Federal Defenders of New York Second Circuit Blog


Thursday, February 24th, 2005

The Attorney Client Privilege Extends to Communications Between Government Officials and Their Government Lawyers

In re Grand Jury Investigation (United States v. John Doe), Dkt. No. 04-2287-cv (2d Cir. February 22, 2005)

Creating a circuit split, but in a case that may not be reviewable in the Supreme Court, the Circuit holds that the attorney-client privilege operates with respect to government officials and their government lawyers to the same extent that it applies in the private sphere. The opinion, written by Chief Judge Walker, and joined by Judges Leval and Jacobs, is a resounding reaffirmation of the “public interest” served by the privilege.

In the investigation of former Governor John G. Rowland of Connecticut, the government had subpoened the former chief legal counel to the Office of the Governor to testify to communications concerning the receipt of gifts by officials and the “meaning of related state ethics laws.” The Office of the Governor (both before and after Governor Rowland’s resignation) asserted the privilege, but …

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Friday, February 18th, 2005

Circuit Finds Pre-Blakely Use of Mandatory Guidelines Harmeless Where Mandatory Minimum Exceeded Guidelines Range

United States v. Sharpley, No. 04-2934 (2d Cir. Feb. 16, 2005): In Sharpley, after quickly disposing of two merits-based challenges to the defendant’s convictions for sexually exploiting a child for production of visual material (18 U.S.C. section 2251) and for being a felon in possession of a firearm (18 U.S.C. section 922(g)(1)), the Court rejected an appeal of a 180-month sentence, where the length of the sentence was driven entirely by a statutorily-imposed mandatory minimum, rather than the Sentencing Guidelines. Mr. Sharpley’s applicable sentencing range would have been 108 to 135 months but for the 15-year mandatory minimum, which effectively turned the “range” into a “point”. The Court held that this “is the rare case where we can determine without remand that the district court’s use of the Guidelines as a mandatory regime was harmless error,” because Sharply could not obtain any improvement in his sentence in resentencing. Indeed, …

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Wednesday, February 16th, 2005

Get Yer Crosby Remands Here! Get Yer Crosby Remands Here … !

Readers should rest assured that we continue to monitor the Second Circuit each day for new criminal and habeas (and sometimes immigration) decisions. There have been no new posts on this Blog simply because the Court has not issued any published decisions in these areas in the last week and a half.

On the Booker / Crosby front, the only news to report is that the U.S. Attorney’s Offices for both the Southern and Eastern Districts of New York are complying with Crosby for cases pending on appeal and are consenting to motions for a remand, consistent with Crosby, in all cases on direct appeal in which the sole issue raised concerns Blakely / Booker. The only exception to this policy, apparently, are cases involving plea agreements with appellate waivers. The Government intends to argue that those waivers, even if entered into before Blakely, are enforceable against …

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Sunday, February 6th, 2005

Circuit Upholds Pre-Blakely Appeal Waiver in Unpublished Opinion

United States v. Fleischer, No. 04-3911 (2d Cir. Feb. 3, 2005) (UNPUBLISHED SUMMARY ORDER): In a little noticed unpublished summary order, a panel of the Circuit upheld an appeal waiver, contained in a plea agreement entered before the Supreme Court’s Blakely decision, and dismissed an appeal in which the defendant challenged his Guidelines-imposed sentence. In resolving this complicated question, the panel simply pointed to the Court’s earlier decision in United States v. Morgan, 386 F.3d 376 (2d Cir. 2004), as dispositive: Appellant’s argument that “the waiver provision in his plea agreement is inoperative because it was entered before the Supreme Court clarified the Sixth Amendment’s application” in Blakely and Booker “is clearly foreclosed by our recent decision in United States v. Morgan.” (Summary Order at 3).

Morgan, of course, says no such thing. Rather, Morgan involved an appeal raising a typical Apprendi challenge (to a sentence …

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Friday, February 4th, 2005

Second Circuit Issues Blanket Order Permitting Remand in All Cases in which the Mandate Was Withheld Pending Booker

Just moments ago, the Second Circuit issued a blanket order addressing all previously decided criminal cases in which the mandate had been withheld pending the Supreme Court’s decision in Booker, pursuant to Chief Judge Walker’s August 6, 2004, order. Please see the Circuit’s website for this blanket order (www.ca2.uscourts.gov).

As expected in light of Crosby (see below), the Court is permitting all appellants in those cases (listed in an Appendix attached to the court’s blanket order) to have their cases remanded back to the district court for a determination of whether a resentencing is warranted. Any appellant desiring such a remand must simply complete a very basic form, attached to the Court’s order, and return it to the Court (either by FAX or by mail). If an appellant does not wish to have his/her case remanded, s/he need do nothing.

