Criminal Law
Puerto Rico Association of Criminal Defense Lawyers 
Post Frequency: 2.5/day Last Entry: October 18, 2009 at 05:32:36 Recent Entries: 216
By Tom Lincoln
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PRACDL & Federal Public Defenders Office Seminars on October 23, 2009
Posted on October 18, 2009This coming Friday, October 23, 2009, Puerto Rico Association of Criminal Defense Lawyers and the Federal Public Defenders Office will be sponsoring seminars on the Fourth Amendment and Deconstructing the Federal Sentencing Guidelines. Where: Casa Olímpica (Old YMCA), Old San Juan The Morning Session is sponsored by Puerto Rico Association of Criminal Defense Lawyers (PRACDL), and the afternoon session is sponsored by the Federal Public Defender's Office...
Looking for a Few Good Men and Women
Posted on September 29, 2009Yes, the PRACDL blog is in need of a few members who want to dedicate a little of their time to blogging. I'll give you the basic training, although it is all pretty intuitive. Send me an email. You've got my address. Tom Sent via BlackBerry by AT&T
PRACDL Blog Redesign in Progress
Posted on September 29, 2009I was tired of the look of the blog, and think it kept me from wanting to post more, so I'm giving this place a makeover. Also keeping me away from blogging more is the fact that I do most of my posting now via the PRACDL Group listserv (members only), where we get much more membership interaction, keeps me busy enough to be only too tempted to stay away from the blog...
PRACDL & Federal Public Defender Co-sponsoring Lecture on September 30th from 4:00 to 6:00 p.m.
Posted on September 29, 2009PRACDL and the Federal Public Defender's Office are co-sponsoring a lecture on Wednesday, September 30th from 4:00 to 6:00 p.m. at the FPD's Fourth Floor Lecture Room. AFPD Victor González-Bothwell will discuss new and proposed legislation, including changes to the Federal Rules of Criminal Procedure...
Everybody Loves Somebody
Posted on December 21, 2008This is a favorite one for me. By the way, I'm just testing this stuff.
PRACDL Annual Assembly, Dinner & Elections
Posted on November 30, 2008This is a reminder that Puerto Rico Association of Criminal Defense Lawyers will hold its Annual Assembly, Dinner and Elections this coming Thursday, December 4, 2008, from 6:00 p.m. onwards at Castellanos Restaurant on Domenech Ave. All members are encouraged to attend...
Supplemental Bibliography for Attendees to "Dilemas Eticos de los Abogados Criminalistas"
Posted on November 24, 2008For PRACDL members who attended the tertulia on Dilemas Eticos de los Abogados Criminalistas, PRACDL President Linda Backiel has prepared a Supplemental Bibliography which was not included among the materials handed out at the time.
In Memory of Jorge L. Arroyo Alejandro
Posted on October 13, 2008All PRACDL members are mourning the recent death of our dear colleague Jorge L. Arroyo Alejandro. It is difficult to express ourselves in words that do any semblance of justice to our feelings of sorrow. One of our members, Manuel San Juan, upon learning of Jorge's death, posted the following poem on our listserv: Stop all the clocks, cut off the telephone - W...
PRACDL Seminar: Jury Selection in Death Penalty Cases
Posted on September 24, 2008This is to remind all PRACDL members that we will be holding the Jury Selection in Death Penalty Cases seminar on Thursday, September 25, 2008. This is only open to PRACDL members and it will be free of cost. The speakers are Robert Hirschhorn, nationally renowned jury selection expert, Steve Potolsky and Bill Matthewman.
Audio of Oral Arguments before First Circuit Now Available
Posted on September 05, 2008The First Circuit has started to make available online audio of oral arguments, joining a few other federal appellate courts. The access to the First Circuit's oral argument feed is currently available only in RSS format, and the audio files themselves are in mp3 format...
First Circuit Request for Comments on Reappointment of Joseph Laws, Federal Public Defender for the District of Puerto Rico
Posted on June 28, 2008The Court of Appeals for the First Circuit has published a Request for Comments Relating to the Reappointment of Joseph C. Laws, Jr., Federal Public Defender for the District of Puerto Rico. Joe is a Charter Member of PRACDL and was our first President...
PRACDL Seminar - Ética y la Responsabilidad del Abogado: Implicaciones Prácticas
Posted on June 22, 2008PRACDL will be sponsoring a seminar on August 28, 2008 on Ética y la Responsabilidad del Abogado: Implicaciones Prácticas. If you wish to attend, you must complete the registration form and mail it in to the address indcated theron with your payment to "Puerto Rico Association of Criminal Defense Lawyers," no later than August 1, 2008...
PRACDL "Tertulia Legal" - Sentenced in Two Jurisdictions
Posted on May 11, 2008PRACDL will be hosting one of our regular tertulias on the topic Sentenced in Two Jurisdictions - when sentences run concurrently and consecutively. Date : Thursday, June 5, 2008 Time : 4:30-6:00 p.m. Place : Judge García Gregory?s Courtrooom (#6) Resources: José Cordero, of FPD-PR, formerly of BOP Jorge Rivera Ortíz, PRACDL Moderator: Linda Backiel If you are interested in attending, please confirm via email at pracdl@gmail...
Legal Chat to Discuss Crack Resentencings in the District of Puerto Rico
Posted on February 25, 2008This coming Friday, February 29, 2008 at 4:00 p.m., PRACDL and the Federal Public Defender's Office will co-host a conference to discuss the crack guidelines amendment and the retroactivity of same, as well as the District Court's Administrative Directive dealing with these...
Congratulations to Luz Ríos-Rosario!
Posted on February 25, 2008In a case where every other defendant had entered guilty pleas, PRACDL member Luz Ríos-Rosario had the unenviable task of going to trial with the lead defendant. There were surveillance photos, recordings, and snitches. Luz did a formidable job and got her client acquitted...
District of Puerto Rico Administrative Order re: Implementation of Crack Retroactivity Guideline
Posted on February 21, 2008Chief Judge José A. Fusté, District of Puerto Rico, has entered an Administrative Order dealing with the implementation of the Crack Retroactivity Guideline in the District of Puerto Rico. See Misc. No. 08-31 (JAF) (Dkt. 1).
PRACDL Annual Assembly & Election Results
Posted on December 14, 2007Last night's Annual Assembly, Dinner and Elections was a real success. Members unanimously elected Linda Backiel to be our new President. They also elected the following to the Board: outgoing President Mariángela Tirado-Vales, who everyone agreed had done an outstanding job, Rachel Brill, Jason González-Delgado, Joseph C...
PRACDL Annual Assembly, Dinner & Elections
Posted on December 10, 2007This is a reminder that Puerto Rico Association of Criminal Defense Lawyers will hold its Annual Assembly, Dinner and Elections this coming Thursday, December 13, 2007, from 5:30 p.m. onwards at Castellanos Restaurant on Domenech Ave. All members are encouraged to attend...
PRACDL and Sociedad para Asistencia Legal de Puerto Rico Co-sponsor Seminars
Posted on November 07, 2007PRACDL and Sociedad para Asistencia Legal de Puerto Rico (SAL) will be co-sponsoring two seminars on Friday, December 7, 2007. See the flyer and registration sheet. The topics are Immigration Law Consequences of Delinquent Conduct on the Non-Citizen by Honorable Irma López-Defilló, Immigration Judge, and Crossroads: Clients Accused in Two Jurisdictions, a round table discussion with Félix Cifredo Cancel, Esq...
Is the First Circuit Recognizing Greater Deference Due District Court's Sentencing Decisions?
Posted on October 31, 2007In United States v. Milo, No. 06-2185 (1st Cir., Oct. 30, 2007), the First vacates and remands a sentence of time served (about 15 days) imposed by Judge Gertner on a defendant who cooperated and was contrite. But the First leaves open to the District Court to either explain more her sentence or to resentence Milo to a higher term...
ACLU PR Lecture on Post 9/11 decisions by the Supreme Court, fundamental rights and the writ of habeas corpus
Posted on October 22, 2007The Puerto Rico Chapter of the American Civil Liberties Union has extended an Invitation for all PRACDL members to attend a lecture on Nov. 15, 2007 at 3:00 p.m. on Post 9/11 decisions by the Supreme Court, fundamental rights and the writ of habeas corpus ...
Federal Criminal Appellate Practice Writing Seminar
Posted on October 19, 2007The US Court of Appeals for the First Circuit and the members of the court's CJA Education Committee will be holding a court-sponsored one-day writing seminar for both experienced brief writers and less seasoned criminal appellate practitioners on Friday, November 9, at the Condado Plaza Hotel in San Juan, PR, from 8:45 a...
Gall and Kimbrough - Briefs, Trancripts and Links to Coverage
Posted on October 07, 2007Just to keep as a reference, here are the briefs and oral argument transcripts in Gall v. US, No. 06-7949 and Kimbrough v. US, No. 06-6330: Gall v. US - Petitioner's Brief Gall v. US - Government's Brief Gall v. US - Petitioner's Reply Brief Gall v. US - Oral Argument Transcript Kimbrough v...
CJA Panel's Pilot Mentoring Program in Conjunction with PRACDL
Posted on October 02, 2007We posted here on PRACDL's proposal to the US District Court for improvement of the Court's Mentoring Program for new CJA Panel Members. The Court had approved PRACDL's Mentoring Program proposal, with a few minor changes, as a pilot program, see Memorandum, but needed to amend the CJA Plan to implement it...
Judge Gertner Orders Government to Pay $101.7 Million
Posted on July 26, 2007By remaining silent as to their knowledge that a witness was lying, the FBI caused the conviction on murder charges against several defendants, and ensured they spent decades in prison. As the NY Times (AP) reports here: A federal judge Thursday ordered the government to pay more than $101 million in the case of four men who spent decades in prison for a 1965 murder they didn't commit after the FBI withheld evidence of their innocence...
Chat with Judge Gertner on Sentencing Issues
Posted on June 18, 2007PRACDL invites all defense attorneys to attend a chat with U.S. District Judge Nancy Gertner on sentencing issues, on Tuesday, June 19, 2007 at 4:00 p.m., at the Chief Judge's Courtroom. This is a special treat you should not miss out on. There is no cost for attending...
CJA Rate Increases Effective May 20, 2007
Posted on May 19, 2007Effective May 20, 2007 the CJA hourly rate will increase from the current $92 per hour to $94 per hour. For cases overlapping both rates, counsel will invoice all work done before May 20th at the $92 hourly rate and all work done on or after May 20th at the $94 hourly rate...
