Legal Commentary

Two SDNY Judges Reject Guideline Enhancements Based on Prior Convictions

Posted on November 16, 2009
Guest contributor Eric Creizman writes:Every defense lawyer knows that even though the mandatory Sentencing Guidelines regime is a thing of the past, the calculation of a defendant?s advisory Guidelines range remains a very meaningful component of sentencing...

Second Circuit Explains its Understanding of a "Substantively Unreasonable Sentence"

Posted on November 06, 2009
A review of 2008 sentencing statistics reveals some fascinating facts: courts in the Eastern and Southern districts of New York impose non-government-sponsored below-Guidelines sentences in about a third of the cases (30% in the Eastern; 33% in the Southern) ?...

EDNY Judge Assails Guidelines' Denial of Safety Valve Relief to Individuals with Minor Records

Posted on November 06, 2009
?Minimal [statistical] impact,? as Judge Weinstein points out in United States v. Feaster, 2009 WL 2757157 (E.D.N.Y. August 26, 2009), is no consolation to the individual who is impacted.  Just because an inequity is infrequent doesn?t make it any less...

Second Circuit Reverses Two Cases Because of Improper Admission of Propensity Evidence

Posted on November 06, 2009
Evidence - even suggestions - of uncharged conduct at trial can be devastating, especially in a circumstantial case, as the Second Circuit acknowledged recently in two cases.  In one, United States v. Farmer, 2009 WL 3200690 (2d Cir. October 8,....

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Second Circuit Holds that Fraud Losses May Not Be Offset by Legitimate Business Expenditures

Posted on November 06, 2009
Loss calculations in white collar cases are the critical driver of the (often huge) sentences in those cases.  In United States v. Byors, 2009 WL 3461584 (2d Cir. October 29, 2009), the Second Circuit interpreted a Guidelines comment addressing permissible...

Erroneous Jury Instruction on Scope of the Word "Knowingly" Leads to Reversal

Posted on October 03, 2009
Sometimes, the defense, or successful appellate argument, may lie in something as elementary as the proper reading of the charging statute.  In United States v. Shim, 2009 WL 3127210 (2d Cir. October 1, 2009), for example, the defendant was charged...

NYSACDL's Fall Federal Criminal Practice Seminar - SDNY Courthouse 9/24

Posted on September 23, 2009
The NYSACDL is holding its Fall Federal Criminal Practice Seminar tomorrow at the Southern District courthouse from 2:00 to 5:00 p.m.  With presentations on proffers, restitution and forfeiture, and innovative approaches to sentencing (not to mention 3 CLE credits), it promises...

Second Circuit Holds Defendant Has Right to Speedy Sentencing

Posted on September 15, 2009
In an important recognition that incarceration can undermine successful presentence rehabilitation, the Second Circuit vacated the custodial portion of a sentence on the grounds that a fifteen-year delay in sentencing violated the defendant?s right to a speedy sentence under the...

Second Circuit Reverses Unsealing of Wiretap Applications in Investigation of Public Official

Posted on September 15, 2009
Does a newspaper have a right of access to wiretap applications that led to the downfall of New York?s governor?  SDNY Judge Rakoff had said yes (see here), but the Second Circuit disagreed in In the Matter of the Application...

Second Circuit Remands for Supplementation of Reasons for Leadership Role Sentencing Enhancement

Posted on September 13, 2009
In United States v. Ware, 2009 WL 2512321 (2d Cir. August 18, 2009), proving that you don?t always get what you pay for, a defendant convicted after trial of securities fraud, filed a pro se appeal, and - under plain...

EDNY Judge Stands By Previous Suppression Ruling

Posted on September 12, 2009
In United States v. Matos, 2009 WL 2883054 (E.D.N.Y. September 03, 2009), the government got a do-over, but not the result it sought.  After EDNY Judge Garaufis had suppressed drugs seized in a ?dropsy? case, finding the testimony of the...

Lawyers in the Dock: EDNY Judge Suppresses Communications Obtained in Violation of Title III?s Minimization Requirement

Posted on August 21, 2009
Behind the convictions of criminal defense lawyers Robert Simels and Arienne Irving yesterday on charges of witness tampering and obstruction of justice is a profound question: should there be different rules for the prosecution of lawyers?  The Simels prosecutors thought...

Second Circuit Affirms Admission of ?Other Act? Evidence; District Judge Dissents

Posted on July 21, 2009
Contributor Robert Culp writes: Common sense would seem to dictate that a dissent by a district judge sitting by designation is a rare occurrence.  Indeed, a rough calculation in the Second Circuit found some 2500 cases decided in the last...

Lawyers in the Dock: SDNY Judge Denies Downward Departure Based on Defendant?s Good Works, but Imposes Non-Guideline Sentence

Posted on July 20, 2009
A white collar defendant?s good deeds are put under the microscope in Judge Marrero?s thoughtful decision in United States v. Fishman, 2009 WL 1940742 (S.D.N.Y. June 29, 2009).  To what extent should they mitigate the defendant?s punishment, particularly where his...

SDNY Judge Denies Motion for Judgment of Acquittal in FCPA Prosecution

Posted on July 15, 2009
In another notable decision from the FCPA prosecution of Frederic Bourke that just ended in conviction last Friday (see also here and here), SDNY Judge Scheindlin denied Bourke's motion for a judgment of acquittal in United States v. Kozeny, 2009...

SDNY Judge Rules that Government May Introduce Background Evidence of Corruption in FCPA Case

Posted on July 14, 2009
The conviction last Friday of handbag magnate Frederic Bourke for bribing the government of Azerbaijan is probably enough on its own to strike fear into those doing business in the developing world ? especially in countries with a high score...

EDNY Judge Grants Judgment of Acquittal on Money Laundering Counts but Denies Application for Jury Determination on Forfeiture Money Judgment

Posted on July 08, 2009
One of the ills highlighted in the Supreme Court's recent money laundering decisions in Santos and Cuellar is the tacking on of money laundering charges to a variety of crimes in order to induce guilty pleas.  The entanglement of substantive criminal charges...

EDNY Judge Grants Judgment of Acquittal to Defendant in Drug Conspiracy

Posted on July 07, 2009
Continuing a streak of notable decisions in this circuit on the evidence necessary to establish knowledge and intent in conspiracy cases (including Murray Law LLC?s reversal in Lorenzo, and also reversals in Kapelioujnyj and Wexler), EDNY Judge Sifton has granted a...

SDNY Judge Unseals Emails from Madoff Victims

Posted on June 24, 2009
It?s bad enough to have been an investor with Bernie Madoff, but to have that investment decision ridiculed in the press adds insult to injury.  And there?s the rub ? or at least one of them ? for Madoff?s victims:...

New Changes To BOP?s RDAP Policies

Posted on June 24, 2009
The only BOP program that permits a reduction of an inmate?s sentence beyond the 15% permissible for good time is the residential drug abuse program, RDAP, which needless to say, is oversubscribed and highly coveted.  BOP has updated the policy....

Two SDNY Decisions Address the Confidentiality of Sentencing Materials

Posted on June 24, 2009
As this blog has noted in the past, see here and here, presentence reports and sentencing materials can contain very sensitive information that both the government and the defense may want to keep under seal.  The right of third parties,...

SDNY Judge Disqualified Lawyer for Potential Conflicts of Interest Despite Client's Waiver

Posted on May 19, 2009
Guest Contributor Justin M. Sher, Esq., writes: In United States v. Rivera, 2009 WL 1059641 (S.D.N.Y. Apr. 13, 2009), SDNY Judge Baer held that a defendant could not waive his lawyer?s potential conflicts of interest where the lawyer had previously...

Distinguishing Between Fact and Purpose of Concealment, Second Circuit Reverses Money Laundering Convictions

Posted on May 12, 2009
In an important decision on the ?design to conceal? element of the money laundering statute, the Second Circuit has reversed the defendant?s convictions for money laundering in United States v. Ness, 2009 WL 1259081 (2d Cir. May 8, 2009).  While...

