Author Archive | Peggy Cross-Goldenberg

Tuesday, October 25th, 2016

SCOTUS sets argument in Beckles v. United States for November 28, 2016

The Supreme Court has scheduled the oral argument in Beckles v. United States for Monday, November 28.

The issues in Beckles are whether the Court’s decision in Johnson v. United States applies retroactively on collateral review to cases challenging sentences imposed under the Career Offender Guideline, USSG 4B1.2(a)(2), whether Johnson renders that section of the Guidelines void for vagueness, and whether possession of a sawed-off shotgun remains a “crime of violence” for purposes of the Career Offender Guideline following Johnson.

Earlier this month, as discussed here, the Second Circuit vacated its decision in Jones v. United pending the outcome of Beckles.  Many Johnson-based 2255 petitions have been stayed pending the outcome as well.…

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Categories: Johnson

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Categories: Johnson

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Friday, October 14th, 2016

Hearing Regarding Conditions at MDC Brooklyn Scheduled for 10/27

Eastern District Judge Cheryl Pollak has scheduled a hearing on the conditions of confinement, particularly for women, at the MDC.

For years, lawyers have raised issues about the conditions of confinement in general and the conditions of confinement for women in particular.  As reported in today’s New  York Daily News, the National Association of Women Judges has conducted official visits to the MDC and found “abysmal conditions faced by female prisoners, including a lack of fresh air and sunlight, no air conditioning during the heatwave, rotten food and insufficient medical care.”  You can read more about the case and Judge Pollak’s comments here.

Steve Zizzou and Sally Butler, counsel representing the defendant at the October 27th hearing, are looking for individuals who have information regarding the conditions at the MDC, particularly regarding the lack of medical care and serial sexual and other abuse.  Information can be given on a …

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Categories: BOP

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Tuesday, October 11th, 2016

The 5-level enhancement under U.S.S.G. 2G2.2(b)(3)(B) for distribution of child pornography “for the receipt, or expectation of receipt, of a thing of value,” requires “specific, individualized evidence” of the bargained-for exchange.

Last week, the Second Circuit vacated the sentence in United States v. Bennett, No. 15-0024 (“Opinion”). The Court held that, in order to justify the 5-level enhancement under U.S.S.G. 2G2.2(b)(3)(B) for distribution of child pornography “for the receipt, or expectation of receipt, of a thing of value,” “the Government must advance specific, individualized evidence that [a defendant] provided access to his collection of child pornography to another user with the expectation that that user would provide similar access to other child-pornography files.” Opinion at 15. In this case, the Court held the 5-level enhancement was justified because the defendant had engaged in the quid pro quo exchange of passwords protecting child pornography files with other users. Despite finding that the enhancement applied, the Circuit vacated the sentence and remanded for resentencing because the District Court (Sullivan, J.) failed properly to calculate the applicable guideline to reflect the fact that, because …


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Categories: child pornography, guideline

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Friday, September 30th, 2016

OIG Reports finds problems with DEA’s use of confidential sources

The Office of the Inspector General released an audit of the Drug Enforcement Administration’s management and oversight of its confidential source program.  The report contains a lot of useful information about the way the DEA confidential source program is supposed to work and provides counsel with potentially fruitful avenues of cross examination and specific Brady requests.  The report is critical, concluding that the DEA’s confidential source policies were not in full compliance with the Attorney General’s guidelines regarding the use of confidential informants and that the DEA’s management and oversight of its confidential source program “required significant improvement.”  Among other conclusions, the report notes:

  • the DEA actually directs the action of “limited use” sources who are supposed to be acting without direction;
  • the DEA continued to pay some sources who have been deactivated, including a source who was deactivated for making false statements to a prosecutor;
  • DEA agents fail to

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Categories: Confidential sources

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Monday, September 26th, 2016

Defense attorneys move to dismiss cases based on equal protection violations

Defense attorneys in Chicago have moved to dismiss cases on the basis that the Bureau of Alcohol, Tobacco, Firearms and Explosives (the ATF) violated the equal protection clause by targeting people of color for its fake stash house sting cases.  The Federal Defenders, CJA Panel attorneys, and the Federal Criminal Justice Clinic at the University of Chicago have moved to dismiss three cases and plan to move to dismiss seven more in the coming weeks.

The motions are supported by a study conducted by Columbia Law School Professor Jeffrey Fagan.  The study ruled out race-neutral reasons for the selection of individuals targeted for the stings.

You can read more about the challenges, and access Professor Fagan’s study, here.

 …


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Tuesday, September 20th, 2016

SDNY Update: Gun Suppressed; Anonymous Tip Did Not Justify Stop

Last week, SDNY Judge Naomi Reice Buchwald suppressed a gun that was obtained following a stop based on an anonymous tip.  You can read the decision in United States v. Oden here.

