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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

Offer Rejected

Posted on September 27, 2008
United States v. Savage, No. 06-4097-cr (2d Cir. September 18, 2008) (Pooler, Livingston, CJJ, Kaplan, DJ)Lavon Savage pled guilty to possessing a gun. At issue was whether his offense level should be enhanced for a prior ?controlled substance offense,? based on his conviction under Connecticut General Statute § 21a-277(b), which makes it a crime to, inter alia, sell a controlled substance...

Enterprise Rent-A-Cop

Posted on September 27, 2008
United States v. Eppolito, No. 06-3280-cr (2d Cir. September 17, 2008) (Kearse, Sack, Hall, CJJ)Louis Eppolito and Stephen Caracappa were NYPD detectives who, for many years, also worked for the Lucchese organized crime family - and occasionally other Mafia families - on the side...

Summary Summary

Posted on September 27, 2008
So far, September has produced two summary orders of interest.In United States v. Evans, No. 05-5753-cr (2d Cir. September 18, 2008), the court ordered a Regalado remand for one defendant, even though he was a career offender. His offense level was the same under the drug quantity table and the career offender rules, and the district judge made some comments that suggested that she did not fully understand her sentencing discretion...

Romeo and "Julie"

Posted on September 10, 2008
United States v. Joseph, No. 06-5911-cr (2d Cir. September 9, 2008) (Newman, Walker, Sotomayor, CJJ)Dennis Joseph, through an internet chat room called ?I Love Older Men,? met ?Julie,? an FBI agent posing as a thirteen-year-old girl. He began exchanging messages with her describing sexual acts he wanted to perform with her, and over time, they made a plan to meet at a café in Manhattan...

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The Three Racketeers

Posted on September 06, 2008
United States v. Riggi, No. 06-1280-cr (2d Cir. September 4, 2008) (Jacobs, Calabresi, Sack, CJJ)Defendants Vitabile, Abramo and Schifilliti were all long-time members of the Decavalcante crime family. Vitabile was consignliere for thirty-five years, Abramo had been a captain since the late 1980's and Schifilliti had held that same title since 1991...

A Family Affair

Posted on September 06, 2008
United States v. Yannotti, No. 06-5571-cr (2d Cir. September 4, 2008) (Katzmann, Parker, Raggi, CJJ)Michael Yannotti was one of several Gambino crime family members accused of multiple violent acts - including extortion, loansharking and murder. After a jury trial, he was convicted of a RICO conspiracy, although the only predicates that the jury could agree that he committed were loansharking activities that had taken place eight years or more before he was indicted...

Conspiracy Theories

Posted on September 06, 2008
United States v. Santos, No. 06-0833-cr (2d Cir. September 2, 2008) (McLaughlin, Sack, Livingston, CJJ)In 2000, Santos was hired by a big Columbian drug dealer to kill two men who had stolen drug proceeds from him. Santos had meetings with an intermediary, Medina, in which Medina answered Santos questions about the nature of the drug organization and the debt, and detailed the reasons for the hit...

Gimme Shelter

Posted on August 30, 2008
United States v. Stein, no. 07-3042-cr (2d Cir. August 28, 2008) (Jacobs, Feinberg, Hall, CJJ)This case arose from a 2004 investigation into KPMG?s suspected creation and sale of illegal tax shelters. Although KPMG?s counsel recommended a ?cooperative approach? in its dealings with the government, the firm still, initially, promised to pay the attorneys' fees of any current or former member of the firm who was under investigation...

Toll Free

Posted on August 29, 2008
United States v. Kozeny, No. 07-3107-cr (2d Cir. August 29, 2008) (Sack, Katzmann, Hall, CJJ)In 2002 and 2003, the government believed that Frederic Bourke was involved in a scheme to bribe senior government officials in Azerbaijan in connection with the privatization of that nation?s state-run oil company...

Feetotalers

Posted on August 24, 2008
United States v. Amato, No. 06-5600-cr (2d Cir. August 21, 2008) (Cardamone, Miner, Pooler, CJJ)The defendants were the principals of a consulting firm that was purchased by EDS, a much larger company. Their compensation included an incentive plan that promised large bonuses if they helped their clients, financial services firms, avoid losses caused by escheatments...