City Bar Hosts Roundtable Entitled "Attacks on the Independence of the Judiciary"

Posted on May 07, 2009
Judge Blockhead protects thug drug-lord from death penalty . . .  Magistrate releases admitted Ponzi-schemer to luxurious private jail . . . Judge disparages her sex in sidebar . . . Sensational headlines sell papers, but when the media attacks....

Statements Obtained Outside Six Hours of Arrest Inadmissible, Supreme Court holds, if Delay in Presentment Unreasonable

Posted on May 07, 2009
Confessions made outside six hours of arrest and before arraignment in court ? even if Mirandized and entirely voluntary? must be suppressed unless the delay in presentment was necessary or reasonable, the Supreme Court held in Corley v. United States,...

Second Circuit Rules that U.S. Government Does Not Need a Warrant When it Investigates American Citizens Abroad

Posted on May 06, 2009
Guest contributor Justin Sher, Esq., writes: Several months ago, the Second Circuit issued an opinion in In re Terrorist Bombings of United States Embassies in East Africa, 552 F.3d 157 (2d Cir. 2008), and became the first appellate court to...

SDNY Judge Suppresses Statements as Product of Functional Equivalent of Interrogation

Posted on May 04, 2009
Guest contributor Brian Larkin, Esq., writes: The judicial deconstruction of police encounters with defendants has produced a notable decision in the case of United States v. Brito, 2008 WL 53781122 (S.D.N.Y. December 22, 2008).  Addressing such questions as when a...

EDNY Judge Grants Certifies Extraditability of Defendant to Canada

Posted on May 04, 2009
Guest contributor Brian Larkin, Esq., writes: Foreign extraditions are likely to become more and more frequent in an increasingly globalized world, so United States v. Samuels, 2009 WL 367578 (E.D.N.Y. February 10, 2009), is an interesting primer on the procedure...

With Prosecutors Like These . . . DOJ Vows to Eliminate Crack-Cocaine Disparity

Posted on May 02, 2009
Acknowledging that ?[a] consensus has developed that the federal cocaine sentencing laws should be reassessed,? the Department of Justice has announced plans to establish a working group to formulate a complete elimination of the crack-cocaine disparity in the sentencing laws...

Lawyers in the Dock Part 2: SDNY Judge Issues Notable Decision on Sufficiency of Evidence Against Lawyer Accused of Tax Fraud

Posted on April 27, 2009
In a recent speech, NYU Professor Stephen Gillers makes the point that in our highly regulated society it would be impossible to operate Bernie Madoff?s business without the help of lawyers and accountants.  ?Did none of them know?? he asks. ...

Lawyers in the Dock Part 1: EDNY Judge Lays Out Roadmap for Prosecution of Lawyer

Posted on April 27, 2009
How many lawyers does it take to prosecute a lawyer?  One answer may be found in a decision by EDNY Judge Gleeson, United States v. Simels, 2008 WL 5383138 (E.D.N.Y. December 18, 2008): a team of AUSAs to prosecute, a...

WDNY Judge Denies Motion to Seal Marital Information in Defendant?s Sentencing Memorandum

Posted on April 27, 2009
Guest contributor Megan Logsdon, Esq., writes: Should a judge seal portions of a defendant?s sentencing memorandum that paint a co-defendant as a wife-abuser?  No, WDNY Judge Larimer, holds in United States v. Roeder, 2009 WL 385448 (W.D.N.Y. February 13, 2009)...

Second Circuit Issues Notable Decision on Instructing Jurors About Mandatory Minimum Sentences

Posted on April 26, 2009
The tragic tale of Peter Polizzi has now generated another notable decision on the power of a district court to instruct a jury about mandatory minimum sentences.  The Second Circuit has just issued its decision on the appeal and cross-appeal...

EDNY Judge Dismisses Juror Who Revealed Bias After Opening Statements

Posted on April 22, 2009
It must have been a showstopper, because after hearing defense counsel?s opening statement and before hearing any evidence, a juror in United States v. Uvino, 2008 WL 5272494 (E.D.N.Y. December 18, 2008), notified EDNY Judge Weinstein that his view that...

SDNY Judge Addresses Disclosure of Interview Memoranda Prepared by Company's Outside Counsel

Posted on April 20, 2009
What defense lawyers in corporate fraud prosecutions wouldn?t want to get their hands on the treasure trove of materials prepared in an internal investigation by the company?s outside counsel ? especially memoranda memorializing in-depth interviews with un-counseled employees before they?ve...

EDNY Judge Recommends a BOP Designation to Community Confinement . . . and BOP Obliges

Posted on April 20, 2009
After the Second Circuit threw out the BOP?s rule limiting an inmate?s placement in a halfway house to the lesser of the last ten percent or six months of the sentence (Levine v. Apker, 455 F.3d 71 (2d Cir. 2006)),...

Second Circuit Affirms Verdict of Eleven Jurors

Posted on April 20, 2009
?Eleven Angry People? doesn?t have a very poetic ring, but (some will be surprised to learn) it?s enough to convict someone of a crime in federal court.  In fact, Hasan Simmons has first-hand experience of this scenario, and the loss...

In Nuanced Sentencing Decision, EDNY Judge Finds Career Offender Classification Misplaced

Posted on April 20, 2009
Giving life to the concept of ?individualized sentencing,? EDNY Judge Sifton has ruled in United States v. Hodges, 2009 WL 366231 (E.D.N.Y. February 12, 2009), that the career offender classification is ?misplaced? in the context of an individual with a...

SDNY Judge Takes Exception to Stacking of Mandatory Minimums

Posted on April 16, 2009
Guest contributor David G. Abrams, Esq, writes: What is another 14 years to a 27 year-old defendant facing a mandatory minimum of 50 years on two gun convictions?  Well, the difference between a life sentence and a near-life sentence for...

Second Circuit Issues Notable Ruling on Defense Advocacy at Sentencing

Posted on April 15, 2009
Guest contributor David Johnson, Esq., writes: The right to have one?s lawyer speak (and speak, and speak . . .) at sentencing has been given some lifeblood in United States v. Gutierrez, 2009 WL 323271 (2d Cir. February 11, 2009). ...

Premature Articulation to the Media Comes Back to Haunt Defendant in SDNY Case

Posted on April 05, 2009
Guest Contributor Lynn Goodman, Esq., writes: In June 2006, reporter Charles Forelle of The Wall Street Journal wrote an article questioning the options award practices of executives at Monster Worldwide, Inc., the operator of the web site Monster.com...

SDNY Court Orders Unsealing of Wiretap Applications in Investigation of Prostitution Ring

Posted on March 31, 2009
Guest contributor Megan Logsdon, Esq. writes: In two cases that pit privacy interests over the public?s right to know (including the right to know too much), In the Matter of the New York Times Company to Unseal Wiretap and...

Making Off with Criminal Proceeds: Some Recent Notable Second Circuit and District Court Decisions on Restitution and Forfeiture

Posted on March 28, 2009
How much losses were actually generated in Madoff?s fraud?  Is that figure the same as the forfeiture or restitution amounts that will be ordered at his sentencing?  Will his wife be able to shelter any of her assets from seizure? ...

Bureau of Prisons Compassionate Release Policy Continues to Stifle Early Release

Posted on March 27, 2009
Guest Contributor David Scott Johnson, Esq. writes: As of the end of 2007, the Bureau of Prisons had rarely exercised its power to file a motion for a reduced sentence under the ?compassionate release? procedures found in 18 U.S.C. § 3582(c)(1)(A),...

Second Circuit Affirms Denial of Bail to Bernie Madoff

Posted on March 25, 2009
Robert Culp, Esq. writes: Like Ivan Boesky, Mike Milken and others before him, Bernie Madoff has become a white collar pariah who needs no introduction.  Such criminal defendants have the ability to define their times, and the public?s thirst for...

