July 2010

Opinions:

United States v. Amanuel, no. 06-1103 (July 29, 2010). In this interlocutory appeal, the Second Circuit affirmed in part the district court’s orders suppressing pager interceptions and the evidence derived therefrom. In its decision on appeal, the Court joined with the Fourth and Ninth Circuits to hold that “the handwritten transcription in a log book of images appearing on a display pager is not sufficient to meet the recording requirement of 18 U.S.C. § 2518(8)(a).” Slip Op. at 9. It follows then, the Court explained, that “if handwritten documents do not meet the recording requirement of § 2518(8)(a), they simply cannot be sealed in accordance with the statute’s sealing requirement.” Id. at 10.

These failures, the Court held, do not rise to the level of a constitutional violation because, inter alia, the recording and sealing requirements in § 2518(8)(a) are intended to protect the integrity of evidence. Because there was no constitutional violation, the appropriate statutory remedy was to exclude evidence regarding the contents of the pager interceptions. However, it was not appropriate to exclude the fruits derived from the pager interceptions.

United States v. DeSilva, no. 09-2988 (July 28, 2010) (per curiam). The defendant pled guilty to distributing child pornography (18 U.S.C. § 2252(a)(2)) and received a below-Guidelines sentence of 132 months imprisonment (range 235 to 240 months). The government appealed the sentence arguing that the district court erred when it concluded the defendant posed no threat to the community based in part on a psychological evaluation that had been submitted in favor of the defendant’s request to be released pending trial.

On appeal, the Court vacated the sentence explaining that nothing in United States v. Dorvee, 604 F.3d 84 (2d Cir. 2010), compelled unquestioning reliance on a psychological report and that the district court erred when it heavily relied on a report that assessed the defendant’s potential dangerous during pretrial release into his parents’ custody. That report, the Court concluded, had only minimal relevance to the determination of whether the defendant would pose a danger to the community following his release from prison. The matter was remanded for a new sentencing hearing with the Court expressing no view as to the substantive reasonableness of the sentence.

United States v. Mock, no. 09-4154 (July 19, 2010) (per curiam). Originally sentenced in 1997, Mock filed a motion for a reduction in sentence based on the 2007 crack cocaine amendments. On appeal, and citing United States v. Dillon, --- US --- (2010), the Court explained that a motion for a reduced sentence under 18 U.S.C. § 3582(c)(2) represents a limited exception to the rules of finality and does not present the reviewing court with a plenary opportunity to resentence a defendant or review claims regarding the original sentencing. Accordingly, Mock’s claims regarding procedural error in his original sentence could not be heard. As for Mock’s § 3582(c)(2) motion, a reduction in sentence is available if (1) the defendant is eligible based on the covered Guidelines amendments (as listed in U.S.S.G. § 1B1.10) and (2) the reduction is consistent with the factors listed in 18 U.S.C. § 3553(a) and any “applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). In this case, Mock simply was not eligible because although he was convicted of crack cocaine offenses, he was sentenced as a career offender.

United States v. Pickett, no. 09-0683 (July 20, 2010) (per curiam). Applying the Supreme Court’s recent opinion in Dolan v. United States, the Second Circuit held that the district court had the authority to fix the amount of restitution even beyond the 90-day deadline in 18 U.S.C. § 3664(d)(5) because the district court made it clear, prior to the 90-day deadline, that it would order restitution, and left only the amount of the restitution to be determined.

United States v. Caracappa, nos. 09-1177 & 09-3115 (July 23, 2010). The Court rejected the defendants’ (Caracappa and Eppolito) various challenges to their RICO and narcotics-distribution convictions. Among other things, the Court rejected claims that a prior consistent statement offered to rebut a claim of recent fabrication or improper motive was in fact hearsay. Rather, the Court explained that a F.R.E. 801(d)(1)(B) statement can be proffered through any witness with firsthand knowledge of the statement and that such prior consistent statements are admissible as substantive evidence, rather than simply to counter a claim of recent fabrication or improper motive. The Court also rejected Caracappa’s claim that the sentence (the statutory maximum of 40 years on each count, served consecutively) imposed for his conspiracy and distribution convictions was unreasonable for the two instances of distribution established by the prosecution. Instead, the Court explained that “it was within the discretion of the district court to view Caracappa’s narcotics trafficking as an integral part of his and Eppolito’s criminal activity, rather than in isolation, and to impose the maximum punishment.” Slip Op. at 25.

Notable Summary Orders:

· United States v. Johnson, no. 06-2026 (July 28, 2010) (vacating sentence based on district court’s refusal to allow the parties to be heard following initial remand for resentencing and assigning case to new district judge because “the number of errors that have attended defendant’s repeated sentencing proceedings could lead a reasonable observer to question the court’s impartiality.”).

· United States v. Romeo, no. 09-3106 (July 19, 2010) (rejecting Commerce Clause and non-delegation challenges to SORNA as well as claims that SORNA was inapplicable to defendant because California and New York hadn’t implemented registration requirements at time of offenses, but remanding for clarification as to the number of victims and as to whether district court relied on the number of victims when it imposed its upwards variance).