Flight Cancellation

Posted on August 24, 2008
United States v. Mundy, No. 06-1190-cr (2d Cir. August 21, 2008) (Kearse, Leval, Cabranes, CJJ).In this decision, the court all but eliminates the ?flight as consciousness of guilt? jury instruction from Second Circuit jurisprudence.The facts here were somewhat unusual because it was the the defendant who sought the instruction with respect to a co-defendant...

Standing Alone

Posted on August 19, 2008
United States v. Hamilton, No. 06-2933-cr (2d Cir. August 15, 2008) (Leval, Sotomayor, Katzmann, CJJ)Hamilton was convicted of participating in a marijuana conspiracy. He raised a host of issues on appeal, and prevailed on his claim that the district court erroneously concluded that he lacked standing to challenge a search...

Tamper Proof

Posted on August 19, 2008
United States v. Ventry, No. 06-3104-pr (2d Cir. August 15, 2008) (Cabranes, Wesley, CJJ, Castel, DJ).In this appeal from the denial of a 2255 motion, the circuit faulted the district court?s finding that Ventry?s counsel did not suffer from a conflict of interest...

It Depends Upon What the Meaning of the Word ?Is? Is

Posted on August 19, 2008
United States v. Darden, No. 06-4567-cr (2d Cir. August 15, 2008) (Cardamone, Pooler, CJJ, Keenan, DJ)Under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (?ACCA?), a felon-in-possession of a firearm or ammunition faces a fifteen-year mandatory minimum sentence (the maximum is life) if he has at least three prior convictions for felony crimes of violence and/or ?serious? drug offenses...

Collusion Course

Posted on August 19, 2008
United States v. Guevara-Umana, No. 07-1410-cr (2d Cir. August 15, 2008) (Leval, Calabresi, Pooler, CJJ) (per curiam)Guevara was deported in 1999. By 2004, he was back; on February 21, 2004, he was charged with grand larceny in New York State. That same day, ICE filed an immigration detainer...

Ratio Days

Posted on August 19, 2008
United States v. Keller, No. 07-3330-cr (2d Cir. August 14, 2008) (Miner, Cabranes, CJJ, Berman, DJ)This case provides an important clarification of the procedure that the court set out earlier this year in United States v. Regalado, 518 F.3d 143 (2d Cir...

Sex Post Facto

Posted on August 18, 2008
United States v. Marcus, No. 07-4005-cr (2d Cir. August 14, 2008) (Straub, Sotomayor, Wesley, CJJ) (per curiam)Between 1999 and 2001, Glenn Marcus kept a woman, ?Jodi,? as his sex slave. Having met her on the internet, he induced her to move from the Midwest to Maryland, where he set her up in an apartment...

Uncooperative

Posted on August 18, 2008
United States v. Doe, No. 06-4124-cr (2d Cir. August 13, 2008) (Kearse, Pooler, CJJ, Cote, DJ)Defendant John Doe, along with others, was charged with ?an array? of drug and gun offenses, racketeering, robbery and two murders. He expressed an interest in trying to cooperate with the government, but the government declined...

Valentine?s Day Off

Posted on August 18, 2008
United States v. Valentine, No. 06-5648-cr (2d Cir. August 5, 2008) (Leval, Calabresi, CJJ, Nevas, DJ)Federal agents intercepted a fifty kilogram drug shipment that was addressed to an apartment building in Brooklyn. They arranged for a controlled delivery, and watched from a surveillance van across the street...

Scent of a Warehouse

Posted on August 18, 2008
United States v. Klump, No. 06-0339-cr (2d Cir. August 4, 2008) (McLaughlin, Sack, Livingston, CJJ)Federal drug agents followed a fan believed to be associated with drug activity to a home depot, and then to a warehouse in Buffalo that Klump owned. The agents watched the warehouse for a while, and when Klump and another person left the building, detained them...