USSC Report Highlights Rarity and Benefits of Alternatives to Incarceration

Posted on March 25, 2009
Early in its recent report on ?Alternative Sentencing in the Federal Criminal Justice System? [or more appropriately entitled, the lack thereof], published in January of this year, the Sentencing Commission reminds us that the Sentencing Reform Act of 1984 requires...

SDNY Judge Grants Trial Continuance in Part Due to BOP?s Policy of Confining New Inmates in SHU

Posted on March 25, 2009
Pretrial detention at the Metropolitan Correctional Center is bad enough, but the first two weeks can be especially unbearable, since they are usually spent in the Special Housing Unit (segregated housing) while the BOP finds the inmate a bed in...

NDNY Court Walks Tight Rope in Weighing Confidentiality of Sentencing Memoranda

Posted on March 25, 2009
Guest Contributor Lynn Goodman, Esq., writes: New York federal courts continue to wrestle with the competing interests of a defendant?s right to privacy and the public?s right to know the facts influencing a judge?s sentencing decisions.  In United States v...

In Fairness, Dead Guys Speak: EDNY Judge Issues Some Notable Rulings on Admissibility of Hearsay

Posted on March 24, 2009
Guest Contributor Brian Larkin, Esq. writes:Faced with the government?s overwhelming resources, decades of investigation material, and procedural advantages, the Federal Rules of Evidence can be a defendant?s last resort.  Usually, the defense strategy is to move to preclude, but in...

Second Circuit Issues Notable Decision Limiting the Stacking of Mandatory Minimum Sentences

Posted on March 14, 2009
It?s hard enough explaining to someone that her below-minimum wage job selling crack on a street corner yields a mandatory minimum sentence of ten years under federal law.  But try justifying the consecutive five-year sentence she faces because of her...

EDNY Judge Holds that Youthful Offender Adjudication Does Not Trigger Gun Guideline Enhancement

Posted on March 03, 2009

SDNY Judge Grants Bail to Defendant Accused of Large-Scale Fraud

Posted on February 06, 2009
Once again, a high-profile fraud case has yielded a notable decision on a defendant?s right to bail.  Granting the bail reduction motion of Marc Dreier, the once high-flying lawyer now charged with ?colossal criminality,? SDNY Judge Rakoff gives life both...

Second Circuit Holds that Striking Juror on Grounds of Obesity Lends Itself to Pretext

Posted on February 03, 2009
It is no surprise to defense lawyers that racial profiling of jurors by prosecutors is alive and well.  (Not that defense lawyers are saints on this issue, though they are more likely to do it affirmatively, see here.)  In a...

Supreme Court Reaffirms that District Court May Not Presume that Guidelines Range is Reasonable

Posted on February 01, 2009
A district court?s decision to sentence a crack offender to thirty years because there wasn?t ?a good reason? to impose a sentence below his Guidelines range has led to an important per curiam decision from the Supreme Court.  Reaffirming ?...

Supreme Court Reaffirms Power of District Courts to Disagree with Sentencing Guidelines on Policy Grounds

Posted on January 26, 2009
If there is any doubt that district courts are free to disagree with the Sentencing Guidelines on policy grounds, the Supreme Court has given another adrenaline shot to this principle.  In Spears v. United States, 2009 WL 129044 (January 21,...

SDNY Magistrate Finds Non-Discretionary Adam Walsh Act Bail Conditions Unconstitutional in Child Pornography Possession Case

Posted on January 12, 2009
As the world awaits the decision on the government?s bail revocation motion in the Madoff case [update: 12:16 p.m. it is just being reported that he will remain free], another SDNY magistrate issued a notable bail decision recently in a...

SDNY Magistrate Rejects Government?s Effort to Revoke Bail Based on Defendant?s Alleged Risk of Flight and Potential of Economic Danger to the Community

Posted on January 12, 2009
Despite the apoplectic public and media outrage over Bernard Madoff?s pretrial detention at his penthouse while his victims are ?headed to the poorhouse,? SDNY Magistrate Judge Ronald Ellis has issued an important and courageous decision on the parameters of the...

Second Circuit Holds Evidence of Bogus Account Statements is Relevant in Securities Fraud Case

Posted on January 06, 2009
Although bogus account statements generated to lull defrauded investors are not in and of themselves sufficient to establish a securities fraud violation, because they are not statements made ?in connection with the purchase or sale of any security,? they are...

Welcome Back to the Second Circuit Sentencing Blog!

Posted on January 06, 2009
My colleague Harlan Protass has resumed blogging on the excellent Second Circuit Sentencing Blog, as he announces here.  Be sure to check out his timely and knowledgeable posts....

Second Circuit Affirms Murder Conspiracy Conviction Despite Prosecutor's Improper Vouching

Posted on January 06, 2009
A set of facts that read like a treatment for a Sopranos script is the backdrop for a notable decision from the Second Circuit on the propriety of summation arguments made by both sides in a criminal trial.  Mistaken suspicions...

EDNY Judge Finds Violation of Supervised Release in Sex Offender Case Where Defendant Refrained from Participating in Treatment in "Meaningful Manner"

Posted on January 06, 2009
How many people haven't clicked with their therapists and moved on to another?  Imagine being sentenced to therapy and not clicking with the assigned therapist, but not having the option of switching?  That's a predicament in which more than a...

Happy New Year to Our Loyal Readers!

Posted on December 31, 2008
We wish all our readers a very happy and successful 2009.  We ring out the new year with some stirring words from Senator Jim Webb, who plans to introduce legislation in the spring to address America's sky-rocketing incarceration rates, as...

EDNY Judge Finds US Marshal and NYPD Officer Incredible at Suppression Hearing in "Dropsy" Case, But Grants Government's Motion to Reopen

Posted on December 29, 2008
Defense lawyers are no strangers to the concept of ?testilying? or false testimony from law enforcement witnesses.  Especially common are those suspiciously opportune observations that render a search or seizure constitutional, like in ?dropsy? cases, where the officers claim the...

EDNY Judge Dismisses Illegal Reentry Indictment Where Defendant Not Advised of Right to Voluntary Departure Prior to Deportation

Posted on December 29, 2008
Illegal re-entry cases are amongst the hardest to defend.  After all, the presence of the defendant in the courtroom is Government Exhibit A.  One defense strategy is to move to dismiss the indictment by attacking the validity of the underlying...

EDNY Judge Denies Motion of Acquitted Defendants for Attorneys? Fees Under the Hyde Amendment

Posted on December 29, 2008
The Mitselmakher brothers, acquitted of extortion after trial, may not have won their motion for attorneys fees under the Hyde Amendment, but a published decision criticizing the ?poor judgment? and ?myopia? of the government?s prosecution of them must have been...

In Securities Fraud Case, Second Circuit Affirms Downward Variance from Life to 42 Months in Prison

Posted on December 11, 2008
Proving that the elevator of sentencing discretion truly moves in both directions, the Second Circuit in United States v. Adelson, 06-2738-cr(L), 2008 WL 5155341 (2d Cir. December 9, 2008) (a summary order), affirmed Judge Rakoff?s downward variance from life in...

SDNY Judge Suppresses Evidence Seized Under Order Obtained by Probation Officer Without Finding of Probable Cause

Posted on December 10, 2008
Can a probation officer seek a warrant to search the home and locker of a supervisee who is not subject to warrantless searches under the terms of his supervised release?  Alternatively, may a probation officer seek an order under the...

Second Circuit Finds No Error in Ruling that Peremptory Challenge Against Reader of Widely-Read African-American Newspaper Passed Batson Muster

Posted on December 10, 2008
Being a reader of the Amsterdam Daily News, which describes itself as ?one of New York?s largest and most influential Black-owned and operated business institutions? and which has a circulation of about 25,000, is a legitimate ground for exercising a...

Second Circuit, Affirming Upward Variance in Gun Case Based on Local Conditions, Issues Important Decision on District Court?s Sentencing Discretion

Posted on December 10, 2008
Gerard Cavera, a Florida retiree in his seventies who illegally sold guns destined for the New York black market, has felled more than one tree in litigation over the district court?s decision to impose a sentence above his guideline range...

