Federal Defenders of New York Second Circuit Blog


Saturday, June 25th, 2005

Panel Concludes That District Court Error In Determining Fraud Loss Amount Requires Remand for Resentencing

United States v. Canova, Docket Nos. 03-1291, 03-1300 (2d Cir. June 21, 2005) (Sack & Raggi) (Judge VanGraafeiland passed away after oral argument) (Op. by Raggi): In this lengthy opinion — issued 1 1/2 years after the case was argued — the Circuit remanded for resentencing, after the district court had imposed a one-year term of probation premised upon (1) a finding that no pecuniary loss resulted from the defendant’s involvement in a Medicare fraud, and (2) a downward departure grounded in the defendant’s extraordinary history of public service and good works. The Panel concluded that the district court had erred in calculating the relevant loss amount (by some $5 million) but rejected the Government’s challenge to the downward departure. The Court concluded that the error in calculating the loss amount was signficant enough to preclude a finding that the sentence was reasonable notwithstanding the error. But in the …

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No Double Jeopardy Violation to Impose Consecutive Sentences Based on Two Successive Shootings at Different Targets under New York’s CPW-2nd Law

McCullough v. Bennett, Docket No. 04-0081-pr (2d Cir. June 24, 2005) (Meskill, Newman, Cabranes) (Op. by Newman): The question presented in this case is whether, as Judge Newman succinctly puts it, “convictions and consecutive sentences on two counts of criminal possession of a weapon [in the second degree under N.Y. Penal Law § 265.03] violate petitioner’s double jeopardy rights when the two counts reflected shootings at two victims getting out of the same vehicle in rapid succession.” Op. at 1-2. CPW-2nd punishes anyone who “possesses a loaded firearm . . . with intent to use the same unlawfully against another.” The evidence at trial showed that McCullough approached a parked car with a loaded gun and fired at Person A when A fled the vehicle from the driver side of the car. McCullough then went to the passenger side, threatened Person B (another occupant of the car), pulled B …

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Preponderance Standard Proper for Determining Whether Defendant Breached Plea Agreement

United States v. William Byrd, Docket No. 04-3607-cr (2d Cir. June 24, 2005) (Walker, Cardamon, Owen, D.J.) (per curiam): The Circuit holds in this very short opinion that the preponderance standard governs the determination of whether a defendant has breached a plea agreement, even after Booker. The entirety of the Court’s reasoning is this: “Booker. . . did not speak to nor, in our view, affect the appropriate standard of proof applicable to a finding that the defendant breached his plea agreement. Such a finding was before Booker, and remains after Booker, within the province of the sentencing judge subject to a preponderance of the evidence standard.” Op. at 3.

In itself, this decision is not of great significance. One wonders, however, what effect Byrd will have on a far more significant question that remains open in the Circuit: What is the appropriate standard …

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Friday, June 24th, 2005

No Right of Confrontation at Sentencing

United States v. David Martinez, Docket No. 04-2075-cr (Sotomayor, Raggi, Hall) (Op. by Sotomayor): In a case of first impression in the Circuit, the Court rules that the Sixth Amendment right of confrontation does not apply to sentencing hearings, even in light of Crawford v. Washington, 541 U.S. 36 (2004), and United States v. Booker, 125 S. Ct. 738 (2005). The Court thus rejected the defendant’s claim that his confrontation rights were violated when the district court relied on hearsay testimony introduced at a Fatico hearing to substantially increase his Guidelines sentencing range.

Unfortunately, Martinez is a short opinion that fails to address or account for the revolution wrought by the Apprendi line of cases. The decision makes no effort to, as Justice Stevens aptly put it in his Booker majority opinion, “preserve Sixth Amendment substance” in light of the realities of modern sentencing practice. 125 S. …

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Circuit Affirms Denial of Habeas Petition Based on Trial Court’s Bar on Attorney-Client Communication during Client’s Testimony

Serrano v. Fischer, Docket No. 03-2670 (2d Cir. June 20, 2005) (Winter, Sotomayor, and B.D. Parker) (Op. by Sotomayor): In this dismissal of a habeas petition, the Circuit narrowly held that, under the particular facts of the case, the state court decisions rejecting the petitioner’s deprivation-of-counsel claim were not contrary to or an unreasonable application of the governing Supreme Court precedent. Despite its narrowness, the opinion discusses an issue with broad implications for habeas petitions under the AEDPA deferential standard. The Court explained that where the governing Supreme Court precedent provides no bright-line rule but instead only a “roughly defined” one requiring a context-specific inquiry, it is less likely that the state court’s applications of that precedent will be considered unreasonable, and thus less likely that the writ will be granted under §2254(d)(1).

The essential facts are as follows. Serrano was tried and convicted in state court of second …

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Wednesday, June 22nd, 2005

Some Great Dicta about the Limits of the Almendarez-Torres Exception

United States v. Weisser, Docket No. 01-1588 (2d Cir. June 20, 2005) (Walker, Cardamone, and Owen, D.J.) (Op. by Walker): In this otherwise ho-hum opinion in which the primary appellate issue concerns the defendant’s claim that he has been deprived of the right to appeal because much of the evidence presented against him at trial was destroyed during the September 11th attacks on the World Trade Center, the Circuit makes a very interesting statement about the limit of the Almendarez-Torres exception to the ApprendiBlakely rule. The opinion is worth a quick perusal for that statement alone.

