United States v. Woolf Turk, No 09-5091-cr (2d Cir. November 30, 2010) (Katzmann, Hall CJJ, Jones, DJ)Ivy Woolf Turk was a principal in a real estate development company. Between 2003 and 2007 she and her partner persuaded investors to lend them $27 million, primarily to renovate apartment buildings in upper Manhattan. They induced the loans by promising that the investors would hold recorded first mortgages on the buildings as collateral. This was a lie - they never recorded the mortgages, so the investors were merely unsecured creditors. At the same time, the developers obtained loans from banks, and those liens were recorded.Eventually Woolf Turk began defaulting on the victims’ loans. The victims became suspicious and discovered that, despite Woolf Turks’ representations, their mortgages had never been recorded. In May of 2007, the investors sued; only then did they learn that, not only were their mortgages unrecorded, but that the bank loans were recorded, and thus…
No Gain, Yes Pain
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Julius’ Seizure
United States v. Julius, No. 08-4267-cr (2d Cir. June 11, 2010) (Pooler, Hall, CJJ, Sweet, DJ)Here, the district court granted the defendant’s motion to suppress a gun seized during Julius’ arrest on a parole violation. on the government's appeal, the circuit remanded for reconsideration in light of Herring v. United States, 129 S.Ct. 695 (2009).In 2007, Julius violated the conditions of a term of special parole imposed after a state court conviction in Connecticut. He had failed to attend court-mandated counseling sessions and had changed his residence but refused to disclose his new address to his parole officer.The officer finally found Julius at his girlfriend’s house, where the officer, accompanied by another parole officer and a deputy marshal found him lying on a bed in a back bedroom. They arrested him without incident. As an officer removed him from the room, in handcuffs, the marshal searched the bed to see if Julius had discarded any contraband. He partially…
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Murder, She Dotes
United States v. Young, No. 07-2729-cr (2d Cir. October 8, 2009) (Jacobs, Walker, Leval, CJJ)Defendant Laval Farmer was a member of the Bloods street gang, charged with a 2001 gang-related murder and and 2002 gang-related attempted murder, along with various associated firearms offenses. At least three years before the charged offenses he acquired the unfortunate nickname of "Murder." At his trial the court allowed witnesses to refer to him by that name and the prosecutors to repeatedly use it in highly inflammatory ways. As a result, the court of appeals vacated the attempted murder conviction, but let the murder conviction stand based on the strength of the evidence.BackgroundIn July of 2001, members of a rival gang, the Crips, assaulted two members of Farmer's Bloods crew. Farmer took it upon himself to avenge the beatings. Believing that a fourteen-year-old boy wearing blue clothing was a Crip, Farmer shot and killed him. It turned out that the boy was a…
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Suffer the Little Children
United States v. Freeman, No. 08-1886-cr (2d Cir. August 10, 2009) (Cabranes, Wallace, CJJ)In United States v. Delmarle, 99 F.3d 80 (2d Cir. 1996), the circuit held that it was within the district court's discretion to apply the guideline enhancement for possessing child pornography that depicted sadistic or masochistic conduct where the image showed a "young child [subject] to a sexual act that would have to be painful."Here, the defendant challenged the imposition of that same enhancement. He argued that the district court's findings were inadequate because the court did not specifically use the word "sadistic" in describing the images found in his computer. The circuit held that, under Delmarle, as long as the district court finds that "(1) an image depicts sexual activity involving a minor and (2) the depicted activity would have caused pain to the minor," the findings are adequate. Since the district court made those findings here,…
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Consecutive Privilege
