Federal Defenders of New York Second Circuit Blog

jury charge

Second Circuit affirms wire fraud convictions post-Ciminelli

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In United States v. Tamaz Pasternak, No. 23-6316-cr, the Second Circuit (Parker, Robinson, Oliver (D. Conn.)) affirmed the defendant’s wire fraud convictions despite a concededly erroneous jury instruction. The charges arose from a purported scheme to conceal the “salvage” histories of used cars—histories of purchase by insurance companies after they’ve been damaged. Pasternak, a used-car … Read more

Internally inconsistent verdict on a single count (involving a single defendant) requires dismissal

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It is long settled that inconsistency between or among counts of conviction is not a ground for dismissal. See, e.g., Dunn v. United States, 284 U.S. 390, 393 (1932); and United States v. Powell, 469 U.S. 57, 61-69 (1984). The same rule applies to jury verdicts that are inconsistent as to different defendants in a … Read more

Abu Ghayth and the Material Support Statute

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In a summary order, the Second Circuit upheld the convictions of Sulaiman Abu Ghayth (a son-in-law of Osama Bin Laden) for offenses including conspiracy to murder Americans and providing material support for terrorist activities.  The outcome is unsurprising, but the decision nevertheless offers some hope for differently situated defendants charged under the material support statute, 18 … Read more

Second Circuit affirms above-guideline sentence; declines to consider one IAC claim on direct review, but rejects another where record below was sufficiently developed on the point

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In United States v. Pendergrass, 15-1965, the Second Circuit affirmed the conviction of Terrence Pendergrass, a former captain at Rikers Island, on one count of willfully violating the constitutional rights of an inmate, who died following the ingestion of cleaning supplies, by refusing to get him medical attention and prohibiting other guards from getting him … Read more

Sexually Charged

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United States v. Rivera, No. 06-4946-cr (2d Cir. October 15, 2008) (Jacobs, Kearse, Katzmann, CJJ) Carlos Rivera was convicted of various offenses relating to the sexual exploitation of children. One count involved the production of child pornography for which Rivera, a recidivist, received a mandatory life sentence. His primary argument on appeal was that the … Read more

Romeo and “Julie”

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United States v. Joseph, No. 06-5911-cr (2d Cir. September 9, 2008) (Newman, Walker, Sotomayor, CJJ) Dennis Joseph, through an internet chat room called “I Love Older Men,” met “Julie,” an FBI agent posing as a thirteen-year-old girl. He began exchanging messages with her describing sexual acts he wanted to perform with her, and over time, … Read more

Flight Cancellation

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United States v. Mundy, No. 06-1190-cr (2d Cir. August 21, 2008) (Kearse, Leval, Cabranes, CJJ). In this decision, the court all but eliminates the “flight as consciousness of guilt” jury instruction from Second Circuit jurisprudence. The facts here were somewhat unusual because it was the the defendant who sought the instruction with respect to a … Read more