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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

With Prosecutors Like These . . . DOJ Vows to Eliminate Crack-Cocaine Disparity

Posted on May 02, 2009
Acknowledging that ?[a] consensus has developed that the federal cocaine sentencing laws should be reassessed,? the Department of Justice has announced plans to establish a working group to formulate a complete elimination of the crack-cocaine disparity in the sentencing laws...

Lawyers in the Dock Part 2: SDNY Judge Issues Notable Decision on Sufficiency of Evidence Against Lawyer Accused of Tax Fraud

Posted on April 27, 2009
In a recent speech, NYU Professor Stephen Gillers makes the point that in our highly regulated society it would be impossible to operate Bernie Madoff?s business without the help of lawyers and accountants. ?Did none of them know?? he asks. ...

Lawyers in the Dock Part 1: EDNY Judge Lays Out Roadmap for Prosecution of Lawyer

Posted on April 27, 2009
How many lawyers does it take to prosecute a lawyer? One answer may be found in a decision by EDNY Judge Gleeson, United States v. Simels, 2008 WL 5383138 (E.D.N.Y. December 18, 2008): a team of AUSAs to prosecute, a...

WDNY Judge Denies Motion to Seal Marital Information in Defendant?s Sentencing Memorandum

Posted on April 27, 2009
Guest contributor Megan Logsdon, Esq., writes: Should a judge seal portions of a defendant?s sentencing memorandum that paint a co-defendant as a wife-abuser? No, WDNY Judge Larimer, holds in United States v. Roeder, 2009 WL 385448 (W.D.N.Y. February 13, 2009)...

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Second Circuit Issues Notable Decision on Instructing Jurors About Mandatory Minimum Sentences

Posted on April 26, 2009
The tragic tale of Peter Polizzi has now generated another notable decision on the power of a district court to instruct a jury about mandatory minimum sentences. The Second Circuit has just issued its decision on the appeal and cross-appeal...

EDNY Judge Dismisses Juror Who Revealed Bias After Opening Statements

Posted on April 22, 2009
It must have been a showstopper, because after hearing defense counsel?s opening statement and before hearing any evidence, a juror in United States v. Uvino, 2008 WL 5272494 (E.D.N.Y. December 18, 2008), notified EDNY Judge Weinstein that his view that...

SDNY Judge Addresses Disclosure of Interview Memoranda Prepared by Company's Outside Counsel

Posted on April 20, 2009
What defense lawyers in corporate fraud prosecutions wouldn?t want to get their hands on the treasure trove of materials prepared in an internal investigation by the company?s outside counsel ? especially memoranda memorializing in-depth interviews with un-counseled employees before they?ve...

EDNY Judge Recommends a BOP Designation to Community Confinement . . . and BOP Obliges

Posted on April 20, 2009
After the Second Circuit threw out the BOP?s rule limiting an inmate?s placement in a halfway house to the lesser of the last ten percent or six months of the sentence (Levine v. Apker, 455 F.3d 71 (2d Cir. 2006)),...

Second Circuit Affirms Verdict of Eleven Jurors

Posted on April 20, 2009
?Eleven Angry People? doesn?t have a very poetic ring, but (some will be surprised to learn) it?s enough to convict someone of a crime in federal court. In fact, Hasan Simmons has first-hand experience of this scenario, and the loss...

In Nuanced Sentencing Decision, EDNY Judge Finds Career Offender Classification Misplaced

Posted on April 20, 2009
Giving life to the concept of ?individualized sentencing,? EDNY Judge Sifton has ruled in United States v. Hodges, 2009 WL 366231 (E.D.N.Y. February 12, 2009), that the career offender classification is ?misplaced? in the context of an individual with a...

SDNY Judge Takes Exception to Stacking of Mandatory Minimums

Posted on April 16, 2009
Guest contributor David G. Abrams, Esq, writes: What is another 14 years to a 27 year-old defendant facing a mandatory minimum of 50 years on two gun convictions? Well, the difference between a life sentence and a near-life sentence for...

Second Circuit Issues Notable Ruling on Defense Advocacy at Sentencing

Posted on April 15, 2009
Guest contributor David Johnson, Esq., writes: The right to have one?s lawyer speak (and speak, and speak . . .) at sentencing has been given some lifeblood in United States v. Gutierrez, 2009 WL 323271 (2d Cir. February 11, 2009). ...

Premature Articulation to the Media Comes Back to Haunt Defendant in SDNY Case

Posted on April 05, 2009
Guest Contributor Lynn Goodman, Esq., writes: In June 2006, reporter Charles Forelle of The Wall Street Journal wrote an article questioning the options award practices of executives at Monster Worldwide, Inc., the operator of the web site Monster.com...

SDNY Court Orders Unsealing of Wiretap Applications in Investigation of Prostitution Ring

Posted on March 31, 2009
Guest contributor Megan Logsdon, Esq. writes: In two cases that pit privacy interests over the public?s right to know (including the right to know too much), In the Matter of the New York Times Company to Unseal Wiretap and...

Making Off with Criminal Proceeds: Some Recent Notable Second Circuit and District Court Decisions on Restitution and Forfeiture

Posted on March 28, 2009
How much losses were actually generated in Madoff?s fraud? Is that figure the same as the forfeiture or restitution amounts that will be ordered at his sentencing? Will his wife be able to shelter any of her assets from seizure? ...