The essential facts are simple. Weisser lived in San Francisco and engaged in AOL chat sessions with someone claiming to be an 11-year-old boy in New York. The “boy” was of course an undercover agent fishing for customers (er, defendants). Much sexual conversation ensued, along with a planned liaison in a …

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Sunday, June 19th, 2005

Batson’s Back, Baby!

Walker v. Girdrich, Docket No. 03-2645 (June 8, 2005) (Jacobs, Calabresi (C.J.J.) and Rakoff (D.J.)), (Op.by Jacobs).

Presaging the United States Supreme Court’s Miller-El decision by just five days, the Court of Appeals here rejected a state prosecutor’s reason for striking single black prospective juror, and granted the petitioner’s writ.

Facts

Tried in the New York Supreme Court, Kings County, on drug charges, Robert Walker lodged a
Batson objection after the prosecutor used twelve of thirteen peremptory challenges to remove African-Americans from the venire, alleging that the strikes were the product of purposeful discrimination. The trial judge concluded that there was no ‘pattern’ of discrimination, but invited the prosecutor to give her reason for striking the juror in question, Bernard Jones, who had not yet been discharged. The prosecutor indicated, inter alia, that Mr. Jones “gave one word answers” and was concerned about missing work, but noted that her “main …

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Friday, June 17th, 2005

Elderly Defendant Not Permitted to Withdraw Plea Despite Poor Advice from Attorney about Guidelines Exposure

United States v. Anthony Guidice, Docket No. 04-3729-cr (2d Cir. June 16, 2005) (Feinberg, Sack, Katzmann) (Op. by Feinberg): The Circuit sets a very high hurdle in this case for defendants wishing to withdraw their guilty pleas based on grossly erroneous advice from counsel about their sentencing exposure. Although the Court does not create any per se rules in this decision, it relies heavily on the fact that the defendant could not point to any “weaknesses” in the Government’s case against him to conclude that, despite counsel’s admittedly awful advice, there is no reasonably probability that defendant would have proceeded to trial if he had been given correct information about his sentencing exposure (despite his claims to the contrary). Unfortunately, many defendants will be unable to make such a showing.

The essential facts are simple. Guidice was charged in a 4-count indictment with extortion-related offenses. Shortly before trial, he …

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Wednesday, June 15th, 2005

Criminal Forfeiture Not Governed by Requirements of Apprendi / Blakely Line of Cases

United States v. Fruchter, Docket No. 02-1422(L) (2d Cir. June 14, 2005) (Walker, Parker, and Wesley) (Op. by Walker): The Circuit concludes in this opinion that in determining the amount subject to forfeiture under the RICO criminal forfeiture statute, 18 U.S.C. § 1963, a judge need only rely upon the preponderance of the evidence standard. The Court specifically rejected appellant’s argument that under Apprendi, Blakely, and Booker, the district court was required to determine the forfeiture amount under the beyond-a-reasonable-doubt standard. This was so because criminal forfeiture “is not a determinative scheme” (emphasis in original) — like the Washington state regime invalidated in Blakely or the Sentencing Guidelines invalidated in Booker — wherein a guilty verdict (or a guilty plea) “authorizes the imposition of a sentence within a specified [or determinate] range.” Op. at 14. Rather, “criminal forfeiture is not subject to any statutory maximum,” op. …

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Tuesday, June 14th, 2005

Drug Use Resulting in Revocation Can Be Premised, In Part, on Results Falling Below Cutoffs Established In Testing Companies’ Contracts

United States v. Klimek, Docket No. 04-2459 (2d Cir. June 8, 2005) (Meskill, Newman, Cabranes) (Op. by Newman): In this case, briefed and argued by our own David Lewis, the Circuit ruled that, in the context of a supervised release revocation proceeding, a district court was not “per se precluded” from relying upon confirmatory drug test results that fall below the cutoff established by contracts between an outside testing company and the Adminstrative Officer of the United States Courts (“AO”).

The facts are straigtforward. Mr. Klimek, after serving a prison sentence but while still on supervised release, used drugs. Initially, he admitted using LSD, pled guilty to violating the terms of his supervised release for that reason, and was sentenced to a term of home confinement. But even before home confinement could be set up, he tested positive again, this time for cocaine use. He denied using cocaine, so his …

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Thursday, June 9th, 2005

New York Court of Appeals Upholds Persistent Felony Offender Law Despite Ring, Blakely, and Booker

People v. Rivera (June 9, 2005) (Op. by Rosenblatt): This Blog normally confines itself to Second Circuit decisions, but since we commented yesterday on the Second Circuit’s narrow decision upholding New York’s persistent felony offender statute on AEDPA review, see Brown v. Greiner, below, we thought it appropriate in the interest of completeness to discuss the New York Court of Appeals’s decision, rendered today, upholding that law on direct review. (Our prediction of a contrary result was, alas, misguided). In Rivera, that Court ruled that N.Y. Penal Law § 70.10 did not violate either Apprendi, Ring, Blakely, or Booker. Of course, it did so only by interpreting the statue in a way that (1) flatly contradicts the plain language of the law itself, and (2) flouts years of case law and accepted practice in the New York courts.

Simply put, the Court upholds the …

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