Author Archive | Peggy Cross-Goldenberg

Monday, September 10th, 2018

Second Circuit decides Barrett

On the heels of its Pereira-Gomez decision on Friday, the Second Circuit issued a new opinion in United States v. Barrett, which is available here.

In Barrett, the Circuit held that 18 U.S.C. 924(c)(3)(B) is not unconstitutionally vague because “factfinding as to the violent nature of the predicate offense and the risk of physical force in its commission can be made by the trial jury in deciding the defendant’s guilt, thus avoiding both the Sixth Amendment and due process vagueness concerns at issue in Dimaya and Johnson.”  The Court held that the fact that Barrett’s jury did not make a finding regarding force was harmless error in light of the specific facts of his case.  The Circuit further held that a Hobbs Act Robbery conspiracy is a crime of violence because the object of the conspiracy, the Hobbs Act Robbery, is a crime of violence.  “[T]his …


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Categories: 924(c), conspiracy, crime of violence, Johnson

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Friday, August 17th, 2018

Judge Carter Issues Lengthy Opinion Justifying Bail Grant

If you’re looking for some inspiring beach reading this weekend, look no further than this opinion in United States v. Paulino. On appeal by the government, S.D.N.Y. Judge Andrew Carter upheld the Magistrate’s decision to set bail in Mr. Paulino’s case. The government appealed to the Second Circuit, which remanded with instructions for Judge Carter to elaborate his rationale for granting bail. Today, he issued this memorandum opinion discussing the history of bail in American courts; the presumptions, burdens and standards of proof that apply to bail decisions; and how imposing conditions of release can mitigate the risk of flight and danger to the community.

NB: The Federal Defenders represents Mr. Paulino.…


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Categories: bail, Uncategorized

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Friday, June 22nd, 2018

Circuit Upholds Warrantless Search of Car, Remands for Resentencings to Consider Downward Departures and Concurrent Sentences

In United States v. Jones, the Circuit affirmed the district court’s refusal to suppress evidence seized during a warrantless search of a car parked in the common parking lot of a multi-family building.  The Circuit held Jones had no legitimate expectation of privacy in his car because it was parked in a driveway shared by tenants of two multi-family homes, not within the curtilage of his private home, and he did not have exclusive control over the driveway.  Op. at 13-15.

In United States v. Sawyer, the Circuit remanded the case for the second time, this time for resentencing in front of a new district judge.  The Circuit previously had vacated as substantively unreasonable a 360-month sentence for the offenses of producing and receiving child pornography.  In that opinion, the Circuit held that the “30-year sentence would have been appropriate for ‘extreme and heinous criminal behavior’ and the …


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Categories: automobile exception, child pornography, concurrent, curtilage

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Supreme Court: Police Generally Need Warrant for Historical Cell-Site Information

In Carpenter v. United States, the Supreme Court today held that the government’s acquisition of historical cell-site location information constitutes a Fourth Amendment search and the government generally will be required to obtain a warrant to acquire that information.  The so-called third-party doctrine does not permit the government to obtain cell-site location information as “business records” because “[t]here is a world of difference between the limited types of personal information [permissibly obtained under the third-party doctrine] and the exhaustive chronicle of location information casually collected by wireless carriers.”

 

You can read SCOTUSblog’s analysis of the case here.

 …


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Categories: cell phone location information

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SDNY Judge Issues Guidelines Regarding Use of 302 Forms in Criminal Trials

An FYI for counsel who will be cross-examining witnesses in SDNY Judge Katherine B. Forrest’s Courtroom.  Judge Forrest has issued “Guidelines Regarding Appropriate Use of 302 Forms in Criminal Trials.”  You can read the Guidelines here and may need to plan ahead where you need to use a 302 to complete the impeachment of a witness.

In the eight-page document, the Court addresses what it sees as the “most common issues related to the proper use of 302s.”  After discussing how the Federal Rules of Evidence apply to the use of 302s, the Court concludes: “It is clear that statements included in 302s are therefore classic hearsay without — in and of themselves — requisite indicia of reliability.”  Because the Court views mention that the witness’s statements contained in the 302 were written down by an FBI agent as “giving [the statement] an indicia of reliability,” it will preclude counsel …


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Categories: 3500 Material, cross-examination, evidence, impeachment

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Friday, June 8th, 2018

Seventh Circuit Holds that Beckles Does Not Apply to Pre-Booker Sentences

More news out of the Midwest:  In United States v. Cross, the Seventh Circuit held that Beckles v. United States applies only to post-Booker cases in which the Sentencing Guidelines were advisory.  In pre-Booker cases in which the Guidelines were mandatory, the residual clause of the career-offender guideline is unconstitutionally vague under Johnson v. United States.…


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Categories: career offender, Johnson

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Refusal to Follow the Actual (and Ice) Methamphetamine Guideline Based on Policy Disagreement

Two judges in the Northern District of Iowa recently have announced that they disagree with on policy grounds, and no longer will follow, the marijuana equivalency called for in the Sentencing Guidelines when imposing sentences in cases involving actual methamphetamine and ice.