United States v. Donoso, No. 07-0635-cr (2d Cir. April 3, 2008) (McLaughlin, Hall, CJJ, Sand, DJ) (per curiam)Resolving an open question in this circuit, the court here holds that, under 18 U.S.C. § 3584(a), a district judge cannot order the federal sentence to run consecutively to another sentence that has not yet been imposed.Facts: Richard Donoso violated his federal supervised release by committing a state offense. He pled guilty in state court, then came into federal court and admitted the supervised release violation. Judge Spatt sentenced him to 24 months' imprisonment and ordered it to run consecutively to the state sentence. Donoso was not sentenced in the state case, however, until the next day. A few days later, Judge Spatt recalled the case, questioning whether he had the power to impose a consecutive sentence before the state sentence had been imposed. Invoking Fed.R.Cr.Proc. 35(a), and over objection, he vacated the sentence, then reimposed it,…
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Yet Another Time-Warp Opinion
United States v. Capanelli, Docket No. 05-3056-cr (2d Cir. Mar. 1, 2007) (Jacobs, Sack, Oberdorfer) (per curiam): This opinion follows the Rattoballi line of cases, which emphasize the continuing centrality of the Guidelines in sentencing despite Booker. The panel rejects Capanelli's claim that his sentence must be vacated as procedurally unreasonable because the district court "gave complete deference to the guidelines" at sentencing. Op. 4. Among other things, the district judge, while repeating the "of course the Guidelines are now advisory" mantra, stated that the Guidelines should be "given significant and substantial deference" at sentencing.No problem!, this panel says, because the Guidelines range "'should serve as a 'benchmark or a point of reference or departure' for a sentencing court," (emphasis in original) and because"A sentencing judge's decision to place special weight on the recommended…
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Court Rejects Third-Party Appeal; No Implied Right to Victim Appeal Under MVRA
In U.S. v. Stoerr, No. 11-2787 (Aug. 28, 2012), Stoerr’s employer, Sevenson Environmental Services, appealed the restitution order in his case, arguing that because it had voluntarily repaid Stoerr’s victim, the restitution order should have been to Sevenson, instead of the victim. The Court dismissed the appeal, finding that Sevenson, as a non-party, lacked standing to appeal. Stoerr solicited and accepted kickbacks in his work overseeing a Superfund cleanup, and he passed the cost of the kickbacks on to victim Tierra, a company not receiving kickbacks, and to the EPA. When Sevenson learned of this, it compensated Tierra, and both brought a civil action against Stoerr and sought restitution in this proceeding. The district court denied restitution, holding that Tierra was the victim, and that Sevenson could pursue the civil remedy. The government moved to dismiss Sevenson’s appeal. Sevenson acknowledged the presumptive rule that, as a non-party, it could not…
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Felon’s Possession of Gun With Ammo Supports Conviction on One Count Only
Holding that possession of a firearm with ammunition is a "single unit of prosecution" under the felon-in-possession statute, 18 U.S.C. § 922(g), the Court in United States v. Tann, No. 08-2378, notices plain error in a judgment imposing a concurrent prison term and $100 special assessment on each of two counts charged against a Delaware man convicted of possessing (1) a handgun and (2) twenty-five rounds of ammunition. Along the way, the Court declines to follow its own 2002 decision concerning such error's effect on "substantial rights," concluding that pre-2002 Supreme Court precedent had already dictated a different conclusion.With respect to the proper construction of 18 U.S.C. § 922(g), the Court explains in an opinion by Judge Chagares that "when Congress fails to set the unit of prosecution clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses." Finding the statute…
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3d Circuit affirms life sentence and holds that § 848(b) sets forth sentencing factors, not a separate crime.