PRACDL Honors Jorge L. Arroyo Alejandro
Posted on April 02, 2007This past Wednesday PRACDL held a very special activity to honor colleague Jorge L. Arroyo Alejandro for his "dedication, professionalism and continued contribution to the defense bar," as well as his enormous dedication to PRACDL, having been our longest serving President...
PRACDL to Propose Changes and Offer Assistance to Court's Mentoring Program for New CJA Panel Members
Posted on March 19, 2007With a view towards improving the Mentoring Program provided by the District of Puerto Rico to some of the new CJA Panel members, PRACDL's Board has been meeting and working out a proposal to present to the Court's CJA Committee, presided by Honorable Aida M...
PRACDL's New Board
Posted on January 11, 2007The Officers and other Board Members for this year are as follows: Mariángela Tirado-Vales - President Linda Backiel - Vice President Jorge E. Rivera-Ortíz - Treasurer Tom Lincoln - Secretary Rachel Brill Jason González-Delgado Joseph Laws - Federal Public Defender - Permanent Board Member José L...
PRACDL 4th Workshop and Annual Dinner Meeting - December 7th, 2006
Posted on November 10, 2006PRACDL invites all criminal defense lawyers to it's Fourth 2006 Workshop on Thursday, December 7, 2006. This will be followed by our Annual Dinner Meeting. See the announcement here. The workshop topic is Grand Jury Practice. Time: 4:00 to 6:00 p.m. Place: U...
Jury Refuses to Impose Death Penalty
Posted on October 27, 2006Again a federal jury refuses to impose the death penalty in the District of Puerto Rico, this time in the case of Carlos Ayala-López, found guilty of murdering a federal security guard. The defense was made up by Bill Matthewman (of Florida) and PRACDL member Juan A...
Rachel Brill Appointed to Advisory Committee on the Federal Rules of Criminal Procedure
Posted on October 27, 2006PRACDL Charter Member Rachel Brill has been appointed by the Chief Justice of the United States to serve on the Advisory Committee on the Federal Rules of Criminal Procedure. This is a great distinction and honor. Rachel has served as PRACDL Treasurer, 1992-2004; and as a Board Member, 2004-2005...
Two New Magistrate Judges Appointed
Posted on October 12, 2006PRACDL member Bruce J. McGiverin and Assistant U.S. Attorney Marcos López have been appointed to serve as U.S. Magistrate Judges in the District of Puerto Rico. They will occupy the vacancies left when Hon. Aida M. Delgado-Colón and Hon. Gustavo A. Gelpí were appointed as U...
Francisco A. Besosa - Our Newest Federal Judge
Posted on September 26, 2006The Senate, acting pursuant to a unanimous consent agreement, voted on September 25, 2006 to confirm Francisco A. Besosa as U.S. District Judge for the District of Puerto Rico. The nomination met no opposition and the vote was 87-0. Judge Besosa will occupy the vacancy left by now Senior U...
First Circuit Notice to Court-Appointed Counsel Regarding Requiremnents for Briefs
Posted on August 27, 2006The Court of Appeals for the First Circuit has issued a Notice to Court-Appointed Counsel Regarding Requiremnents for Briefs, which states as follows: Effective September 1, 2006, counsel appointed under the Criminal Justice Act, 18 U.S.C. § 3006A, must file briefs in accordance with the copy requirements set forth in Fed...
PRACDL Workshop on Practical Applications of Daubert
Posted on August 26, 2006PRACDL inbviutes all criminal defense lawyers to it's third 2006 workshop to be held on Wednesday, September 6, 2006. The topic is: Practical Applications of Daubert. Time: 4:00 to 6:00 p.m. Place: U.S. District Court in Hato Rey Cost: Free to PRACDL members, and $25...
PRACDL Workshop - June 1st
Posted on May 31, 2006This is a reminder of PRACDL's second 2006 workshop this coming Thursday, June 1, 2006, on Using Government Witnesses to the Defense Advantage. Time: 4:00 to 6:00 p.m. Place: U.S. District Court in Hato Rey, Courtroom of Senior Judge Pérez-Giménez Cost: Free to PRACDL members, and $25...
Need to Avoid Unwarranted Sentencing Disparity
Posted on April 06, 2006Before you start making your arguments on the need for a particular sentence for your client so as to avoid unwarranted sentencing disparity, you should read United States v. Saez, No. 05-2001 (1st Cir. April 6, 2006). See more on Saez at Appellate Law & Practice here.
The Exonerated
Posted on March 31, 2006Last night I went to the movies to see The Exonerated, the story of six persons sent to death row and later on exonerated. The movie was shown by the Coalición Puertorriqueña Contra la Pena de Muerte, as part of a fund and consciousness raising effort...
First Circuit Orders Recusal of District Judge at Government's Request
Posted on March 24, 2006In a rather unique set of circumstances, the First Circuit has today granted a petition for mandamus by the United States in a public corruption case, reversing a district court's denial of a motion by the United States for the trial judge to recuse himself on grounds of actual prejudice, albeit not on grounds of actual prejudice but of a "reasonable basis for questioning the impartiality of the district court judge...
First Circuit Judge Bruce M. Selya to take Senior Status
Posted on March 15, 2006First Circuit Judge Bruce M. Selya has announced that he will be taking Senior status, but he still plans to maintain three-fourths of the caseload of an active Circuit Judge. He intends to dedicate more time to his family and to do some teaching. For reports on this see Boston Globe here, Fox Providence Eyewitness News here, and The Providence Journal here...
USSC: "Report on the Impact of United States v. Booker on Federal Sentencing"
Posted on March 14, 2006The United States Sentencing Commission has released a Report on the Impact of United States v. Booker on Federal Sentencing (caveat, the PDF is 277 pages). Professor Berman at Sentencing Law and Policy has an initial post on this here in which he states: Also based on a quick scan, here is a notable sound-bite: "The severity of sentences imposed has not changed substantially across time...
Booker Reasonableness in the First
Posted on March 09, 2006I'm back from a hiatus (only to be interrupted again by an upcoming trial). The First Circuit issued the much awaited en banc opinion(s) in US v. Jiménez-Beltre, No. 05-1268 (1st Cir. March 9, 2006) to decide the following issues: whether there is, post-Booker, appellate jurisdiction to review a within guideline sentence, with the Government arguing that there was no jurisdiction; whether a within guideline sentence is presumptively reasonable; and whether the within guideline sentence in the instant case was reasonable...
Registration & Program for March 10th Advanced Federal Criminal Appellate Practice Seminar
Posted on January 23, 2006Here are the Registration and Program for the First Circuit's Advanced Federal Criminal Appellate Practice Seminar (see our post here) to be held at the Condado Plaza Hotel & Casino on March 10, 2006. You must register no later than Friday, February 24, 2006...
PRACDL Workshops
Posted on January 10, 2006PRACDL will be holding a series of four workshops. The first - Getting Your Evidence Admitted & Dealing with Possible Objections to the Same -is scheduled for January 26th from 4:00 to 6:00 p.m., and will be held at one of the Courtrooms at the U.S. District Court in San Juan...
Advanced Federal Criminal Appellate Practice Seminar
Posted on January 10, 2006Advanced Federal Criminal Appellate Practice Seminar The Court of Appeals for the First Circuit is sponsoring a one-day seminar, Advanced Federal Criminal Appellate Practice, at the Condado Plaza Hotel in San Juan, Puerto Rico on Friday, March 10, 2006...
. . . and then take that great discretionary leap
Posted on December 11, 2005It appears that the First Circuit is about to take a serious look at the meaning of "advisory" as applied to the sentencing guidelines post-Booker. This has arisen in the context of the appeals from the Rhode Island federal cases in which District Judge Ernest Torres rejected the 100:1 crack to powder cocaine disparity...
Rules Amendments Effective December 1, 2005
Posted on November 30, 2005Effective December 1, 2005, there are a number of amendments that go into effect regarding the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure. In particular, the following amendments to the rules will take effect on December 1, 2005: Appellate Rules 4, 26, 27, 28, 32, 34, 35, 45, and new Rule 28...
PRACDL Seminar, Assembly & Elections
Posted on November 04, 2005Today PRACDL held a half day seminar, followed by its annual assembly and elections. The seminar was on The Trial of a Complex Conspiracy Case: Openings, Closings and Important Trial Strategies, presented by New York Criminal Defense Lawyer Benjamin Brafman, Esq...
Hon. Aida M. Delgado-Colón - Our Next U.S. District Judge
Posted on October 27, 2005President George W. Bush has nominated Honorable Aida M. Delgado-Colón, U.S. Magistrate Judge, to serve as U.S. District Judge for the District of Puerto Rico. Prior to being appointed as a U.S. Magistrate. she served for more than a decade as an Assistant Federal Public Defender...
What happened to Criminal Law at Roberts Confirmation Hearing?
Posted on September 16, 2005As Professor Berman details here at Sentencing Law and Policy, there was hardly any mention of criminal justice issues during the Roberts confirmation hearings. That is a huge disappointment, for the reasons stated by Professor Berman. One of his readers believes a Chief Justice Roberts might be in the Scalia camp on Booker, but I seriously doubt this.
Wilkerson from the First: the Complete Story
Posted on August 24, 2005In my previous post on United States v. Wilkerson, No. 02-1729 (1st Cir. June 9, 2005) -- yes, the case where it appeared that the First Circuit might be endorsing a district court's consideration of disparities in sentences for the same conduct as between federal and state cases -- I mentioned that the docket revealed that the petition for panel rehearing filed by the government to have the Court express itself on this issue had been denied...
From the First: Panel Rehearing Denied in Wilkerson
Posted on August 20, 2005Upon checking the docket for United States v. Wilkerson, No. 02-1729 (1st Cir. June 9, 2005) it appears that the First Circuit has denied the petitions for panel rehearing. As we indicated in our previous post here, Wilkerson "appeared to endorse the idea that a district court may take into account the disparity between federal and state sentences for the same conduct in arriving at a correct sentence in the post-Booker world...
Rehearing Requested in US v. Wilkerson on Federal State Sentencing Disparity Issue
Posted on July 29, 2005We had previously discussed in this post the First Circuit's opinion in United States v. Wilkerson, No. 02-1729 (1st Cir. June 9, 2005) which appeared to endorse the idea that a district court may take into account the disparity between federal and state sentences for the same conduct in arriving at a correct sentence in the post-Booker world...
