Author Archive | Yuanchung Lee

Our colleagues Tim Hoover and MaryBeth Covert of the Federal Public Defenders Office in the Western District of New York have written an excellent analysis of the Circuit’s decision in United States v. Ramirez, Docket No. 04-3147-cr (2d Cir. Aug. 26, 2005) (Walker, Hall, Gibson (by designation)). And more than that: Tim and MaryBeth also discuss some practice pointers for both state and federal defense attorneys confronted with the conditional discharge issue in light of Ramirez. A must-read!

United States v. Raoul Ramirez, 421 F.3d 159 (2d Cir. 2005): State practitioners regularly seek conditional discharge sentences in New York criminal/city/village/town courts, especially for non-criminal violation offenses, because of the lack of a term of imprisonment and the lack of supervision that a conditional discharge affords. Conditional discharges are regularly offered by prosecutors and imposed by state judges as a way to clear massive New …

Policano v. Herbert, Docket No. 04-5518-pr (2d Cir. Nov. 15, 2005) (Pooler, Sack, Garaufis (by designation)): This one is a rare bird indeed — Mr. Policano literally gets away with murder! In this case, the Circuit affirms Judge Gleeson’s grant of habeas based on the insufficiency of the evidence presented at Policano’s New York state trial for murder. Essentially, the evidence showed that Policano, who had a serious beef with the victim, walked up to this unarmed individual, pulled out a 9 mm pistol, and shot him three times in the head and neck at close range. Policano was charged with two counts of second-degree murder under New York law — one charging him with depraved-indifference murder, in violation of N.Y. Penal Law § 125.25(2), and the other charging him with intentional murder, in violation of N.Y. Penal Law § 125.25(1).

At his trial, the judge refused to grant …

United States v. Alfred G. Miller, Docket No. 04-2637-cr (2d Cir. Nov. 16, 2005) (McLaughlin, Cabranes, Mukasey (by designation)): In this unfortunate decision, the Circuit extends the protective sweep exception to the warrant requirement recognized in Maryland v. Buie, 494 U.S. 325 (1990), to situations where no arrest is at issue. In Buie, the Supreme Court authorized police officers who were lawfully in a suspect’s home to execute an arrest warrant to conduct, in addition, a limited sweep of the premises — “a cursory inspection of those places where a person may be found” — if they possess “articulable facts which . . . would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. at 334. The Circuit now holds that a protective sweep is justified whenever the police …

Our colleagues in the Federal Public Defenders Office in Portland, Oregon, have once again prepared an excellent summary of the past Supreme Court term from the criminal defense perspective. To tantalize readers, here is Steve Sady’s summary introduction:

“Three major themes emerged from the opinions. First, the protection of core constitutional rights has solidified in a surprising number of cases. Second, the Doctrine of Constitutional Avoidance continues to provide a key analytical framework for federal litigation. Lastly, the Court’s devotion of so much time to the rules of statutory construction emphasizes the need for federal defense attorneys to incorporate them into our litigation vocabulary. The overall message is to hit constitutional issues hard, but layer them with statutory arguments that avoid the necessity of resolving the constitutional questions.”

Click HERE for the full document in pdf format.…

United States v. Herredia, Docket No. 02-1544-cr(L) (2d Cir. Nov. 2, 2005) (Winter, Sotomayor, Wesley): A bad result for the defendants, but the Circuit’s decision presents an opportunity for the Supreme Court to overrule both Harris and Almendarez-Torres in one fell swoop. Here, the two defendants were convicted of conspiring to distribute more than a kilogram of heroin, which ordinarily carries a mandatory minimum sentence of 10 years and a maximum sentence of life under 21 U.S.C. § 841(b)(1)(A). However, both defendants had sustained at last two prior drug felonies before committing the instant offense. This fact dramatically altered their sentence: Upon conviction, they would face a mandatory life sentence.

