Opinions:
United States v. Barrie, no. 09-3035 (Aug. 31, 2010). The defendant was convicted of bank fraud, conspiracy to commit bank fraud, and aggravated identity theft. On appeal, the defendant challenged the district court’s conclusion that the Government had adequately proved that venue for the aggravated identity theft charge existed in the Southern District of New York, where aspects of the bank fraud occurred. For its part, the aggravated identity theft offense took place in Brooklyn, New Jersey, Delaware, and Ontario, Canada.
In affirming the conviction, the Court noted that an element of the aggravated identify theft crime was that the offense take place “during and in relation to” certain other crimes, including bank fraud. 18 U.S.C. § 1028A(a)(1). Because commission of the predicate offense—here a bank fraud committed in the Southern District of New York—is an element of the aggravated identity theft offense, venue for the aggravated identity theft offense lies in any district in which venue lies for the predicate offense.
United States v. Pfaff, nos. 09-1702, 09-1707, 09-1790 (Aug. 27, 2010) (per curiam). In a case involving “the largest criminal tax case in American history,” the Court vacated (on plain error review) the $6 million fine imposed by the district court. Although the jury convicted the defendant of a dozen felonies, the jury made no findings regarding pecuniary gain or loss. Thus, the fine imposed was based solely on the judge’s findings that the amount of loss exceeded $100 million, a finding that increased the fine to $6 million from the statutory maximum of $3 million that applied absent the finding. In vacating the fine, the Court explained that the holding of Apprendi v. New Jersey, was that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” Slip op. at 6 (citations and internal quotations omitted). Because the requisite finding had not been made by the jury, it was not permissible under Apprendi.
United States v. Bonilla, no. 09-1799 (Aug. 13, 2010). The defendant was convicted of illegal reentry and sentenced to 51 months imprisonment based in part on an 16-level enhancement for a prior conviction for a prior act of violence. Although no Anders motion had been filed, the Court granted the government’s motion for summary affirmance. In so doing, the Court agreed that there was no merit to the claim that the district court had failed to respond to his arguments regarding the 16-level enhancement: “[w]e have time and time again made it clear that ‘we do not insist that the district court address every argument the defendant has made.’” Slip op. at 12 (citing United States v. Villafuerte, 502 F.3d 204, 210 (2d Cir. 2007)). Likewise the Court agreed that there was no merit to the defendant’s claim that it was error to increase his sentence based on a prior conviction without pleading the conviction in the indictment or proving it beyond a reasonable doubt, a claim the defendant recognized is barred by existing Supreme Court precedent.
As suggested by Second Circuit bloggers, Bonilla represents somewhat of a departure from United States v. Davis, 598 F.3d 10, 13 (2d Cir. 2010), a case in which the Court denied the Government’s motion for summary affirmance explaining, among other things, that “[a]n appeal is frivolous when it lacks an arguable basis either in law or fact. A frivolous action advances inarguable legal conclusions or fanciful factual allegations.” (internal quotations omitted). Davis (unlike Bonilla) involved the child pornography guidelines, which the Second Circuit has strongly criticized in recent opinions and which may therefore account for some of the difference. See United States v. Dorvee, --- F.3d ---, 2010 WL 3023799 (2d Cir. 2010); United States v. Tutty, --- F.3d ---, 2010 WL 2794601 (2d Cir. 2010).
United States v. Green, no. 09-1799 (Aug. 13, 2010) (per curiam). The defendant, already serving a sentence for possession of crack cocaine, was subsequently convicted of possessing a weapon and marijuana. At sentencing, the district court imposed as a condition of supervised release a prohibition on associating with the “Bloods street gang or any other criminal street gang.” The district court’s final written order elaborated on the condition and added a prohibition on “the wearing of colors, insignia, or obtaining tattoos or burn marks. . .” On appeal, the Court concluded that the prohibition on associating with “criminal street gangs” was constitutionally permissible because “criminal street gang” is a defined term in the U.S. Code. By contrast, the prohibition on wearing gang colors failed to provide the defendant with sufficient notice of the range of prohibited activities and was unconstitutionally vague.
United States v. Kumar, nos. 06-5482 & 06-5654 (Aug. 12, 2010). The defendants, Sanjay Kumar and Stephen Richards, pled guilty to charges of conspiracy, securities and wire fraud, obstruction of justice, and perjury. On appeal, a unanimous Court affirmed the defendant’s convictions and rejected various claims—including that 18 U.S.C. § 1512(c) covered only the destruction of physical evidence (as opposed to covering oral testimony as well); that a guilty plea does not waive non-jurisdictional defects in the indictment (it does); that the district court’s $400 million loss calculation was erroneous (it wasn’t); and that Kumar was entitled to an acceptance-of-responsibility credit (he was not, his post-indictment conduct was inconsistent with a full acceptance of responsibility). The Court also agreed that the lateness of Richards plea, of itself, was insufficient grounds to deny him an acceptance-of-responsibility reduction and therefore remanded Richard’s case for resentencing.