Second Circuit Issues Notable Decision on Defendant's Right to Explore Bias of Government Witness

Posted on November 26, 2008
Like Joe Nameth, the defense lawyer?s job is to throw the ball, though sometimes, it?s best to throw that ball without warning.  Applying the maxim ?ask, and thou shalt not receive,? the district judge in United States v. Figueroa, No....

In KPMG Tax Fraud Case, SDNY Judge Kaplan Denies Remaining Defendants? Motion to Dismiss Based on Alleged Misuse of a Parallel Civil Investigation

Posted on November 25, 2008
White collar defendants often face parallel civil investigations, a situation full of traps for the unwary, as noted here and here.  In United States v. Stein, 05 CR 888 (LAK), 2008 WL 4212516 (S.D.N.Y. September 10, 2008), the four remaining...

EDNY Judge Weinstein Sentences Whistle-Blower in Fraud Case to Probation, Departing from Guideline Range of 210 to 240 Months

Posted on November 17, 2008
Judge Weinstein has issued several decisions lately in the Newsday fraud prosecution, previously discussed here and here, providing his statements of reasons for the probationary sentences he is imposing on all nine defendants.  One, United States v...

WDNY Judge Rejects Government's Effort to Confine 5K1.1 Departure to One of Defendant's Two Counts of Conviction

Posted on November 17, 2008
In an interesting decision from Judge Larimer in the Western District of New York, United States v. Nix, 07 CR 60221 (DGL), 2008 WL 4757301 (W.D.N.Y. October 28, 2008), he rejected the government's effort to limit his power to depart...

Connecticut Judge Issues Notable Ruling in AIG/Gen Re Fraud Case on Loss Calculation, Number of Victims and Restitution

Posted on November 12, 2008
In the closely-watched Aig/Gen Re fraud case, Connecticut Judge Droney has issued an opinion deciding several key sentencing issues prior to the actual sentencing.  Most notably, in United States v. Ferguson, 06 CR 137 (CFD), 2008 WL 4763238 (D.Conn...

Some Notable Applications of the Supreme Court?s Money Laundering Decisions in Santos and Cuellar

Posted on November 07, 2008
Two landmark rulings from the Supreme Court earlier this year, Cuellar v. United States, 128 S.Ct. 1994 (2008) and United States v. Santos, 128 S.Ct. 2020 (2008), have spawned some notable decisions in this circuit recently (not to mention, the...

SDNY Judge Rules that FCPA Does Not Apply to "True Extortions"

Posted on November 02, 2008
Transparency International points out that ?[b]ribery may be so much a part of a business culture in some places, that dealing with it can seem an over-whelming challenge, and no one business, especially a small one, can fight it alone.? ...

EDNY Judge Departs Based on Defendant?s Presentence Confinement in Segregated Housing

Posted on October 29, 2008
As this blog has noted in the past, see here, several courts have departed below the applicable guideline range based on unusually severe conditions of presentence confinement.  Add to that set of precedents United States v. Brooks, 07-cr-187, 2008 WL...

EDNY Judge Departs from 235 Months to Probation for Cooperator in Fraud Case in Part Because Higher Ups Escaped Prosecution

Posted on October 29, 2008
In a short decision in the Newsday circulation fraud case, United States v. Smith, 2008 WL 4662346 (E.D.N.Y. October 20, 2008), Judge Weinstein set forth his reasons for departing from a guideline range of 235 to 240 months (capped by...

SDNY Judge Rules that Ballistics Expert May Not Testify that Ballistics is a Science or that He Reached his Conclusions with any Degree of Certainty

Posted on October 29, 2008
Scientific testimony has an inexorable way of assuming central importance at a trial.  In the world of CSI, as this blog has noted in the past, see here, jurors crave the objective certainty that scientific evidence promises.  But as Judge....

Second Circuit Reverses Another Conspiracy Conviction for Lack of Knowledge and Intent

Posted on October 22, 2008
Conspiracy convictions have been taking a beating lately in the Second Circuit, see here (Murray Law LLC?s own case) and here and United States v. Al-Moayad, 2008 WL 4443841 (2d Cir. October 2, 2008), which I hope to blog about shortly.  Earlier...

Some Recent Decisions of Note on Fast Track Disparity and Unconstitutionality of Gun Possession Laws

Posted on October 16, 2008
Fast Track Disparity As explained by Judge Sweet in United States v. Paulino-Melende, 08 cr 176 (RWS), 2008 WL 4553148 (S.D.N.Y. October 8, 2008), fast-track disparity is created by the existence in some districts but not others of a ?fast...

New York Federal Criminal Practice Blog Invites Law Students to Guest-Blog

Posted on October 16, 2008
The courts in the Second Circuit produce scores of notable decisions a year, and this blog aspires to covering them all.  If you are a law student with a quick and pithy pen who would like to contribute to this...

NDNY Judge Denies Motion to Redact Confidential Medical Information From Sentencing Memoranda

Posted on October 16, 2008
Sentencing memoranda filed by defense counsel and the government can contain some of the most intimate details of a defendant?s life.  They may recount experiences of childhood sexual abuse, results of mental health and IQ testing, and diagnoses of life-threatening...

Reversing Judgment of Acquittal in Money Laundering Case, Second Circuit Issues Important Decision on the Quantum of Proof Required in Conspiracy Cases

Posted on October 15, 2008
Today, in a footnote, the Second Circuit has discarded a troubling principle ? the concept that once a conspiracy has been established, ?only slight evidence? or evidence that is not ?overwhelming? is necessary to link another defendant to it.  In...

Second Circuit Vacates Convictions Due to Improper Admission of "Officer Expert" Testimony

Posted on October 08, 2008
A frequent occurrence at trial is the presentation of the "officer expert" ? a police officer or agent who testifies about aspects of a criminal scheme that are outside the experience of a typical juror, such as organizational hierarchies or...

Second Circuit Rejects Challenge to Restitution Order On Grounds of Victims' "Unclean Hands"

Posted on October 07, 2008
Are you entitled to restitution even if your own motives were not as pure as the driven snow?  That?s the simple question raised in a short decision today from the Second Circuit.  In United States v. Ojeikere, 07-1970-cr (October 7,...

EDNY Judge Grants Judgment of Acquittal Finding Insufficient Evidence to Support Pinkerton Liability

Posted on October 03, 2008
For many defendants, Pinkerton liability ? the theory that one can be held criminally liable for the reasonably foreseeable acts of one?s co-conspirators ? is a jaw-dropping doctrine.  As Judge Bianco points out in United States v. Graziano, 07-CR-0508 (JFB),...

Second Circuit Reverses Bribery Conviction Due to Government?s Suppression of Brady Material

Posted on September 29, 2008
The government?s obligation to disclose Brady material encompasses not only oral, unrecorded statements of a cooperating witness that are favorable to the accused, as held in Rodriguez, previously discussed here, but also exculpatory statements communicated to the government by the...

EDNY Judge Denies Motion for New Trial Premised on Allegedly False Statements by Juror During Voir Dire

Posted on September 29, 2008
A prospective juror who says he?s a political science professor, albeit also a lawyer who has not practiced for the last six years, sounds like a good defense gamble.  After all, liberal professors outnumber conservatives in the social sciences by...

EDNY Judge Denies Motion to Quash Grand Jury Suboena Seeking Source of Trial Defendant's Legal Fees

Posted on September 26, 2008
One can assume that the prosecutor in a case alleging the provision of material support to terrorism would be keenly interested in the source of the defendant's legal fees.  Is the government entitled to that potentially incriminating information, and if...

Three District Courts Address Calculation and Enforcement of Restitution

Posted on September 17, 2008
As courts retreat from heavy custodial sentences in white collar cases (see here), one can expect alternative measures, like forfeiture, fines and restitution, to become the new punitive focal point.  In fact in United States v. Brennan, 05 CR 747...

