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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

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...

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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,?...

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