Archive | right to counsel

Friday, May 18th, 2018

Supreme Court Roundup (including post-Dimaya GVRs)

This week the Supreme Court issued a number of significant criminal opinions, as well as a number of GVRs signalling that the holding of Sessions v. Dimaya likely extends to § 924’s residual clause (18 U.S.C. § 924(c)(3)(B)).

In McCoy v. Louisiana, 16-8255, the Court held that it was structural Sixth Amendment error for an attorney to concede a defendant’s guilt, against his wishes, in the hope of sparing him the death penalty. McCoy’s attorney argued that his client lacked the mental capacity to form the specific intent necessary for first-degree murder, see slip op. at 3 n.1, but conceded in his opening statement that the jury could not reach “any other conclusion than Robert McCoy was the cause of” the victims’ deaths. Id. at 4. This strategy, the Court held, violated the client’s Sixth Amendment rights regardless whether it was “counsel’s experienced-based view . . . that confessing …

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Categories: 924(c), Fourth Amendment, ineffective assistance of counsel, right to counsel, traffic stop, wiretaps

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Thursday, July 7th, 2016

Second Circuit Updates – July 7, 2016

Pre-2009 Bank Fraud Convictions Vacated Where Evidence Showed Only that Defendant Intended to Defraud a Non-Federally Insured Mortgage Lender

In United States v. Michael Bouchard, Docket No. 14-4156-cr, the Circuit (Parker, Lynch, Lohier) in an opinion by Judge Lohier vacated on sufficiency grounds three bank-fraud related convictions, based on conduct occurring between 2001 to 2007, because the Government proved only that defendant Bouchard intended to defraud a mortgage lender (BNC Mortgage) that was not a federally insured financial institution. This was the case even though BNC was a wholly owned subsidiary of Lehman Brothers, a federally insured financial institution, since the Government concedes that “there was no evidence that Bouchard specifically intended to defraud Lehman Brothers or was even aware of Lehman Brothers’ role in the transactions involving BNC.” Op. 16. In so concluding based on Circuit precedent holding that “the Government must show that a defendant intended to …

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Categories: bank fraud, plea withdrawal, right to counsel

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Wednesday, March 30th, 2016

Supreme Court: Pretrial Restraint of Untainted Assets Needed to Hire a Lawyer is Unconstitutional


No opinions or relevant summary orders from the Second Circuit today.

Operating with only 8 justices, a fractured Supreme Court today decided Luis v. United States.  The Court’s holding is that “pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment.”

Justice Breyer’s plurality opinion, joined by Chief Justice Roberts and Justices Ginsburg and Sotomayor, explains that 18 U.S.C. § 1345 generally authorizes the government to freeze the assets of people accused of federal banking or health-care crimes.  Specifically, § 1345(a)(2)(B)(i) authorizes the pretrial restraint of “property of equivalent value,” meaning property that is neither “obtained as a result of” nor “traceable to” the alleged crime.

This license to freeze “property that is untainted by the crime, and that belongs fully to the defendant,” violates the Sixth Amendment if such funds (in Luis’s case, some $2 million) are needed to hire counsel of …

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Categories: forfeiture, right to counsel, Sixth Amendment

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Friday, March 9th, 2012

Not Much Moore

United States v. Moore, No. 10-2740-cr (2d Cir. February 22, 2012) (Jacobs, Cabranes, Livingston, CJJ)
This decision marks the circuit’s latest effort to sort out a “two-step” interrogation in the wake of Missouri v. Seibert, 542 U.S. 600 (2004).
Chauncy Moore, having evaded a Connecticut police officer who had a warrant for Moore’s arrest, tossed a gun onto the roof of a house. He was apprehended on the warrant early the next day, but did not receive Miranda warnings. He spent the morning in a police station lockup, but was not brought to court due to a paperwork glitch. Later that day, still at the precinct, Moore twice asked to speak with a detective, but none was around. In the afternoon, he was moved to a cell with a pay phone, from which he spotted a narcotics officer he knew, Ronald Pine, and called him over. Pine