Second Circuit Issues Notable Decision on Sufficiency of Evidence for RICO Conspiracy Conviction and Criteria for Admissibility of Lay Opinion Testimony

Posted on September 12, 2008
In a decision that gives new life to mob-related prosecutions, the Second Circuit has ruled in United States v. Yannotti, 06-5571-cr, 2008 WL 4071691 (2d Cir. September 4, 2008), that an individual may be found guilty of RICO conspiracy based...

Second Circuit, Reversing Sex Offense Conviction Due to Improper Jury Instruction, Supports Admission of Defendant?s Social Science Expert at Retrial

Posted on September 11, 2008
The ambiguous and often tragic world of alleged and actual sex offenders ? running the gamut from harmless experimentation and role-playing to sinister preying on defenseless victims ? is brought into sharp relief in the Second Circuit?s decision in United...

?Exemplary Law-Abiding Behavior? Leads SDNY Judge to Grant Request for Early Termination of Supervised Release

Posted on September 11, 2008
As the Supreme Court pointed out in Gall v. United States, 28 S.Ct. 586, 595 (2007), probation is no cake walk (probationers are ?subject to several standard conditions that substantially restrict their liberty?).  So Harold Rentas got an early holiday...

Second Circuit Affirms SDNY Judge Kaplan?s Dismissal of Indictment Against Thirteen Defendants in KPMG Tax Shelter Fraud Case

Posted on August 30, 2008
The Second Circuit has affirmed SDNY Judge Kaplan?s stunning dismissal of an indictment against thirteen defendants in the largest tax fraud prosecution in history (discussed previously here) because of the government?s interference with their Sixth Amendment right to counsel through...

Second Circuit Holds Restitution Order under MVRA May Include Attorneys Fees and Accounting Costs

Posted on August 26, 2008
The multi-million dollar legal and forensic accounting fees incurred by companies investigating fraud perpetrated by their executives may be included in a restitution order under the Mandatory Victims Restitution Act (MVRA), the Second Circuit held in United States v...

SDNY Judge Sentences Cooperator in Fraud Case to Six Months Intermittent Confinement and Six Months Home Detention

Posted on August 25, 2008
Has a cooperator who helped convict ten other defendants earned a non-custodial sentence?  How should a sentencing judge weigh the competing factors of rewarding and punishing the cooperating defendant?  These are the questions that have sparked a short and thought-provoking...

EDNY Judge Block Imposes 60-month Sentences in Securities Fraud Case Instead of Guideline Sentences of 360 months to Life

Posted on August 15, 2008
Rejecting the ?patently absurd? and ?draconian? sentences of 360 months to life dictated by the Guidelines in a securities fraud case, and holding that sentences in white collar cases should not be ?a black stain on common sense,? EDNY Judge...

EDNY Judge Weinstein Rejects Strict Liability Guideline Enhancement in Gun Possession Case Predicated on Guideline Commentary

Posted on August 13, 2008
The devil is in the details, and, when it comes to the Sentencing Guidelines, that often means in the guideline commentary.  In an important and lengthy new opinion, United States v. Handy, 07-cr-906 (JBW), 2008 WL 2965816 (E.D.N.Y. August 4,...

Second Circuit Issues Notable Decision Defining Victim and Loss Under the Sentencing Guidelines

Posted on August 11, 2008
Adding to a series of notable decisions addressing the calculation of loss under the Sentencing Guidelines, see here, here and here, the Second Circuit has ruled in United States v. Abiodun, 2008 WL 2924341 (2d Cir. July 30, 2008), that...

EDNY Judge Denies Motion to Dismiss Indictment Charging English Teacher and Translator with Providing Material Support to Terrorists

Posted on August 09, 2008
A middle-aged woman, who taught English and translated documents for an Iranian dissident group dedicated to democracy, hardly fits the image of a terrorist, but that individual happens to be the sole defendant in a single-count federal indictment in Brooklyn...

SDNY Judge Grants Government?s Eleventh Hour Request to Take Depositions in the UK

Posted on August 08, 2008
A trip to the United Kingdom to take depositions might be a welcome diversion for many lawyers, but not during the weeks leading up to a major, document-intensive, white collar criminal trial.  In United States v. Vilar, 05 CR 0621...

EDNY Judge Rules Defendant's Proffer Statements Inadmissible at Trial

Posted on August 05, 2008
?Queen for a day? (proffer) agreements ? bare your soul to prosecutors in exchange for some limited protections ? usually benefit the government more than the defendant.  For one thing, in these agreements, the defendant gives up any additional protections...

WDNY Judge Upholds Constitutionality of Adam Walsh Act, Citing its Safety Valve Provision

Posted on August 04, 2008
As noted by this blog previously, see here, the Adam Walsh Act of 2006 prohibits the reproduction of child pornography during legal proceedings, and in particular, permits the government to refuse to supply copies of child pornography to the defense....

Second Circuit, Affirming Judgment of Acquittal, Defines ?Deceptive Conduct? for Purposes of Securities Fraud Conviction

Posted on August 04, 2008
Securities fraud under § 10(b) of the Securities Exchange Act of 1934 may be ?a catchall provision,? the Second Circuit observes in United States v. Finnerty, 2008 WL 2778830 (2d Cir. July 18, 2008), ?but what it catches must be...

EDNY Judge Issues Notable Decision on Forfeiture and Restitution in Peonage Case

Posted on August 02, 2008
The bizarre and tragic case of the Sabhnanis ? a successful immigrant couple convicted of harboring and abusing their immigrant domestic workers, discussed already, here, here and here ? has occasioned two new notable decisions on forfeiture and restitution, which...

SDNY Judge Issues Notable Decision on ?Weight? Factor in Bail Determinations

Posted on July 24, 2008
The Bail Reform Act in the federal system represents a delicate balance between the presumption of innocence and the need to assure the presence of a criminal defendant at subsequent court appearances.  This balance was sorely tested in a meticulously...

BOP's RDAP Program Over-Subscribed and Thus Under-Delivering Both in Treatment and Sentence Reduction

Posted on July 21, 2008
The BOP's 500-hour Residential Drug Abuse Program is the one corrections-based program in which BOP inmates can participate and receive time off their sentences (by statute, up to one year, 18 U.S.C. § 3621(e)).  The program, which has stringent eligibility...

Second Circuit and SDNY Judge Issue Three Notable Rulings on Pre-Trial Disclosure

Posted on July 20, 2008
As this blog has previously lamented (see here), the discovery rights of defendants in criminal cases, unlike in civil cases, are oddly in inverse proportion to the high stakes at issue.  Three new decisions address discrete issues relating to pre-trial...

Second Circuit Reverses Conspiracy Conviction Based on Insufficient Evidence that the Defendants Knew the Nature and Object of the Conspiracy

Posted on July 18, 2008
Being in the wrong place at the wrong time with the wrong people may sadly be enough for a jury to convict, but ?suspicious circumstances . . . are not enough to sustain a conviction for conspiracy,? the Second Circuit...

SDNY Judge Denies Request to Modify Terms of Probationary Sentence

Posted on July 02, 2008
In United States v. Collotta, 07 cr 143 (VM), 2008 WL 2434113 (S.D.N.Y. June 16, 2008), Judge Morrero denied a defendant's request for modification of her terms of probation (though some might prefer to subtitle this "quit while you're ahead")....

Second Circuit Issues Notable Decision Distilling Recent Developments in Sentencing Jurisprudence and Clearly Reaffirming Centrality of Sentencing Court?s Discretion

Posted on June 28, 2008
In a lengthy opinion authored by Judge Reena Raggi, the Second Circuit has elegantly distilled recent developments in federal sentencing jurisprudence.  In the process, it has categorically reaffirmed the centrality of the ?individualized assessment? of the district court, which ?has...

Second Circuit Upholds "Blind Strike" Method of Jury Selection

Posted on June 26, 2008
Striking another blow against the strategic use of peremptory challenges, the Second Circuit upheld the "blind strike" method of jury selection in United States v. Bermudez, 06-5119-cr, 2008 WL 2415713 (2d Cir. June 17, 2008).  This is where both parties...