In Search of Lost Time

Posted on July 30, 2008
United States v. Abiodun, No. 06-5335-cr (2d Cir. July 30, 2008) (Cardamone, Cabranes, Katzmann, CJJ)Emmanuel Abiodun was one of a group of people who ran a large credit card and identity fraud scheme in which credit reports were illegally downloaded and used to obtain credit cards in the victims? names...

Glitter and Begay

Posted on July 30, 2008
United States v. Gray, No. 07-3636-cr (2d Cir. July 25, 2008) (Wesley, Hall, CJJ, Koeltl, DJ)In New York, reckless endangerment in the first degree involves conduct ?evincing a depraved indifference to human life? that ?creates a grave risk of death to another person...

Car Trouble

Posted on July 30, 2008
United States v. Delossantos, No. 06-4713-cr (2d Cir. July 25, 2008) (Feinberg, Miner, Parker, CJJ)Marino Delossantos was a drug dealer, who was negotiating a deal with an undercover officer. While Delossantos was under surveillance, defendant Rodriguez was seen at the building where Delossantos lived ,and also drove him to and from various locations related to the drug deal...

Bolt 45

Posted on July 30, 2008
United States v. Torres, No. 06-4124-cr (2d Cir. July 24, 2008) (Kearse, Pooler, CJJ, Cote, DJ)Facing a mandatory life sentence after trial, defendant Torres pled guilty to a series of crimes of violence in exchange for a forty-five year sentence. Five months later, he moved to withdraw his plea, claiming that statements by the prosecutor at a reverse proffer and in court on the day of the plea unduly coerced him...

Remand Performance

Posted on July 27, 2008
United States v. Ogman, No. 06-0203-cr (2d Cir. July 24, 2008) (Sotomayor, Livingson, CJJ, Preska, DJ) (per curiam)This published opinion replaces a summary order filed in this case back in April. [It was blogged in that month?s Summary Summary.] The case holds that, in a crack cocaine prosecution, a Regalado remand is not warranted when the defendant was sentenced as a career offender...

Warrant Peace

Posted on July 27, 2008
Untied States v. Waker, No. 07-4160-cr (2d Cir. July 22, 2008) (Hall, Livinston, CJJ, McMajon, DJ) (per curiam)Here, the defendant unsuccessfully argued that various defects invalidated a search warrant.He first cited two typographic errors - the magistrate accidentally set the execution deadline as April 30, 2004, instead of April 30, 2005, and the agent accidentally post-dated by one day facts in the supporting affidavit...

RePetition

Posted on July 27, 2008
Nnebe v. United States, No. 05-5713-pr (2d Cir. July 21, 2008)Pena v. United States, No. 06-0218-pr (2d Cir. July 21, 2008)This month, the court re-issued decisions in two cases decided in June - one of which the court subsequently withdrew [see prior posts ?Role of Certs? and ?Withdrawal Symptoms?] - dealing with counsel?s obligation to file a petition for a writ of certiorari...

Deceptively Simple

Posted on July 27, 2008
United States v. Finnerty, No. 07-1104-cr (2d Cir. July 18, 2008) (Jacobs, Pooler, CJJ, Restani, J)The New York Stock Exchange functions, essentially, as an auction market. Specialist firms are designated to facilitate the auction of a particular stock by processing the bids to buy and offers to sell it...

Luggage Wreck

Posted on July 27, 2008
United States v. Leerdam, No. 07-1435-cr (2d Cir. July 18, 2008) (Jacobs, Straub, CJJ, Jones, DJ).Here, the circuit reversed the convictions of two defendants, Andrea and Julio Lorenzo, who had been convicted in a drug importation and distribution conspiracy, finding that the evidence was legally insufficient...

The Amazing Trace

Posted on July 27, 2008
United States v. Crawford, NO. 06-5059-cr (2d Cir. July 17, 2008) (Sotomayor, Wesley, Wallace, CJJ)This gun possession case arose when defendant Crawford was arrested by parole officers for violating his curfew and smoking marijuana. The officers claimed that they found a gun and ammunition in his bag...

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