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March 29:
08-2761-cr United States v. Sierra - Before: JACOBS, Chief Judge, MINER and LIVINGSTON, Circuit Judges. Appeal from a judgment entered on June 3, 2008, in the United States District Court for the Southern District of New York (Batts, J.), following a guilty plea, convicting defendant- appellant of one count of conspiracy to distribute and possess with intent to distribute one kilogram or more of a substance containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1), 846, and one count of conspiracy to launder narcotics proceeds, in violation of 18 U.S.C. § 1956(a)(1)(B)(i), (h), the court having sentenced defendant to concurrent terms of imprisonment of 135 months upon a determination that the base offense level under the United States Sentencing Guidelines for defendant’s conviction for conspiracy to launder money was to be calculated in accordance with the amount of narcotics involved in his conviction for conspiracy to distribute narcotics. This case contains a discussion of 2S1.1, the grouping of offenses and the differences in sentencing a direct money launderer as opposed to a hitrd party money launderer. The judgment of the district court is affirmed.
March 25:
08-3720-cr(L), 08-3731-cr(CON) United States v. Sabhnani - Before: WESLEY, LIVINGSTON, Circuit Judges, and RESTANI, Judge. Defendants-Appellants Mahender Murlidhar Sabhnani and Varsha Mahender Sabhnani appeal from a judgment of the United States District Court for the Eastern District of New York (Spatt, J.). Following a jury trial, both defendants were convicted on counts of forced labor, harboring aliens, peonage, and document servitude, as well as conspiracy to commit each of the substantive offenses, with Mahender Sabhnani receiving a sentence of 40 months’ imprisonment and Varsha Sabhnani a sentence of 132 months’ imprisonment. The district court further ordered both defendants to pay substantial restitution to their victims and to forfeit their ownership interest in their home, where their victims had been held during the commission of the crimes at issue. On appeal, the Sabhnanis raise challenges to the district court’s refusal to grant the defendants’ request for a change of venue, its refusal to compel an independent psychiatric evaluation of a prosecution witness, its management of the presentation of witness testimony, the content of the jury instructions, the sufficiency of the evidence, the extent of the district court’s inquiry into purported juror misconduct, the calculation of the applicable Guidelines sentencing range, the amount of restitution, and the scope of the property forfeiture. The Second Circuit vacates the district court’s award of restitution to the victims and remands for recalculation of the amount. In all other respects the Court finds Defendants- Appellants’ arguments to be without merit. Affirmed in part, vacated and remanded in part. You may recall this case from litigation surrounding the original detention process.
09-0281-cr United States v. Basciano - Before: WALKER, McLAUGHLIN, and RAGGI, Circuit Judges. Defendant Vincent Basciano, previously convicted in the Eastern District of New York on conspiratorial and substantive racketeering charges relating to his participation in the Bonanno organized crime family, appeals from orders denying (1) dismissal on double jeopardy grounds of those counts of an indictment pending in the Eastern District (Garaufis, Judge) again charging him with substantive racketeering in conducting the affairs of the Bonanno crime family, see 18 U.S.C. § 1962(c), as well as conspiracies to commit murders in aid of racketeering, see id. § 1959(a)(5); and (2) reconsideration of the decision denying dismissal. The Second Circuit rejects defendant's double jeopardy challenge to the charges of conspiracy to murder in aid of racketeering as without merit. At the same time, The Circuit concludes that defendant's prosecution on a successive substantive racketeering charge, as pleaded in the pending indictment, is barred by double jeopardy. That charge, therefore, must be dismissed. AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.
March 15:
08-3240-cr USA v. Davis - Before: WINTER and SACK, Circuit Judges, and COGAN, District Judge. Government's motion for summary affirmance of a sentence imposed on defendant Charles Davis by the United States District Court for the Northern District of New York (Norman A. Mordue, Chief Judge) denied because Court concludes that Davis' appeal of his sentence is not frivolous. The opinion does not address the merits of Davis' appeal but discusses at some length what constitutes a frivolous appeal and concludes that Davis has raised legitimate claims as to whether the sentence imposed was procedurally and substantively unreasonable.
