Public Defense

Speed Bump

Posted on January 31, 2008
United States v. Abad, No. 06-0338-cr (2d Cir. January 30, 2008) (Jacobs, Parker, Wesley, CJJ) (per curiam)Here, the court holds that a failure to make a claim under the Speedy Trial Act in the district court results in a waiver of the issue on appeal...

Summary Summary

Posted on January 29, 2008
The court has not issued a published opinion in a criminal case for a while. But here is the most recent set of summary orders of interest.In United States v. Matthews, No. 04-1657-cr (2d Cir. January 29, 2008), the court vacated the application of the ?street gang? enhancement in 18 U...

Summary Summary

Posted on January 19, 2008
Here's another group of summary orders of interest:In United States v. Whitley, No. 05-3359-cr (2d Cir. January 15, 2008), the court accepted a "minimally sufficient" Anders brief.In United States v. Leonardo, No. 05-1791-cr (2d Cir. January 14, 2008), the court excused the defendant's waiver of his appeal, and found that the government breached a cooperation agreement by withdrawing its 5K1...

OPEN SESAME

Posted on January 19, 2008
Two recent cases provide some guidance on the requirement in 18 U.S.C. § 3553(c) that the district court state in ?open court? its reasons for imposing a particular sentence.1. United States v. Day, No. 05-4285-cr (2d Cir. January 15, 2008) (Jacobs, Pooler, Sack, CJJ) (per curiam) is particularly shocking...

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PORN AGAIN

Posted on January 19, 2008
As the Blog has observed, see Post of 11/29/07: Have You Hugged A Sex Offender Recently?, recently sex offenders fared pretty well in the circuit. Until now. In this most recent crop of cases, sex offenders lost three out of four, and the win was in a summary order, to boot...

TRUTH EXTRACTION

Posted on January 19, 2008
United States v. Glover, No. 05-5047-cr (2d Cir. January 4, 2008) (Pooler, Raggi, CJJ, McMahon, DJ)At this firearms trial, the judge charged the jury, over objection, that ?the crucial, hard-core question? to answer was, ?Where do you find the truth?? He also instructed: ?The only triumph in any case, whether it be civil or criminal, is whether or not the truth [has] triumphed...

Summary Summary

Posted on January 04, 2008
Here is the latest installment of the Blog's round-up of summary orders of interest. In United States v. Fernandez-Quesada, No. 06-4446-cr (2d Cir. January 4, 2008), the court dismissed a sentencing appeal as moot because the defendant had been released, even though he had a "potentially valid claim" that his sentence was based on an unlawful upward departure...

Permanent Waive

Posted on December 31, 2007
United States v. Quinones, No. 04-5554 (2d Cir. December 28, 2007) (Winter, Cabranes, Raggi, CJJ)This case has lengthy discussions of two important issues. It turns out that the one that has received the less press is actually the more interesting of the two, so we?ll begin with that...

Breach Baby

Posted on December 26, 2007
United States v. Griffin, No. 05-4106-cr (2d Cir. December 21, 2007) (Pooler, Sack, Wesley, CJJ)In this case, a divided panel concluded that the government breached its plea agreement in a child pornography case by twice suggesting that the defendant might not be entitled to a downward adjustment for acceptance of responsibility...

Summary Summary

Posted on December 19, 2007
Welcome to yet another installment of the blog's roundup of summary orders of interest.In Mickens v. United States, No. 06-0140-pr (2d Cir. December 19, 2007), the court held that defense counsel's failure to communicate a plea offer to his client was unreasonable, satisfying the first prong of the Strickland ineffectiveness test, although second prong was not satisfied because there was no credible evidence that the defendant would have accepted the offer...

Blurry Vision Leads to Clear Error

Posted on December 19, 2007
United States v. Lin Guang, No. 05-4724(L)-cr (2d Cir. December 13, 2007) (McLaughlin, Wesley, CJJ, Sessions, DJ)Two defendants in an extortion case raised a host of garden-variety challenges to their conviction, to little effect, and to their sentence, one of which prevailed...

Not-So-Fast Track

Posted on December 17, 2007
United States v. Liriano-Blanco, No. 06-2919-cr (2d Cir. December 11, 2007) (Walker, Calabresi, Sack CJJ)In this unusual case, the circuit entertained an appeal despite a waiver. Liriano-Blanco pled guilty to illegal reentry under a plea agreement in which he agreed to waive any appeal of a sentence of 60 months or less, with a Guideline range of 57 to 71 months...

Underprivileged

Posted on December 17, 2007
In re Grand Jury Subpoena Dated July 6, 2005, No. 05-6891-cv (2d Cir. November 16, 2007, posted December 10, 2007) (Pooler, Parker, Wesley, CJJ)In January of 2005, an Eastern District AUSA contacted counsel for the unnamed appellant, a former mortgage broker, and advised that appellant was the subject of a grand jury investigation...

SUMMARY SUMMARY

Posted on December 07, 2007
Welcome to the Blog?s periodic roundup of summary orders of interest.In United States v. Rodriguez, No. 06-1681 (November 29, 2007), the court vacated a restitution order for further factfinding in a case involving the filing of fraudulent tax returns...

Graft Dodger

Posted on December 07, 2007
United States v. Ganim, No. 03-1448-cr (2d Cir. December 4, 2007) (Jacobs, Sotomayor, Wesley, CJJ)Until his downfall, Joe Ganim was the mayor of Bridgeport, Connecticut. In 2003, he was convicted of racketeering, bribery and other offenses arising out of a bribery and kickback scheme...