Sentencing Guidelines Seminar
Posted on July 14, 2005The U.S. District Court for the District of Puerto Rico will be sponsoring a Sentencing Guidelines seminar on August 5, 2005 from 9:00 a.m. to 4:00 p.m. If you want to make sure your seat is reserved, send an e-mail to Carmen Serrano with your full name and District Court Bar Number as soon as possible (no later than July 26th 29th),* since there are space limitations...
Peter Goldberger on Dodd and Filing 2255 with Blakely/Booker Claims
Posted on June 21, 2005On Monday the Supreme Court decided Dodd v. United States, No. 04-5286 (June 20, 2005) holding that the 1 year limitations period under 2255(3) "begins to run on the date on which this Court 'initially recognized' the right asserted in an applicant's motion, not the date on which that right was made retroactive" Peter Godlberger, through a post at BOPWatch as well as his comment at Sentencing Law and Policy here, has alerted to the importance of Dodd to persons whose sentences became final before Blakely v...
Another Lesson Plan from Judge Gertner
Posted on June 16, 2005In another of her impressive opinions on sentencing issues, Judge Gertner has issued a Sentencing Memorandum in United States v. Malouf, No. 03-cr-10298-NG (D.Mass. June 14, 2005). The first few paragraphs read as follows: This case is about the interpretation of an important federal drug distribution statute, 21 U...
Getting an Evidentiary Hearing at Sentencing
Posted on June 14, 2005Another Booker remand from the First Circuit in United States v. Cabrera, No. 03-1890 (1st Cir. June 14, 2005) (not for publication). However, I find more interesting the panel's comments as to the separate claim raised by appellant that the Court had abused its discretion in refusing to hold an evidentiary hearing at the time of sentencing regarding the issue of drug quantity...
Justice Breyer: Get rid of Peremptory Challenges
Posted on June 14, 2005In Miller-El v. Dretke, 545 U.S. --, No. 03?9659 (June 13, 2005) the Court grants habeas relief to petitioner on his Batson claim. Justice Souter wrote the Court's opinion. Justice Breyer wrote a concurrence in which he posits that peremptory challenges should be done away with altogether...
Disparity Between State and Federal Sentences for Same Conduct
Posted on June 10, 2005In a Booker remand in United States v. Wilkerson, No. 02-1729 (1st Cir. June 9, 2005) the panel seems to be endorsing the idea that a district court may take into account the disparity between federal and state sentences for the same conduct in arriving at a correct sentence in the post-Booker world...
Retirements at Supreme Court and the Impact on Almendarez-Torres and Harris
Posted on June 08, 2005President Bush has often stated that he likes Justices in the mold of Scalia and Thomas. In an interesting post at Sentencing Law and Policy here, Professor Doug Berman gives us his prognosis for Almendarez-Torres and Harris if Justices appointed to replace either Chief Justice Rehnquist or Justice O'Connor were to vote like Scalia and Thomas.
First Circuit Accepting Applications for CJA Panel
Posted on June 08, 2005The First Circuit Court of Appeals is currently accepting applications to serve on the court's Criminal Justice Act ("CJA") panel. Application packages must be received no later than June 13, 2005 at 5:00 p.m. For your convenience, here is the Announcement and the Application Form taken from the First Circuit's site.
New Site: Law of Criminal Defense
Posted on June 07, 2005I invite you all to check out John Wesley Hall, Jr.'s Law of Criminal Defense. This website is a research aid to Professional Responsibility in Criminal Defense Practice which will be published by Thomson-West approximately June 20, 2005. It is the third edition of Professional Responsibility of the Criminal Defense Lawyer (2d ed...
Blakely, Booker & Supervised Release Revocation
Posted on June 04, 2005In United States v. Work, No. 04-2172 (1st Cir. June 3, 2005) defendant-appellant argued "that the Sixth Amendment, as interpreted in Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to the revocation of supervised release and the consequent imposition of additional prison time...
REMINDER: ACLU-PR's Capital Punishment Panel Conference Tonight at 7:00 p.m.
Posted on May 24, 2005This is to remind all of ACLU of Puerto Rico invitation to attend their Capital Punishment Panel Conference tonight --May 24th-- at 7:00 p.m. at the Inter American University, School of Law - Theater. The conference participants will be: Alvin J. Bronstein - Director Emeritus, ACLU Prison Reform Project; Board member of Penal Reform International (London); World Organization Against Torture (Geneva); Jeff Gamso - Legal Director, ACLU of Ohio; Capital Punishment Defense Bar; Juan Meléndez - Puerto Rican sentenced to the Death Penalty, 17 years on Death Row The moderator will be Juan Ramón Acevedo, Esq...
Texas House Passes Life Without Parole
Posted on May 24, 2005According to Injustice Anywhere the Texas House has finally passed its version of life without parole which now must be reconciled with the Senate's version and then sent to the Governor. See also Life without parole approved by House - Opponents say proposal would create more dangerous prisons, by Mike Ward, American-Statesman Staff, Tuesday, May 24, 2005.
Update: Texas Life Without Parole Option Still Not a Reality in Capital Cases
Posted on May 23, 2005We thought that Texas was finally coming around to passing legislation that would have allowed juries the choice in capital cases of death and life without parole (a third option, life with parole, had been eliminated in a compromise bill). While the Texas Senate passed the compromise bill, it now appears to be stuck in the Texas House, despite the reportedly majority support for the bill...
Sixth Amendment Violated --and it's not Booker related
Posted on May 19, 2005Fellow PRACDL member Linda Backiel just won a new trial for her client in US v. Vega Molina, No. 03-1625 (1st Cir. May 19, 2005). We'll develop this a bit more later, but just wanted you all to have a bite at it first. I recall the trial of that case before Judge Domínguez, which was widely covered in the press and was hotly fought...
The 100 to 1 Powder Cocaine to Crack Disparity Post-Booker
Posted on May 19, 2005In dealing with the powder cocaine to crack 100-1 disparity post-Booker, U.S. District Judge Ronnie Greer gives us a nicely crafted Memorandum Opinion and Order regarding sentencing in United States v. Clay, Cr. No. 03-73 (E.D.Tenn. May 6, 2005). Our thanks to Carmen Hernandez for posting it on the BOPWatch group...
First Circuit Reverses Judge Gertner's Order to Empanel Two Juries in Capital Case (One "Non-Death-Qualified" for Guilt Phase, Another "Death Qualified" for Penalty Phase)
Posted on May 12, 2005Today in US v. Green, No. 05-1014 (1st Cir. May 12, 2005) the First Circuit reversed Judge Gertner's decision in US v. Green, Criminal No. 02-10301-NG (D.Mass) (see Memorandum and Order Re: Bifurcation of November 3, 2004 and Additional Findings Re: Bifurcation of December 29, 2004) to empanel 2 juries in a capital case, one non-death-qualified to hear the guilt phase, and another death-qualified to hear the penalty phase if necessary...
When the Not-So-Smart Crowd Governs ...
Posted on May 09, 2005Last year we had this bill [H.R. 4547] in Congress - in the midst of the Blakely decision -- that would have added more mandatory minimum sentences. I wrote about it at Macondo Law in this post: Drug Points to Start Carding Customers? More Mandatory Minimums? Even before Blakely was decided, Rep...
Is this why we cannot have cellphones inside the courthouse?
Posted on May 07, 2005Assistant U.S. Attorneys are allowed to have their cellphones inside the courtroom (under a court-created "law-enforcement duties" exception to the general ban), and I can only imagine that agents are allowed to do so as well. Up until now I always thought that it had something to do with one of two matters: Court security Judges either not wanting to hear a phone ring in the middle of a proceeding or in the lobby, or simply not wanting someone calling a radio station to have the court proceedings broadcast over the airwaves...
The 9th Reverses on Prosecutorial Misconduct
Posted on May 06, 2005Today we have a good case for defendants from the 9th Circuit. Yes, I know that you are reluctant to cite those 9th Circuit cases to the judges in our district, but save this one anyway. In United States v. Weatherspoon, No. 03-10551 (9th Cir. May 6, 2005) the 9th Circuit reverses a conviction due to prosecutorial vouching and urging the jury to cure society's ill by convicting defendant of a felon in possession charge...
The 7th Addresses Pros and Cons of Full v. Limited Post-Booker Remands (Sort of)
Posted on May 05, 2005From the 7th Circuit we get United States v. Goldberg, No. 03-3955 (7th Cir. May 5, 2005) in which defendant had been sentenced pre-Booker and was arguing on appeal a misapplication of the sentencing guidelines by the district court in imposing a vulnerable victim enhancement...
Pro Bono Redefined
Posted on May 03, 2005See Pro Bono, Pro Profit? by Anthony Lin at law.com and ask yourself whether redefining pro bono in these terms is such a good idea. I have mixed feelings about it.
ACLU-PR: Capital Punishment Panel Conference
Posted on May 03, 2005The ACLU of Puerto Rico will be holding a Capital Punishment Panel Conference on May 24, 2005 at 7:00 p.m. at the Inter American University, School of Law - Theater, and has sent out an invitation for all PRACDL members to attend. The conference participants will be: Alvin J...
Puerto Rico Capital Case Results
Posted on May 03, 2005Yesterday the jury returned its verdict as to the second defendant facing death in the first capital case to be tried to a penalty phase in Puerto Rico's recent history with the federal death penalty, and the Court then announced the penalty phase verdicts as to both defendants...
Acquitted Conduct post-Booker and Continued Vitality of U.S. v. Watts
Posted on April 30, 2005Professor Berman had reported at Sentencing Law and Policy here on Judge Gertner's decision in US v. Pimental, No. 99-10310-NG (D. Mass. April 15, 2005). Judge Gertner has now issued an Amended Sentencing Memorandum in US v. Pimental, No. 99-10310-NG (D...
Second Defendant's Case Submitted to Jury in Penalty Phase of Capital Case in Puerto Rico
Posted on April 30, 2005We reported earlier (see here) on how the penalty phase in a federal capital case --the first one to reach the penalty phase in Puerto Rico's recent history-- had been separated, so that the penalty phase evidence and jury deliberations against one defendant was carried out before any penalty phase evidence was presented as to the other defendant...
The ABA on H.R. 1528
Posted on April 23, 2005Here is the Position Paper of the American Bar Association Regarding Section 12 of HR 1528, which minces no words in tearing down the misleading statements put out by Representative Sensenbrenner's office. Not only does it challenge the misleading nature of the statements, but it also points out that the result will be much litigation, and a likely finding down the road that this Booker-fix violates Booker...
