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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

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...

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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...

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