March 12:
08-4815-cr United States v. Deandrade - Before: JACOBS, Chief Judge, HALL, Circuit Judges, and MURTHA, District Judge. Appeal from a judgment of conviction, entered in the United States District Court for the Southern District of New York (Sand, J.), on the grounds (1) that the district court improperly denied defendant’s two motions for a mistrial after reference was made to his incarceration during trial and (2) that the sentence took account of a non-jury juvenile conviction, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). The Second Circuit affirms both the conviction and the sentence.
March 8:
09-1144-cr United States v. Navas - Before: LEVAL and WESLEY, Circuit Judges, and GLEESON, District Judge. Interlocutory appeal from a March 19, 2009 order of the United States District Court for the Southern District of New York (Pauley, J.), which granted in part and denied in part motions to suppress evidence and post-arrest statements collected during the course of a narcotics investigation. The government sought review of the portion of the district court’s order that suppressed narcotics seized by law enforcement officers during a warrantless search of a trailer. The Second Circuit concluded that a trailer, although detached from its cab, was readily mobile and commanded only a diminished expectation of privacy. The Court held that the automobile exception applies and the search was lawful under the "automobile exception" to the Fourth Amendment’s warrant requirement. REVERSED and REMANDED.
Bloate v. United States No. 08-728
Date Argued October 06, 2010
Decided March 08, 2010
Opinion Author: Thomas
In a drug and firearm possession prosecution, the Eighth Circuit's order affirming the district court's denial of defendant's motion to dismiss the indictment on Speedy Trial Act grounds is reversed where the time granted to prepare pretrial motions was not automatically excludable from the 70-day limit under 18 U.S.C. section 3161(h)(1), and such time may be excluded only when a district court grants a continuance based on appropriate findings under subsection (h)(7).
The Speedy Trial Act of 1974 (Act) requires a criminal defendant’s trial to commence within 70 days of his indictment or initial appearance, 18 U. S. C. §3161(c)(1), and entitles him to dismissal of the charges if that deadline is not met, §3162(a)(2). As relevant here, the Act automatically excludes from the 70-day period "delay resulting from … proceedings concerning the defendant," 18 U. S. C. A. §3161(h)(1) (hereinafter subsection (h)(1)), and separately permits a district court to exclude "delay resulting from a continuance" it grants, provided the court makes findings required by §3161(h)(7) (hereinafter subsection (h)(7)). Petitioner’s indictment on federal firearm and drug possession charges started the 70-day clock on August 24, 2006. After petitioner’s arraignment, the Magistrate Judge ordered the parties to file pretrial motions by September 13. On September 7, the court granted petitioner’s motion to extend that deadline, but on the new due date, September 25, petitioner waived his right to file pretrial motions. On October 4, the Magistrate Judge found the waiver voluntary and intelligent. Over the next three months, petitioner’s trial was delayed several times, often at petitioner’s instigation. On February 19, 2007—179 days after he was indicted—he moved to dismiss the indictment, claiming that the Act’s 70-day limit had elapsed. In denying the motion, the District Court excluded the time from September 7 through October 4 as pretrial motion preparation time. At trial, petitioner was found guilty on both counts and sentenced to concurrent prison terms. The Eighth Circuit affirmed the denial of the motion to dismiss, holding that the period from September 7 through October 4 was automatically excludable from the 70-day limit under subsection (h)(1).
Held: The time granted to prepare pretrial motions is not automatically excludable from the 70-day limit under subsection (h)(1). Such time may be excluded only when a district court grants a continuance based on appropriate findings under subsection (h)(7). Pp. 6–18.
(a) The delay at issue is governed by subsection (h)(1)(D) (hereinafter subparagraph (D)), the enumerated category that renders automatically excludable "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." This provision communicates Congress’ judgment that pretrial motion-related delay is automatically excludable only from the time a pretrial motion is filed through a specified hearing or disposition point, and that other pretrial motion-related delay is excludable only if it results in a continuance under subsection (h)(7). This limitation is significant because Congress knew how to define the boundaries of subsection (h)(1)’s enumerated exclusions broadly when it so desired. Although the period of delay the Government seeks to exclude in this case results from a proceeding governed by subparagraph (D), that period precedes the first day upon which Congress specified that such delay may be excluded automatically and thus is not automatically excludable. Pp. 7–10.
