Author Archive | Yuanchung Lee

United States v. Parker, Docket No. 05-6991-cr (2d Cir. Nov. 14, 2006) (Cabranes, Sotomayor, Raggi): This opinion does not break new legal ground, but is nonetheless of interest in highlighting the disparate treatment of defendants who can afford retained counsel and defendants who cannot. The contrast between (1) the Circuit’s easy affirmance here of the district court’s unilateral decision on a Crosby remand to replace the defendant’s CJA counsel – who had represented the defendant for well over 3 years by this time – with new CJA counsel, over defendant’s objection, and (2) the Supreme Court’s decision last June in United States v. Gonzalez-Lopez, 126 S. Ct. 2557 (2006), holding that an erroneous refusal to allow a defendant to proceed with retained counsel of his choice is a structural error requiring automatic reversal of his conviction (i.e., no showing of prejudice is needed), is hard to …

United States v. Pressley, Docket No. 05-2487-cr (L) (2d Cir. Nov. 14, 2006) (Cardamone, Walker, Straub) (per curiam): In United States v. Harrison, 241 F.3d 289 (2d Cir. 2001), the Circuit ruled that where a defendant is convicted of two or more separate substantive counts of drug distribution, in violation of 21 U.S.C. § 841(a), the quantity of drugs distributed in the separate counts may not be aggregated for purposes of determining the proper penalty under the weight-driven graduated scheme of § 841(b). In this case, Pressley was convicted of conspiring to distribute 1 kilogram or more of heroin, in violation of 21 U.S.C. § 846, and thus seemingly subject to the harsh penalties of § 841(b)(1)(A) (mandatory minimum of 10 years and maximum of life imprisonment). He relied on Harrison to argue, however, that he should be punished under § 841(b)(1)(c) (carrying no mandatory minimum …

Yung v. Walker, Docket No. 03-3023-pr (2d Cir. Oct. 31, 2006) (Pooler, Sotomayor, Kaplan): This is but the most recent iteration of a long and tedious line of habeas cases in which the petitioner claims that his Sixth Amendment public trial right was violated when the New York state trial judge, at the prosecutor’s request, closed the courtroom during the testimony of an undercover police officer at petitioner’s trial for drug selling. The very sweet District Judge granted Yung’s petition, finding that the state failed to offer sufficient justification to support the exclusion of Yung’s mother, baby-mother, and “sister-in-law” (what does one call the sister of one’s baby-mother?) from the courtroom during the undercover’s testimony. The Circuit agrees with this conclusion, but generously remands in order to allow the state trial court to conduct — 12 years after the original event — a new hearing to determine whether …

United States v. Jose Erbo, Docket No. 02-1665-cr (2d Cir. Oct. 25, 2006) (Wesley, Hall, Trager): Yet another awful decision from the Circuit, this time badly misreading Crawford v. Washington, 541 U.S. 36 (2004), and holding via classic circular reasoning that “a statement properly admitted under Fed. R. Evid. 803(6) [or 803(8)] cannot be testimonial because a business [or public] record is fundamentally inconsistent with what the Supreme Court has suggested comprise the defining characteristics of testimonial evidence.” Op.11. At issue specifically was whether the admission of autopsy reports prepared by the NYC Medical Examiner’s Office — which, unlike a hospital’s pathology department, generally conducts autopsies only when a person has died “from criminal violence, by casualty, by suicide . . . or in any suspicious or unusual manner,” NYC Charter § 557(f) — without testimony from the doctors who performed the autopsy violated Erbo’s Sixth Amendment …

United States v. Brand, Docket No. 05-4155-cr (2d Cir. Oct. 19, 2006) (Miner, Wesley, Friedman): It appears that child sex cases have surpassed drug cases in their ability to create bad law and erode civil liberties. We saw in last year’s “Candyman” cases an erosion of the Fourth Amendment’s probable cause requirement; in Brand, we see the Circuit (1) greatly expand the scope of evidence admissible under Rule 404, in contravention of well-settled law; and (2) conclude based on junk science (or, simply, ungrounded assumptions) that possession of images of child sex constitutes proof of a person’s predisposition to commit actual child sex. One almost wishes that these kiddie-sex cases would disappear solely because of the misguided law they leave in their wake. (Disclosure: Colleen Cassidy of this Office litigated the case on appeal).

