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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

Welcome Back to the Second Circuit Sentencing Blog!

Posted on January 06, 2009
My colleague Harlan Protass has resumed blogging on the excellent Second Circuit Sentencing Blog, as he announces here. Be sure to check out his timely and knowledgeable posts....

Second Circuit Affirms Murder Conspiracy Conviction Despite Prosecutor's Improper Vouching

Posted on January 06, 2009
A set of facts that read like a treatment for a Sopranos script is the backdrop for a notable decision from the Second Circuit on the propriety of summation arguments made by both sides in a criminal trial. Mistaken suspicions...

EDNY Judge Finds Violation of Supervised Release in Sex Offender Case Where Defendant Refrained from Participating in Treatment in "Meaningful Manner"

Posted on January 06, 2009
How many people haven't clicked with their therapists and moved on to another? Imagine being sentenced to therapy and not clicking with the assigned therapist, but not having the option of switching? That's a predicament in which more than a...

Happy New Year to Our Loyal Readers!

Posted on December 31, 2008
We wish all our readers a very happy and successful 2009. We ring out the new year with some stirring words from Senator Jim Webb, who plans to introduce legislation in the spring to address America's sky-rocketing incarceration rates, as...

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EDNY Judge Finds US Marshal and NYPD Officer Incredible at Suppression Hearing in "Dropsy" Case, But Grants Government's Motion to Reopen

Posted on December 29, 2008
Defense lawyers are no strangers to the concept of ?testilying? or false testimony from law enforcement witnesses. Especially common are those suspiciously opportune observations that render a search or seizure constitutional, like in ?dropsy? cases, where the officers claim the...

EDNY Judge Dismisses Illegal Reentry Indictment Where Defendant Not Advised of Right to Voluntary Departure Prior to Deportation

Posted on December 29, 2008
Illegal re-entry cases are amongst the hardest to defend. After all, the presence of the defendant in the courtroom is Government Exhibit A. One defense strategy is to move to dismiss the indictment by attacking the validity of the underlying...

EDNY Judge Denies Motion of Acquitted Defendants for Attorneys? Fees Under the Hyde Amendment

Posted on December 29, 2008
The Mitselmakher brothers, acquitted of extortion after trial, may not have won their motion for attorneys fees under the Hyde Amendment, but a published decision criticizing the ?poor judgment? and ?myopia? of the government?s prosecution of them must have been...

In Securities Fraud Case, Second Circuit Affirms Downward Variance from Life to 42 Months in Prison

Posted on December 11, 2008
Proving that the elevator of sentencing discretion truly moves in both directions, the Second Circuit in United States v. Adelson, 06-2738-cr(L), 2008 WL 5155341 (2d Cir. December 9, 2008) (a summary order), affirmed Judge Rakoff?s downward variance from life in...

SDNY Judge Suppresses Evidence Seized Under Order Obtained by Probation Officer Without Finding of Probable Cause

Posted on December 10, 2008
Can a probation officer seek a warrant to search the home and locker of a supervisee who is not subject to warrantless searches under the terms of his supervised release? Alternatively, may a probation officer seek an order under the...

Second Circuit Finds No Error in Ruling that Peremptory Challenge Against Reader of Widely-Read African-American Newspaper Passed Batson Muster

Posted on December 10, 2008
Being a reader of the Amsterdam Daily News, which describes itself as ?one of New York?s largest and most influential Black-owned and operated business institutions? and which has a circulation of about 25,000, is a legitimate ground for exercising a...

Second Circuit, Affirming Upward Variance in Gun Case Based on Local Conditions, Issues Important Decision on District Court?s Sentencing Discretion

Posted on December 10, 2008
Gerard Cavera, a Florida retiree in his seventies who illegally sold guns destined for the New York black market, has felled more than one tree in litigation over the district court?s decision to impose a sentence above his guideline range...

Second Circuit Issues Notable Decision on Defendant's Right to Explore Bias of Government Witness

Posted on November 26, 2008
Like Joe Nameth, the defense lawyer?s job is to throw the ball, though sometimes, it?s best to throw that ball without warning. Applying the maxim ?ask, and thou shalt not receive,? the district judge in United States v. Figueroa, No....

In KPMG Tax Fraud Case, SDNY Judge Kaplan Denies Remaining Defendants? Motion to Dismiss Based on Alleged Misuse of a Parallel Civil Investigation

Posted on November 25, 2008
White collar defendants often face parallel civil investigations, a situation full of traps for the unwary, as noted here and here. In United States v. Stein, 05 CR 888 (LAK), 2008 WL 4212516 (S.D.N.Y. September 10, 2008), the four remaining...

EDNY Judge Weinstein Sentences Whistle-Blower in Fraud Case to Probation, Departing from Guideline Range of 210 to 240 Months

Posted on November 17, 2008
Judge Weinstein has issued several decisions lately in the Newsday fraud prosecution, previously discussed here and here, providing his statements of reasons for the probationary sentences he is imposing on all nine defendants. One, United States v...

WDNY Judge Rejects Government's Effort to Confine 5K1.1 Departure to One of Defendant's Two Counts of Conviction

Posted on November 17, 2008
In an interesting decision from Judge Larimer in the Western District of New York, United States v. Nix, 07 CR 60221 (DGL), 2008 WL 4757301 (W.D.N.Y. October 28, 2008), he rejected the government's effort to limit his power to depart...

