Author Archive | Peggy Cross-Goldenberg

Friday, June 22nd, 2018

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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Monday, July 24th, 2017

Circuit Upholds Conviction Where Defendant “Never Submitted to Police Authority”

The Circuit affirmed the denial of a suppression motion today in United States v. Huertas.  You can access the opinion here.

A woman drove up to a patrol car and told the officer that “a man named Branden was nearby with a gun.”  The officer drove in the direction the woman pointed and saw Huertas, who was standing on a street corner holding a black bag.  The officer asked Huertas questions through his car window.  The questioning lasted about thirty-sixty seconds.  Huertas “stayed in a fixed position” and “answer[ed] the questions.”  When the officer got out of his car, Huertas ran away.  He was later found and arrested by other officers.

Relying on United States v. Baldwin, 496 F.3d 215, 219 (2d Cir 2007), the Circuit held that Huertas did not actually submit to police authority when he answered the officer’s questions because his actions were “evasive, …

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Categories: Fourth Amendment

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Friday, July 21st, 2017

Second Circuit Tosses Indictments Following Fifth Amendment Violation, Denies Rehearing in Jenkins

Earlier this week, in United States v. Allen, the Second Circuit reversed the defendants’ convictions and dismissed the indictments against them.  You can access the Circuit’s 81-page opinion here.  The Circuit considered whether a witness’s involuntary testimony that was compelled by a foreign government can be used against in a U.S. prosecution.  In its introduction, the Circuit outlined its four-step conclusion:

First, the Fifth Amendment’s prohibition on the use of compelled testimony in American criminal proceedings applies even when a foreign sovereign has compelled the testimony.

Second, when the government makes use of a witness who had substantial exposure to a defendant’s compelled testimony, it is required under Kastigar v. United States, 406 U.S. 441 (1972), to prove, at a minimum, that the witness’s review of the compelled testimony did not shape, alter, or affect the evidence used by the government.

Third, a bare, generalized denial of …

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Categories: child pornography, Fifth Amendment

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Limitations on In-Court Identifications

This article by the Marshall Project looks at recent efforts to limit in-court identifications. Led by the work of the Innocence Project, efforts to reduce wrongful convictions caused by in-court identifications are making progress.  Connecticut, for example, has prohibited in-court identifications unless the witness knew the defendant prior to witnessing the events at issue or previously picked the defendant out of a photo array or lineup.  Massachusetts has similarly revised its procedures for allowing in-court identification.  If you have a case in which the government is seeking to offer a first-time, in-court identification, the litigation and decisions related to the changes in Massachusetts and Connecticut can guide your efforts to preclude or limit such testimony.


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Categories: identification procedures, Uncategorized

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Friday, July 14th, 2017

Second Circuit Vacates Silver Conviction, Denies Second or Successive Habeas Petition

The Second Circuit vacated former New York Speaker of the House Sheldon Silver’s convictions for honest services fraud, Hobbs Act extortion, and money laundering based on an erroneous jury instruction.  You can access the opinion here.  At trial, the District Court instructed the jury that an “official act” within the meaning of the charges was “any action taken or to be taken under color of official authority.”  After Silver’s conviction, the Supreme Court decided McDonnell v. United States, 136 S.Ct. 2355 (2016).  In McDonnell, the Supreme Court defined “official act” within the meaning of honest services fraud and extortion charges as “a decision or action on a ‘question, matter, cause, suit, proceeding or controversy” involving “a formal exercise of governmental power.”  In light of the McDonnell decision, the Second Circuit vacated Silver’s conviction, finding that the error in instructing the jury was not harmless, even though the …

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Categories: honest services fraud

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