In United States v. Tidwell, No. 02-3139 (3d Cir. Mar. 31, 2008), the Third Circuit held that Congress intended 21 U.S.C. § 848(b) as a sentencing enhancement, not as a separate crime, and thus the life sentence imposed on Tidwell under § 848(b) was constitutional where the factual basis was not charged in the indictment. Tidwell had pleaded guilty to engaging in a criminal enterprise in violation of § 848 ("Continuing criminal enterprise"), which carries a penalty of 20 years to life imprisonment. The indictment, however, did not specifically charge him with violating § 848(b) ("Life imprisonment for engaging in continuing criminal enterprise"), which carries a mandatory life sentence for one who is the leader of the enterprise and either the offense involved 300 times the quantity of drugs described in § 841(b)(1)(B) or the enterprise received more than $10 million in gross receipts over a…
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Rita's impact in the 3rd Circuit
In Rita v. U.S., 2007 WL 1772146, the Supreme Court ruled that the circuits "may," for purposes of appellate review only, apply a "presumption of reasonableness" to sentences within the Guidelines range. But the Court placed so many limits on this presumption, and went on at such length to stress the discretion district courts have at sentencing, that ultimately Rita is a very good decision that emphasizes that the guidelines are truly "advisory."The key points from Rita:1) The sentencing court has broad discretion in sentencing, and sentences will be reviewed deferentially for "abuse of discretion" as they were under Koon.Rita, 2007 WL 1772146, *9 ("appellate ‘reasonableness' review merely asks whether the trial court abused its discretion").2) The district courts may not apply any presumption of reasonableness to the Sentencing Guidelines range.Rita, at *9 ("We repeat that…
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Change in Law Makes Defendant Innocent of Two Charges; Federal Courts Tell Pennsylvania to Devise a Solution Other Than Rescission of Plea Agreement
In McKeever v. Warden SCI-Graterford, No. 05-2492, (3d Cir. May 10, 2007), the Third Circuit ("3C") held that the District Court did not err in granting defendant's habeas writ, but staying that writ for 180 days and leaving the appropriate remedy to the discretion of the Commonwealth of Pennsylvania, where there was a mutual mistake of law by the parties during the plea agreement process. McKeever pleaded guilty in 1995 to ten counts of an eleven-count Information against him stemming from his possession and delivery of heroin, including two counts arising under the Pennsylvania Corrupt Organizations Act ("PACOA"). McKeever's guilty plea was in exchange for the Commonwealth of Pennsylvania's ("the Commonwealth") promise not to object to a sentencing scheme that would merge the two PACOA counts and make them concurrent with one of the drug delivery counts. He was sentenced in the Court of Common Pleas to fifteen to forty-two…
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Sentencing and the Parsimony Provision
In US v. Shalon Dragon, No. 05-4906 (12/29/06), the 3rd Circuit ruled that district courts need not expressly apply the "parsimony provision" when sentencing.Dragon pleaded guilty to identity theft and faced a guideline range of 37 to 46 months in prison. The judge imposed 44 months, and Dragon appealed arguing that the judge failed to articulate why a lower sentence within the guideline range would not have been sufficient. Dragon argued that this omission violated the "parsimony provision" in 18 usc 3553(a), which states:The court shall impose a sentence sufficient, but not greater thannecessary, to comply with the purposes set forth in paragraph (2) of thissubsection [which lists the four basic purposes of sentencing].The Circuit ruled that "district judges are not required by the parsimony provision to routinely state that the sentence imposed is the minimum sentence necessary to achieve the purposes set forth in section 3553(a)(2)." Instead,…
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Operating After Suspension and Habitual Offender Revocation Charges in Maine
I love her hair in this picture The Bad News: Penalties for those convicted of operating after suspension or revocation can be harsh!Maine has some pretty bad law on driving after suspension or revocation. Fist off, it's easy to get your driver's license suspended in Maine. Not paying a fine, conviction for other driving offenses, accumulating points, or just changing your car insurance coverage can all result in suspension. Even after you fix the problem that got you suspended, your license will not be restored until you pay a "reinstatement fee" of $50 to the Bureau of Motor Vehicles. That's $50 for every suspension, so people with a late fine, lapsed insurance and a speeding ticket or two can be into hundreds of dollars pretty quick. That fee can leave a 15 day suspension in effect for years. To make matters worse, a suspension notice letter should be sent, but State mail does not get forwarded. If you moved, and have not update the address on your license, you…
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In Praise of "Soup Kitchen Accounting"
Two co-contributors to the New York Times Op-Ed section this week think that the solution for ensuring that recipients of federal funds are held accountable for their use of those funds is requiring that the beneficiaries of taxpayer financing should have to keep track of their money in the same way nonprofits must. "Nonprofits use what is known as "fund accounting." Fund accounting requires that a separate set of books be maintained for all grants that are designated for a specific activity. The aim is to ensure that the resources are spent for their intended purpose."Furthermore, "[b]efore a charity can receive a federal grant, it must prepare a proposal outlining precisely what it will do with the funds. Bailout recipients should do the same, or at least sign contracts agreeing to spend the money in accordance with terms set forth by the Treasury. . . . Similarly, charities are asked to provide detailed financial reports at least once a year to the…
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New Community Court in Newark
This well-reported article from today's Newark Star-Ledger profiles a new Community Court planned for Newark, New Jersey. As Chris Pleasanton pointed out on the Courtbuilders listserv, a community court for Newark, the city where the original study of the "broken windows" theory of crime prevention was based, represents a coming full circle in the field of criminal justice.