Connecticut Judge Issues Notable Ruling in AIG/Gen Re Fraud Case on Loss Calculation, Number of Victims and Restitution

Posted on November 12, 2008
In the closely-watched Aig/Gen Re fraud case, Connecticut Judge Droney has issued an opinion deciding several key sentencing issues prior to the actual sentencing. Most notably, in United States v. Ferguson, 06 CR 137 (CFD), 2008 WL 4763238 (D.Conn...

Some Notable Applications of the Supreme Court?s Money Laundering Decisions in Santos and Cuellar

Posted on November 07, 2008
Two landmark rulings from the Supreme Court earlier this year, Cuellar v. United States, 128 S.Ct. 1994 (2008) and United States v. Santos, 128 S.Ct. 2020 (2008), have spawned some notable decisions in this circuit recently (not to mention, the...

SDNY Judge Rules that FCPA Does Not Apply to "True Extortions"

Posted on November 02, 2008
Transparency International points out that ?[b]ribery may be so much a part of a business culture in some places, that dealing with it can seem an over-whelming challenge, and no one business, especially a small one, can fight it alone.? ...

EDNY Judge Departs Based on Defendant?s Presentence Confinement in Segregated Housing

Posted on October 29, 2008
As this blog has noted in the past, see here, several courts have departed below the applicable guideline range based on unusually severe conditions of presentence confinement. Add to that set of precedents United States v. Brooks, 07-cr-187, 2008 WL...

EDNY Judge Departs from 235 Months to Probation for Cooperator in Fraud Case in Part Because Higher Ups Escaped Prosecution

Posted on October 29, 2008
In a short decision in the Newsday circulation fraud case, United States v. Smith, 2008 WL 4662346 (E.D.N.Y. October 20, 2008), Judge Weinstein set forth his reasons for departing from a guideline range of 235 to 240 months (capped by...

SDNY Judge Rules that Ballistics Expert May Not Testify that Ballistics is a Science or that He Reached his Conclusions with any Degree of Certainty

Posted on October 29, 2008
Scientific testimony has an inexorable way of assuming central importance at a trial. In the world of CSI, as this blog has noted in the past, see here, jurors crave the objective certainty that scientific evidence promises. But as Judge....

Second Circuit Reverses Another Conspiracy Conviction for Lack of Knowledge and Intent

Posted on October 22, 2008
Conspiracy convictions have been taking a beating lately in the Second Circuit, see here (Murray Law LLC?s own case) and here and United States v. Al-Moayad, 2008 WL 4443841 (2d Cir. October 2, 2008), which I hope to blog about shortly. Earlier...

Some Recent Decisions of Note on Fast Track Disparity and Unconstitutionality of Gun Possession Laws

Posted on October 16, 2008
Fast Track Disparity As explained by Judge Sweet in United States v. Paulino-Melende, 08 cr 176 (RWS), 2008 WL 4553148 (S.D.N.Y. October 8, 2008), fast-track disparity is created by the existence in some districts but not others of a ?fast...

New York Federal Criminal Practice Blog Invites Law Students to Guest-Blog

Posted on October 16, 2008
The courts in the Second Circuit produce scores of notable decisions a year, and this blog aspires to covering them all. If you are a law student with a quick and pithy pen who would like to contribute to this...

NDNY Judge Denies Motion to Redact Confidential Medical Information From Sentencing Memoranda

Posted on October 16, 2008
Sentencing memoranda filed by defense counsel and the government can contain some of the most intimate details of a defendant?s life. They may recount experiences of childhood sexual abuse, results of mental health and IQ testing, and diagnoses of life-threatening...

Reversing Judgment of Acquittal in Money Laundering Case, Second Circuit Issues Important Decision on the Quantum of Proof Required in Conspiracy Cases

Posted on October 15, 2008
Today, in a footnote, the Second Circuit has discarded a troubling principle ? the concept that once a conspiracy has been established, ?only slight evidence? or evidence that is not ?overwhelming? is necessary to link another defendant to it. In...

Second Circuit Vacates Convictions Due to Improper Admission of "Officer Expert" Testimony

Posted on October 08, 2008
A frequent occurrence at trial is the presentation of the "officer expert" ? a police officer or agent who testifies about aspects of a criminal scheme that are outside the experience of a typical juror, such as organizational hierarchies or...

Second Circuit Rejects Challenge to Restitution Order On Grounds of Victims' "Unclean Hands"

Posted on October 07, 2008
Are you entitled to restitution even if your own motives were not as pure as the driven snow? That?s the simple question raised in a short decision today from the Second Circuit. In United States v. Ojeikere, 07-1970-cr (October 7,...

EDNY Judge Grants Judgment of Acquittal Finding Insufficient Evidence to Support Pinkerton Liability

Posted on October 03, 2008
For many defendants, Pinkerton liability ? the theory that one can be held criminally liable for the reasonably foreseeable acts of one?s co-conspirators ? is a jaw-dropping doctrine. As Judge Bianco points out in United States v. Graziano, 07-CR-0508 (JFB),...

Second Circuit Reverses Bribery Conviction Due to Government?s Suppression of Brady Material

Posted on September 29, 2008
The government?s obligation to disclose Brady material encompasses not only oral, unrecorded statements of a cooperating witness that are favorable to the accused, as held in Rodriguez, previously discussed here, but also exculpatory statements communicated to the government by the...

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