The Sentencing Guidelines distinguish between a methamphetamine mixture and actual/pure methamphetamine or ice, which it defines as methamphetamine that is at least 80% pure, treating actual/pure methamphetamine or ice ten times more harshly than a mixture of marijuana.  One gram of actual (pure) methamphetamine or ice has a marijuana equivalency of 20 kilograms whereas one gram of a methamphetamine mixture has an equivalency of 2 kilograms.  The ratio has its roots in 21 U.S.C. 841(b)(1).  Comment 27(c) to U.S.S.G. § 2D1.1 offers the only explanation of the Commission’s view on the relevance of purity to the appropriate sentence, asserting that purity “is probative of the defendant’s role or …


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Categories: drug purity, marijuana equivalency, Methamphetamine

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Wednesday, May 9th, 2018

Second Circuit Issues Amended Ruling in Hill

Today the Second Circuit issued an amended opinion in United States v. Hill, holding that Hobbs Act Robbery is a crime of violence under 18 U.S.C. 924(c)(3)(A) (924(c)’s so-called “force clause”).

The good news about the decision is that it omits the portion of the earlier-issued opinion that upheld against a vagueness challenge 18 U.S.C. 924(c)(3)(B) (924(c)’s so-called “residual clause” or “risk of force clause”).  This was a hoped-for development in light of the Supreme Court’s decision last month in Sessions v. Dimaya.

This means there is no longer any holding from the Second Circuit that 924(c)’s residual clause survived Johnson. This should mean district courts will see a green light to find that 924(c)’s residual clause, and the identical clause in the Bail Reform Act, are void.

The bad news is the portion of the original holding that remains intact, that Hobbs Act robbery is a …


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Categories: 924(c), Hobbs Act, Johnson

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Friday, April 27th, 2018

Circuit Remands for New Hearing on VOSR; Orders Case Reassigned to New District Judge

In United States v. Langston, the Second Circuit vacated and remanded a violation of supervised release.  The government conceded that the judgment should be vacated, because the District Court had held a hearing on the violation over the objection of Langston and his counsel, who was not prepared, but disagreed that the case needed to be reassigned to a new district judge.  The District Court had concluded that the defendant had deliberately attempted to perpetrate a fraud on the court by claiming to be too ill to attend court and had suggested that defense counsel had assisted in that fraud, and, as a result, denied counsel’s CJA fee application.  The Second Circuit felt that the “appearance of justice would be preserved by reassignment.”…


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Categories: Uncategorized

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Monday, April 16th, 2018

BuzzFeed News Releases Searchable Database of 1,800 NYPD Disciplinary Files

Today, BuzzFeed News made public a searchable database of the disciplinary records of 1,800 NYPD employees who faced departmental misconduct charges between 2011 and 2015.  BuzzFeed News says it has “determined that there is an overwhelming public interest in” the records, and has published them in searchable format.

You can find an article explaining the release, as well as a link to the database, here.

The database also is available here.

Earlier this year, BuzzFeed News published the results of its investigation, concluding that officers kept their jobs despite offenses like “lying to the grand jury” and “physically attacking innocent people.”  You can read BuzzFeed News’ report here.…


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Categories: Police Misconduct

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Monday, July 31st, 2017

Bail Reform Act Controls Whether Defendant Released Pretrial; ICE Cannot Detain A Defendant Held For Prosecution

In the first decision of its kind within the Second Circuit, Judge Caproni in the SDNY held that once a defendant has met the conditions of release imposed under the Bail Reform Act, ICE cannot detain that defendant unless it is actually taking steps to remove him.  You can read the opinion in United States v. Galitsa, 17 Cr. 324 (VEC), here.

Mr. Galitsa met the bail conditions set by Magistrate Judge Fox at presentment.  Because ICE had filed a detainer, he was transferred to ICE custody rather than released after meeting his bail conditions.  Six days later, the government had Mr. Galitsa transferred back to the MDC Brooklyn pursuant to a writ of habeas corpus ad prosequendum.  He moved to dismiss the indictment or, in the alternative, to compel his release from custody.  The government conceded that, since detaining Mr. Galitsa, ICE had taken no steps to …


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Categories: bail, ICE detention

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