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United States v. Hotaling, no. 09-3935-cr (Feb. 28, 2011) (First Amendment; child pornography). Defendant pled guilty to possession of child pornography after the district court rejected his claim that the images he possessed—which were created using the faces of actual minors and the bodies of adults—were protected speech under the First Amendment. Noting that child pornography is defined with reference to identifiable minors (18 U.S.C. § 2256(8)), the Second Circuit affirmed this ruling on appeal and explained that the interests of actual minors are implicated when their faces are used to create morphed images that make it appear that they are performing sexually explicit acts. The Second Circuit also rejected the defendant’s claim that the enhancement for images depicting sadistic or masochistic conduct could not be based on morphed images. Instead, the Second Circuit affirmed that the enhancement could apply where:
[T]he morphed image portrays both sexual activity involving a minor and sadistic conduct which includes the likely “infliction of pain,” “delight in physical or mental cruelty,” the use of “excessive cruelty,” or “other depictions of violence.”
United States v. Akinrosotu, no. 09-2333-cr (Feb. 28, 2011) (supervised release; fines). Defendant was fined $50,000 as part of his sentence and the district court’s order made payment of any remaining fine a condition of supervised release. Prior to his release, the defendant sought to have his fine reduced and the district court denied the request. On appeal, the Second Circuit concluded that 18 U.S.C. § 3583(e)—which deals with modification of conditions of supervised release—granted a district court only the power to modify that portion of the fine that remains unpaid at the commencement of the term of supervised release.
United States v. Pescatore, nos. 10-0520-cr, 10-0615-cr (Feb. 23, 2011). The defendant pled guilty to operating a chop shop and extortion. His plea agreement provided for a term of imprisonment and also provided for a $2.5 million forfeiture of money and property as well as $3 million in restitution. The plea agreement obligated the government to recommend to the Justice Department that the defendant’s forfeiture be used to satisfy the restitution obligation. The government made the recommendation, but the Justice Department declined to apply the forfeiture to the restitution. Thereafter, the defendant moved for an order compelling the government to apply the forfeited funds to the restitution obligation and for a ruling that the restitution obligation was overstated; the motion was denied.
On appeal, the Second Circuit rejected the defendant’s argument that the Justice Department was obligated to apply the forfeited funds to the restitution obligation because nothing prohibited doing so. Instead, the Second Circuit explained that nothing obligated the Justice Department to take this action and the government’s obligation under the plea agreement was simply to make the recommendation and then to exercise its discretion in accordance with the law, which it had done. The Second Circuit also rejected the defendant’s claim that his restitution obligation was overstated. In so doing, the Second Circuit noted that the $3 million restitution order had never been appealed. Consequently, even though it appeared the actual loss was less than $3 million, the plea agreement and restitution order obligated the defendant to pay that amount. Once paid, the district court would have to refund any funds in excess of the actual loss amount plus interest and late fees.
United States v. Skys, no. 09-5204-cr (Feb. 23, 2011) (fraud enhancements). Defendant was convicted of various fraud enhancements and appealed the application of leadership-role and number-of-victim enhancements. The Second Circuit determined that the record was inadequate and the case was remanded with instructions to supplement the record. With respect to the number-of-victims enhancement (U.S.S.G. § 2B1.1), the Second Circuit explained that the Guidelines draw a distinction between the loss determination—which is based on the actual or intended loss—and the number of victims—who are only individuals or persons who sustained an actual loss. The distinction mattered in the present case because although the intended loss was significant, not all entities involved actually experienced a loss.
As for the leadership-role enhancement in § 3B1.1(a), the Second Circuit determined that the record was inadequate and, for instance, lacked findings as to whether there were other individuals involved that were, or could be, criminally responsible.
United States v. Chowdhury, no. 09-3443-cr (Feb. 22, 2011) (U.S.S.G. § 2D1.1). Where the defendant is charged with possessing a controlled substance not specifically referenced in the Guidelines, U.S.S.G. § 2D1.1 calls for a marijuana equivalency to be calculated using the most closely related listed substance. On appeal, the defendant argued that the district court erred when it determined that that the controlled substance referenced in the Sentencing Guidelines that is most closely related to a mixture of 1-Benzylpiperazine (“BZP”) and 3-triflouromethylphenyl (“TFMPP”) is 3,4-Methylenedioxymethamphetamine (“MDMA”), or ecstasy. The Second Circuit rejected this claim and concluded that it was not error for the district court to rely on the DEA’s determination that BZP and TFMPP are used in combination to mimic the effects of MDMA. This determination was supported by the fact that the seized pills were initially identified as MDMA and had a street price similar to MDMA.
