New York Federal Criminal Practice: Legal Commentary

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Legal Commentary

New York Federal Criminal Practice

Observations on notable court decisions, news and developments affecting federal criminal practice in New York

Post Frequency: 1.3/day

Last Entry: May 12, 2014 at 17:45:09

Bloomsday, June 16, 2014 at 60 Centre Street with the Hon. Gerard E. Lynch

Posted on May 12, 2014
Please join me and the Irish American Bar Association on June 16, 2014, at 6:00 p.m. in the rotunda of the New York State Courthouse at 60 Centre Street for IABANY's Fifth Annual Bloomsday Celebration. This event showcases James Joyce's...

A Perfect Prosecution - People v. DSK

Posted on July 14, 2013
My latest article, an analysis of the prosecution of Dominique Strauss-Kahn as a lens though which we can critique our criminal process, can be downloaded (without registration) here: The abstract is as follows:People v. Strauss-Kahn is an ideal lens through which...

Second Circuit Issues Notable Decisions Applying Rule of Lenity

Posted on January 21, 2012
The New York State Association of Criminal Defense Lawyers recently published its winter edition of Atticus, showcasing the two impressive honorees at the upcoming annual dinner of the NYSACDL Foundation, Chief Judge Jonathan Lippman and David Ruhnke, Esq...

Second Circuit Issues Notable Rulings on Prior Bad Acts and Knowledge in Conspiracy Cases

Posted on July 17, 2011
The NYSACDL has published its latest edition of Atticus, downloadable here, featuring this author's column "Second Thoughts." This quarter, I consider the Court's decisions in Curley (admissibility of prior-act evidence involving the defendant and others), Cedeno (right of defense to...

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Second Circuit Issues Notable Rulings on Two-Step Miranda Procedure, Factual Underpinnings of Sentencing and IAC Prior to Sentencing

Posted on March 14, 2011
The NYSACDL has published its latest edition of Atticus, focusing on the organization?s often unsung and unknown efforts to influence the legislative process. It includes my article addressing three recent Second Circuit decisions, including Capers (setting up some serious hurdles...

Second Circuit Reverses Fraud Conviction with Notable Nugget for Alleged Insider Traders

Posted on January 12, 2011
Guest blogger Valerie A. Gotlib of Sher LLP writes:Buried in the impressive reversal of the fraud conviction of Mark Kaiser, an executive at U.S. Food Services (?USF?) in United States v. Kaiser, 609 F.3d 556 (2d. Cir. 2010), issued last...

SDNY Judge Finds Spousal Relationship is Predicate for Insider Trading Charges Based on Misappropriation Theory

Posted on January 12, 2011
Despite the Supreme Court?s view in United States v. O?Hagan, 521 U.S. 642 (1997), that the misappropriation theory of insider trading is not an ?all-purpose breach of fiduciary duty ban,? it has become that and more ? capturing relationships not...

Second Circuit Issues Notable Decision Finding Procedural Error in Sentence of Cooperating Career Offender

Posted on January 03, 2011
One of the Second Circuit?s last published criminal decisions of 2010 is also one of the most notable sentencing decisions of the year. In United States v. Preacely, 2010 WL 5156384 (2d Cir. December 21, 2010) ? a case that...

Second Circuit Issues Notable Decisions on Wiretaps, Batson and Sentencing

Posted on November 04, 2010
The NYSACDL has published its fall issue of Atticus. Judge Bellacosa has contributed an eloquent piece in support of open-file discovery, relevant both to state and federal prosecutorial practices, highlighting the success of a project in the Brooklyn DA's office,...

Second Circuit Issues Notable Decisions on Suppression, Omissions and Proffer Statements

Posted on August 27, 2010
The NYSACDL has published the second edition of its excellent revitalized Atticus. It's well worth checking out - Donna Newman gives a fascinating fly-on-the-wall account of the Russian spy case, and Donald Thompson has a moving essay on a wrongful conviction...

EDNY Judge Denies Rule 29 Motion but Issues Notable Comments on Government?s Disclosure Obligations

Posted on August 05, 2010
As Judge Gleeson pointed out recently in United States v. Mahaffy, 2010 WL 2925952 (E.D.N.Y. July 21, 2010), if a defendant?s interest in a fair trial is not reason enough, ?one would think that the government?s selfish interest in the...

Second Circuit Reverses Due to Admission of Prejudicial Hearsay

Posted on August 05, 2010
Prejudicial hearsay is hardly ever introduced simply for its mere ?context,? and the Second Circuit called out the government on a particularly egregious example of that in United States v. Gomez, No. 08-3829-cr (2d Cir., August 4, 2010). The defendant...

Second Circuit Issues Notable Decision on Use of Psychologist's Report at Sentencing

Posted on July 31, 2010
The shift from a mandatory sentencing guideline regime to an advisory one has increased the importance of ? and the district courts? reliance on ? expert evaluations of the defendant for sentencing purposes. This is especially true in cases where...

IABANY Presents Roundtable Discussion on The Rule of Law in the Age of Terror - May 27, 2010; Two Free CLE Credits

Posted on May 13, 2010
Reconciling the protection of fundamental democratic liberties with the necessity of combating terrorism is a relatively new challenge to the United States. Not so to many democratic countries that have had long struggles against terrorism. Countries like Ireland, Britain and...