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More on the Nebraska Abolition Bill
The Omaha World-Herald has, "Death penalty repeal returns."State Sen. Ernie Chambers is hoping to take Nebraska's death penalty with him when he leaves the Legislature next January. Chambers, who has spent more than three decades trying to pull the plug on the state's electric chair, tried again Tuesday â€â
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In Pennsylvania
The Harrisburg Patriot-News reports, "State forms plan to ensure humane executions." Pennsylvania officials are considering a change to the death penalty procedure designed to ensure executions by lethal injection meet constitutional protections against "cruel and unusual punishment." The plan, a result of negotiations between Secretary of Corrections Jeffrey Beard and Rep. Daylin Leach, D-Montgomery, involves brain wave monitoring technology to ensure any inmate being put to death is fully unconscious before the final phase of an execution. Corrections officials declined to comment on specifics of the pending agreement last week. It comes as the U.S. Supreme Court is weighing an inmates' challenge to lethal injection procedures in Kentucky and 35 other states, including Pennsylvania. The Philadelphia Inquirer has an editorial, "Pa.'s death penalty." The editorial is currently mis-indexed on the…
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Missing Forest for Trees on Executions
That's the title of an OpEd in today's San Antonio Express-News by Bob Van Steenburg, the Vice-President of the Texas Coalition to Abolish the Death Penalty. LINKThirty-one years ago, in January 1977, the U.S. ushered in the "modern era" of capital punishment with the execution of Gary Gilmore. Support for the death penalty increased throughout the 1980s, and executions reached a peak in 1999, with 98 executions. Death sentences in the late 1990s also peaked, with 284 capital sentences handed down in 1999. Since that peak, however, a form of "buyer's remorse" has set in with regard to the death penalty. Consider: Executions and death sentences have dropped steadily from their 1990s high. Last year, 42 executions took place, the lowest number since 1994. And approximately 110 death sentences were handed down, a 60 percent decrease from 1999. Illinois imposed a moratorium on executions after numerous cases of…
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Scalia to Join Supreme Court Book Club
That's the title of a report by Law.com's Supreme Court watcher, Tony Mauro. LINKWhile Supreme Court Justice Clarence Thomas has been out publicizing his bestselling memoir, fellow conservative Antonin Scalia has been quietly writing a book of his own. But Scalia's probably won't be a chart-topper -- except among lawyers. Without fanfare or publicity, Scalia and Bryan Garner, the legal writing guru, have joined to co-author a book on the art of persuading judges, both orally and in written briefs.And two more excerpts:In writing the book, Garner and Scalia have also delved into the classic authorities on rhetoric, persuasion and oratory, such as Cicero, Aristotle and Quintilian. "It sounds heavy, but it's not," says Garner, who describes Quintilian, a Roman rhetorician who wrote volumes on oratory nearly 2,000 years ago, as "Justice Scalia's new hero." ... Now, also at Scalia's…
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Texas Court of Criminal Appeals Adopts Emergency E-Filing Rules
In the wake of the controversial closing of the Court by Presiding Judge Sharon Keller on September 25, resulting in the execution of Michael Richard, the Court has adopted new rules for e-filing, The e-filing is limited to death penalty and certain other extraordinary emergency matters. The rules are here.
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