Archive | due process

Friday, October 6th, 2017

Recent Cert. Grants

The Supreme Court granted certiorari on a number of criminal cases in orders from its September 25 conference. The details are below, courtesy of Sentencing Resource Counsel:

City of Hays, Kansas v. Vogt, No. 16-1495
Question Presented: Whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.

Cert papers and opinion below available here:

Collins v. Virginia, No. 16-1027
Question Presented: Whether the Fourth Amendment’s automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Cert papers and opinion below available here:

Byrd v. United States, No. 16-1371
Question Presented: Does a driver have a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is …

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Categories: certiorari, due process, Fifth Amendment, Fourth Amendment, plain error, probable cause

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Wednesday, April 13th, 2016

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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Sunday, October 14th, 2012

Bail Doubt

United States v. Briggs, No. 12-2988-cr (2d Cir. October 5, 2012) (Calabresi, Carney, CJJ)

Antonio Briggs, charged in a large, multi-defendant drug conspiracy, was ordered detained in September of 2010, and remains in jail today. In this appeal, he claimed that this lengthy pretrial detention deprived him of due process. 

The circuit, although clearly concerned with the length of the delay, held that there was as yet no due process violation. However, the court directed that the district court either commence his trial, or set reasonable bail for him, on or before February 1, 2013.

The circuit noted that the reasons cited by the district court for detaining Briggs in the first instance were sound: it was a presumption case, and both Briggs’ sentencing exposure and the strength of the government’s evidence supported the initial detention order. And here, much of the two-plus-year-delay, although not necessarily Briggs’ fault, resulted from “repeated motions,” …

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Categories: detention, due process, Uncategorized

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Wednesday, December 16th, 2009


United States v. Hester, No. 08-4665-cr (2d Cir. December 16, 2009) (Winter, Cabranes, Hall CJJ) (per curiam)

After pleading guilty to two sex offenses in New York State, Hester was required to register as a sex offender. He completed his initial registration – which included explicit instructions that Hester update if he moved or changed jobs – and four change of address forms. Then, in April of 2007, he disappeared. Three months later, Hester was arrested on unrelated charges in Florida. He had neither registered as a sex offender there nor updated his New York registration.

Hester pled guilty to violating the Sex Offender Registration Act, “SORNA,” 18 U.S.C. § 2250(a), and was sentenced to 37 months’ imprisonment. On appeal, he raised three unsuccessful challenges to the statute: a due process claim that he had unsuccessfully litigated below and Commerce Clause and vagueness challenges that he had not.

The due …

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Categories: appeal waiver, due process, Sex offender registration, Uncategorized

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Monday, August 31st, 2009

Delay Gratification

United States v. Ray, No. 08-2795-cr (2d Cir. August 27, 2009)(Leval, Cabranes, Livingstone, CJJ)

In this decision, the court holds that an unexplained and prejudicial fifteen-year delay in imposing sentence amounted to a Fifth-Amendment due process violation, but did not violate the Sixth Amendment right to a speedy trial.


In 1991, Ray pled guilty to her role in a $200,000 bank fraud. In 1992, the district court, unmoved by her family circumstances, sentenced her to twelve months’ imprisonment, the bottom of the then-mandatory range. Ray, who was free on bail, appealed. While her appeal was pending, the court of appeals decided a different case that eased somewhat the standard for family circumstances departures. As a result, with the government in agreement, Ray moved for a remand. The circuit granted the motion on January 21, 1993, but neither the district court nor the government took any further action on the …

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Categories: due process, speedy sentencing, speedy trial, Uncategorized

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Sunday, September 28th, 2008

Commitment Issues

United States v. Magassouba, No. 06-2628-cr (2d Cir. September 19, 2008) (Parker, Raggi, Wesley, CJJ)

Defendant Magassouba has been in custody since at least August of 2003, when he was ordered detained on heroin trafficking charge that carried a ten-year mandatory minimum sentence. Between approximately January of 2004 and May of 2005 he was subject to various competency evaluations, all of which concluded that he was not competent to stand trial, but that he could be restored to competency through appropriate medication. Since Magassouba refused to take any medication, his evaluators recommended that he be medicated involuntarily.

Although the competency evaluations themselves ended in May of 2005, the district court’s final order in the matter, and subject of this appeal, was not entered until May of 2006. In that order, the court directed that Magassouba be re-hospitalized for continued treatment, and that he be forcibly mediated.

Magassouba raised a host …

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Categories: comptency, due process, Uncategorized

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Wednesday, May 28th, 2008

Deficiency Expert

United States v. Ellett, No. 07-3682-cr (2d Cir. May 23, 2008) (per curiam)

James Ellett was a tax protester, who stopped paying his federal income tax after reading a book called “Vultures in Eagle’s Clothing,” which purported to describe a lawful way of avoiding taxes. He claimed to have read the book more than 100 times, and spent additional hours studying the subject in a law library. Between 2000 and 2004, Ellett failed to pay more than $64,000 in federal income tax based on his belief that, as a “citizen” of New York State who worked for a private employer, he was not subject to taxation.

At trial, his defense was a lack of willfulness, which the jury rejected. On appeal, he argued that due process required that he be given an opportunity to litigate his position within the tax system before being prosecuted for tax evasion. Under this theory, …

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Categories: due process, tax evasion, Uncategorized

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Monday, May 5th, 2008

Impact Victim

United States v. Eberhard, No. 05-3431-cr (2d Cir. May 5, 2008) (Jacobs, Calabresi, Sack, CJJ)

Todd Eberhard, a former stock broker, pled guilty to various fraud charges. Under his plea agreement, the stipulated guideline range was 97 to 121 months’ imprisonment. The presentence report added a 4-level aggravating role enhancement, but then recommended a below-guidelines 96-month sentence. Judge Sweet issued a pre-sentencing opinion indicating that he would impose a 151-month sentence. But, at sentencing, after hearing from victims, who asserted their right to address the court under 18 U.S.C. § 3771(a) (2004), which was enacted after Eberhard pled guilty, the judge imposed a 160-month sentence.

The circuit affirmed the sentence. First, it rejected an ex post facto challenge to the application of § 3771(a). District courts have always had the discretion to consider victim statements, and there is nothing about the new legislation – which requires district courts to hear …

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Categories: due process, ex post facto, Uncategorized, victim impact

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