Federal Defenders of New York Second Circuit Blog


Monday, September 12th, 2005

Circuit Continues Down the Wrong Road: New York YO Adjudication Qualifies as “Adult Conviction” under Career Offender Guideline

United States v. Brian Jones, Docket No. 04-2506-cr (2d Cir. July 19, 2005): This is a decision from July that we missed before taking our summer hiatus. Guest blogger Darrell Fields of the Appeals Unit of the Federal Defenders in NYC provides the following analysis of this important decision.

In United States v. Jones, 415 F.3d 256 (2d Cir July 19, 2005) , the Circuit held that a New York State youthful offender adjudication (“YO”) qualifies as an “adult conviction” under the Career Offender Guideline (U.S.S.G. § 4B1.1), even though (1) Guidelines commentary specifically provides that a conviction sustained before age 18 will be deemed an “adult conviction” only “if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted,” id. § 4B1.2, comment. (n.1), and (2) New York State clearly does not so classify a YO adjudication. The …

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Wednesday, September 7th, 2005

Drug Quantity Must Be Alleged in Indictment for Defendant to Be Sentenced to More than 20 Years, even if Defendant Allocutes to Specific Quantity

United States v. Cordoba-Murgas et al., Docket No. 04-3131-cr (L) (2d Cir. Sep. 7, 2005) (Op. by Cabranes): A great decision by the Circuit, and a hard-fought win by Ed Zas of this Office. In this opinion by Judge Cabranes, the Circuit rules that in light of drug quantity’s status as an element of the § 841(a) offense, a defendant cannot be sentenced to more than 20 years’ imprisonment when the indictment (charging an offense under 21 U.S.C. § 841 et seq.) does not allege a particular quantity, even where the defendant specifically allocuted to distributing a quantity of drugs sufficient to trigger one of the aggravated offenses under § 841(b). Although such an allocution effectively waives the 6th Amendment requirement of submitting the quantity decision to the jury, e.g., United States v. Yu, 285 F.3d 192, 198 (2d Cir. 2002), it does not waive the …

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Friday, September 2nd, 2005

Prison Disciplinary Proceeding, Following a Criminal Conviction for Same Misbehavior, Does Not Violate Double Jeopardy

Andre Porter v. Thomas A. Coughlin, III, et al., Docket No. 03-0273 (2d Cir. August 31, 2005) (Op. by Sotomayor): No new ground is broken in this opinion, which simply re-affirms the Second Circuit’s earlier decision in United States v. Hernandez-Fundora, 58 F.3d 802 (2d Cir. 1995), holding that a criminal prosecution and a prison disciplinary proceeding based on the same conduct do not implicate double jeopardy concerns. The prisoner here, Porter, argued that Hernandez-Fundora was no longer good law in light of the Supreme Court’s decision in Hudson v. United States, 522 U.S. 93 (1997), which adopted a somewhat different analysis for determining whether a subsequent sanction is to be deemed “criminal” or “civil” for purposes of the Double Jeopardy Clause. The Circuit rejected Porter’s argument, finding that even under the Hudson mode of analysis, the sanction imposed for his violation of prison disciplinary rules (3 …

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Friday, August 26th, 2005

Misinformation about Mandatory Nature of Guidelines Does Not Render Plea Unknowing

United States v. Jose Saldana et al., Docket No. 03-1452 (L) (2d Cir. August 26, 2005) (Straub, Wesley, and Sessions, D.J.) (Op. by Straub): This hard-to-read opinion holds — I think — that a defendant who pleaded guilty before Blakely and was misinformed by the court at his plea that sentence would be imposed pursuant to mandatory Guidelines cannot withdraw his guilty plea based on a claim that, due to this misinformation (in light of Booker), his plea was not knowing and intelligent. The qualification results from the opinion’s muddled discussion, and especially its collapsing of two distinct issues: Whether the plea itself was knowing and voluntary, and whether an appellate waiver provision contained in a plea agreement is enforceable.

These are distinct issues, yet the opinion treats them interchangeably. Here’s a typical passage:

“The issue presented to us here is whether a defendant who, prior to …

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Monday, August 22nd, 2005

Apprendi Applies to Mandatory Minimum Provisions of 21 U.S.C. § 841(b); Harris Distinguished

United States v. Manuel Gonzalez, Docket No. 03-1356 (2d Cir. August 22, 2005) (Sack, Sotomayor, Raggi) (Op. by Raggi): This is a significant opinion that is long overdue. The Court finally clarified that, in light of the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its own en banc decision in United States v. Thomas, 274 F.3d 655 (2d Cir. 2001), drug quantity is always an element of 21 U.S.C. § 841, regardless of whether the actual sentence imposed exceeds the 20-year maximum for offenses involving an unspecified quantity of drugs under § 841(b)(1)(C). This decision thus puts an end to the Government’s nonsensical, schizophrenic interpretation of § 841 — that quantity sometimes is, but sometimes is not, an element (depending post-hoc on whether the actual sentence imposed exceeds 20 years). The takeaway is that in order for a district judge to …