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Categories: Miranda, right to counsel, Uncategorized

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Sunday, February 12th, 2012

Five and Time

United Sates v. Culbertson, 10-1766-cr (2d Cir. February 3, 2012) (Hall, Lynch, Lohier, CJJ)

Defendant Culbertson was arrested during an investigation into the importation of heroin and cocaine into the United States from Trinidad, after his girlfriend was arrested at the airport. He was charged with offenses that, based on the drug type and quantity alleged – 100 grams or more of heroin and five kilograms or more of cocaine – carried a ten-year mandatory minimum.

Culbertson was a difficult guy – he went through so many appointed attorneys that the district court finally forced him to go pro se- and consistently disputed the quantity of drugs attributable to him. At his plea, Culbertson insisted that the offense involved only “three kilos” of cocaine – that is what he said his girlfriend had been recruited to import, even though she in fact had more than five in her luggage – …

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Categories: right to counsel, Rule 11, Uncategorized

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Monday, May 31st, 2010

Something Barrow-ed

United States v. Oluwanisola, No. 08-4442-cr (2d Cir. May 21, 2010)(Leval, Pooler, Parker, CJJ)

Taking a case to trial after the client has proffered is a difficult thing to do. Most proffer agreements have a clause permitting the government to introduce the defendant’s proffer statements to rebut evidence offered or elicited, or factual assertions made by, the defense. In United States v. Barrow, 400 F.3d 109 (2d Cir. 2005), the court held that such rebuttal clauses apply to all factual assertions, including those made in counsel’s arguments and cross-examination, but are not triggered by arguments that challenge the sufficiency of the evidence. Here, having found that the district court misapplied Barrow at Oluwanisola’s heroin trafficking trial, the court vacated the judgment and remanded the case for a new trial.

The appellate court identified several problems with the district judge’s approach. First, the judge ruled that arguing that specific elements of …

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Categories: harmless error, proffer agreements, right to counsel, Uncategorized

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Sunday, October 19th, 2008


United States v. Worjloh, No. 06-3129-cr (2d Cir. October 8, 2008) (Parker, Raggi, Hall, CJJ) (per curiam)

Although not yet charged with a federal offense, Worjloh was questioned by federal agents while he had state drug charges pending. The state charges were ultimately dismissed, and a federal indictment was returned. On appeal, he argued that his statements to the federal agents were obtained in violation of his Sixth Amendment right to counsel.

The circuit disagreed. Because Worjloh was not subject to federal charges when the feds questioned him, “no Sixth Amendment right to counsel had attached as to the then uncharged federal conduct.” The Sixth Amendment rights related to the state offenses did not “serve to restrict the ongoing investigation into uncharged federal crimes where, as here, that investigation is not tied to the state’s conduct.” It might be different if the federal prosecutors had sought to admit evidence obtained …

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Categories: right to counsel, Uncategorized

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Saturday, June 14th, 2008

Breach Blanket Bingo

United States v. Bell, No. 07-0715-cr (2d Cir. June 10, 2008) (Jacobs, Calabresi, Sack, CJJ) (per curiam)

In this case, the circuit had to sift through competing claims as to which party breached the plea agreement.

Defendants Brumer and Klein pled guilty to various offenses relating to healthcare fraud. Their agreements with the government stipulated to a loss amount, and specified that neither party would seek a departure or adjustment other than those contained in the agreement. Based on the proof at a related trial, however, the government offered to amend the agreement and reduce the loss amount. The defendants rejected this offer, and instead sought a Fatico hearing, after which the court held them accountable for a significantly lower loss amount. In exchange, the government sought adjustments for mass marketing and vulnerable victims that were not part of the plea agreement.

So who breached first? The defendants. According to …

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Categories: breach, right to counsel, Rule 11, Uncategorized

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