EDNY Judge Irizarry Finds Government Breached Plea Agreement with Improper Advocacy at Sentencing

Posted on June 24, 2008
Where is the line between the government?s duty to inform the sentencing court of all of the defendant?s relevant conduct and the duty to stick to its side of the bargained-for plea agreement?  When de facto, the government?s conduct and...

Second Circuit Assails FBI Agent's Improper Trial Testimony Admitted as ?Background? (But Affirms Anyway)

Posted on June 24, 2008
In United States v. Johnson, 2008 WL 2446143 (2d Cir. June 19, 2008), the Second Circuit presents a primer on the questions an AUSA cannot ask their case agent at trial, the questions defense lawyers should object to, and government...

Supreme Court Adopts Competency Limitation on Scope of Right of Self-Incrimination

Posted on June 23, 2008
To be competent to stand trial, a defendant need only have a rational understanding of the proceeding against him and the ability to consult rationally with his lawyer - I say only, because as any defense lawyer who has represented...

Notable Comments on Our Blog Postings on Graziano and Confredo

Posted on June 23, 2008
This blog welcomes comments on our postings, as well as guest postings on cases and developments of interest.  We will post any contributions that we think deserve a wider audience.  Richard Willstatter has added some very astute remarks to our...

Federal Defenders Publish Two Important Papers Deconstructing Career Offender and Child Pornography Guidelines

Posted on June 22, 2008
Inspired by the Supreme Court?s holding in Kimbrough v. United States, 128 S. Ct. 558, 570 (2007), that a district judge may disregard a provision of the Sentencing Guidelines that is not the product of ?empirical data and national experience,?...

EDNY Judge Issues Notable Decision on Computer Searches, Defendant?s Offer to Take a Polygraph, and Jury?s Knowledge of Potential Penalties

Posted on June 18, 2008
As an agent points out in United States v. Graziano, 07-cr-508 (JFB), 2008 WL 789886 (E.D.N.Y. March 20, 2008), computers can be repositories of one?s most private, even subconscious, thoughts.  Asked why he examined Internet history files when searching a...

Second Circuit Issues Notable Ruling on Loss Calculations for Sentencing Purposes

Posted on June 16, 2008
Adding to a string of important decisions on loss calculations under the Sentencing Guidelines (see here and here), the Second Circuit vacated two sentences in a securities fraud case for errors in calculating the applicable loss.  The court had utilized...

Supreme Court Holds that Sentencing Court Need Not Give Advance Notice of a Plan to Grant Variance (as Opposed to Departure) from the Guidelines

Posted on June 14, 2008
With a gloved hand, the Supreme Court ruled this week that because the Sentencing Guidelines are advisory, a sentencing judge need not give advance notice to the defendant if s/he plans to deviate from those Guidelines in imposing sentence based...

Second Circuit Holds that Sentences Without Presentence Allocution Must Be Vacated

Posted on June 13, 2008
All defense lawyers have experienced a client wresting victory from the jaws of defeat with their heartfelt words at sentencing (and vice versa).  Now, in United States v. Gonzalez, 07-4824-cr, 2008 WL 2357234 (2d Cir. June 11, 2008), the Second...

Second Circuit Holds Government Did Not Breach Plea Agreement by Advocating Additional Upward Adjustments at Sentencing - Take Two

Posted on June 11, 2008
QuestionThe scenario presented in United States v. Brumer, 07-0715-cr (2d Cir. June 10, 2008) is like a question on the bar exam: Two fraudsters enter into plea agreement with government, drafted by government, which estimates loss amount of crime at...

Second Circuit Issues Notable Decision Defining "Intended Loss" Under the Guidelines

Posted on June 10, 2008
The often ludicrously high sentences in federal fraud cases are driven mainly by the provisions in the Sentencing Guidelines relating to actual and intended loss.  The Second Circuit, in an opinion authored by Judge Newman, has once again injected...

Second Circuit Holds Government Did Not Breach Plea Agreement by Supporting Higher than Estimated Guidelines Level at Sentencing

Posted on June 09, 2008
What a district court giveth in United States v. Allen, 2008 WL 1944549 (S.D.N.Y. April 30, 2008) discussed here, the Second Circuit taketh in United States v. Habbas, 05-6142-cr, 2008 WL 2220676 (2d Cir. May 30, 2008).  In a decision...

Second Circuit Affirms Government's Reverse-Batson Challenge

Posted on June 06, 2008
Picking a jury in a multi-defendant case requires considerable negotiation and compromise between defense counsel.  It also demands that with regard to ?reverse Batson? challenges, the defense speaks with one voice, as illustrated in United States v...

Third Circuit Issues Notable Coda to Judge Weinstein's Decision in Polizzi

Posted on June 03, 2008
As discussed here in our last entry, Judge Weinstein issued a powerful and erudite indictment of cruel mandatory minimum sentences in United States v. Polizzi, 2008 WL 1882006 (E.D.N.Y. April 1, 2008), and thus, temporarily at least, saved the defendant...

EDNY Judge Holds He Erred in Failing to Advise Jury of Mandatory Minimum Sentence Applicable in Child Pornography Possession Case

Posted on May 28, 2008
There is a curious irony to Judge Weinstein's decision in United States v. Polizzi, 06 CR 22 (JBW), 2008 WL 1886006 (E.D.N.Y. April 1, 2008).  Although for many it is a quintessential example of liberal judicial activism, the decision is...

Government Estimates Costs of Incarceration vs. Supervised Release at about 7:1

Posted on May 28, 2008
Here, from the U.S. Courts website, is some food for thought for bail or probation in close cases: In fiscal year 2007, it cost $24,922 to keep someone incarcerated in a Federal Bureau of Prisons facility for 12 months, and...

EDNY Judge Finds No Improper Collusion Between Parallel USAO and SEC Investigations

Posted on May 27, 2008
It is not uncommon for a defendant in a white collar criminal case to be the subject of parallel civil government enforcement proceedings.  While the latter can yield useful discovery for the criminal case, that opportunity cuts both ways, as...

EDNY Judge Denies Acquitted Defendant's Motion for Expungement of Arrest Record

Posted on May 27, 2008
Arrest records, like actual convictions, can be the gift that keeps on giving.  Citing reduced employment opportunities, the defendant in United States v. Grant, 94-cr-0018 (CPS), 2008 WL 2039309 (E.D.N.Y. May 9, 2008), sought an expungement of her arrest record,...

EDNY Judge Rejects Crawford Challenge to Certification of Foreign Business Records

Posted on May 27, 2008
The Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004) - holding that testimonial hearsay is inadmissible unless the declarant is unavailable and there has been a prior opportunity to cross-examine - has spawned extensive litigation on the...

SDNY Judge Holds Misleading Pimentel Letter May Justify Departure Below Sentencing Guidelines

Posted on May 20, 2008
Pimentel letters are key documents when a defendant pleads to an indictment without any plea agreement.  Written by the prosecutor, it lays out the government's calculation of a defendant's likely sentence under the Sentencing Guidelines.  Although not a binding contract,...

Second Circuit Affirms Sentence that was Apparently Enhanced by Victim-Impact Testimony at Sentencing

Posted on May 19, 2008
The impact of victim-impact testimony at sentencing is highlighted in United States v. Eberhard, 05-3431-cr, 2008 WL 1930935 (2d Cir. May 5, 2008), where the district court imposed a sentence nine months longer than foreshadowed in its sentencing memorandum, after...

Second Circuit Reverses Sentence as Procedurally Improper Due to Improper Reliance on State-Federal Disparities

Posted on April 27, 2008
The vast majority of street-level drug sellers in New York are usually prosecuted in state court, where first-time offenders often receive far more lenient treatment than in federal court, and where there is no disparity between crack and cocaine sentences...