Second Circuit Issues Notable Ruling on Deconstructing Sentencing Guidelines

Posted on May 12, 2010
Kimbrough?s green light to reject sentencing guidelines that are not the product of ?empirical data and national experience,? has been a call to arms to defense lawyers and judges to subject individual guidelines, and their related commentary, to rigorous scrutiny...

Second Circuit Reverses Drug Conspiracy Conviction on Grounds of Insufficient Evidence

Posted on May 12, 2010
United States v. Torres, 2010 WL 1790220 (2d Cir .May 5, 2010), is one of those rare cases in which the Court has reversed the defendant?s drug conspiracy conviction on the grounds of insufficient evidence. While there was evidence that...

Lawyers in the Dock - Roundtable Discussion at the New York City Bar, April 29, 2010 - Free CLE Ethics Credit

Posted on April 28, 2010
As this blog has often pointed out (see here and here), the investigation and prosecution of lawyers for their lawyering is different. Because these cases carry the potential to chill creative and zealous advocacy, they merit special precautions and scrutiny...

Second Circuit Finds No Error in Co-Defendant Sentencing Disparity

Posted on April 13, 2010
Making a formal pact with federal prosecutors has many advantages, as demonstrated in United States v. Menendez, 2010 WL 1172076 (2d Cir. March 29, 2010). The appellant (Sierra) had pled guilty without a plea agreement to an indictment charging him...

Second Circuit Issues Notable Decision on Sealing of Sentencing Transcript

Posted on April 13, 2010
At sentencing, a defendant's most personal and intimate experiences may be discussed and analyzed. The public has a presumptive right of access to these proceedings, and where, as in United States v. Doe, 2009 WL 4823001 (2d Cir. December 14,...

SDNY Judges Order Monsanto Hearing on Whether Frozen Assets Were Tainted

Posted on March 23, 2010
Defendants in parallel civil and criminal cases involving allegations of securities fraud won a significant victory earlier this month when two SDNY judges granted their motions to be permitted to pay for lawyers of their choice from untainted funds, and...

SDNY Judge Analyzes Scope of Rule 16 Discovery

Posted on March 23, 2010
Under Rule 16, the government must turn over to the defense documents that are "material to preparing the defense." United States v. Ghailani, 2010 WL 653269 (S.DN.Y. June 21, 2010), the case involving the first Guantanamo detainee to be brought...

Two District Judges Order Improvements in Defendants' Conditions of Incarceration

Posted on March 23, 2010
The BOP is granted enormous discretion in conducting its affairs, from inmate classification and designation, to calculation of good time and eligibility for early release, to managing an inmate's program needs and medical care - to name just some of...

Second Circuit Holds that Prosecutor?s Advocacy of Guideline Higher than Plea Agreement Is Not Plain Error

Posted on March 23, 2010
Plea-bargaining is critical to the administration of federal criminal justice, since over 95% of federal criminal cases end in a guilty plea. In turn, good faith ? especially on the part of the most powerful party in that process ?...

Second Circuit Finds No Reversible Error in District Court?s Use of Google

Posted on March 23, 2010
Yesterday, in United States v. Bari, 2010 WL 1006555 (2d Cir., March 27, 2010), the Second Circuit held that in the context of a supervised release revocation hearing, where relaxed rules of evidence apply, it was not reversible error for...

Second Circuit Slaps Down Effort to Dispose of Sentence Appeal Via Summary Affirmance Motion

Posted on March 17, 2010
The Second Circuit has held that ?overreaching attempts to dismiss appeals as frivolous . . . will not be accorded a friendly reception,? and in United States v. Davis, 08-3240-cr (2d Cir. March 15, 2010), it was not especially friendly...

Lawyers in the Dock: EDNY Judge Acquits Law Associate of Witness Tampering

Posted on March 17, 2010
Throwing out the convictions of Robert Simels? associate for witness tampering among other charges, EDNY Judge Gleeson found in United States v. Irving, 2010 WL 430952 (E.D.N.Y. February 8, 2010), that there was insufficient evidence to support the ?sizable inferential...

EDNY Judge Imposes Below-Guidelines Five-Year Sentence in Securities Fraud Case

Posted on March 17, 2010
EDNY Judge Weinstein?s much publicized sentencing decision in the securities fraud case, United States v. Butler, 2010 WL 234848 (E.D.N.Y. January 22, 2010), is notable for three reasons: the judge?s consultation with an advisory panel of judges before imposing sentence;...

Second Circuit Upholds Forfeiture Money Judgments

Posted on March 11, 2010
Just after this blog highlighted Judge Gleeson's thoughtful decision in Surgent holding that personal money judgments are not authorized in forfeiture proceedings, see here, the Second Circuit rules otherwise in United States v. Awad, 07-4483-cr (2d Cir...

SDNY Suppresses Gun Based on Defense Lawyer's Crime Scene Investigation

Posted on March 10, 2010
Federal Defender Roland Thau demonstrates the power of that most basic defense technique: crime scene investigation. In United States v. Gomez, 2010 WL 431878 (S.D.N.Y. February 8, 2010), Mr. Thau?s client was arrested for trespass in a public park at...

Some Recent Developments of Interest in the Areas of Restitution and Forfeiture

Posted on March 09, 2010
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