Recently in Criminal Law Category

Defendants' convictions for violating government restrictions on communications and other contacts with Sheikh Omar Ahmad Ali Abdel Rahman, a high-security federal prisoner, are affirmed in part where: 1) defendants concealed their efforts to obtain statements from Rahman to publicize on his behalf; 2) Rahman's attorney agreed to the restrictions and thus could not collaterally attack their constitutionality; and 3) a reasonable jury could have found that defendants participated in a conspiracy to murder persons abroad.  However, the sentence of one defendant, who was Rahman's attorney, is vacated where the district court needed to 1) reconsider the extent to which her status as a lawyer affected the appropriate sentence; and 2) determine whether defendant's conduct was perjurious and, if so, determine its effect on her sentence.

Read US v. Stewart, No. 06-5015

Appellate Information

Argued: January 29, 2008

Decided: November 17, 2009

Judges

Opinion by Judge Sack

Concurrence by Judge Calabresi

Dissent by Judge Walker

Counsel

For Appellants:

Joshua L. Dratel, Meredith S. Heller, Erik B. Levin, David B. Rankin, Law Offices of Joshua L. Dratel, P.C., New York, NY

For Appellee:

Anthony S. Barkow, Andrew S. Dember, Michael D. Maimin, Diane Gujarati, Katherine Polk Failla and Celeste L. Koeleveld, Assistant United States Attorneys, New York, NY

In an appeal from the district court's denial of defendant's 28 U.S.C. section 2255 motion to vacate his conviction and sentence due to ineffective assistance of counsel, the order is affirmed where defendant failed to produce or identify evidence of actual prejudice.

Read Puglisi v. US, No. 04-4834

Appellate Information

Argued: January 29, 2008

Decided: November 17, 2009

Judges

Opinion by Judge Winter

Counsel

For Appellant:

Cheryl J. Sturm, Chadds Ford, PA

For Appellee:

Jo Ann M. Navickas, Peter A. Norling, Assistant United States Attorneys, Brooklyn, NY

In a petition for habeas relief from petitioner's convictions for first degree riot and second degree assault under New York law, denial of the petition is affirmed where the New York courts' rejection of petitioner's due process claim and, specifically, his contention that the law did not make it reasonably clear at the relevant time that his conduct was criminal, was not an unreasonable application of clearly established federal law.

Read Ortiz v. N.Y.S. Parole in Bronx, No. 07-2299

Appellate Information

Argued: April 20, 2009

Decided: November 10, 2009

Judges

Opinion by Judge Livingston

Counsel

For Appellant:

Susan D. Fitzpatrick, Law Offices of Susan D. Fitzpatrick, Esq., Red Hook, NY

For Appellee:

Jodi A. Danzig, Assistant Attorney General, New York, NY

Defendant's conviction and sentence for making a false statement on a passport application is affirmed where: 1) 18 U.S.C. section 1542 does not require that the false statement on a passport application be "material"; and 2) the district court did not err in imposing an enhancement for obstruction of justice where defendant's abduction of his children prevented proper legal proceedings from occurring by taking matters completely outside the purview of the administration of justice.

Read US v. Hasan, No. 08-4921

Appellate Information

Argued: October 6, 2009

Decided: November 10, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellant:

B. Alan Seidler, New York, NY

For Appellee:

Daniel A. Spector, Jo Ann M. Navickas, Assistant United States Attorneys, Brooklyn, NY

Defendant's drug-related murder conviction is affirmed where there was sufficient evidence demonstrating that defendant induced his drug associates to participate in the victim's murder through promises to forgive drug-related debts and to engage in future drug transactions.

Read US v. Aguilar, No. 08-4640

Appellate Information

Argued: September 21, 2009

Decided: November 5, 2009

Judges

Opinion by Judge Raggi

Counsel

For Appellant:

James E. Neuman and David Stern, New York, NY

For Appellee:

David Bitkower and Emily Berger, Assistant United States Attorneys, Brooklyn, NY

Defendant's mail fraud sentence is affirmed where: 1) a defendant is not entitled to an offset against a loss based on business expenses that confer no benefit upon the victims; and 2) Application Note 2(C) to section 2S1.1 of the Sentencing Guidelines does not preclude an enhancement for obstruction of justice pursuant to section 3C1.1 of the Guidelines where a defendant's obstruction relates to an offense underlying a money laundering offense, but not to the money laundering offense itself.

Read US v. Byors, No. 08-4811

Appellate Information

Argued: October 9, 2009

Decided: October 29, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellant:

Bradley S. Stetler, Stetler, Allen & Kampmann, Burlington, VT

For Appellee:

Gregory L. Waples, Assistant United States Attorney, District of Vermont, Burlington, VT

Defendant's firearm possession conviction is vacated where the district court erred by admitting evidence that defendant had been in an apartment from which weapons and drugs were later recovered.

Read US v. Williams, No. 08-5151

Appellate Information

Decided: October 27, 2009

Judges

Opinion by Judge McLaughlin

Counsel

For Appellant:

Donald Yanella, New York, NY

For Appellee:

Justin D. Lerer, Jo Ann M. Navickas, Assistant United States Attorneys, Brooklyn, NY

In the government's appeal from the district court's order granting a new trial in an attempted murder prosecution, the order is reversed where the district court erred in ordering a new trial because: 1) the district court's jury instructions on intentional conduct were legally correct and did not constitute plain error warranting a new trial; 2) the district court's use of a general verdict form was not plain error and thus not a basis for ordering a new trial; 3) the district court rested its decision to grant a new trial on clearly erroneous factual findings; and 4) the district court failed to evaluate the entire trial record in ruling on defendant's motion for a new trial.

Read US v. Bell, No. 08-5506

Appellate Information

Argued: October 7, 2009

Decided: October 20, 2009

Judges

Per Curiam

Counsel

For Appellant:

Tracy Lee Dayton, Michael J. Gustafson, Nora R. Dannehy, William J. Nardini, Assistant United States Attorneys, Office of the United States Attorney for the District of Connecticut, Hartford, CT

For Appellee:

John R. Gulash, Gulash & Riccio, Bridgeport, CT, for Appellee.

Defendant's drug distribution convictions are affirmed where the district court abused its discretion in admitting as similar acts evidence two of his prior narcotics convictions, but the error was harmless.

Read US v. McCallum, No. 08-0322

Appellate Information

Argued: August 7, 2009

Decided: October 19, 2009

Judges

Opinion by Judge Parker

Counsel

For Appellant:

Joseph A. Vita, Law Office of Joseph A. Vita, Esq., Port Chester, NY

For Appellee:

Nola B. Heller, Assistant United States Attorney, New York, NY

Defendant's firearm possession conviction is affirmed where: 1) defendant's prior New York offense of larceny from the person met the first prong of the inquiry required under the residual clause of the Armed Career Criminal Act (ACCA); and 2) defendant's offense was roughly similar to an enumerated offense in the ACCA.

Read US v. Thrower, No. 08-2016

Appellate Information

Argued: September 11, 2009

Decided: October 14, 2009

Judges

Per Curiam

Counsel

For Appellant:

Norman Trabulus, New York, NY

For Appellee:

Amanda Hector and Emily Berger, Assistant United States Attorney Generals, New York, NY