Second Circuit Affirms Securities Fraud Conviction, Though Criticizing Government for its Joinder Decision and Late Disclosure of Brady Material

Posted on April 27, 2008
Limiting instructions are the opium of judges, but of little solace to a defendant, like Douglas Brandon, charged with securities fraud in an indictment that also charged an entirely separate securities fraud scheme against some of his co-defendants.  A substantial...

Second Circuit Holds that District Court May Not Order a Sentence Consecutive to a Sentence Not Yet Imposed

Posted on April 22, 2008
As this blog has pointed out several times, see here and here, defendants simultaneously facing federal and state sentences can also face significant procedural hurdles in order to achieve concurrency (putting aside the issue of persuading the sentencing judges involved...

Second Circuit Reverses Drug Conspiracy on Insufficiency Grounds

Posted on April 21, 2008
It is not often that the Second Circuit reverses a drug conspiracy on insufficiency grounds, but it did so in United States v. Wexler, 06-1571-cr, 2008 WL 878582 (2d Cir. April 03, 2008), a case involving a Manhattan dermatologist, sentenced...

Second Circuit Indicates Belief that Kimbrough Does Not Apply to Statutory Mandatory Minimum Sentences

Posted on April 19, 2008
The defendant in United States v. Lee, 2008 WL 1745141 (2d Cir. April 17, 2008), raised the interesting issue, post-Kimbrough, that her 10-year sentence for crack distribution was unconstitutional in light of the disparity between the quantities of powder cocaine...

Two SDNY Decisions on the Right to Counsel Illustrate the Fine Line Between Zealous Advocacy and Criminal Conduct (Part 2)

Posted on March 26, 2008
Bernard Kerik entered court last week with his new lawyer, having seen his first become a witness against him and his second disqualified as a potential witness.  Although there is no allegation in the federal prosecution of Mr. Kerik that...

Two SDNY Decisions on the Right to Counsel Illustrate the Fine Line Between Zealous Advocacy and Criminal Conduct (Part 1)

Posted on March 26, 2008
When does good lawyering become criminal conduct?  This thorny question is at the heart of several recent prosecutions of lawyers for conduct within their role as lawyers, sending a chill down the spine  of many a committed advocate: prosecutions such as those...

EDNY Judge Holds It is Not a Crime to Conspire to Commit a Legal Act While Mistakenly Believing it to Be Illegal

Posted on March 23, 2008
It's not often that a federal judge quotes a Hollywood movie in its written opinion, but Judge Vitaliano did so to neat effect in United States v. Ali, 06 CR 200 (ENV), 2008 WL 682594 (E.D.N.Y. March 7, 2008), an...

SDNY Judge Pre-Empts BOP on Issue of Credit for Time Served Prior to Commencement of Sentence

Posted on March 22, 2008
The interaction of prison time served while simultaneously facing state and federal charges, as discussed here previously, is a very tricky subject, with potentially serious consequences for an individual defendant. Take Hasan Mitchell in the case of United States v...

NDNY Judge Addresses Issue of First Amendment Limitations on Pretrial Release Conditions

Posted on March 19, 2008
Contempt charges against a father's rights activist are the backdrop to the interesting question of the permissible limitations on a defendant's First Amendment rights that may be contained in a pretrial release order.  In United States v. Murtari, 07 CR...

Second Circuit Vacates Substantial Non-Guidelines Sentences Imposed in $100 Million Fraud

Posted on March 18, 2008
Just when we might be resting on our Gall/Kimbrough/Regalado laurels, along comes United States v. Cutler, 02-2516-cr-L, 2008 WL 706633 (2d Cir. March 17, 2008), which warns that the district court?s sentencing discretion is not boundless: the sentencing court cannot...

Second Circuit Adopts Crosby-Type Remand Procedure for Cases with Unpreserved Kimbrough Errors

Posted on March 18, 2008
Adopting a Crosby-type remand procedure for cases with unpreserved Kimbrough errors (contesting the 100-1 crack cocaine sentencing ratio), the Second Circuit noted in United States v. Regalado, 05 CR 739, 2008 WL 577158 (2d Cir. March 4, 2008), that the...

EDNY Judge Lambasts Drug Equivalency Tables in the US Sentencing Guidelines

Posted on March 18, 2008
The Sentencing Guidelines' Drug Equivalency Tables come into play in cases involving more than one kind of drug, requiring that each drug be converted into a corresponding quantity of marijuana.  The process however, as the court noted in United States...

EDNY Judge Denies Full-Blown Resentencing Under Crack Retroactivity Amendment

Posted on March 03, 2008
In what appears to be a case of first impression in this circuit, a district court in the EDNY has rejected a defendant's request for a de novo resentencing under the crack retroactivity amendment (which would have allowed the defendant...

SDNY Judge Rules Defendant Waived Marital Privilege When He Sent Incriminating E-Mail Over Office Computer

Posted on March 03, 2008
In an extortion prosecution of an investigator in the New York State Police (NYSP), a court ruled that the defendant did not have a reasonable expectation of privacy in e-mails sent from his office computer, which he knew or should...

Second Circuit Issues Notable Decision on the Sentencing of Cooperators Subject to Mandatory Minimums

Posted on February 17, 2008
In a case with far-reaching ramifications, the Second Circuit vacated and remanded a sentence of a cooperator that was 93% below the statutory minimum to which the cooperator was subject, on the grounds that the district court failed adequately to explain its reasons for such an extensive departure...

In Important Decision on Defense Discovery Rights, SDNY Judge, Rejecting Nixon Standard, Authorizes Defense Subpoena to BOP for Recordings of Phonecalls of Cooperating Witnesses

Posted on February 17, 2008
It is one of the great ironies of the law that in criminal cases, where the stakes are the highest, defendants have less discovery rights than in civil cases, and far less than those prosecuting them.  As the judge points out in United States v. Tucker, 05 CR 711 (SAS), 2008 WL 36127 (S...

EDNY Judge Orders Inmate's Release on March 3, 2008, Under Crack Retroactivity Amendment

Posted on February 17, 2008
Putting the lie to DOJ fear mongering that the crack retroactivity amendment will put thousands of violent criminals prematurely back on the streets, the judge in United States v. Wood, 88 CR 0723 (CPS), 2008 WL 399253 (E.D.N.Y. February 12, 2008), (a previous order of which is discussed here) issued a thoughtful decision ordering a deportable inmate's release on March 3, 2008, the effective date of the amendment...

Second Circuit Issues Notable Decision on Procedure for Dealing with Trial Publicity

Posted on February 15, 2008
As Judge Sack notes in his dissenting opinion in United States v. Elfgeeh, 06-744, 2008 WL 383046 (2d Cir. February 14, 2008), charting a course between protecting a defendant's Due Process rights and the public's right to learn about a trial through uninhibited press coverage is a difficult challenge...

SDNY Judge Holds Court May Consider Factors Other Than Substantial Assistance In Rule 35 Reduction

Posted on February 13, 2008
It has long been the practice in this circuit for a district court to consider all 18 U.S.C. § 3553 factors in deciding the extent of a 5K1.1 departure for a defendant's "substantial assistance" to the government.  Now, in United States v. Park, 05 CR 59 (DC) 2008 WL 355613 (S...

EDNY Judge Sets Stage for Notable Decision on Restitution and Forfeiture

Posted on February 08, 2008
A briefing order that reads like a law review article can only emanate from the chambers of EDNY judge Jack Weinstein.  In United States v. Brennan, 05 CR 747 (JBW), 2007 WL 4443989 (E.D.N.Y. December 19, 2007), he has set the stage for what is likely to be a siginificant ruling on the interaction beteen restitution orders, forfeiture orders, and payments victims receive from other sources, including the payment at issue in Brennan - a compensation fund established as part of a non-prosecution agreement...

SDNY Judge Precludes Cache of Firearms in Drug Trafficking Trial Due to Government's Untimely Rule 16 Disclosures

Posted on February 05, 2008
It is not often that a court precludes the government from using a cache of firearms, including an assault rifle, and 16,000 rounds of ammunition in a narcotics trafficking case, but in United States v. Mason, 06 CR 80 (NRB) 2008 WL 281970 (January 25, 2008), the court did just that, while also lambasting the government for its "cavalier approach to its discovery obligations...

