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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 Declines to Give "Self-Dealing" Jury Instruction in Honest Services Fraud Prosecution

Posted on November 24, 2009
Guest contributor Marshall Mintz writes:Fraud based on the ?deprivation of honest services? is a controversial charge likely to elicit some notable rulings from the Supreme Court this term, as noted here. In particular, the cases of Jeffrey Skilling and Conrad...

Two Courts Decline to Limit the Reach of the Honest Services Theory of Fraud in Cases Involving Public Officials

Posted on November 23, 2009
Guest contributor Justin Sher writes: In two recent cases involving former public officials ? Joseph Bruno, the former majority leader of the New York State Senate, and Bernard Kerik, the former police commissioner of New York City ? federal courts...

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) ?...

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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,....

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...

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