Public Defense

In United States v. Bell, No. 08-5506-cr (2d Cir. October 20, 2009) (Miner, Cabranes, CJJ, Rakoff, DJ) (per curiam), the court reversed the district court?s grant of a new trial under F.R.Cr.P. 33 and remanded the case for sentencing.

After the defendant was convicted of attempted murder of a federal officer, assault and discharging a firearm in connection with those offenses, the lower court concluded that it had given the jury an erroneous definition of the term ?intentional? that did not clearly distinguish between intentional and accidental conduct. The circuit disagreed, holding that the district court?s chosen language - that the defendant?s act must have been the product of his ?conscious objective rather than the product of a mistake or accident? was not error. The appellate court was equally unimpressed with the district court?s alternative reason for granting a new trial: the uncontested use of a general verdict form. The form was not error, nor were the court?s instructions on how to consider the relationship between the counts.

In United States v. Thrower, No. 08-2016-cr (2d Cir. October 14, 2009)(Parker, Wesley, CJJ, Restani, JCIT)(per curiam), the court resolved an open question by holding that larceny from the person under N.Y. Penal Law § 155.30 (McKinney Supp. 2009) constitutes a ?crime of violence? for the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2006) (?ACCA?). Larceny that involves a physical nexus between the victim and the property creates a risk of violent confrontation. Moreover, the offense is ?roughly similar? to burglary - which is specifically listed in ACCA - in that it is ?as inherently violent and aggressive.?

Full post as published by Second Circuit Blog on October 27, 2009 (boomark / email).