Links to H.R. 1528 (the Booker-Fix) Materials
Posted on April 22, 2005H.R. 1528, a drug sentencing bill entitled "Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2005" whose Section 12 has been called a Booker-fix, was considered in the House Judiciary Committee without anyone being called to testify as to the same...
Sealed Penalty Phase Verdict Returned as to One of Two Defendants in Capital Case
Posted on April 22, 2005There's an ongoing death penalty case being tried in the District of Puerto Rico before Judge Juan M. Pérez-Giménez. Only the two defendants certified for the death penalty are on trial in this round, with the non-death certified defendants to be tried at a later date...
I Should Have Paid for that Computer
Posted on April 21, 2005If you are into downloading child pornography, don't use a computer you purchased with someone else's credit card. In United States v. Caymen, No. 03-30365 (9th Cir. April 21, 2005), the police were notified that Caymen had purchased a computer using someone else's credit card number...
Jury Trial at the Max with Defendant Shackled
Posted on April 21, 2005The opinion in Ruimveld v. Birkett, No. 04-1826 (6th Cir. April 21, 2005) upholds the grant of a writ of habeas corpus to defendant Ruimvelt where his shackling at trial, in view of the jury, caused significant harm to the presumption of innocence. For the entirety of the trial, Ruimveld was brought into the courtroom in leg shackles, belly chains, and handcuffs...
EXTRA! EXTRA! - The First Circuit Has a Heart!
Posted on April 19, 2005United States v. Gorsuch, No. 03-2337 (1st Cir. April 19, 2005) is a case which one can reasonably see having been decided in a manner much less favorable to defendant Gorsuch. For one, the First Circuit held that the Government had forfeited its claim that a downward departure from a statutory weapons sentence was error...
Get the Government to Approve Your Closing Argument - Then You Can Make It
Posted on April 19, 2005Why does the U.S. District Court in Puerto Rico spend thousands of dollars on seminars to get CJA panel attorneys to use technology in the Courtroom, and then foreclose counsel from making a closing argument using PowerPoint unless defense counsel first showed it to the prosecutor? I hope this is not the understanding of any other members of the federal bench here, but it was certainly disappointing to learn that even one judge thought this was necessary...
Supreme Court of Puerto Rico Approves New Canons of Judicial Conduct
Posted on April 16, 2005The Supreme Court of Puerto Rico has recently approved a new version of the Cánones de Ética Judicial de 2005.
Too Little, Too Late
Posted on April 16, 2005It is difficult to read Cirilo-Muñoz v. United States, No. 02-1846 (1st Cir. April 15, 2005), and not come away feeling that what little remedy the First Circuit has finally granted in this case (a remand for resentencing before the same district judge - although Circuit Judge Torruella's concurrence is sharply worded as to the matter of sending the case back to the same Judge) still amounts to a denial of justice...
Texas Senate Passes Compromise Bill for Life Without Parole as An Alternative in Capital Cases
Posted on April 14, 2005The Texas Senate has approved a compromise bill for Capital Sentencing. The previous proposed bill had 3 alternative sentences: death, life without parole, and life with parole. The compromise bill eliminates the option of life with parole. Since, reportedly, 78% of Texans wanted to have the option of life without parole (see our previous post), this should result in less death sentences being imposed in Texas, I think...
Life Without Parole Not an Alternative in Texas Capital Cases
Posted on April 13, 2005If you ever wondered why Texas has such a bad reputation for being the place where the largest number of persons are sentenced to death, check out what Injustice Anywhere - a blog recently started by a Texas Public Defender - has to say about this: Many people are surprised to learn that Texas does not have a sentence of life without parole...
TrialPrep - another PRACDL Blog
Posted on April 09, 2005Recently I found myself assisting a fellow criminal defense lawyer who is going to trial in his first case before the U.S. District Court in San Juan. Not that I am the ideal person to seek help from as far as trial preparation, for there are many attorneys who are more experienced than yours truly...
Appellant Stumbles at Step Three of the Plain Error Pavane
Posted on April 06, 2005Everything was going so well as counsel was engaged in his plain error pavane. Then came that difficult third step and he stumbled. The Court decided there would be no Booker remand for resentencing, as the District Court (Cerezo, J.) had made it abundantly clear that her intent was to punish appellant harshly (the guidelines, without any downward departure, would have allowed Judge Cerezo to impose an aggregate sentence as low as 360 months for the grouped counts, and she chose to sentence appellant to nearly double that amount of prison time ? a total of 600 months), even if...
Amnesty International USA's Updated Statistics on the Death Penalty
Posted on April 05, 2005Amnesty International USA's has published updated statistics on the death penalty, and we select a few here: In 2004, 97 per cent of all known executions took place in China, Iran, Viet Nam and the USA. Based on public reports available, Amnesty International estimated that at least 3,400 people were executed in China during the year, although the true figures were believed to be much higher...
"Bert, we hardly knew ye."
Posted on April 02, 2005U.S. Attorney H.S. "Bert" García has been at the helm of the U.S. Attorney's Office in Puerto Rico for some three years now. Rumor has it that he was brought in from Texas to put the house in order, and that a judicial appointment would be likely at the end...
"First Circuit had departed from the proper role of a reviewing court" - Deputy U.S. Solicitor General Michael R. Dreeben
Posted on March 30, 2005Recently I listened to the 9th Circuit's en banc oral argument in United States v. Ameline. Arguing for the Government before the en banc panel was Deputy U.S. Solicitor General Michael R. Dreeben, which gives you a feel for the importance the Solicitor General's Office is placing on the case...
Prosecutor Calls Blake Jurors "Incredibly Stupid"
Posted on March 24, 2005A case of sour grapes? CNN Law reports that "District Attorney Steve Cooley says Robert Blake was 'guilty as sin' and the jurors who acquitted him of murder were 'incredibly stupid.'" Hat tip to CrimProf Blog.
Rivera v. Rhode Island, No. 04-1568 (1st Cir. March 22, 2005)
Posted on March 22, 2005For a discussion of Rivera v. Rhode Island, No. 04-1568 (1st Cir. March 22, 2005), see our post And it's also "Poor Jennifer and Iris!" at Macondo Law. See also posts on the same case at Crime & Federalism and at Appellate Law & Practice.
First Circuit Quietly Enters a Booker Remand in Antonakopoulos
Posted on March 22, 2005In United States v. Antonakopoulos, No. 03-1384, 2005 WL 407365, at *4 (1st Cir. Feb. 22, 2005), the First Circuit, after rejecting all of the Blakely/Booker claims actually raised by defendant on direct appeal, stated as follows: There is another type of Booker argument available but which Antonakopoulos has not made: that there is a reasonable probability that the district court, freed of mandatory guidelines, would have given him a lower sentence...
It will be a Quiet Place
Posted on March 20, 2005The New York Times has this article As Town for Deaf Takes Shape, Debate on Isolation Re-emerges. It will sure be a quiet place. Can you imagine being a lawyer there and prepping up for trial? I'm sure the lawyers will use great visual effects, but I'm just not quite ready for those closing arguments using sign-language.
Judge Gertner Issues Amended Memorandum in US v. Jaber
Posted on March 19, 2005We have updated our March 3, 2005 post Judge Nancy Gertner on Sentencing Under Booker to reflect that an amended memorandum (replacing the March 3, 2005 one) was issued by Judge Gertner in United States v. Jaber, et al., Crim. No. 02-10201-NG (D.Mass...
At Last! A Booker Remand from the First Circuit
Posted on March 16, 2005If United States v. MacKinnon, No. 03-2219 (1st Cir. March 16, 2005) was not remanded for resentencing in light of Booker and the strict standard set up by the First Circuit in United States v. Antonakopoulos, No. 03-1384, 2005 WL 407365 (1st Cir. Feb...
Legal Ethics Blog
Posted on March 05, 2005We have added to our sidebar a link to the Legal Ethics Forum which we found out about via: Appellate Law & Practice: Legal Ethics Blog.
First Circuit Judges Lipez and Torruella Propose "Presumed Prejudice" Standard, which the Government can then Try to Rebut for Unpreserved Booker Claims
Posted on March 04, 2005In United States v. Serrano-Beauvaix, No. 02-2286 (1st Cir. March 4, 2005) (a case involving an unpreserved Booker claim) the First Circuit holds that no remand for resentencing is necessary because "Serrano has failed to carry his burden that there is a 'reasonable probability' that he would be sentenced more leniently under an advisory Guidelines system...
Judge Nancy Gertner on Sentencing Under Booker
Posted on March 03, 2005UPDATED POST: Judge Gertner issued her first "official" word on post-Booker sentencing in a "Memorandum and Order Re: Sentencing Under United States v. Booker" in US v. Jaber, et al., Crim. No. 02-10201-NG (D.Mass. March 3, 2005), and has now issued an "Amended Memorandum and Order Re: Sentencing Under United States v...
More on Taser Guns
Posted on February 27, 2005The Wall Street Journal Online (paid subscription required) has an article under its Shareholder Scoreboard dated February 28, 2005 on Best 3-Year/1-Year Performer: Taser International, which details the remarkable growth Taser stock has enjoyed, but also indicates that safety concerns (see our February 12, 2005 post On Taser Guns) are becoming a problem for the company, which manufactures Taser Guns...
PRACDL Request for Sentencing Information
Posted on February 26, 2005All PRACDL members are urged to submit information as to each sentencing hearing they attend, so as to give us all a better idea of how Judges are sentencing post-Booker. The following information will be helpful: Offense Judge Nature of plea agreement (if any), i...
New PRACDL Group - Members Only
Posted on February 26, 2005We have created a PRACDL Group (open only to PRACDL members) which you can join by e-mailing PRACDL-subscribe@yahoogroups.com or use the link below by entering your email address. This will be much like the BOPWatch and CJAFirstCircuit groups many of you are already familiar with, and will allow you to post and receive messages from all group members via e-mail or online...
First Circuit's First Booker Shots
Posted on February 24, 2005I had not posted earlier on the First Circuit's first responses to Booker, see US v. Antonakopoulos, No. 03-1384 (1st Cir. Feb. 22, 2005) and US v. Sahlin, No. 04-1324 (1st Cir. Feb. 22, 2005), and much of it had to do with the fact that neither case is good news for defendants...