SDNY Judge Addresses Interaction of Illegal Search Warrant and Legal Subpoena for Same Documents

Posted on February 03, 2008
There was a time when the execution of a search warrant at the company's headquarters would have sent the company's lawyers to the mattresses, but in a reflection of the current climate of deference - some may say submission - to government investigators in corporate America, counsel for Amerindo Investment Advisors, Inc...

EDNY Judge Denies Motion for Juror Testimony at Post-Trial Hearing to Investigate Alleged Juror Misconduct

Posted on January 27, 2008
The image of a juror laughingly shouting "guilty, guilty, guilty" to another juror prior to the commencement of deliberations is certainly an unseemly one, likely to lead to an inquiry by the court and possibly even the dismissal of one or both of the jurors...

EDNY Judge Imposes Several Restrictive Supervised Release Conditions on Sex Offender, Including Polygraph Testing and GPS Monitoring

Posted on January 25, 2008
Illustrating the complexity of striking a balance between liberty interests and public protection in sex offender cases, an EDNY judge imposed a series of restrictive supervised release conditions on a defendant convicted of possession of child pornography in United States v...

Two Judges Take Immediate Action on Retroactive Application of Crack Amendment

Posted on January 22, 2008
Two judges, one in the SDNY and one in the EDNY, have taken immediate action in cases affected by the reduced crack guideline, made retroactive by the Sentencing Commission on December 11, 2007.  In United States v. Wood, 88 CR 723 (CPS), 2008 WL 163694 (E...

Second Circuit Affirms Imposition of Sex Offender-Type Supervised Release Conditions, Including Waiver of Therapeutic Confidentiality, in Securities Fraud Case

Posted on January 09, 2008
Dupes may have thought his game was up when he was arrested and prosecuted for possession of child pornography.  But following his conviction and sentence of 27 months, he found himself facing charges of securities fraud arising out a scheme that predated his prison sentence on the sex offense...

EDNY Magistrate Upholds Constitutionality of Adam Walsh Act's Limitations on Rule 16's Disclosure Requirements in Child Pornography Cases

Posted on January 09, 2008
The recently-enacted Adam Walsh Child Protection and Safety Act of 2006 amends Fed.R.Crim.P. 16 with regard to the disclosure of child pornography materials, providing that such material must be kept in the custody or control of the government and may not be copied by the defense...

Second Circuit Remands for Resentencing where Government Breached Plea Agreement by Encouraging the Denial of Acceptance Points

Posted on January 08, 2008
Adding to a recent string of reversals in cases involving charges of possession of child pornography, the Second Circuit remanded for resentencing in United States v. Griffin, 05-4016-cr, 2007 WL 4462735 (2d Cir. December 21, 2007), finding that the government had breached its plea agreement with the defendant when it submitted two written submissions to the district court questioning whether the defendant had adequately accepted responsibility...

EDNY Judge Finds "Exceptional Reasons" Justifying Pre-Sentence Release of Business Owner, Even if he was Convicted of Crimes of Violence

Posted on January 08, 2008
The case of the Long Island couple recently convicted after trial of charges of forced labor and harboring aliens, in a notorious case described by prosecutors as modern-day slavery, has already produced one interesting decision on venue transfer, discussed here...

The Federal Defenders Issue Important Memorandum Addressing Sentence Reductions Under the Retroactive Crack Amendment

Posted on January 07, 2008
The National Federal Defender Sentencing Resource Counsel has issued an important memorandum, downloadable here, addressing sentencing strategies in light of the Sentencing Commission's December 11, 2007 vote to give retroactive effect to the amendment reducing the crack guidelines, and making that retroactivity effective March 3, 2008...

Second Circuit Affirms Dismissal of Jurors for Cause in Capital Case Based Solely on Questionnaire Responses

Posted on January 06, 2008
In United States v. Quinones, No. 04-5554-cr, 2007 WL 4571412, (2d Cir. December 28, 2007), a capital case, the Court affirmed the dismissal of several jurors for cause based solely on their responses on a questionnaire relating to their views on the death penalty...

Second Circuit Issues Important Ruling Rejecting Jury Instructions That Define the Jury's Role in a Criminal Case as a Quest for Truth

Posted on January 04, 2008
While jurors in criminal cases may like to see themselves on a quest for truth, their role is actually more circumscribed and technical - and perhaps less satisfying - than that of truthseeker, as the Second Circuit confirmed in an important decision today, United States v...

Two Cases Involving Charges of Child Pornography Possession Yield Divergent Bail Determinations in the NDNY

Posted on December 31, 2007
This month, two NDNY judges issued divergent bail decisions in cases involving charges of interstate receipt and possession of child pornography - charges that are deemed "crimes of violence," and therefore carry a rebuttable presumption that the defendant is a dual flight and danger risk...

EDNY Judge Imposes Non-Guidelines Sentence On Drug Courier Who Did Not Know Type or Amount of Drug Involved

Posted on December 14, 2007
Although pre-Kimbrough/Gall, the case of United States v. Hurtado, 06 CR 741 (JBW), 2007 WL 432272 (E.D.N.Y. December 4, 2007), involves an interesting sentencing disparity created by the drug guidelines that may prove a fruitful ground for below-Guidelines sentencing arguments in the post-Kimbrough/Gall world...

SDNY Judge Dismisses Portion of Embezzlement Indictment on Statute of Limitations Grounds

Posted on December 13, 2007
When is a recurring offense a "continuing" offense for statutes of limitations purposes?  Not when the offense consists of repeated acts of fraudulent conversion of pension checks sent to one's deceased father, a court ruled in United States v. Rivlin, 07CR 524 (SHS), 2007 WL 4276712 (S...

Sentencing Commission Makes Crack Guideline Amendments Retroactive

Posted on December 12, 2007
As widely reported, the Sentencing Commission voted unanimously yesterday to allow inmates convicted of crack offenses to seek sentence reductions based on new guidelines that went into effect on November 1, 2007 - a decision that is likely to yield some significant sentence reductions for those serving unnecessarily draconian sentences...

Second Circuit Hints It May Affirm a Non-Guidelines Sentence Based on Fast-Track Sentencing Disparity

Posted on December 12, 2007
Hours after I wrote yesterday's post that the Supreme Court's decision in Kimbrough does not have as much universal application as Gall, the Second Circuit issued United States v. Liriano-Blanco, 2007 WL 4302708 (2d Cir. December 11, 2007), a case that appears to fall smack within the realm of Kimbrough's holding - that a district court may decline to uphold a disparity in the Sentencing Guidelines that does not reflect considered, statistical and rational analysis by the Sentencing Commission...

Supreme Court Issues Important Rulings Reaffirming the Centrality of District Courts' Sentencing Discretion

Posted on December 11, 2007
In two widely-awaited decisions, published yesterday, the Supreme Court reaffirmed the centrality of the district court's sentencing discretion, which should be reviewed on appeal on a "deferential abuse-of-discretion standard," whether the sentence was inside, above or below the applicable range dictated by the Sentencing Guidelines...

KPMG Tax Fraud Prosecution in SDNY Spawns Several Notable Pre-Trial Rulings

Posted on December 09, 2007
The KPMG tax fraud prosecution, the largest in U.S. history and currently pending in the SDNY, has kept Judge Kaplan?s law clerks burning the midnight oil, with twenty-one decisions on Westlaw to date.  The latest, added to the database last week, United States v...

Second Circuit Remands for Resentencing for Potential Improper Reliance on Inaccurate Information

Posted on November 30, 2007
Hot on the heels of United States v. Baker, 2007 Wl 4006103 (2d Cir. November 16, 2007), discussed here, in which the Second Circuit reversed a child pornography possession case for an unexplained failure to depart below the Guidelines, the Court reversed a similar case two days ago, United States v...