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Saturday, August 20th, 2005

Loansharking Conviction Upheld

United States v. Madori, Docket No. 03-1526 (2d Cir. August 19, 2005) (Op. by B.D. Parker): No new ground is broken in this fact-intensive opinion, which principally affirms a loan-sharking conviction against sufficiency and Brady/Giglio challenges. It is worth reading only for the richness of the background story: A Mob-connected lender; a loan made at 150% interest; meetings at the Diamond Club, a local strip joint; a co-defendant clandestinly cooperating with the FBI on an unrelated case (thus generating the Brady dispute); and threats involving the “twist[ing]” of the late-paying borrower’s “nuts”. Who needs “The Sopranos”! (But does anyone know when the new season starts?)…

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Friday, August 19th, 2005

A False Statement Made on One Document, even if Not Material to that Document, Can Be Material When Considered against the Overall Process

United States v. Shitian Wu, Docket No. 03-1503 (2d Cir. August 18, 2005) (McLaughlin, Pooler, Wesley) (Op. by Wesley): Because this case was litigated by attorneys from this Office, we will refrain from commentary and stick to description.

Essentially, the majority held, with a dissent from Judge Pooler, that a false statement made in one immigration document, though immaterial to the purposes of that particular document, is nonetheless material under 18 U.S.C. § 1546(a) — prohibiting the making of “any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder” — because that document “is part of a larger application process . . . and the statute is best understood as encompassing misrepresentations of material facts in that process no matter how many documents that may include.” Op. at 4. While Wu’s false statements were …

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Thursday, August 18th, 2005

Time for a Candyman en Banc?

United States v. Willie Coreas, Docket No. 03-1790-cr (2d Cir. August 18, 2005) (Jacobs, Calabresi & Rakoff, D.J.) (Op. by Rakoff): Our faith in the rule of law has been restored. In this opinion, Judge Rakoff of the SDNY, writing for Judges Jacobs & Calabresi as well (thus covering the political spectrum from the Federalist Society to the ACS), concluded that the now-infamous “Operation Candyman” affidavit, excised of the Government agent’s fabrications, was insufficient to support the issuance of numerous search warrants, including that leading to Coreas’s arrest and prosecution for possession of child pornography. Unfortunately, because a prior panel of the Circuit reached an opposite conclusion on the same issue two weeks earlier in Martin (click here for our less-than-subtle critique of Martin), the panel in Coreas nonetheless upheld the search warrant.

The opinion in Coreas is highly recommended. Some examples to entice the reader: A powerful …

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A Great Victory for the White Collar Bar

United States v. Kenneth Jaeggi, Docket No. 04-4543-cr (L) (2d Cir. August 17, 2005) (Op. by Winter): The private white collar bar owes an enormous debt of gratitude to Judge Winter, as well as to the fine folks at Sullivan & Cromwell (representing Jaeggi), for this astounding decision. Lawyers for well-to-do securities fraud defendants can now rest assured that they will be paid for their work from the defendant’s sizable assets, even if the Government is able to prove, after securing the defendant’s conviction, that those assets are the proceeds of the fraud in question. That’s because this decision holds that 28 U.S.C. § 2461(c), generally authorizing criminal forfeiture as a punishment for any act for which civil forfeiture is authorized, does not authorize pretrial restraint of assets. The result, therefore, is that the indicted fraud defendant will continue to be able to spend his hard-earned bucks however he …

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Wednesday, August 17th, 2005

A Grim Day for the Fourth Amendment: False “Candyman” Affidavit Nonetheless Sufficient to Support Search Warrant

United States v. Joseph Martin, Docket No. 04-1600-cr (L) (2d Cir. August 4, 2005) (Op. by Walker): Chills ran down this reader’s spine while reading the majority opinion. If the Government can ransack one’s house and papers based on such barebones evidence — essentially, joining a listserve / e-group discussing illegal activity — what will it not be allowed to do? Judge Pooler’s spirited and thorough rebuttal of the majority’s faulty analysis warms the heart somewhat; perhaps it will spur the rest of the Circuit to order en banc rehearing. Her claim that “today the majority announces a dangerous precedent” is right on the mark. At least for now, those on the NAMBLA or NORML listserve should make sure to cancel their membership a.s.a.p.!

This case arises from the infamous “Operation Candyman” investigation, in which a Government agent lied — OK, made a false statement that clearly appears to …

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Tuesday, August 16th, 2005

Counsel’s Failure to Recall Reason for Not Presenting Certain Evidence Not Ineffective When Reasons for Counsel’s Decision Are Clear from the Record

Greiner v. Wells, Docket No. 04-2809-pr (2d Cir. August 8, 2005) (Op. by Wesley): This opinion, reversing the lower court’s grant of habeas, contains a very thorough discussion of the relevant facts as well as the law governing ineffective assistance of counsel claims on habeas review. It breaks no new ground, however, in concluding that trial counsel’s decision not to introduce certain evidence at trial constituted objectively reasonable strategy, given the obvious downsides of introducing the evidence in question, despite the fact that trial counsel, seven years later, could not recall why he ultimately decided not to introduce this evidence.

Perhaps the only point worth noting is the Court’s decision to discuss counsel’s subjective reasons for not introducing the evidence, even after concluding that the record amply demonstrated an objectively reasonable basis for counsel’s decision. Thus, while Strickland‘s “performance” prong is indeed an objective one, a court evaluating …

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