United States v. Conca, no. 09-4475-cr (Feb. 15, 2011) (criminal history U.S.S.G. § 4A1.2). On appeal from a 78-month SORNA sentence, defendant argued that a past youthful offender adjudication should not count in his criminal history. The Second Circuit rejected this claim and reiterated its prior holding that to determine whether a youthful offender conviction should count as a conviction as an adult, the sentencing court should examine the substance of the prior conviction at issue and focus on the nature of the proceedings, the sentence received, and the actual time served. In the present case, the youthful offender adjudication was properly counted because despite the initial adjudication, the defendant violated his probation and was eventually incarcerated in an adult facility.
United States v. Acoff, no. 10-285-cr (Feb. 11, 2011) (crack vs. powder cocaine disparity). The district court concluded the 100-to-1 crack vs. powder cocaine ratio “does not make sense at all” and sentenced the defendant below the 60 month mandatory minimum. On appeal, the Second Circuit reversed and rejected the defendant’s argument that the Fair Sentencing Act should apply retroactively. Judges Calabresi and Lynch concurred, suggesting that Congress act to make the Fair Sentencing Act retroactive.
United States v. Mejia, no. 07-5278-cr (Feb. 9, 2011) (18 U.S.C. § 924(c)). Defendant challenged the district court’s sentence, which ran his § 924(c) sentence consecutive to other drug charges. On appeal, the Second Circuit rejected the defendant’s reliance on past decisions—United States v. Williams, 558 F.3d 166 (2d Cir. 2009), and United States v. Whitley, 529 F.3d 150 (2d Cir. 2008)—in which the Second Circuit held that where there is a higher applicable mandatory minimum, § 924(c) does not require that the § 924(c) sentence run consecutively. Instead, the Second Circuit explained that the Supreme Court’s decision in Abbott v. United States, 131 S.Ct. 18 (2010), rejected this interpretation and concluded that a defendant is “subject to the highest mandatory minimum specified for his conduct in § 924(c), unless another provision of law directed to conduct proscribed by § 924(c) [i.e., possessing a firearm in connection with a predicate crime] imposes an even greater mandatory minimum.”
United States v. Sabir, no. 07-1968-cr (Feb. 4, 2011) (18 U.S.C. § 2339B; attempt—substantial step). Based largely on the Supreme Court’s decision in Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2709 (2010), the Second Circuit rejected the defendant’s facial and as-applied challenges to the material aid of foreign terrorist organization statute, 18 U.S.C. § 2339B. A split panel also rejected the defendant’s challenge to his attempt conviction. In so doing, the panel concluded that the defendant’s agreement at a meeting to in effect be an on-call physician for wounded jihadists, in combination with his providing contact information to the supposed terrorist, was a substantial step and sufficient evidence to support the attempt conviction. The Second Circuit also rejected a variety of other evidentiary claims.
Chief Judge Dearie of the Eastern District of New York, sitting by designation, dissented.RIN,
United States v. Greer, no. 09-4362-cr (Feb. 4, 2011) (Fifth Amendment). On appeal from his conviction for being a felon in possession of a firearm or ammunition, the defendant argued that testimony from the arresting officer regarding the defendant’s tattoo (the name “Tangela”), which linked him to the crime via a car rental agreement in the name “Tangela”, violated his Fifth Amendment right against self incrimination. The Second Circuit explained that while the use of a tattoo to identify a defendant is not testimonial, the testimony about the tattoo was testimonial because it was used to prove the defendant had a relationship with the individual who rented the car and thus tended to prove the defendant had constructive possession of the ammunition. Although the use of the tattoo was testimonial, neither the origins of the tattoo nor the officer’s observation of the tattoo was compelled by the government and the Fifth Amendment claim failed.
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