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Author Archive | Peggy Cross-Goldenberg

Friday, May 27th, 2016

In En Banc Opinion, Second Circuit Upholds “Good Faith” Reliance on Search Warrant

Today the Second Circuit issued a 104-page en banc opinion in United States v. Ganias, 12-240-cr.

In Ganias, the Court affirmed the judgment of the district court, holding that the government had relied on a search warrant in good faith and declining to reach the Fourth Amendment question raised by the defendant.

The case involved the government’s retention of a mirrored hard drive containing data that went beyond the scope of a search warrant issued in 2003.  In 2006, the government searched this data pursuant to a search warrant obtained in 2006.  Mr. Ganias contended that the 2006 search would not have been possible if the government had not retained a copy of the data that was not responsive to the 2003 search warrant. The Court held that the government’s good faith reliance on the 2006 warrant was objectively reasonable, and so did not reach the question …

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Categories: good faith

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Wednesday, May 25th, 2016

Judge Block Issues Opinion Calling for Reconsideration of Collateral Consequences for Felony Convictions and Highlighting the Role Collateral Consequences Should Play in 3553(a) Analysis

Senior Eastern District Judge Frederic Block issued a 42-page opinion in United States v. Nesbeth, 15-CR-18(FB),  calling for a close reexamination of the collateral consequences that follow felony convictions, the ways these consequences hamper rehabilitation efforts, and their inclusion as a factor in determining the appropriate sentence under 18 U.S.C. 3553(a).  (N.B. Ms. Nesbeth was represented by Amanda David and the Eastern District Office of the Federal Defenders of New York.)

Following a jury trial in the case, Judge Block imposed a one-year probationary sentence in a case with a guidelines range of 33-41 months.  He then issued the lengthy opinion because “sufficient attention has not been paid at sentencing” to the many automatic collateral consequences that flow from a defendant’s felony conviction.  Many of these consequences, he wrote, “serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences” but their …

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Categories: collateral consequences, sentencing

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Categories: collateral consequences, sentencing

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Monday, May 23rd, 2016

Remand for resentencing to consider the difference between substantive conspiracy liability and the scope of relevant conduct for guidelines purposes; Remand for resentencing under § 3582(c)(2)

The Second Circuit issued four summary orders in criminal cases today.

United States v. Rigo, 15-1914, remanded the case for resentencing. The Second Circuit held that the district court committed plain error in calculating the loss amount for the purposes of determining the guideline range. The Circuit explained that “the scope of conduct for which a defendant can be held accountable under the sentencing guidelines is significantly narrower than the conduct embraced by the law of conspiracy.” Order at 2. The “emphasis in substantive conspiracy liability is the scope of the entire conspiracy” but the guidelines are concerned with “the scope of the individual defendant’s undertaking.” Id. (emphasis in original). In other words, even if the acts of co-conspirators were foreseeable to the defendant, they do not constitute relevant conduct for guidelines purposes if they were “not within the scope of the defendant’s agreement.” Id. at 3. …

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Categories: 3582(c)(2), conspiracy, relevant conduct, Rule 11, sentencing findings

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Categories: 3582(c)(2), conspiracy, relevant conduct, Rule 11, sentencing findings

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Monday, May 16th, 2016

Second Circuit Vacates Sentence Due to Inadequate Factual Determination Regarding Application of the “Otherwise Extensive” Nature of Conduct Enhancement under U.S.S.G. § 3B1.1(a); Affirms Three Convictions in Summary Orders

In United States v. Kent, 14-2082, the Second Circuit vacated a sentence and remanded for resentencing after concluding that the District Court’s application of a 4-level enhancement under U.S.S.G. § 3B1.1(a) was not supported by adequate factual findings.  The district court determined that Mr. Kent was a leader or organizer of criminal activity that was “otherwise extensive” within the meaning of U.S.S.G. § 3B1.1(a)  and applied the 4-level enhancement.  Many of the facts relied upon by the district court in making this determination – including the amount of money Mr. Kent made and the number of victims of the scheme – already were taken into account by enhancements under U.S.S.G. § 2B1.1(b)(1)(H) (the loss amount enhancement) and U.S.S.G. § 2B1.1(b)(2)(B) (the number of victims enhancement).  The Second Circuit explained that relying on loss amount and the number of victims to find that criminal activity was “otherwise extensive” for …

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Categories: conscious avoidance, double counting, sentencing findings

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District Court Updates: Driving While Impaired Violation Under NY VTL 1192.1 Does Not Count For Criminal History; Career Offender Guideline Too Harsh

In United States v. Paredes, 15-Cr-436, EDNY Judge Jack B. Weinstein held that a defendant’s conviction for violating New York Vehicle and Traffic Law Section 1192.1, a violation and not a crime, does not result in criminal history points, thereby allowing the defendant to qualify for safety valve relief from a mandatory minimum sentence.  Judge Weinstein concluded that the Sentencing Commission could not have intended to include VTL 1192.1 – New York’s Driving While Ability Impaired statute – because the statue “is a light, noncriminal offense with mens rea squeezed out of it.”  Opinion at 14.  You can read Judge Weinstein’s opinion here.  The New York Law Journal has coverage here.  Mr. Paredes was represented by Len Kamdang of the Federal Defenders of New York.