Writ Small

Posted on December 05, 2007
United States v. Richter, No. 06-1930-cr (2d Cir. December 4, 2007) (per curiam)Richter was sentenced in 1992 and did not appeal. In 2006, he petitioned pro se for a writ of audita querela to make a collateral Booker challenge to his sentence. The court rejected the claim, because Booker does not apply retroactively on collateral review...

Have You Hugged A Sex Offender Lately?

Posted on November 29, 2007
United States v. Juwa, No. 06-2716-cr (2d Cir. November 28, 2007) (Walker, Calabresi, Sack, CJJ)United States v. Baker, No. 05-4693-cr (2d Cir. November 16, 2007) (Summary Order)The circuit has. Twice, but only once in a published opinion. In Juwa, the court found that a 90-month sentence was procedurally unreasonable because it might have been based on unsubstantiated pending state court charges...

Joint Pain

Posted on November 21, 2007
United States v. Shellef, No. 06-1495-cr (2d Cir. November 8, 2007) (Pooler, Sack, Wesley, CJJ)In this decision applying Fed.R.Cr.P 8, the court held that counts were improperly joined against two separate defendants, and that the misjoinders were not harmless...

Control Freak

Posted on November 21, 2007
United States v. Carlo, No. 06-2420-cr (2d Cir. November 19, 2007) (Kearse, Katzmann, CJJ, Rakoff, DJ)This short per curiam opinion discusses the sufficiency of the evidence in a wire fraud prosecution, where the prosecution proceeded on an unusual theory...

To Life!

Posted on November 18, 2007
United States v. Freeman, No. 05-5529-cr (2d Cir. November 14, 2007) (Straub, Katzmann, Parker, CJJ)Michael Freeman was convicted of drug trafficking, robbery and gun possession, but acquitted of two homicide counts. The district court nevertheless imposed a life sentence, based on its preponderance finding that Freeman committed the murders of which he was acquitted...

Venue Wish Upon A Star

Posted on November 18, 2007
United States v. Rommy, No. 06-0520 (2d Cir. November 6, 2007) (Jacobs, Walker, Raggi, CJJ).Henk Rommy, a Dutch national, was tried in this district on charges that he managed a vast ecstasy importation scheme from Europe. The scheme?s ties to this district were quite thin - although the goal was to get the drugs to New York, only five things actually occurred here: a call from a cooperating witness in Manhattan to Rommy in the Netherlands; a second call between Rommy and the New York informant about one year later, although there was a dispute as to who initiated it; a call to a local FBI agent from Rommy and the informant, both in Europe, although there was a dispute as to whether Rommy or the informant placed the call; and, finally, two calls from the agent in Manhattan to Rommy in Europe...

SUMMARY SUMMARY

Posted on November 02, 2007
The Summary Summary is our periodic round-up of summary orders of interest. So, here we go:United States v. Zavala, No. 05-7001-cr (2d Cir. November 1, 2007). Here, the district court applied cumulative aggravating role enhancements under U.S.S.G. § 3B1...

The Good Shepard

Posted on November 02, 2007
United States v. Rosa, No. 05-3621-cr (2d Cir. October 30, 2007) (Kearse, Sack, CJJ, Mills, DJ)The Armed Career Criminal Act (ACCA) requires increased penalties for defendants in federal gun possession cases who have three prior convictions for serious drug offenses or ?violent felonies...

Who's SORA Now?

Posted on November 02, 2007
Willette v. Fischer, No. 06-1422-pr (2d Cir. October 29, 2007) (Meskill, Newman, Sotomayor, CJJ)Although the Blog does not regularly report on decisions in state prisoners? habeas corpus proceedings, this nifty case has relevance to federal criminal practice...

Score: Form 1; Substance 0

Posted on October 28, 2007
United States v. Rutkoske, No. 06-4067-cr (2d Cir. October 25, 2007) (Newman, Winter, Katzmann, CJJ).This stock fraud decision deals primarily with the timeliness of a superseding indictment. An initial indictment not naming Rutkoske was filed on December 11, 2003; S1, the first superseder, was filed on April 6, 2004...

We Value Your Opinion

Posted on October 27, 2007
United States v. Tsekhanovich, No. 05-4809-cr (2d Cir. October 24, 2007) (Miner, Cabranes, Straub, CJJ) (per curiam)Treading no new ground, the court reminds us that a lay person can give opinion testimony if it is both based on his first-hand perceptions and rationally derived from them...

?Might? Makes Right

Posted on October 26, 2007
United States v. Zhang, No. 05-6662-pr (2d Cir. October 23, 2007) (Winter, Cabranes, CJJ, Korman, DJ)During a plea allocution, advising a defendant that he might be deported was good enough, even though ICE believed that deportation was mandatory.Zhang, a chemist, manufactured and sold an illegal bodybuilding supplement, DNP...

BYE-BYE, BRUTON?

Posted on October 24, 2007
United States v. Williams, No. 05-6036-cr (2d Cir. October 23, 2007) (Newman, Walker, Straub, CJJ).In this curious but very troubling case, the court seems to have concluded, sub silentio, that Crawford trumps Bruton.Brothers Bobby and Michael Williams were tried for a drug-related triple homicide...

Attempt-ation

Posted on October 22, 2007
United States v. Gaqliardi, No. 06-4541-cr (2d Cir. October 22, 2007) (Walker, Calabresi, Sack, CJJ).This case shuts the door on number of common challenges to convictions under 18 U.S.C. § 2422(b), which makes it a crime to entice a minor to engage in an illegal sexual act, or to attempt to do so...

Location, Location, Location

Posted on October 16, 2007
United States v. Cavera, No. 05-4591-cr (2d Cir. October 11, 2007) (Cardamone, Calabresi, Pooler, CJJ)Gerard Cavera received an above-Guidelines sentence based on the district court?s view that gun offenses were more serious in densely populated areas like New York city...

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