United States v. Persing, no. 10-638-cr (2d Cir. August 26, 2011), concerned the district court’s admission of a loan-shark’s computer records. Those records revealed the extent of his business, and other evidence showed that the defendant intervened to try to have those same loans repaid. The government argued he was trying to take over the business, while the defendant argued that he was trying to protect the debtors from the loan-shark. In order for the records to be admissible as a co-conspirator’s declarations, the district court needed to find that there was a single conspiracy that included both the loan-shark and the defendant. The district court did not; in fact, most of its findings on the question, although kind of confusing, seemed to support the defendant’s theory. The circuit refused to assume that the court made the necessary finding and simply assess the sufficiency of support for it because, here, a finding that the conspiracy existed might well have been clearly erroneous. Given the uncertainty, the circuit sent the case back on a Jacobson remand so that the district court could make an explicit finding and explain the evidentiary support for it. It further directed that if the court found no conspiracy, it should vacate the affected counts.
In United States v. Baadhio, no. 09-2395-cr (2d Cir. September 22, 2011), the sentencing judge omitted from the written judgment its recommendation that the BOP designate the defendant to a medical facility. Even though the defendant had been released, the court found a live question. It entertained the argument on the ground that “the presence of such an instruction may well have an effect on [defendant’s] supervised release.” The appellate court ducked the question of whether such a recommendation was an appealable “final order” noting that, regardless, it was “free to send the case back” for the district court to “consider whether, given all the circumstances, ... it thinks it is appropriate to conform its written judgment to its oral pronouncement.” The court ordered a limited remand for that purpose.
In United States v. Roy, no. 10-1733-cr (2d Cir. November 8, 2011), the defendant was sentenced without counsel, but the district court failed to conduct proper Faretta inquiry. It merely confirmed that the defendant had filed a motion to fire his trial counsel, then proceeded to sentence him pro se. The circuit vacated the ensuing 300-month sentence and remanded for a Faretta inquiry and resentencing.
