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Author Archive | Peggy Cross-Goldenberg

Wednesday, February 1st, 2023

Inadequate Voir Dire Requires a New Trial

Perhaps you’ve wondered whether the Second Circuit would ever throw out a conviction because of inadequate voir dire in selecting the jury. Wonder no more. It’s finally happened.

In United States v. Nieves, — F.4th —-, 2023 WL 405354 (2d Cir. Jan. 26, 2023), the defendant, a former gang member, challenged his conviction, following a jury trial, of one count of witness retaliation, in violation of 18 U.S.C. § 1513(b)(1). He argued that the district court’s (Hon. Jed S. Rakoff) abbreviated voir dire left him and the court unable to meaningfully screen prospective jurors for bias against gang members, rendering the trial fundamentally unfair. Simply put, the defendant argued that in a prosecution centered around gang membership and alleged gang-related violence, the district court abused its discretion by refusing to take any steps to effectively screen prospective jurors for bias against gangs or gang members.

The Circuit unanimously …

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Categories: voir dire

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Categories: voir dire

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Friday, October 7th, 2022

BIDEN’S MARIJUANA PARDONS MISS THE MARK FOR NONCITIZEN DEFENDANTS

The White House announced yesterday that President Biden would grant “full, complete, and unconditional” pardons to U.S. citizens and lawful residents previously convicted of simple possession of marijuana under 21 U.S.C. § 844(a) and D.C. Code 48-904.01(d)(1).  The move is intended to “help relieve the collateral consequences arising from these convictions,” and will doubtless help eligible individuals facing bars to employment, public housing, and some other civil disabilities.  But because of the Kafka-esque tangle that is immigration law, a presidential pardon may do little or nothing to relieve noncitizen defendants of what is likely the gravest consequences they face from a marijuana conviction—deportation or ineligibility for immigration status.  Clients who are eligible for the pardons should be advised that they may still face adverse immigration consequences even after a pardon is granted, and should consult an attorney expert in criminal-immigration issues prior to seeking one.  Read on for the gory …

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Categories: immigration, marijuana

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Categories: immigration, marijuana

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Tuesday, February 11th, 2020

Second Circuit Holds N.Y. Attempted Second Degree Assault With a Deadly Weapon (N.Y.P.L. §120.05. (2) ) a “Crime of Violence” Under Force Clause and §846 Narcotics Conspiracy a “Controlled Substance Offense.”

In United States v. Tabb, __ F.3d __, 2020 WL 573379 (2d Cir. Feb. 6, 2020), the Court of Appeals held that New York’s attempted assault in the second degree with a deadly weapon or dangerous instrument qualifies as a crime of violence under the force clause. The Court had previously held, in Singh v. Barr, 939 F.3d 457 (2d Cir. 2019), that the completed crime qualifies under the force. It relied here on Singh and on its pre-Johnson decision in United States v. Walker, 442 F.3d 787 (2d Cir. 2006), which held that attempted assault with a deadly weapon was a violent felony under the ACCA’s force clause. The Court followed Singh in rejecting the argument, based on Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003), that the substantive offense could be committed by indirect force or omission. Chrzanoski held that Connecticut third …

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Categories: assault, attempt, conspiracy, crime of violence

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Categories: assault, attempt, conspiracy, crime of violence

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Second Circuit Affirms Denial of Post Trial Competency Hearing for Pro Se Defendant with “Sovereign Citizen” Tax Defense.

In United States v. DiMartino, __ F.3d __, 2020 WL 550475 (Feb. 4, 2020) (Jacobs, Sack, Hall), the Circuit affirmed the denial of a post-trial motion for a competency hearing based on the defendant’s persistent adherence to the “Sovereign Citizen” theory that the IRS and Justice Department are private corporations, the tax laws are invalid, and the court had no jurisdiction over him. The defendant had represented himself at trial and his defense was that this theory was true and that he believed it was true. After his conviction, he retained counsel for sentencing. Counsel filed the motion with a psychologist’s report concluding that the defendant had a delusional disorder, based on his continuing insistence on the Sovereign Citizen theory. The Court of Appeals affirmed the district court’s conclusion that, based on DiMartino’s conduct of the trial, he was competent, and that the psychologist’s report was unreliable.

The Second …

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Categories: comptency, Sovereign Citizen

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Categories: comptency, Sovereign Citizen

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Second Circuit Rules That No Statement of Reasons Is Required For a VOSR Sentence.