Prior to trial, the Government filed a prior felony information pursuant to 21 U.S.C. § 851 for each defendant, listing their prior drug felonies. These priors were not alleged in the indictment, however, nor were they presented to …

United States v. Xiao Qin Zhou, Docket No. 03-1575(L) (2d Cir. Nov. 1, 2005) (Miner, Calabresi, Amon (by designation)): This is an interesting opinion that discusses a critical difference between the crime of robbery and the crime of extortion under the Hobbs Act, 18 U.S.C. § 1951. While the defendants took property from the victim by force (indeed, at gunpoint), they were not guilty of extortion (the sole offense with which they were charged in connection with this particular victim) because they did not give the victim the choice of refusing to turn over the property. The “element of consent” by the victim in turning over money or property, the Court explains, “is the razor’s edge that distinguishes extortion from robbery,” which involves taking money or property from a person “against his will.” Op. 15. And because the evidence was insufficient to show that the victim was …

Eliot S. Sash v. Michael Zenk, Docket No. 04-6206-pr (2d Cir. Oct. 26, 2005) (Sotomayor, Wesley, Brieant (by designation)): In this case, brought pursuant to 28 U.S.C. § 2241 by a prisoner in BOP custody and litigated by David Lewis of this Office, the Circuit upholds as “reasonable” the BOP’s odd & stingy interpretation of the good-conduct time statute, 18 U.S.C. § 3624(b). This statute states in sum and substance that a “prisoner who is serving a term of imprisonment of more than 1 year . . . may receive credit toward the service of the prisoner’s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment.” While Sash reads this statute to mean that he should receive up to 54 days of credit for each year of the sentence imposed, the BOP reads …

United States v. John J. Cassese, Docket No. 03-1710 (2d Cir. Oct. 24, 2005) (Calabresi, Parker, Raggi): Oh what it must be like to be John Cassese — lucky enough to draw Judge Sweet as his trial judge, and rich enough (and smart enough) to hire a former star of the SDNY USAO as his defense attorney. If we were he, we would spend the bulk of our next paycheck on the SuperLotto!

Cassesse was prosecuted for securities fraud in connection with his purchase, based on insider information, of the stock of a company two days before the announcement of a tender offer. His sale of the stock, made upon the announcement of the tender offer, resulted in a net profit of $149,000. Not bad for two days’ “work”!

The jury returned a guilty verdict, but Judge Sweet granted the defendant’s Rule 29 motion for judgment of acquittal. …

United States v. Shlomo Cohen, Docket No. 04-0983-cr (2d Cir. Oct. 20, 2005) (Meskill, Cabranes, Nevas (by designation)): The Court principally rejects an IAC claim, following Cohen’s conviction for conspiring to import ectasy from Belgium and to distribute it in the United States, based on counsel’s failure to (1) object to the prosecutor’s off-hand reference, during summations, to the existence of unknown conspirators (“other people overseas”) whose existence may or may not have been supported by the evidence, and (2) object to the court’s charge, in which it may or may not have told the jury that a co-defendant was an actual co-conspirator rather than merely an alleged one. The Court found no error on either point, and thus no error in counsel’s failure to object. Additionally, given that “the evidence of defendant’s conspiracy with [a co-defendant who had pleaded guilty] was overwhelming — a point that defendant’s …

United States v. Kurti, Docket No. 04-2239-cr (2d Cir. Oct. 19, 2005) (Winter, Katzmann, Murtha (by designation)): Praise the lord: The often ignored and little understood provision of the Guidelines establishing the “procedure for determining the specific sentence to be formally imposed on each count in a multiple-count case,” i.e., U.S.S.G. § 5G1.2, has officially been declared merely advisory in light of Booker. Here, Kurti pled guilty to two counts charging him with conspiring to distribute an unspecified quantity of narcotics (one count concerned marijuana and the other concerned ecstacy). The statutory maximum on each was 20 years. His Guidelines range was 360 to life, and the district judge at the pre-Booker sentencing imposed a sentence of 360 months. She did not specify, however, “either the length of time to be served on each count or which portion of the sentence of a count was to …

Gersten v. Senkowski, Docket No. 04-0935-pr (2d Cir. Oct. 17, 2005) (Winter, Pooler, Brieant (by designation)): A great win for the defense. This is (at least) the third case in recent memory in which the Circuit granted habeas relief to a state prisoner claiming that he received ineffective assistance of counsel at his trial for child molestation because his attorney failed to consult with, or call as witnesses at trial, medical and psychiatric experts who could have undermined the testimony of the prosecution’s so-called experts. In a classic “he said, she said” case in which the prosecution won conviction by proffering now-discredited expert testimony against the defendant, defense counsel’s complete ignorance of the medical and psychatric literature on child abuse, and his cavalier failure to make even the slightest effort to educate himself on these crucial matters, required vacatur of defendant’s conviction even under AEDPA’s highly deferential standards.…