Additions to PRACDL Blog
Posted on February 24, 2005We have added two new lists to the right sidebar of the blog - Booker in the First Circuit (includes District and appellate cases) and Booker Elsewhere. As the number of cases are likely to grow exponentially, we will in time start trimming these lists to the most important cases...
Fifth Circuit Rejects Order of Bifurcation with non-death-qualified jury for guilt phase and death qualified jury for penalty phase as contrary to Federal Death Penalty Act
Posted on February 15, 2005In a capital case, the Fifth Circuit has rejected a district court's order of bifurcation with a non-death-qualified jury to hear the guilt phase and a death-qualified jury to hear the penalty phase if necessary. See U.S. v. Williams, No. 05-20080 (5th Cir...
On Taser Guns
Posted on February 12, 2005Only lawsuits may stop the use of Taser guns. The New York Times has published today on Chicago Rethinks its Use of Stun Guns, by Monica Davey and Alex Berenson, detailing Chicago Police's and City Council's reaction to two incidents involving the use of Taser stun guns...
PRACDL Seminar on Booker & Crawford
Posted on February 08, 2005PRACDL will be holding a one-day seminar on the application of Booker and Crawford on February 24, 2005 from 8:30 a.m. to 5:00 p.m. at the amphitheater of Inter-American University School of Law. The guest speakers for the seminar are nationally renowned judge and attorneys: The Honorable Nancy Gertner, U...
US v. Barkley, 04-CR-119-H (ND Ok. Jan. 24, 2005)
Posted on January 27, 2005In what has to be one of the more interesting post-Booker opinions, Chief Judge Holmes of the Northern District of Oklahoma who, post-Blakely, gave us US v. O?Daniel, 328 F. Supp. 2d 1168 (N.D. Okla. 2004) (see this post), and US v. Leach, No. 03-CR-114-H (N...
Judge Pérez-Giménez Rules on Attorney's Fees Inquiry
Posted on January 19, 2005I strongly suggest reading Judge Pérez-Giménez's Opinion and Order in U.S. v. Angel González-Méndez, Cr. No. 04-217 (PG) (D.PR January 14, 2005) concerning the Government's interest in inquiring as to the source of attorneys fees --pretrial-- in a case involving the robbery of a financial institution and in which none of the stolen funds have been recovered...
Peter Goldberger on Booker/Fanfan
Posted on January 17, 2005You can read Peter Goldberger's take on Booker/Fanfan in this post at White Collar Crime Prof Blog. Peter is an NACDL member and an outstanding appellate attorney and, he was on the brief in NACDL's amicus curiae merits brief in Booker & Fanfan. Also read the comments to the post, some written by Peter, and one written by T...
18 U.S.C. § 3553. Imposition of a Sentence
Posted on January 17, 2005Post-Booker, with Section 3553(b) gone, we still have the remaining subsections of 3553 to deal with. § 3553. Imposition of a sentence (a) Factors To Be Considered in Imposing a Sentence.- The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection...
The Fox Guarding the Chicken Coop
Posted on January 17, 2005I apologize that I have been away from the blog, but every once in a while we do have such things called trials to attend to, and I had just started one --briefly interrupted by the Supreme Court's decision in US v. Booker & Fanfan-- and, given the amount of coverage Booker was receiving elsewhere, I thought it best to not attempt to be the Judge Paul G...
Chief Judge Fusté to Discuss Status of Criminal Defense in Our District
Posted on January 16, 2005On Friday, January 21, 2005 (3:30 to 5:00 p.m.) the Federal Public Defender's Office will sponsor a meeting for CJA Panel Attorneys with Chief Judge José A. Fusté to discuss the status of criminal defense in our district. If you intend to attend, let Ms...
Off Topic: Earth at Night
Posted on January 11, 2005I'm preparing for a trial, but thought I'd post this one cool picture of the Earth at Night. Thanks to The Volokh Conspiracy for the link. Check out Puerto Rico and ask yourselves: is there still some place in this island where we haven't poured cement and turned on the lights?
Help for Those Awaiting Surrender to the BOP with recommendations for ICC (Boot Camp) participation
Posted on January 08, 2005In order to assist those with clients who may be awaiting surrender to the BOP, with recommendations for Intensive Confinement Center (ICC, Boot Camp) participation, which are being discontinued (see Bye, bye to federal Boot Camps), here is a Motion for the Issuance of an Order Staying Defendant's Surrender to the Bureau of Prisons, prepared by AFPD Timothy W...
First Circuit Upholds BOP's Interpretation of Good Time Statute
Posted on January 08, 2005In Perez-Olivo v. Chavez, No. 04-1486 (1st Cir. January 7, 2005) the First Circuit sides with the BOP's interpretation of the good conduct time (GTC) statute, 18 U.S.C. § 3624(b)(1), to the effect that the maximum of 54 days per year are to be credited for years actually served, and not for years a defendant is sentenced to...
Bye, bye to federal Boot Camps
Posted on January 06, 2005Howard O. Kieffer of BOPWatch reports on the forthcoming closing of federal Boot Camps: The last inmates for the Bureau's ICC programs (Boot Camp) will be received this Friday, January 7, 2005. When those classes graduate on June 28, 2005, the programs will cease operations...
The Confrontation Blog - devoted to Crawford v. Washington
Posted on January 05, 2005The Confrontation Blog is devoted to Crawford v. Washington and the Confrontation Clause. Thanks to Crime & Federalism for directing us there. The blog is penned by Professor Richard D. Friedman, of the University of Michigan Law School, and is described by him as "devoted to reporting and commenting on developments related to Crawford v...
Additional Findings to Justify 2 Juries for Capital Case
Posted on December 31, 2004We previously posted here on Judge Nancy Gertner's Memorandum and Order Re: Bifurcation in United States v. Darryl Green, et al., 343 F.Supp.2d 23 (D.Mass. 2004), Criminal No. 02-10301-NG (D.Mass, Nov. 3, 2004) -a capital case- whereby there would be two juries, one non-death qualified to decide guilt or innocence, and a second death-qualified jury to, if necessary, decide on punishment...
Eyewitness Identification Reform
Posted on December 23, 2004CrimProf Blog reports here on a column in the December issue of The Champion by NACDL President Barry Scheck on changes on the horizon that will go a long way towards avoiding mistaken eyewitness identifications. "Soon, the single greatest cause of the conviction of the innocent -- mistaken eyewitness identification -- will be significantly redressed by a series of historic reforms: We will see photo arrays and lineups conducted by a blinded examiner (the person running the procedure doesn't know the identity of the suspect); proper admonitions to witnesses that the real perpetrator may not be present; proper selection of...
Adobe Reader 7.0 Now Available
Posted on December 22, 2004Adobe has released the free Adobe Reader 7.0, which should be a marked improvement over version 6.0. While I am a fan of the Firefox browser, I had noticed that many PDF files did not open correctly using Firefox, and had to constatly work with Internet Explorer as well...
CJA Case Caps Increased Effective December 8, 2004
Posted on December 16, 2004We have received notice that the CJA case cap for felonies has been increased from $5,200 to $7,000. The new cap will apply to cases in which any work was done on or after December 8, 2004. This will shorten the amount of time counsel have to wait to get paid in cases falling within the cap, since these do not have to be certified to the Chief Judge of the Court of Appeals, who will now review only cases in which compensation claimed (and certified by the District Court) exceeds the new $7,000 cap...
No Booker/Fanfan Today, but Unanimous Opinion in Florida v. Nixon
Posted on December 13, 2004No Booker/Fanfan today, so continue dealing with the status quo at least until January 11th, 2005. Among the opinions the Court issued today is Florida v. Nixon, 543 U.S. --, No. 03-931 (Dec. 13, 2004), a capital case, in which a unanimous (without participation by the Chief Justice) Supreme Court ruled that counsel's admission of defendant's guilt, without defendant's consent, was not per se ineffecftive assistance of counsel...
Help for your Next Appeal
Posted on December 12, 2004So you now have to face that appeal, and you would like some pointers on writing briefs as well as arguing your case. The folks at Appellate Law & Practice have come up with a number of excellent links, and I will add a few more to assist anyone writing a brief and arguing a case on appeal...
OOPS or DOPES - take your pick
Posted on December 08, 2004This, picked from a list-serve, really made me laugh today: Just a thought ... maybe the Department of "Justice" should be renamed the "Office of Prosecutorial Services"... Justice is beyond the comprehension of most career prosecutors. That way whenever you see an AUSA you just go OOPS! But just think of the Department of Prosecutorial Excesses Services, or DOPES...
No Booker/Fanfan Today, but . . . maybe tomorrow?
Posted on December 07, 2004According to this post by Marty Lederman at SCOTUS Blog, the Court issued one opinion today and it was not Booker/Fanfan. The Court is expected to announce at least one more opinion tomorrow in argued cases. If Booker & Fanfan are not announced then, it will be either December 13th or January 11th, at the earliest...
7th Circuit Sides with BOP's Interpretation of Good Time Statute
Posted on December 03, 2004In White v. Scibana, No. 04-2410 (7th Cir. Dec. 2, 2004) the Seventh Circuit reversed the District Court's opinion in White v. Scibana, 314 F. Supp. 2d 834 (W.D. Wis. 2004) which had interpreted 18 U.S.C. § 3624(b)(1) - the "good time" statute - as meaning that a prisoner should get 54 days of good time for each year of the sentence imposed, minus any deductions for disciplinary violations...
Attorney's Lounge Now has Internet Access
Posted on December 01, 2004The District Court has today sent out a Notice that it is now providing free internet access in the Attorney's Lounge. That is very good news. But like the spoiled kid who can never be satisfied, I can only wait for the Courtrooms to have WiFi or some other internet connection...
Blog is the Word of the Year
Posted on December 01, 2004Reuters reports that 'Blog' Tops Dictionary's Words of the Year. "A four-letter term that came to symbolize the difference between old and new media during this year's presidential campaign tops U.S. dictionary publisher Merriam-Webster's list of the 10 words of the year...
Timing Booker/Fanfan and the Result - all from 2 questions posed by one Justice at oral argument in two other consolidated cases!
Posted on December 01, 2004Two posts at SCOTUS Blog raise questions about when the opinions in Booker and Fanfan will be released. In one, Marty Lederman suggests here that a footnote the petitioners' brief in the consolidated cases of Whitfield v. United States and Hall v. United States urging that "[h]owever this Court rules on the question presented specifically by this case [namely, whether commission of an overt act is an element of the crime of conspiracy to commit money laundering under 18 U...
