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

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...

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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...

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