In United State v Henry, 15-Cr-179, SDNY Judge Paul A. Crotty imposed a sentence of 36 months in a case in …

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Categories: career offender, criminal history, safety valve, Uncategorized

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Categories: career offender, criminal history, safety valve, Uncategorized

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Thursday, May 12th, 2016

Advising Clients Regarding Sexual Polygraph Exams and the Fifth Amendment in Child Pornography Cases

Earlier this week, in United States v. Von Behren, the Tenth Circuit Court of Appeals held that requiring that a person on supervised release answer questions on a sexual history polygraph that are designed to elicit admissions of criminal conduct violates the Fifth Amendment’s privilege against self-incrimination.  You can read a copy of the opinion here.  Thank you to the folks at the Sentencing Resource Counsel for forwarding the opinion and congratulations to Assistant Federal Defender John T. Carlson who won the case before the Tenth Circuit.

This issue presents itself in many SDNY and EDNY cases, perhaps most frequently in possession of child pornography cases.  If your client is sentenced to a term of supervised release that contains a special condition regarding compliance with a sexual history polygraph, make sure you advise your client to assert his Fifth Amendment right, to do so in writing to his …

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Categories: child pornography, self-incrimination, sex offenses

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Categories: child pornography, self-incrimination, sex offenses

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Wednesday, May 11th, 2016

Two Interesting District Court Civil Cases Regarding Informants

For the third day in a row, there were no criminal decisions or summary orders from the Second Circuit.

We thought these two civil cases related to government informants were interesting.

Last week, in Barone v. United States, 12-cv-04103, SDNY Judge Lewis A. Kaplan allowed a Bivens claim brought by a former FBI informant to proceed on a “theory that the FBI defendants purposeful and punitively leaked [the informant’s] status, which, in turn, caused the general prison population to be unsafe,” and required BOP officials to confine the informant in the special housing unit.  You can read Judge Kaplan’s opinion here.  The New York Law Journal has coverage here.

Yesterday, in In re Motion for Civil Contempt by John Doe, 12-mc-0557, EDNY Judge Brian M. Cogan ordered the unsealing of many documents related to civil contempt proceedings brought by a former cooperating witness against attorneys who …

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Categories: Bivens

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Tuesday, May 10th, 2016

Judge Rakoff Rejects Proposed Handwriting Expert Testimony

In an opinion released May 6, in the case Almeciga v. Center for Investigative Reporting, 15-cv-4319, SDNY Judge Jed S. Rakoff granted a defense motion to exclude proposed expert handwriting analysis testimony, holding that “handwriting analysis in general is unlikely to meet the admissibility requirements of Federal Rules of Evidence 702.”  The opinion documents the development of handwriting analysis as a forensic field and its history in the courts before analyzing the Daubert and Kumho Tire factors.  See Opinion, 17-43.  The Court concludes that handwriting analysis “bears none of the indicia of science and suggests, at best, a form of subjective expertise,”  Opinion at 26.  “It remains the case,” the Court explains, “that the methodology has not been subject to adequate testing or peer review, that error rates for the task at hand are unacceptably high, and that the field sorely lacks internal controls and standards” and that “as …

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Wednesday, May 4th, 2016

Circuit affirms denial of 18 U.S.C. 3582 sentence reduction

In United States v. Jimenez, 15-1624, the Circuit affirmed the District Court’s denial of a reduction in sentence pursuant to 18 U.S.C. 3582.  The Circuit held that when the District Court stated that a lower sentence was “foreclose[d]” by the defendant’s participation in four murders, it meant that the original sentence was the minimum sentence necessary in light of Jimenez’s conduct and that the facts of the case did not provide a basis for granting a sentence reduction.…

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Categories: 3582(c)(2), Uncategorized

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No need to dismiss juror who learned the defendant had been shackled but did not see him shackled; Circuit declines to decide whether USSG 4B1.3 is susceptible to a vagueness challenge; affirms prosecutor’s comments on summation

In United States v. Nastri, 15-489, the Circuit held that the District Court did not err either by declining to dismiss a juror or by applying USSG 4B1.3’s criminal livelihood enhancement, and that the prosecutor’s remarks in summation were not improper.

The juror in question learned from a third party that another juror had been dismissed after seeing the defendant in shackles.  The District Court questioned the juror and the juror told the Court that the knowledge she obtained from the third person would not affect her ability to be impartial.  On these facts, absent a specific showing of harm, the defendant could not show that his right to a fair trial was prejudiced.

On summation, the prosecutor called certain defense arguments “red herrings” and “distractions.”  The defense did not object at the time, so the Circuit reviewed these comments for plain error and, after comparing the comments to …

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Categories: juror discharge, summation, vagueness

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