Felicitaciones al Lcdo. Anglada
Posted on November 30, 2004Congratulations are in order to PRACDL member Rafael Anglada for the winning verdict in US v. Juan Rivera-Reyes, Crim. No. 03-122 (DRD), a case in which the jury credited defendant's mere presence defense, established through the testimony of a co-defendant who had plead guilty.
PRACDL Officers & Open Board Meetings Policy
Posted on November 30, 2004At the first meeting of the PRACDL's new Board held on November 29, 2004, presided by President Maria H. Sandoval the following officers were selected: Vice President: Juan R. Acevedo-Cruz Secretary: Tom Lincoln Treasurer: Jorge E. Rivera-Ortíz The Board has decided to hold open meetings at which any PRACDL member is welcomed, and the Minutes of all meetings will be notified to all PRACDL members.
No Booker/Fanfan Today
Posted on November 30, 2004There was a possibility and much speculation that the Court might issue an opinion today in Booker and Fanfan, but that did not happen. SCOTUS Blog reports here that the Court is not scheduled to issue any opinions tomorrow and, therefore, it's likely that the only additional decision days prior to January 11th will be one or more of December 7th, 8th and 13th...
Oral Argument in Shepard v. US, No. 03-9168
Posted on November 26, 2004The transcript of the oral argument in Shepard v. U.S., No. 03-9168 is available, and we have also added it to the sidebar. Shepard is the ACCA case in which the First Circuit (at least in my view) went beyond the rule established by the Supreme Court in Taylor v...
A Gift from Jorge L. Arroyo to Us
Posted on November 25, 2004We have added a new section to the Sidebar - From Our Members - and will provide content that can be useful to us all. The first item added comes from Jorge L. Arroyo, who has generously provided us with his Legal Topics Bibliography - a subject matter index to several magazines such as The Champion, ABA Journal, Litigation, The Federal Lawyer, Criminal Justice and others, dating back several years...
A not so level playing field: Prosecutors Run NCIC Checks on Jurors While You Conduct Guesswork
Posted on November 24, 2004While you are practically blindly conducting what amounts to almost a joke of a voir dire in jury selection, is it possible that the prosecutors are way ahead of you having run background checks of the prospective jurors in federal databases? I always felt uneasy when I saw a federal prosecutor get the prospective jurors' list and hand it off to some US Attorney's Office secretary or legal assistant...
US Sentencing Commission 15 Year Assessment of Guidelines Sentencing
Posted on November 23, 2004The US Sentencing Commission has issued its 15 year review of the sentencing guidelines: Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System Is Achieving the Goals of Sentencing Reform. This study is a comprehensive review of the research literature and sentencing data to assess how well the guidelines have achieved the goals for sentencing reform established by Congress in the Sentencing Reform Act of 1984...
USSC Booker & Fanfan Page
Posted on November 22, 2004The U.S. Sentencing Commission has created a Booker & Fanfan Materials page and, although the material is rather scant, you can access the Public Hearing transcript of the sessions held on November 16 and 17, 2004, as well as the submitted testimonies from vatious sources...
PRACDL Members in CJA Committee and Comité para Revisar el Manual de Instruciones al Jurado
Posted on November 21, 2004The District of Puerto Rico's Criminal Justice Act Committee counts with six practicing criminal defense lawyers, and five of these are proud members of PRACDL: Jorge L. Arroyo, PRACDL immediate past-President Hector Deliz, PRACDL member Joseph C. Laws, Jr...
Super-sealed Cases
Posted on November 21, 2004There are sealed cases and then there are "super-sealed" cases, i.e., "cases in the total eclipse of entire cases or individual pleadings by keeping everything about them -- even case and docket numbers -- secret." See Court Secrecy Practices at Center of Drug Boss's 11th Circuit Appeal | Appeal focuses on 'super-sealed' court documents that hide cases' existence, by Dan Christensen (Miami Daily Business Review) at Law...
Practitioners' Advisory Group Proposal to USSC Makes the Most Sense
Posted on November 21, 2004As we wait for the Supreme Court to decide Booker & Fanfan, we have competing proposals before the US Sentencing Commission. At the one end, is the idea of starting from a clean slate, an unlikely event. At the other extreme is the idea of nullifying any decision applying Blakely to the federal guidelines, initially proposed by Professor Bowman in his submission to the Senate Judiciary Committee back in July, and now having apparently become DOJ's darling - to move the top of each offense level to the statutory maximum and thereby make ashes of Blakely's holding, ...
PRACDL Lawyer's Assistance Strike Force in Action
Posted on November 19, 2004PRACDL's Lawyer's Assistance Strike Force moved into action a few days ago in the case of US v. Adalberto Brito, Crim. No. 03-146 (DRD). Attorney Juan R. Acevedo-Cruz filed PRACDL's Motion to Intervene, and attorneys Linda Backiel and Rachel Brill filed a Motion to Vacate Order for Hearing and for Other Relief on behalf of counsel Esther Castro-Schmidt...
PRACDL Assembly & Elections
Posted on November 18, 2004PRACDL's Annual Assembly and Elections were a complete success! We had many new members. In particular, many of us were pleased at the number of younger lawyers who joined PRACDL. Maria H. Sandoval, who has served as PRACDL Vice President, was elected President of PRACDL, replacing Jorge L...
Judge Cassell Upholds Constitutionality of Federal Mandatory Minimum Sentences in US v. Angelos
Posted on November 17, 2004I am posting this without even getting to read the entire decision by Judge Paul G. Cassell in United States v. Angelos, No. 02-CR-00708-PGC (D.Utah Nov. 16, 2004), addressing the constitutionality of mandatory minimum sentences under federal law. I am also including the excellent amicus brief filed by Greenberg Traurig...
Setting the Record Straight on the Role of the Criminal Defense Lawyer and Those "Technicalities" They Use
Posted on November 16, 2004I have just finished reading a letter written by PRACDL President and friend Jorge L. Arroyo to Ms. Inés Quiles at WKAQ Radio Talkshow "A Palo Limpio" on November 10, 2004. The letter was written in response to some comments about criminal defense lawyers getting persons acquitted on "technicalities...
PRACDL Annual Assembly
Posted on November 12, 2004PRACDL will hold its Annual Assembly and Elections (and more) on Wednesday, November 17, 2004 at 6:00 p.m. To those of you who have not yet submitted your completed application forms, remember that you can take it to the assembly with payment. (PRACDL is only open for membership to Criminal Defense Lawyers with offices in Puerto Rico)...
Welcome to PRACDL's new blog!
Posted on November 12, 2004Welcome to PRACDL's new blog. All of our old posts can be found at Puerto Rico Association of Criminal Defense Lawyers. Be sure to create a link to our new URL at http://pracdl.typepad.com/pracdl/. This will be a group blog of PRACDL members, and I will continue to be the administrator for the same...
Terry v. Menifee, No. 04-4505, 004 WL 2434978 (S.D.N.Y. Nov. 1, 2004) follows Goldings v. Winn and Elwood v. Jetter
Posted on November 12, 2004We posted on Elwood v. Jetter here, and on Goldings v. Winn, here, here, and most recently here. Now this in via Howard O. Kieffer at BOPWatch: On November 1, 2004, Chief Judge Michael B. Mukasey (SDNY), in Terry v. Menifee, No. 04-4505, 2004 WL 2434978 (S...
First Circuit's Leadership Role in Blakely Strikeouts
Posted on November 11, 2004As noted by Professor Douglas Berman at Sentencing Law & Policy here, with the opinion in United States v. Fraser, 2004 WL 2537410, No. 04-1100 (1st Cir. Nov. 10, 2004), the First Circuit maintained its status "as a leader in affirming convictions over Blakely objections on plain error grounds...
PRACDL Assembly - November 17, 2004 at 6:00 p.m.
Posted on November 10, 2004This is to remind all new and renewing PRACDL members of our assemby scheduled for November 17th from 6:00 to 9:00 p.m. at Café Al Fresco - G-11 O'Neill St. The members of the PRACDL Board will be elected at that time. We want all PRACDL members to participate, so please set aside November 17th from 6:00 to 9:00 p...
Order for Empanelment of 2 Juries for Capital Case: One non-Death-Qualified for Guilt Phase, the Other Death-Qualified for Penalty Phase
Posted on November 07, 2004In a first of a kind, U.S. District Judge Nancy Gertner has entered a Memorandum and Order Re: Bifurcation in United States v. Darryl Green, et al.,Criminal No. 02-10301-NG (D.Mass, Nov. 3, 2004) -a capital case- whereby there will be two juries, one non-death qualified to decide guilt or innocence, and a second death-qualified jury to, if necessary, decide on punishment.
Is Pedro Martinez pitching at the First Circuit?
Posted on November 04, 2004The First Circuit is throwing out left and right all Blakely claims raised for the first time on appeal by applying plain error and even discussing whether the claims have been waived rather than forfeited by not having been raised earlier. Feels as if Pedro Martinez were pitching for the First Circuit...
New White Collar Crime Blog
Posted on November 01, 2004We welcome the new White Collar Crime Prof Blog, at which -starting today- distinguished law Professors Ellen Podgor and Peter Henning "will make daily postings on issues related to White Collar Crime. The Blog will discuss current investigations and indictments, criminal and civil enforcement cases, and issues related to the scope of the criminal law...
BOP's Residential Drug Abuse Treatment Program (RDAP)
Posted on October 25, 2004With many thanks to Howard O. Kieffer of BOPWatch, we refer counsel to a list of the BOP's facilities offering Residential Drug Abuse Treatment Program (RDAP), with the caveat that the list is not up to date, as the Allenwood and Devens facilities no longer have the program...
Acquittal by judge draws criticism
Posted on October 19, 2004U.S. District Judge Joseph Tauro (D.Mass.) is being attacked for granting a defense motion pursuant to Fed.R.Crim.P. 29 at the close of the government's case in chief in a money laundering case against a lawyer. The Boston Globe article cites prosecutors' and former prosecutors' complaints about D...
Elwood v. Jeter, No. 04-2253 (8th Cir. October 18, 2004)
Posted on October 18, 2004In Elwood v. Jeter,No. 04-2253 (8th Cir. Oct. 18, 2004) (Bureau of Prison's policy of limiting prisoner placement in Community Corrections Centers to the lesser of six months or ten percent of the prisoner's sentence is based on an erroneous interpretation of 18 U...
