?

Posted on December 07, 2008
United States v. Connolly, No. 06-3139-cr (2d Cir. December 4, 2008) (Straub, Raggi, CJJ, Sessions, DJ)Odell Connolly was born in Panama on April 21, 1968. His mother was a local, but his father was a United States citizen. They were not married. The father had been drafted into the United States Army in 1966 and was on active duty in the Panama Canal Zone until eighteen days before Connolly was born...

Hire Today, Gone Tomorrow

Posted on December 06, 2008
United States v. Lee, No. 05-1684-cr (2d Cir. December 3, 2008) (Straub, Hall, CJJ, Haight, DJ)Here, a divided panel found that a Crawford error required a new trial for two defendants convicted in a murder-for-hire conspiracy, although the evidence was legally sufficient...

How Not To Seek A Change Of Counsel

Posted on December 06, 2008
United States v. Salim, No. 04-2643-cr (2d Cir. December 2, 2008) (Newman, Walker, Sotomayor, CJJ)With the help of a cellmate, defendant Salim, while awaiting trial for the bombing of the United States embassies in Kenya and Tanzania, abducted an MCC guard and stabbed him in the eye with a sharpened comb, nearly killing him...

The Waist Band

Posted on December 06, 2008
United States v. Padilla, No. 07-5359-cr (2d Cir. December 2, 2008) (Raggi, Calabresi, CJJ, Keenan, DJ)October is the cruellest month. That?s when a New York City detective recovered a gun from Hector Padilla?s waistband. Padilla was sentenced to 120 months? imprisonment, the statutory maximum...

Embassy Suite

Posted on November 30, 2008
In re Terrorist Bombings of U.S. Embassies in East Africa, No. 01-1535-cr (2d Cir. November 24, 2008) (Feinberg, Newman, Cabranes, CJJ)This trio of long opinions, captioned In re Terrorist Bombings of U.S. Embassies in East Africa, resolves the appeals of the defendants convicted of the embassy bombings in Kenya and Tanzania in 1998...

Simply Possession

Posted on November 29, 2008
Alsol v. Mukasey, No. 07-2068-ag (2d Cir. November 14, 2008) (Calabresi, Straub, Raggi, CJJ)This decision, although an immigration case, clarifies an important legal issue that also arises in criminal cases. Here, each petitioner had been convicted of two New York State drug misdemeanors involving simple possession of a controlled substance...

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