Federal Defenders of New York Blog
Serving the Second Circuit and the Eastern and Southern Districts of New York
The ACLU has come out with a new report outlining legal arguments and strategies for defense attorneys seeking to challenge evidence seized by government-installed computer malware. The government has increasingly used controversial and constitutionally-questionable hacking to obtain evidence and the report sets out Fourth Amendments challenging this practice.
You can access the report here.
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Earlier this week, the New York Times ran a story on the state of care, and lack of care, for women detained at the MDC in Brooklyn. In particular, it highlighted the stories of pregnant women, including one who lost her baby while in custody. The article notes that “[t]he treatment of women, pregnant and otherwise, at the Metropolitan Detention Center has alarmed a number of judges.”
You can read the entire article here.
You can read our earlier post on the issue here.
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David Patton, the Executive Director and Attorney-in-Chief at the Federal Defenders of New York, published an opinion piece in yesterday’s New York Daily News. Patton points out that while much of the press following Bharara’s firing focused on his reputation as the “sheriff of Wall Street” or the drainer of the Albany swamp, these high-profile cases do not reflect the bulk of the work of his office. Patton contends that Bharara’s record must also be assessed in the context of his decision to exercise his discretion to prosecute poor people of color, including those caught up in sting operations, through an expansive use of conspiracy and racketeering statutes, and to seek unreasonably high sentences, contributing to unnecessary and unequal terms of punishment.
You can read Patton’s Op-Ed here.
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It looks like the work of dismantling the progress made under the Holder memo has begun.
Attorney General Jeff Sessions has issued a memo directing US Attorneys to work with local law enforcement to identify the ‘criminals’ in their districts who are driving violent crime and prosecute them federally using all available tools. You can read the memo here. An additional memo on charging decisions in all criminal cases will follow.…
This morning, the Supreme Court decided Beckles v. United States. You can read the opinion here.
The Court held unanimously that the Sentencing Guidelines are not subject to void-for-vagueness challenges.
We will update with a more detailed analysis soon.
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President Trump’s executive order titled “Enhancing Public Safety in the Interior of the United States,” signed on Jan. 25, may have significant impacts on non-citizens with open federal criminal cases in the relatively near term. The order is only two days old and does not explicitly withdraw existing agency guidance on most issues it addresses, so it is not clear how soon DHS or DOJ will issue revised guidance to field offices regarding implementation. But federal criminal practitioners should be aware of several aspects of this order that may alter the landscape for noncitizen defendants and should closely monitor their implementation:
1) Some federal defendants who would not have been ICE enforcement priorities before may now be high priorities for removal even pre-conviction. Obama’s DHS Secretary Jeh Johnson issued a 3-tiered system of ICE enforcement priorities in late 2014. Once those took effect in 2015, 98 to 99% of all …
In United States v. Pinto, the Second Circuit affirmed an order of restitution that was based, in part, on a government memorandum recounting an interview with a co-conspirator. The District Court had refused to order the government to produce the QuickBooks records that were a partial basis for its restitution calculations.
The District Court has the discretion to decide the procedure it will employ in determining a restitution award “so long as the defendant is given an adequate opportunity to present his position.” Order at 3. The court “is only required to ascertain by a preponderance of the evidence ‘a reasonable approximation of losses by a sound methodology.'” Id. (citing United States v. Gushlak, 728 F. 3d 184, 196, and Paroline v. United States, 134 S. Ct. 1710, 1727-28 (2014)).…
In United States v. Byrd, the Second Circuit affirmed a sentence despite the District Court finding an applicable guideline range different from the one agreed to by the parties in a written plea agreement. The Circuit held that although “district courts have the discretion to give effect to Guidelines calculations in plea agreements that result in downward departure from the correct Guidelines range,” there is no affirmative obligation that the district court give effect to such calculations. Unless the district court misunderstood its authority to depart, the decision not to depart is generally unreviewable.…
In United States v. Morgan, the Second Circuit affirmed the conviction despite the defendant’s challenge to the use of Low Copy Number DNA evidence at trial. The Circuit concluded that “although LCN analysis is supported by significantly weaker evidence of reliability than traditional DNA analysis, the district court did not abuse its discretion in this case in holding that the proffered expert evidence met the reliability standards of Rule 702: We cannot say that its ruling here was ‘manifestly erroneous.'” The Circuit did say that it expressed “no opinion on the propriety of admitting the results of LCN testing in other cases and note[d] that OCME is discontinuing its use of LCN testing in favor of newer technology that produces reliable results in most of the sensitivity range for which it previously employed LCN testing.” Hopefully, this limits the already-limited applicability of this summary order in future cases.
The …
Earlier this month, the Department of Justice issued new guidelines for the use of photo array identification procedures. You may find this useful in support your request for an expert in cases in which these procedures were not followed.
The ABA Journal has an update on the policy as well as links to the DOJ memo and other media coverage of the policy.
http://www.abajournal.com/news/article/new_justice_department_guidelines_aim_to_ensure_reliability_of_photo_arrays…