The Court was split, however, on the question of whether the application of the 2005 Guidelines to the defendants’ fraud offenses—which concluded in 2000—violated the Ex Post Facto clause. The majority explained that “central to the ex post facto prohibition is a concern for the lack of fair notice and governmental restraint.” Slip op. at 30 (quoting Miller v. Florida, 482 U.S. 423, 430 (1987) (internal quotations omitted)). Here, the majority concluded that the application of the so-called “one-book rule” (U.S.S.G. § 1B1.11) did not violate the Ex Post Facto clause because the adoption of the new rule(s) prior to the time the defendants committed their obstruction offenses gave the defendants sufficient notice that they could have altered their conduct and avoided any heightened punishment. As for governmental restraint, the majority explained that nothing in the one-book rule would permit the application of a sentencing range devised after all the completion of all offenses for which a defendant was to be sentence.
United States v. Rojas, no. 09-3007 (Aug. 12, 2010). The defendant was convicted of conspiring to possess with intent to distribute and of distributing more than five grams of cocaine base; the defendant was also convicted of using a telephone to facilitate the commission of a drug trafficking felony. On appeal the Court rejected his claim that testimony from his supplier and recordings of his conversations with his supplier—which showed his lengthy relationship with his supplier, that he was provided drugs on credit, and that his supplier bailed him out of jail on occasion—was insufficient to sustain his conviction.
More novel was the defendant’s claim that the Court erred when it recalled the jury after declaring it discharged. Here, the courtroom deputy mistakenly omitted the word “base” when he read the verdict, thus causing a variation between the written verdict and the transcript and leaving a question as to whether the convictions were for crimes involving cocaine or cocaine base. Upon discovering the mistake, the Court recalled the jury—which had been “discharged,” but had not left the deliberation room—and had the verdict re-read and the jury re-polled. The Court concluded that nothing in F.R.Cr.P. 31(d) prevented the jury from being recalled and re-polled prior to it actually disbanding and that there was no question that the defendant’s convictions were for crimes involving cocaine base.
United States v. Shyne (Alexander), no. 08-0865 (Aug. 5, 2010). During trial, the Government introduced statements made by non-testifying co-conspirators pursuant to F.R.E. 801(d)(2)(E) and, although it provided the defense with a detailed characterization of impeachment materials, it did not produce all written or recorded statements (as defined by 18 U.S.C. § 3500) made by the non-testifying co-conspirators.
On appeal, the Court rejected claims that the Jencks Act required production of statements made by a co-conspirator whose prior declarations were introduced into evidence, but who did not appear as a witness and testify under oath. Rather, the Court concluded that the Jencks Act applied by its terms only to “witness[es]” that “testif[y] on direct examination.”
United States v. Gomez, no. 08-3829 (Aug. 4, 2010). The defendant was convicted of conspiracy to distribute ecstasy based largely on testimony from a police detective who relayed the content of conversations a co-conspirator had with the defendant. Based on the Government’s express arguments to the jury, the Court rejected the contention that the testimony was admissible to provide background and context and found instead that the testimony was offered to prove that the defendant was the supplier of the drugs. Because the Court concluded that counsel’s pretrial objection to the testimony was a global one and because the Court concluded the error was not harmless, it vacated the conviction and remanded the matter for a new trial.
United States v. Broxmeyer, no. 09-1457 (Aug. 3, 2010). The defendant was convicted of, inter alia, producing child pornography and transporting a minor across state lines with the intent to engage in criminal sexual activity. Regarding the defendant’s conviction for producing child pornography, the Court held that the evidence was insufficient to conclude that the defendant “used, employed, persuaded, induced, enticed, or coerced” the minor into taking the pictures in question because there was no evidence that the defendant was the impetus behind the pictures taken by the victim. With regard to the transportation of a minor offense, the Court concluded that 18 U.S.C. § 2423(a) is not violated where the sexual act occurred before crossing state lines and where there is no evidence of an intent to commit another act once state lines are crossed.
United States v. Johnson, no. 08-5245 (Aug. 2, 2010). The defendant was convicted of being a felon in possession and was sentenced as an armed career criminal based in part on the district court’s conclusion that a prior conviction for rioting at a correctional institution was a violent felony. Noting that a court is to employ the categorical approach when considering whether a prior conviction is a violent felony within the meaning of the Armed Career Criminal Act (see 18 U.S.C. § 924(e)(2)(B)), the Court (in a 2-1 opinion) determined that rioting at a correctional institution was a violent felony that is similar in kind to the felonies listed in § 924(e)(2)(B)(ii). The Court reached this determination because, on the one hand, the offense is a general intent crime that required deliberate and affirmative conduct (as opposed to a strict liability offense) and would typically involve violent and aggressive actions and because, on the other hand, violations of the Connecticut law involve a serious risk of physical injury to another person.
In reaching its decision, the Court looked to those several Supreme Court cases involving the Armed Career Criminal Act and the very similar career offender provisions in § 4B1.1 of the Sentencing Guidelines. Johnson v. United States, 130 S.Ct. 1265 (2010); Chambers v. United States, 129 S.Ct. 687 (2009); Begay v. United States, 553 U.S. 137 (2008); James v. United States, 550 U.S. 192 (2007); Shepard v. United States, 544 U.S. 13 (2005); Taylor v. United States, 495 U.S. 575 (1990).