Bureau of Prisons Compassionate Release Policy Continues to Stifle Early Release

Posted on March 27, 2009
Guest Contributor David Scott Johnson, Esq. writes: As of the end of 2007, the Bureau of Prisons had rarely exercised its power to file a motion for a reduced sentence under the ?compassionate release? procedures found in 18 U.S.C. � 3582(c)(1)(A),...

Second Circuit Affirms Denial of Bail to Bernie Madoff

Posted on March 25, 2009
Robert Culp, Esq. writes: Like Ivan Boesky, Mike Milken and others before him, Bernie Madoff has become a white collar pariah who needs no introduction. Such criminal defendants have the ability to define their times, and the public?s thirst for...

USSC Report Highlights Rarity and Benefits of Alternatives to Incarceration

Posted on March 25, 2009
Early in its recent report on ?Alternative Sentencing in the Federal Criminal Justice System? [or more appropriately entitled, the lack thereof], published in January of this year, the Sentencing Commission reminds us that the Sentencing Reform Act of 1984 requires...

SDNY Judge Grants Trial Continuance in Part Due to BOP?s Policy of Confining New Inmates in SHU

Posted on March 25, 2009
Pretrial detention at the Metropolitan Correctional Center is bad enough, but the first two weeks can be especially unbearable, since they are usually spent in the Special Housing Unit (segregated housing) while the BOP finds the inmate a bed in...

NDNY Court Walks Tight Rope in Weighing Confidentiality of Sentencing Memoranda

Posted on March 25, 2009
Guest Contributor Lynn Goodman, Esq., writes: New York federal courts continue to wrestle with the competing interests of a defendant?s right to privacy and the public?s right to know the facts influencing a judge?s sentencing decisions. In United States v...

In Fairness, Dead Guys Speak: EDNY Judge Issues Some Notable Rulings on Admissibility of Hearsay

Posted on March 24, 2009
Guest Contributor Brian Larkin, Esq. writes:Faced with the government?s overwhelming resources, decades of investigation material, and procedural advantages, the Federal Rules of Evidence can be a defendant?s last resort. Usually, the defense strategy is to move to preclude, but in...

Second Circuit Issues Notable Decision Limiting the Stacking of Mandatory Minimum Sentences

Posted on March 14, 2009
It?s hard enough explaining to someone that her below-minimum wage job selling crack on a street corner yields a mandatory minimum sentence of ten years under federal law. But try justifying the consecutive five-year sentence she faces because of her...

EDNY Judge Holds that Youthful Offender Adjudication Does Not Trigger Gun Guideline Enhancement

Posted on March 03, 2009

SDNY Judge Grants Bail to Defendant Accused of Large-Scale Fraud

Posted on February 06, 2009
Once again, a high-profile fraud case has yielded a notable decision on a defendant?s right to bail. Granting the bail reduction motion of Marc Dreier, the once high-flying lawyer now charged with ?colossal criminality,? SDNY Judge Rakoff gives life both...

Second Circuit Holds that Striking Juror on Grounds of Obesity Lends Itself to Pretext

Posted on February 03, 2009
It is no surprise to defense lawyers that racial profiling of jurors by prosecutors is alive and well. (Not that defense lawyers are saints on this issue, though they are more likely to do it affirmatively, see here.) In a...

Supreme Court Reaffirms that District Court May Not Presume that Guidelines Range is Reasonable

Posted on February 01, 2009
A district court?s decision to sentence a crack offender to thirty years because there wasn?t ?a good reason? to impose a sentence below his Guidelines range has led to an important per curiam decision from the Supreme Court. Reaffirming ?...

Supreme Court Reaffirms Power of District Courts to Disagree with Sentencing Guidelines on Policy Grounds

Posted on January 26, 2009
If there is any doubt that district courts are free to disagree with the Sentencing Guidelines on policy grounds, the Supreme Court has given another adrenaline shot to this principle. In Spears v. United States, 2009 WL 129044 (January 21,...

SDNY Magistrate Finds Non-Discretionary Adam Walsh Act Bail Conditions Unconstitutional in Child Pornography Possession Case

Posted on January 12, 2009
As the world awaits the decision on the government?s bail revocation motion in the Madoff case [update: 12:16 p.m. it is just being reported that he will remain free], another SDNY magistrate issued a notable bail decision recently in a...

SDNY Magistrate Rejects Government?s Effort to Revoke Bail Based on Defendant?s Alleged Risk of Flight and Potential of Economic Danger to the Community

Posted on January 12, 2009
Despite the apoplectic public and media outrage over Bernard Madoff?s pretrial detention at his penthouse while his victims are ?headed to the poorhouse,? SDNY Magistrate Judge Ronald Ellis has issued an important and courageous decision on the parameters of the...

Second Circuit Holds Evidence of Bogus Account Statements is Relevant in Securities Fraud Case

Posted on January 06, 2009
Although bogus account statements generated to lull defrauded investors are not in and of themselves sufficient to establish a securities fraud violation, because they are not statements made ?in connection with the purchase or sale of any security,? they are...

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