In suppressing the gun, the Court held that the information conveyed by an anonymous caller “neither explained how [the 911 Caller] knew about the gun nor supplied any basis for believing [she] had inside information about [Mr. Oden].”  The tip contained a specific description of “relatively distinctive apparel” (a bright orange sweatshirt and army shorts), but this “does not bolster the tip’s reliability ‘in its assertion of illegality.'”  Where all that the officers responding to the call corroborate relates to the subject’s description and whereabouts, as opposed to the alleged illegality, the tip lacks sufficient indicia of reliability.  Nothing in the record justified treating the 911 call as fitting into a narrow emergency-related exception.

Julia Gatto of …


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Categories: annoymous tips

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White House Report: “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature Comparison Methods.”

The President’s Council of Advisors on Science and Technology today released a report entitled “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature Comparison Methods.”  You can access the report here.  According to a White House press release, “the study aims to help close the gaps for a number of ‘feature-comparison’ methods — specifically, methods for comparing DNA samples, bitemarks, latent fingerprints, firearm marks, footwear, and hair.”  The report contains a number of recommendations directed at the FBI Laboratory, the Attorney General, and the judiciary as well as the National Institute of Standards and Technology (NIST) and the White House Office of Science and Technology Policy (OSTP).

In cases with feature comparison evidence that was not gathered and evaluated as recommended in the report, the report may support the exclusion of the evidence or provide a fruitful area of cross examination.  It should also help limit the opinions …


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Categories: DNA, expert witnesses, firearms

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Tuesday, September 13th, 2016

Third Circuit Upheld Two As-Applied Challenges to 18. U.S.C. 922(g)(1)

Last week, the Third Circuit, sitting en banc, upheld two as-applied challenges to 18 U.S.C. 922(g)(1), holding that it was unconstitutional as applied to individuals who have not previously been convicted of a felony involving violence.  You can read the decision in Binderup v. Attorney General, 14-4550, 14-4549, here.

The Court itself described the opinion as “fractured,” and helpfully included a Section IV with instructions for applying the case to future as-applied challenges to 922(g)(1).  The Court explained that the steps to an as-applied challenge are governed by the Third Circuit decision in United States v. Marzarella, 614 F.3d 85 (3d Cir. 2010).  A person challenging the constitutionality of 18 U.S.C. 922(g)(1) must first demonstrate that the law burdens conduct protected by the Second Amendment.  To do so, the challenger must prove that he was not previously convicted of a serious crime.  Evidence ofthe challenger’s rehabilitation or likelihood of …

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Wednesday, August 31st, 2016

Second Circuit Updates – August 31, 2016

In United States v. Cunningham, No. 14-4425, the Court reversed Judge Sullivan’s decision denying a suppression motion in a robbery case where a gun was recovered from defendant-appellant Damian Cunningham’s vehicle after a traffic stop. The Court found that the circumstances of the stop did not justify a full protective search, noting in part that gender and race may have played a part in the determination of immediate danger that led to the search and the denial of the suppression motion. Full discussion to follow.…

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Categories: traffic stop

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Monday, August 29th, 2016

Second Circuit Updates – August 29, 2016

The Second Circuit issued summary affirmances in two criminal cases today.

In United States v. Jasmin, No. 15-2546, the Court affirmed the conviction of the former mayor of Spring Valley, New York, on mail fraud and extortion charges.  The Court held that the government’s reliance at trial on a mailing not specified in the indictment was not a constructive amendment or variance of the indictment.  The government did rely on a mailing that was listed in the indictment, and Jasmin had notice of the additional mailing more than a year before trial.  The Court found there was sufficient evidence to support both convictions.  In terms of the mail fraud count, the use of the mail was foreseeable to Jasmin.

With respect to the Hobbs Act claim, the Court found the evidence sufficient to support the conviction.  Part of the proof on the interstate commerce element involved Jasmin’s travel to …


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Categories: extortion, Hobbs Act, illegal reentry

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Wednesday, August 10th, 2016

Second Circuit Updates – August 10, 2016

The Second Circuit didn’t decide any criminal cases today. But for your daily dose of criminal justice info, check out this new report about the views of crime victims on incarceration and punishment. A study by the Alliance for Safety and Justice found that the vast majority of crime victims would prefer that the criminal justice system focus more on rehabilitation than on punishment: about 60% of victims think that the criminal justice system should attempt to rehabilitate people convicted of crimes rather than giving them long prison sentences, and 70% support alternatives to incarceration. Could these statistics bolster your next sentencing argument? Download the full report here.…


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