In United States v. Smith, __ F.3d __ , 2020 WL 521612 (Feb. 3, 2020) (Wesley, Chin, Sullivan), the Court of Appeals held that no Statement of Reasons (“SOR”) need be filed for a sentence imposed in a VOSR, even if it is above the Guidelines range, because the Sentencing Commission has not provided an SOR form for a VOSR. The Court overruled its prior precedent holding that a Statement of Reasons was required for a VOSR sentence, e.g. United States v. Aldeen, 792 F.3d 247, 251-52 (2d Cir. 2015); United States v. Sindima, 488 F.3d 81, 85 (2d Cir. 2007), after a “mini-en banc” procedure of circulating the opinion to all active members of the Court. The Second Circuit reasoned that the prior rule was based on an earlier version of the 18 U.S.C. §3553(c)(2) which was amended in 2010. Unlike the former statute, which required …

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Categories: sentencing, statement of reasons, supervised release

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Categories: sentencing, statement of reasons, supervised release

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Friday, September 27th, 2019

Inspector General Releases Report on 2019 MDC Power Outage

The Justice Department’s Office of the Inspector General released a report on the electrical fire and ensuing power outage at the MDC Brooklyn last winter.  You can access the report here.

There were significant heating issues at the MDC, but these were unrelated to the fire.  Turns out, there are “long-standing temperature regulation issues,” which caused temperatures to drop as low as 59 degrees one week before the fire, and to rise over 80 degrees.  The MDC’s management did not effectively address heating during the power outage.  It also failed to address certain medical issues, namely, inmates who used CPAP machines, or provide an alternative means of making medical requests once the standard electronic request method was unavailable during the power outage.

If you have a client who was at the MDC during the outage, this report may be useful at sentencing.  If you have clients who were at …

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Categories: BOP

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Categories: BOP

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Thursday, June 27th, 2019

What is a “high-crime area” and what does that mean?

What is a “high-crime area” and what does that mean?

It turns out, everything and nothing.  And race has a lot to do with it.

Professors Ben Grunwald, of Duke, and Jeffrey Fagan, of Columbia, examined two million NYPD stops from 2007-2012 and find that NYPD officers  “call almost every block in the city high crime,” that “their assessments of whether an area is high crime are nearly uncorrelated with actual crime rates,”  and “the racial composition of the area and the identity of the officer are stronger predictors of whether an officer calls an area high crime than the crime rate itself.”

Their article, The End of Intuition-Based High-Crime Areas, which you can access here, presents the first empirical analysis of the Supreme Court’s decision in Illinois v. Wardlow and its holding that a suspect’s presence in a “high-crime area” is relevant to the question of whether an …

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Categories: bias, reasonable suspicion

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Categories: bias, reasonable suspicion

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Supreme Court Debrief: Flowers v. Mississippi

In Flowers v. Mississippi, the Supreme Court ruled 7-2 that death-row inmate Curtis Flowers’ criminal trial was affected by racial discrimination.  You can read more about the case here.

Georgetown Professors Abbe Smith and Vida Johnson of Georgetown Law’s Criminal Defense & Prisoner Advocacy Clinic, two career criminal defense attorneys, have recorded a video exploring the Flowers case, its implications and how criminal defenders and prosecutors should approach jury selection going forward.

You can watch the video here.…

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Categories: Batson, bias, jury selection, Uncategorized

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Wednesday, May 8th, 2019

Second Circuit Upholds ACCA Sentence

In United States v. Evans, the Second Circuit upheld a sentence imposed pursuant to 18 U.S.C. 924(e)(2)(B), the Armed Career Criminal Act (“ACCA”). As the Court described it, the case presented “the latest entry in a series of cases defining offenses that qualify as ‘violent felonies'” for the purposes of ACCA’s sentencing enhancement. The Court held that North Carolina second-degree burglary qualifies as a violent felony under ACCA’s “enumerated clause” and that federal bank robbery in violation of 18 U.S.C. 2113(a) qualifies as a violent felony under ACCA’s “elements clause.” You can read the Evans opinion here. …

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Categories: ACCA, crime of violence, Johnson

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Circuit Vacates Special Condition of Supervised Release

The Second Circuit today vacated a special condition of supervised release and remanded for further proceedings. In United States v. Smith, which you can read here, the Circuit relied on its recent decision in United States v. Betts, 886 F.3d 198, 202 (2d Cir. 2018). In Betts, the Court held that “A District Court is required to make an individualized assessment when determining whether to impose a special condition of supervised release, and to state on the record the reason for imposing it.” Where the district court does not give the reason, the special condition can survive appeal “only if the district court’s reasoning is ‘self-evident in the record.'” Opinion at 3 (quoting Betts). In Smith, the district court imposed a special condition that prohibited Smith from consuming alcohol, but made no individualized assessment in determining whether to impose that condition. The district court’s comment …

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Categories: supervised release, Uncategorized

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Wednesday, April 17th, 2019

Judge Rakoff Limits Government’s Description of Stock Market as “Level Playing Field”

Prior to opening statements in United States v. Pinto-Thomaz, 18 Cr. 579 (JSR), Southern District Judge Jed S. Rakoff precluded the government from giving a jury the standard line that the stock market should be a “level playing field.” According to this report from Law360.com, Judge Rakoff said, “Anyone who thinks the stock market is a level playing field obviously has no contact with reality.” He permitted the government to argue that the defendant “conferred an ‘illegal advantage'” through tips. …

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Categories: insider trading, Uncategorized

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Categories: insider trading, Uncategorized

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