Author Archive | Peggy Cross-Goldenberg

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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