Brand is a New Jersey voice teacher in his late 30s. He engaged …

Stanley Burrell v. United States, Docket No. 05-2945-cr (2d Cir. Oct. 18, 2006) (Cardamone, Walker, Sotomayor): This is a real snoozer; the Court narrowly holds that when it affirms a conviction and sentence but remands the case to the district court to perform a purely ministerial act (here, vacatur of one of two counts of conviction, as a lesser-included offense, where the vacatur could not affect the defendant’s sentence), the defendant’s conviction became final (for retroactivity purposes) when the Supreme Court denied cert. on the original appeal. E.g., Op. 12 (“[A] remand for ministerial purposes, such as the correction of language in a judgment or the entry of a judgment in accordance with a mandate, does not delay a judgment’s finality.”). This was critical to Burrell because while his conviction became final long before Booker under the theory adopted by the Circuit, it would not yet be …

Just to beat this issue completely to death: The version of Pereira that currently appears on Westlaw (United States v. Pereira, ___ F.3d ___, 2006 WL 2925642 (2d Cir. Oct. 13, 2006)), is the first version, in which the Court forgot its own decision in Mejia, rather than the later, corrected one. Anyone want to check LEXIS?

We assume that this will all get corrected soon enough. But the erstwhile confusion could have been avoided if the Court simply indicated that it has amended the original opinion, rather than do so without comment or remark (as if no one would notice ….).…

United States v. Pereira, Docket No. 05-5969-cr (2d Cir. Oct. 13, 2006): Sometime this morning, the Circuit altered its original opinion in this case, which as this Blog pointed out (see entry below) somehow forgot about its own decision in Mejia. The opinion now simply rejects Pereira’s fast-track disparity argument with a one-sentence cite to Mejia. New Op. 14.

Although this seems a rather substantive alteration, nowhere is there an indication that the original opinion has been amended or modified in any way. Nor did the Circuit change the date of the opinion (still October 13, 2006), even though this new opinion was issued today.

Does this seem like shoddy practice to anyone else? It certainly makes one wonder how often this kind of silent amendment goes on.…

United States v. Marvin Pereira, Docket No. 05-5969-cr (2d Cir. Oct. 13, 2006) (Miner, Leval, Calabresi): We had to do a double-take at the publication date of this opinion after reading it. Here’s why. Pereira argued on appeal (though he did not do so in the district court) that his 62-month sentence for unlawful reentry after deportation, imposed in the E.D.N.Y., was unreasonable because “the district court did not consider the disparity between his sentence and those received by defendants convicted of unlawful reentry in jurisdictions with fast-track programs.” Op. 14. This precise argument, of course, was rejected two months ago by the Circuit in United States v. Mejia, 461 F.3d 158 (2d Cir. 2006) (click here for our unhappy discussion).

Apparently, however, judges of the Circuit do not always read their own opinions. Rather than rejecting Pereira’s argument with a one-sentence cite to Mejia, this …

United States v. Samuel Ness, Docket No. 05-4401-cr (2d Cir. Oct. 10, 2006) (Winter, Calabresi, Pooler): This decision confirms a split among the Circuits concerning the meaning of the concealment element of the “transaction” and “transportation” money laundering statutes, 18 U.S.C. § 1956(a)(1)(B)(i) & (1)(2)(B)(i). Specifically, while some Circuits have ruled that the defendant has “conceal[ed] or disguise[d] the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity” only where s/he has attempted to create a false appearance that the funds are legitimate, e.g., United States v. Cuellar, 441 F.3d 329 (5th Cir. 2006), the Second Circuit has ruled that the concealment element is satisifed merely by a showing that defendant has engaged in conduct designed to conceal the identity of the funds, see United States v. Gotti, 459 F.3d 296 (2d Cir. 2006).

Applying Gotti to …

Steve Sady of the Oregon FPD has made available the latest version of his article, “Developments in Federal Search and Seizure Law” (click here for a link to the PDF version). The article outlines in detail all the key issues in search and seizure law, with an emphasis on “trac[ing] recent developments in selected areas and juxtapos[ing] the lead cases [(often pro-Government)] with federal court cases in which the defendant prevailed.” Although most of the examples of favorable lower court cases are from the Ninth Circuit, Steve’s article should prove invaluable in “encourag[ing] creative use of the available precedents that may make a decisive difference for our clients in state or federal court.” So print it out, read it on the subway, and dream of the Ninth Circuit!…