PRACDL Upcoming Assembly
Posted on October 17, 2004To all criminal defense practitioners before the U. S. District Courts for the Districts of Puerto Rico and the USVI, be on the lookout for announcements on the next PRACDL General Assembly at which the new Board of Directors will be elected. If you are already a member, you will receive notice shortly of new membership benefits which we can assure you will seem extremely attractive...
Booker & Fanfan Oral Argument Transcript
Posted on October 15, 2004You may now access the Booker & Fanfan oral argument transcript before the supreme Court.
Keeping the lid on Pandora's Jar - by the Bard of the Short Circuit
Posted on October 12, 2004Circuit Judge Selya's opinion for the First Circuit panel in United States v. Watson and O'Hearn, No. 04-1913 (1st Cir. October 12, 2004) turns down -rightfully so- a Government interlocutory appeal from a district court's order refusing to grant the Government a trial continuance in a three year old case...
7th Circuit is Afraid of the Briar Patch?
Posted on October 10, 2004In United States v. LaGiglio, No. 04-2934 (7th Cir. Oct. 8, 2004), an appeal by the government, and an opinion by Judge Posner (who wrote the Booker majority opinion), [a] jury convicted Bonnie LaGiglio of conspiracy to impede collection of taxes by the Internal Revenue Service, 18 U...
U.S. v. Perez, Crim. No. 04-86-P-H (D.Me. October 5, 2004) - Judge D. Brock Hornby
Posted on October 09, 2004In a recently issued Procedural Order in U.S. v. Ramon Perez, Crim. No. 04-86-P-H,(D.Me. October 5, 2004), U.S. District Judge D. Brock Hornby, refused to accept a defendant's guilty plea when defendant, through counsel, informed that he wanted to plead guilty to the conspiracy charge, "but wanted a jury trial as to the drug quantities and on the scope of the conspiracy...
Must Read for the Judiciary
Posted on October 08, 2004There's a natural inclination on the part of the Judiciay -I suppose- to view things in a light that is favorable to the prosecution. Ken Lammers has this post at CrimLaw about a 4th Circuit district Judge's ruling on a suppression of evidence. Would that all of our Judges thought of imitating this judge's example a bit more often...
Goldings v. Winn Update from Peter Goldberger via BOP Watch
Posted on October 06, 2004Peter Goldberger, has updated information on Goldings v. Winn, as reflected from this post at BOPWatch: On 9/9/04 the First Circuit released its lengthy opinion in Goldings v. Winn, totally invalidating the BoP's policy limiting designation of CCCs for service of sentences of imprisonment, as well as its practice of limiting CCC utilization at the end of sentences to no more than 10% of the time to be served (not to exceed 6 mos...
More Blakely Plain Error Analysis by 1st Cir. in U.S. v. Cordoza-Estrada, No. 03-2666 (1st Cir. Sept. 29, 2004)
Posted on September 29, 2004The First Circuit keeps fidgeting with Almendarez-Torres. In United States v. Cordoza-Estrada, No. 03-2666 (1st Cir. Sept. 29, 2004) the First Circuit also handled a Blakely claim which involved the continuing vitality of Almendarez-Torres. Having plead guilty to a one count information, Cordoza-Estrada was convicted of re-entering the United States after being deported, in violation of 8 U...
U.S. v. Savarese - First Circuit Applies Plain Error to Blakely Claim
Posted on September 29, 2004In U.S. v. Savarese, No. 04-1099, 2004 U.S. App. LEXIS 19824 (1st Cir. September 22, 2004), a case involving the interpretation of section 2B3.1 of the U.S. Sentencing Guidelines, which provides for a two-level enhancement of a defendant's offense level if the defendant engaged in carjacking...
Sending you all to Macondo Law to "A bit on Booker & Fanfan, and looking back at Mistretta and Apprendi"
Posted on September 28, 2004I invite you to visit Macondo Law and check out the following post Revised - A bit on Booker & Fanfan, and looking back at Mistretta and Apprendi which I think you will find interesting. I would also urge you to post your comments there which may help grasping which way the Court will go on the two issues now facing it in Booker and Fanfan: Blakely's application to the federal guidelines; and Severability of the Guidelines and/or the Sentencing Reform Act...
Solicitor General submitted the United States' Reply Brief in Booker & Fanfan
Posted on September 27, 2004Today the Solicitor General submitted the United States' reply brief in Booker & Fanfan. One of the questions that has been looming is whether the Solicitor General will reply merely to the arguments raised in the respondents' briefs or whether it will address the arguments in the briefs submitted in support of respondents by amici...
PACER Fee Increase
Posted on September 26, 2004PACER has announced here that A fee increase from 7 cents per page to 8 cents per page for public access to court electronic records (PACER) was approved by the Judicial Conference of the United States at its September 2004 session. The fee increase applies to all systems (CM/ECF, PACER, RACER, etc...
Reminder: Roundtable Discussion - Friday, Sept. 24th at 3:30 p.m. @ Federal Public Defender's
Posted on September 23, 2004Please remember that the roundtable discussion with the our distinguished U.S. Magistrate Judges is scheduled for Friday, September 24, 2004, at 3:30 p.m. at the Federal Public Defender's office. We have now been given a topic - "The Practice of Law in Our District" - which I assume means that practice here is somewhat sui generis.
Civil Forfeiture & Appointment of Counsel under CAFRA
Posted on September 22, 2004I know many of you are well versed in matters of civil forfeiture. However, for those that are not, and wish an easy reading recent case from the First Circuit that will give you some idea of how it operates post-CAFRA (Civil Asset Forfeiture Reform Act of 2000), I refer you to today's opinion in United States v...
A Healthy Exchange on Goldings v. Winn
Posted on September 22, 2004I am posting an exchange from the BOPWatch listserve, which directly pertains to the Goldings v. Winn, No. 03-2633 (1st Cir. September 9, 2004) we covered in an earlier post here, and which I believe may be of assistance to all of us. The question raised by one of the listserve members was as follows: Once a person is in BOP custody, can an attorney help them get transferred from a camp to 1/2 house or home detention? One client is young man with fraud conviction & no priors who didn't make it at boot camp (not sure why he...
Briefs filed Today by Respondents Booker, Fanfan and their Amici
Posted on September 21, 2004Here are the links to the merits briefs filed today by respondents Booker and Fanfan and their amici. The links to the petitioner's (United States) and amici's (US Sentencing Commission, and Senators Hatch, Kennedy & Feinstein) briefs can be found in this post...
Must Read: Goldings v. Winn, No. 03-2633 (1st Cir. September 9, 2004)
Posted on September 18, 2004. . . In other words, a "place of imprisonment" is a penal or correctional facility that is a place of imprisonment. That is the government's circular definition pressed upon the First Circuit in Goldings v. Winn, No. 03-2633 (1st Cir. September 9, 2004), in a faulty attempt to exclude community correction centers (CCCs) from the meaning of place of imprisonment and, thus, from 18 U...
Mystery Mini-Seminar and Roundtable Discussion
Posted on September 14, 2004A mystery mini-seminar roundtable discussion will be held on September 24th at 3:30 p.m. at the Federal Public Defender's Office. The speakers will be all 4 of our U.S. Magistrate Judges. If you plan to attend, you should contact Ms. Mildred Ward by e-mail or telephone or fax as soon as possible...
"It all depends on what the meaning of statutory is"
Posted on September 08, 2004I never thought that there would come a time when I would be awaiting for the Supreme Court to let me know about the meaning of ?statutory.? Welcome to Apprendictionary-land.
More from the First Circuit on Blakely - and it's not good
Posted on September 03, 2004In United States v. Morgan, No. 03-1768 (1st Cir. September 2, 2004) (not for publication), the First Circuit addresses issues of "waiver" and "forfeiture" of claims (in this case a Blakely claim). Morgan was sentenced before Blakely was decided, and he contested the drug quantity at sentencing...
Booker/Fanfan Briefs Filed Today by Petitioner United States, by amici USSC and Senators Hatch, Kennedy and Feinstein
Posted on September 01, 2004Briefs filed today in Booker and Fanfan: United States' brief in Booker and Fanfan, (via Sentencing Law and Policy); U.S. Sentencing Commission's amicus brief in Booker and Fanfan; and amicus brief by Senators Hatch, Kennedy and Feinstein which Professor Berman has posted at Sentencing Law and Policy...
PRACDL Board Meeting
Posted on September 01, 2004The next PRACDL Board Meeting will be held on September 9, 2004 at 6:00 p.m. at Lydia Lizarribar's office. All Board members are urged to attend since we will be need to finalize all details of the upcoming assembly and elections.
U.S. v. Messino, No. 02-1411 (7th Cir. August 31, 2004)
Posted on August 31, 2004In a follow-up to Booker, the 7th Circuit issued today its opinion in U.S. v. Messino, No. 02-1411 (7th Cir. August 31, 2004). The Court's opinion is written by Judge Bauer, and there is an opinion by Judge Easterbrook, concurring in part and dissenting in part, who also dissented in Booker...
Memorandum Highlights Need for Defense Counsel to Continue Ascertaining PSR's Accuracy - even when it does not impact sentence
Posted on August 29, 2004Professor Berman has posted at Sentencing Law and Policy here an August 27th Memorandum from Honorable Sim Lake, Chair of the Committee on Criminal Law of the Judicial Conference of the United States to all federal judges wherein it is requested that in all cases they complete a supplemental statement of reasons form dealing with how the Court applied Blakely -if at all- to the case...
Campbell v. U.S., No. 02-2387 (1st Cir. August, 25, 2004)
Posted on August 26, 2004In Campbell v. United States, slip op. No. 02-2387 (1st Cir. August 25, 2004) (not for publication), the Court, in denying a Certificate of Appealability to one who had his 2255 motion denied, stated, in part, as follows: Finally, Campbell is not entitled to a COA to pursue the claim that counsel was ineffective for failing to anticipate the Court's decision in Blakely v...
Important Request from NACDL
Posted on August 24, 2004I'm including here a request from Barry Scheck, on behalf of NACDL: If and when the Supreme Court holds that Blakely v. Washington applies to the Federal Sentencing Guidelines (and maybe sooner), Congress may act quickly to pass "corrective" legislation...
Judge Posner guest-blogging this week at Lessig Blog
Posted on August 23, 2004Seventh Circuit Judge Richard A. Posner is guest-blogging this week over at Lessig Blog. Should be interesting. Are any of the First Circuit Judges bloggers?