No precise deadline is given for when …

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Appeal of a Magistrate Judge’s Detention Order Must Be Made to the District Court, Not to the Appellate Court

United States v. Harrison, Docket No. 04-4725 (2d Cir. Feb. 3, 2005) (per curiam). Not much more to add — the title to this post says it all. Quite a mystery as to why the defendant did not simply appeal the magistrate’s detention order to the district court, rather than directly to the Second Circuit, given that the law is (and has long been) so clear on this issue …

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The Little Case that Could — U.S. v. Fleming

Some additional comments regarding Fleming (No. 04-1817-cr) to supplement David’s excellent post below on the “Booker Trilogy” issued by the 2d Circuit on February 2nd.

Though Crosby is clearly the Big Daddy of the bunch, Fleming must not be overlooked because it answers two critical questions left somewhat unanswered in Crosby — (1) what does it mean that judges have to “consider” the Guidelines range in imposing sentence, post-Booker? and (2) what does “reasonableness” mean on appellate review? Fleming (also by Judge Newman, and argued two days after Booker was decided — the same day as Crosby) is, essentially, the first appeal of a postBooker sentencing. This is because it involved the appeal of a sentence imposed upon revocation of supervised release, and the sentencing phase of a revocation proceeding, even in the pre-Booker world, was basically the same as a sentencing phase …

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Thursday, February 3rd, 2005

A Booker Trilogy

United States v. Crosby, No. 03-1675 (February 2, 2005)

United States v. Fleming, No. 04-1817-cr (February 2, 2005)

United States v. Green, No. 04-6564-cr (February 2, 2005)

In one remarkable opinion in Crosby and its two sidekicks, Fleming and Green, the Circuit discusses, if not settles, many of the issues involved in carrying out the Booker remedy. Crosby in particular is a must-read, since no summary can do it justice. It makes a fine addition to Judge Newman’s long line of distinguished sentencing opinions. It considers the implications of Booker broadly, as well as with reference to the case at hand, and in doing so covers a broad swath of sentencing law.

In considering the application of Booker to future cases, one noteworthy theme of the Crosby opinion is that the Guidelines have not become merely “a body of casual advice.” A somewhat contrasting theme, however, is that to …

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Tuesday, February 1st, 2005

Second Circuit Interprets Hyde Amendment for First Time

United States v. Schneider, No. 03-1764 (January 14, 2005)

Background

Jeffrey Schneider was an accountant at a company that funded residential loans, and was implicated in a fraudulent scheme on the part of some of the company’s principals to skim funds from escrow accounts. There were several years of contententious pretrial proceedings, some of the highlights of which included: (1) a failed proffer session at which defense counsel balked at some of the terms of the agreement, which led the prosecutor to tell Schneider that his attorney was “making a very big mistake;” and, (2) a decision by different prosecutors more than a year later not to pursue criminal charges, even though an indictment had been filed.

Schneider went to trial and was acquitted. He then moved in the district court for attorney’s fees under the Hyde Amendment, which has been codified as a statutory note to 18 U.S.C. § …

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District Court Erred in Considering “Ex Post Data” in Collateral Challenge to Deportation

In United States v. Scott, No. 04-937-cr (January 11, 2005), the Court considered several important questions relating to collateral challenges to the deportation underlying an illegal reentry prosecution.

Background

Kevin Eric Scott had previously appealed the district court’s denial of his motion to dismiss the indictment, and the Court had remanded the case to the district court to consider the effect of United States v. Perez, 330 F.3d 97 (2d Cir. 2003), which was decided while Scott’s appeal was pending. On remand, the Scott again challenged his deportation, asserting that his immigration attorney’s failure to seek 212(c) relief amounted to a due process voilation. The district court rejected this argument, and again denied the motion to dismiss.

The Court’s Ruling

In this second appeal, the Court again held that, as in Perez, ineffective assistance of counsel at a deportation hearing could be the basis for a collateral …

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Court Reverses Habeas Denial Based Upon New Evidence that Gotti Threatened to Kill Co-Defendant’s Counsel If He Abandoned Joint Defense

Frank Locascio v. United States of America, Docket No. 03-2485 (2d Cir. Jan. 12, 2005) (Walker, Winter, and Jacobs) (Op. by Winter)

Facts: In October 2000, Frank Locacio filed a Section 2255 petition, alleging that he was not afforded the effective assistance of counsel at his 1992 trial with co-defendant John Gotti. The petition was based on counsel’s alleged failure to pursue certain lines of cross-examination in order to protect Gotti.

Two years later, while the petition was still pending, Locacio filed a motion to amend the petition based on new allegations contained in an affidavit from habeas counsel, who claimed that Locacio’s trial counsel, Anthony Carnivale, had revealed that Gotti had threatened to kill him if he “individualized the interest of Locacio at Gotti’s expense.” As a result of the threat, the affidavit alleged that Carnivale was, among other things, (1) prevented from (1) cross-examining the Government’s main …

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