Author Archive | Peggy Cross-Goldenberg

Tuesday, May 3rd, 2016

Second Circuit affirms above-guideline sentence; declines to consider one IAC claim on direct review, but rejects another where record below was sufficiently developed on the point

In United States v. Pendergrass, 15-1965, the Second Circuit affirmed the conviction of Terrence Pendergrass, a former captain at Rikers Island, on one count of willfully violating the constitutional rights of an inmate, who died following the ingestion of cleaning supplies, by refusing to get him medical attention and prohibiting other guards from getting him medical attention.  Pendergrass raised three issues:  that he received ineffective assistance of counsel at trial, that the District Court improperly instructed the jury regarding willfulness and conscious avoidance, and that his above-guideline sentence was unreasonable.

With respect to the ineffective assistance of counsel claims, the Court declined to consider Pendergrass’s first claim (that Pendergrass’s attorney was ineffective because he failed to call witnesses that would have been material to the defense) because the record with respect to the witnesses’ potential testimony was insufficiently developed to be considered on direct review.  The Court did reach …


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Categories: conscious avoidance, ineffective assistance of counsel, jury charge, substantive reasonableness, willful causation

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Wednesday, April 13th, 2016

New ICE Form I-247N Does Not Authorize Detention

Lawyers in both districts should be aware of a change in ICE detainer policy.  The old so-called “detainer” form (1-247) is being retired and replaced with three different forms.  The change in policy is summarized here on the ICE website.

One of the new forms, the I-247N, is a request for voluntary notification of the impending release of a “suspected priority alien”, but it does not request or authorize the continued detention of  individuals beyond the point they otherwise would be released.  The form says on its face that it does not request or authorize detention.  It also says on its face that it should not impact decisions about bail, release, or other matters.  Despite these changes, prosecutors and agents may refer to the I-247N as a “detainer” and may argue at a bail hearing that it authorizes your client’s detention.

In light of the change in ICE policy …


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Categories: Uncategorized

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EDNY Update: Judge Pohorelsky Finds Adam Walsh Act Mandatory Bail Provision Unconstitutional, Judge DeArcy Hall Reverses Bail Determination

On Friday, in the EDNY, Magistrate Judge Viktor V. Pohorelsky found that the Adam Walsh Amendments to the Bail Reform Act violate the Due Process Clause of the Fifth Amendment and the Excessive Bail Clause of the Eighth Amendment.  The case was United States v. Kim, 16-mj-280 (VVP), and the transcript is available here: Kim_16MJ280_Transcript 4.8.16.

For those charged with crimes involving a minor, Adam Walsh requires the nondiscretionary imposition of specific pretrial release conditions, including electronic monitoring and a curfew, depriving defendants of any opportunity to contest whether such conditions are necessary, and denying judges the ability to make individualized determinations as to the least restrictive bail conditions.  In this case, where the defendant is charged with receipt and possession of child pornography, the court found that electronic monitoring was not necessary to assure his appearance or the safety of the community.  Judge Pohorelsky ordered that the …


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Categories: bail, child pornography, due process

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No Reduction in Sentence Where Amendment 782 Does Not Reduce the Guidelines Range

The Second Circuit today issued a summary order affirming the denial of a reduction in sentence under 18 U.S.C. 3582(c)(2) and Amendment 782 to the Sentencing Guidelines.  In United States v. Johnson, 15-2051-cr, the Court held that because Mr. Johnson’s guideline range remained 360-life even after Amendment 782, the District Court correctly concluded he was ineligible for a Section 3582(c)(2) reduction.  Mr. Johnson’s other arguments related to possible procedural errors in the calculation of his base offense level at his original sentencing were not proper on a motion for a sentence reduction.…


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Categories: Uncategorized

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Thursday, March 31st, 2016

BOP Staffing Shortages Limit Inmate Access to Medical Care

The Office of the Inspector General released this review of BOP medical staffing challenges.  According to the March 2016 report, BOP staffing shortages limit inmate access to medical care and impact the safety and security of BOP facilities.  The report may be useful at sentencing to demonstrate that the BOP will not provide adequate care for a defendant’s medical condition.  Thanks to the folks at the National Sentencing Resource Counsel Project for forwarding the report.…


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Categories: Uncategorized

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Monday, March 28th, 2016

Summary Order Affirming Denial of Motion for New Trial

The Second Circuit today issued a summary order affirming the denial of a motion for a new trial.  Unites States v. Jiau, 15-366.  On a motion for a new trial based on newly discovered evidence, the defendant bears the burden of establishing “(1) the evidence is genuinely ‘new,’ i.e., it was discovered after trial; (2) the evidence could not, with the exercise of due diligence, have been discovered before or during trial; and (3) the evidence is ‘so material and noncumulative that its admission “would probably lead to an acquittal.”‘”  Jiau, at 2.  The Court affirmed Judge Rakoff’s denial of a motion for a new trial because the documents submitted in support of the motion were not “evidence” under Rule 33 and, in any case, were not “newly discovered.”  Id. at 3.

Law360.com has coverage of the case here.…


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Categories: newly discovered, Rule 33

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Thursday, March 24th, 2016

SDNY Update: Judge Kaplan Finds Career Offender Guideline Range Too High, Imposes Sentence Based on Offense-Specific Guideline

Yesterday in the SDNY, Judge Lewis A. Kaplan found that the career offender guidelines overstated the seriousness of the offense in a case involving a conviction under 21 U.S.C. 841(b)(1)(C), and that a sentence within the career offender guideline range of 151-188 months would have resulted in a sentence greater than necessary to achieve the statutory sentencing objectives. Instead, Judge Kaplan imposed a sentence within the 30-37 month guideline range that would have applied, under U.S.S.G. 2D1.1, absent the career offender guideline. The case was United States v. John Cole, 15 Cr. 197 (LAK).

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Categories: career offender, sentencing

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