Wrong severability analysis, again --and-- why would you use an unconstitutional guideline as advisory?
Posted on August 22, 2004I have been informed that Judge García-Gregory has held that Blakely applies to the sentencing guidelines and has held them unconstitutional in their entirety, but will use them as, well, "advisory." This is all hearsay information, but Rachel promised a real run-down on each Judge's stance and I'm still waiting for her report to be posted...
Cell phones at the US District Court
Posted on August 20, 2004PRACDL is in the process of requesting approval of the use of cell phones by counsel in the courthouse lobby for emergencies and to simply contact one's office an take care of other client-attorney matters. We strongly feel that if prosecutors and federal public defenders can have such privilege, panel and non-panel defense counsel should be entitled to equal treatment...
First Circuit Watch: Court finds Blakely argument inapplicable, waived, and forfeited
Posted on August 19, 2004In United States v. Carlos Lopez, No. 03-1767 (1st Cir. August 19, 2004), the Court stated at n. 1: Counsel for appellant submitted two letters pursuant to Fed. R. App. P. 28(j) in which he asserted that, under Blakely v. Washington, 124 S.Ct. 2531 (2004), this court should strike down the federal sentencing guidelines and remand this case...
USSC Staff Members Think Court Will Uphold Guidelines ... (and they're pooling their money to buy the Brooklyn Bridge)
Posted on August 19, 2004Oops! Apparently I don't know what I'm talking about when I say I cannot imagine the Supreme Court not applying Blakely to the federal sentencing guidelines. Check out this post at Sentencing Law and Policy, where it is reported that Various staff members of the U...
US v. Kincade (9th Cir. August 18, 2004) - mandatory DNA profiling and the 4th Amendment
Posted on August 19, 2004Recommended reading: U.S. v. Kincade, No. 02-50380 (9th Cir. August 18, 2004). Topic: whether the Fourth Amendment permits compulsory DNA profiling of certain conditionally-released federal offenders in the absence of individualized suspicion that they have committed additional crimes...
Blakely and the Loss of Intellectual Honesty in Some Circuits
Posted on August 18, 2004For all my differences with many of the views of Justice Scalia, in Blakely he took the bull by the horns and decided according to law, instead of figuring political or practical consequences. After all, the dissent by Justice O'Connor is really a pathetic cry for not rocking the boat, rather than a reasoned legal argument...
Today's Read: "To Sever or Not To Sever? Why Blakely Requires Action by Congress"
Posted on August 17, 2004At Sentencing Law and Policy Professor Berman has posted a link here to an article by University of Chicago Professor Albert W. Alschuler entitled "To Sever or Not To Sever? Why Blakely Requires Action by Congress." It is interesting reading, and it proposes Congressional action on the guidelines to accomodate Blakely...
Comments on US v. Leach, No. 03-CR-114-H (N.D. Ok. Aug. 13, 2004)
Posted on August 17, 2004In U.S. V. Leach, No. 03-CR-114-H (N.D. Ok. August 13, 2004)Chief Judge Holmes follows the same approach he followed in U.S. v. O'Daniel which we commented upon here, inasmuch as he granted defendant the opportunity to withdraw the pre-Blakely plea and, when defendant did not, took this to mean that it was a voluntary and intelligent plea, as well as a waiver of a jury as fact-finder, and then proceeded to sentence her using the guidelines - to some extent - but not in full, as he did used the beyond a reasonable doubt standard rather than the preponderance of...
PRACDL Board Meeting
Posted on August 15, 2004The next PRACDL Board Meeting will be held on Thursday, August 26, 2004 at Frank Inserni's office.
Blakely?s Wake: Should the Federal Sentencing Guidelines Be Saved or Scrapped?
Posted on August 13, 2004The Cato Institute and the Federalist Society will hold a policy forum on August 26, 2004, at noon EDT (DC) on: Blakely?s Wake: Should the Federal Sentencing Guidelines Be Saved or Scrapped? The featured speakers are Honorable William Young, Chief Judge, U...
Today's Reads (the day is still young)
Posted on August 12, 2004Check out DOJ Orchestrated Media Campaign? You really think John Ashcroft would do something like that? over at Macondo Law. Also a good read is Blakely v. Washington- Spending the Summer in a Tsunami by Jeffrey Jamison, Blog Editor at what is turning out to be a superb ACS Blog.
Order for rehearing en banc in U.S. v. Mooney
Posted on August 09, 2004Order of August 6, 2004 in U.S. v. Michael Alan Mooney, No. 02-3388 (8th Cir. July 27, 2004) stating: On the court?s own motion, rehearing en banc is granted in this case. The opinion and judgment of this court filed July 23, 2004, are vacated. The en banc argument will be held at a time and place to be announced...
Comments on US v. O'Daniel, No. 02-CR-159-H (N.D. Okl., August 6, 2004)
Posted on August 08, 2004In United States v. Danny Eugene O?Daniel, No. 02-CR-159-H (N.D. Oklahoma, August 6, 2004),(link below) a case involving a pre-Blakely guilty plea with a rather detailed plea agreement, the district held: Blakely applicable to the federal sentencing guidelines; that defendant had waived his right to jury fact-finding (the Court had earlier indicated intent to vacate guilty plea post-Blakely, the Government and defendant objected, with defendant insisting his plea was a voluntary and knowing one, so the court said it would then proceed to sentencing with judicial fact-finding); that the Rules of Evidence would apply at sentencing as to any sentencing...
Second Circuit Issues Administrative and Procedural Measures for Dealing with Blakely Pending Decison in Booker/Fanfan
Posted on August 06, 2004The U.S. Court of Appeals for the Second Circuit announced today a set of procedural and administrative measures that the court is adopting pending the Supreme Court?s decision in United States v. Booker, No. 04-104, and United States v. Fanfan, No. 04-105 (to be argued October 4, 2004)...
Steps for Release Pending Appeal
Posted on August 05, 2004To assist those who may have clients with cases on appeal presenting Blakely issues, and whose sentences may already be served if Blakely violations happened and had to be resentenced without any enhancements, I am reproducing -without identifying data- an exchange from a First Circuit CJA Group listserv: Appellant is currently incarcerated for 15 months and has filed a Blakely Brief...
First Circuit Hears Appeals with Blakely Claims
Posted on August 02, 2004This post appeared here today at Blakely Blog: First Circuit Hears Blakely Arguments A reader wrote in to say: The first circuit heard arguments today in two cases with Blakely implications. Spectators got the feeling that the panel was not too interested...
S.Ct. grants cert. in Booker and Fanfan
Posted on August 02, 2004The Court has granted the two petitions filed by the Acting Solicitor General in Booker and Fanfan, as well as an expedited briefing schedule, with consolidated Oral Argument set for October 4th. See today's Order List here. The questions presented for review were not reformulated, as respondents and amici NACDL/NAFD had suggested...
Little Blakely News Today
Posted on July 30, 2004It appears to be a quiet day - Blakely-wise - and all eyes are focused on what the Supreme Court will do (hopefully next Monday). The Court now has before it at least 4 cases from which to select (Booker, Fanfan, Pineiro, and Bijou), not to mention the certification from the 2d Circuit in Penaranda...
Blakely and Criminal History points
Posted on July 29, 2004We have learned that at a sentencing today Judge Singal (D.Me.) granted a defendant's motion -on Blakely grounds- objecting to increases in the Criminal History Category based on §4A1.1(d) (2 points added to criminal history computation because instant offense committed while on supervised release) and §4A1...
Government Reply Briefs filed in Booker and Fanfan
Posted on July 29, 2004In a speedy Reply to the briefs filed by defendants in Booker and Fanfan, as well as by amici NACDL/NAFD, Acting Solicitor General Paul D. Clement rejected the contention that these were not proper vehicles to address the questions presented in the government's cert...
A New Layer of Complexity added to post-Blakely before the Supreme Court
Posted on July 29, 2004Over at SCOTUSBlog, Lyle Dennison explains here how the defense and amici filings in Booker, Fanfan, et al. have added a new layer of complexity to the Court's dealing with the Blakely issue as regards the federal sentencing guidelines. This is a very good read and I will not try to repeat it here.
Respondents and Amici File Before the Supreme Court in Booker, Fanfan, etc.
Posted on July 28, 2004Today we had a number of filings by respondents regarding the Government's petition for writ of certiorari to the Seventh Circuit in Booker, and the petition for certiorari before judgment to the First Circuit in Fanfan, and their respective positions as to the Government's motion for expedited briefing and argument...
Blakely Applies to USSG and they are Severable - Judge Singal (D.Me.)
Posted on July 27, 2004As we patiently await for the Supremes, the issue of whether the federal sentencing guidelines are severable continues to wreak havoc in the lower courts with judges heading in different directions. Judge George Z. Singal (D.Me.) just joined Judge Hornby's Fanfan reasoning holding the guidelines severable, as Judge Gertner (D...
Guidelines Unconstitutional and Not Severable - Judge Nancy Gertner
Posted on July 26, 2004In a well reasoned opinion in U.S. v. Mueffleman, et al. (D.Mass., July 26, 2004), Judge Gertner has held "that Blakely unquestionably applies to the Federal Sentencing Guidelines; and that the Guidelines are rendered unconstitutional in their entirety by that application...
Administrative Office of the U.S. Courts and Direct Deposit of CJA Payments
Posted on July 25, 2004It is my understanding that the CJA Payment system at the Administrative Office of the United States Courts has built-in capability for payments via direct deposit to CJA panel attorneys. This would matter little if it were not for the fact that for over two years now it has taken each and every check made out to me at least 10 days (from the date on the postmark) to reach me at the General U...
Welcome!
Posted on July 24, 2004To all PRACDL members and all who are interested in the criminal law, we hope you visit often for good insights from a group of criminal defense lawyers here in San Juan, Puerto Rico. There will be a number of PRACDL members who have been invited to post their views, questions, and anything they feel may be of interest to us all...
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Will my Criminal Record prevent me from naturalizing or getting a Green Card?
A Lawful Permanent Resident can apply for United States citizenship after 5 year...
My fiance's check is DD into a local credit union. Bank seems to have a pattern of "invisibly holding" charges from the debit card until just HOURS before his DD is processed (and this is after hours, of course). Over th
Have your fiance take the information you've collected and go into the bank...
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I like Special Victims Unit and Criminal Intent because they focus more on the p...
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