(b) This analysis resolves the automatic excludability inquiry because "[a] specific provision" (here, subparagraph (D)) "controls one[s] of more general application" (here, subsections (h)(1) and (h)(7)). Gozlon-Peretz v. United States, 498 U. S. 395, 407. A contrary result would depart from the statute in a manner that underscores the propriety of this Court’s approach. Subsection (h)(1)’s phrase "including but not limited to" does not show that subsection (h)(1) permits automatic exclusion of delay related to an enumerated category of proceedings, but outside the boundaries set forth in the subparagraph expressly addressed to that category. That would confuse the illustrative nature of the subsection’s list of categories with the contents of the categories themselves. Reading the "including but not limited to" clause to modify the contents of each subparagraph in the list as well as the list itself would violate settled statutory construction principles by ignoring subsection (h)(1)’s structure and grammar and in so doing rendering even the clearest of the subparagraphs indeterminate and virtually superfluous. See generally id., at 410. Subsection (h)(1)’s context supports this Court’s conclusion. Subsection (h)(7) provides that delay "resulting from a continuance granted by any judge" may be excluded, but only if the judge finds that "the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial," and records those findings. In setting forth the statutory factors justifying a subsection (h)(7) continuance, Congress twice recognized the importance of adequate pretrial preparation time. See §§3161(h)(7)(B)(ii), 3161(h)(7)(B)(iv). The Court’s determination that the delay at issue is not automatically excludable gives full effect to subsection (h)(7), and respects its provisions for excluding certain types of delay only where a district court makes findings justifying the exclusion. The Court’s precedents also support this reading of subsection (h)(1). See Zedner v. United States, 547 U. S. 489, 502. Pp. 10–16.
(c) The Act does not force a district court to choose between rejecting a defendant’s request for time to prepare pretrial motions and risking dismissal of the indictment if preparation time delays the trial. A court may still exclude preparation time under subsection (h)(7) by granting a continuance for that purpose based on recorded findings. Subsection (h)(7) provides "[m]uch of the Act’s flexibility," Zedner, 547 U. S., at 498, giving district courts "discretion … to accommodate limited delays for case-specific needs," id., at 499. The Government suggests that a district court may fail to make the necessary subsection (h)(7) findings, leading to a windfall gain for a defendant who induces delay beyond the 70-day limit. But dismissal need not represent a windfall. If the court dismisses the charges without prejudice, the Government may refile charges or reindict. In ruling on a motion to dismiss under the Act, the district court should consider, inter alia, the party responsible for the delay. Pp. 16–18.
(d) This Court does not consider whether any of the Act’s other exclusions would apply to all or part of the September 7 through October 4 period that is not automatically excludable under subsection (h)(1). P. 18.
534 F. 3d 893, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Ginsburg, and Sotomayor, JJ., joined. Ginsburg, J., filed a concurring opinion. Alito, J., filed a dissenting opinion, in which Breyer, J., joined.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
March 2:
The Supreme Court just released its opinion in Johnson v. United States, no. 08-6925, reversing the Eleventh Circuit and finding that because the Florida offense of battery by offensive touching does not require the use of physical force, it does not qualify as an ACCA predicate under 924(e)(2)(B)(i). http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-6925_PetitionerReply.pdf
Preliminarily, three points are worth noting. First, the Court held that it was bound by the Florida Supreme Court's interpretation of the statutory elements of the offense,an important ruling for anyone dealing with state offenses that have been narrowed by the state's courts. Second, the Court defined "physical force" for purposes of ACCA as requiring "violent force -- that is, force capable of causing physical pain or injury to another." And third, the Court refused to remand to allow the government to argue that the battery satisfied 924(e)(2)(B)(ii)'s residual "otherwise" clause, because the government had previously disclaimed reliance on that provision at sentencing.
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