Federal Defenders of New York Second Circuit Blog

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Second Circuit Issues Blanket Order Permitting Remand in All Cases in which the Mandate Was Withheld Pending Booker

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Just moments ago, the Second Circuit issued a blanket order addressing all previously decided criminal cases in which the mandate had been withheld pending the Supreme Court’s decision in Booker, pursuant to Chief Judge Walker’s August 6, 2004, order. Please see the Circuit’s website for this blanket order (www.ca2.uscourts.gov). As expected in light of Crosby … Read more

The Little Case that Could — U.S. v. Fleming

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Some additional comments regarding Fleming (No. 04-1817-cr) to supplement David’s excellent post below on the “Booker Trilogy” issued by the 2d Circuit on February 2nd. Though Crosby is clearly the Big Daddy of the bunch, Fleming must not be overlooked because it answers two critical questions left somewhat unanswered in Crosby — (1) what does … Read more

A Booker Trilogy

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United States v. Crosby, No. 03-1675 (February 2, 2005) United States v. Fleming, No. 04-1817-cr (February 2, 2005) United States v. Green, No. 04-6564-cr (February 2, 2005) In one remarkable opinion in Crosby and its two sidekicks, Fleming and Green, the Circuit discusses, if not settles, many of the issues involved in carrying out the … Read more

Second Circuit Interprets Hyde Amendment for First Time

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United States v. Schneider, No. 03-1764 (January 14, 2005) Background Jeffrey Schneider was an accountant at a company that funded residential loans, and was implicated in a fraudulent scheme on the part of some of the company’s principals to skim funds from escrow accounts. There were several years of contententious pretrial proceedings, some of the … Read more

District Court Erred in Considering “Ex Post Data” in Collateral Challenge to Deportation

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In United States v. Scott, No. 04-937-cr (January 11, 2005), the Court considered several important questions relating to collateral challenges to the deportation underlying an illegal reentry prosecution. Background Kevin Eric Scott had previously appealed the district court’s denial of his motion to dismiss the indictment, and the Court had remanded the case to the … Read more

Court Reverses Habeas Denial Based Upon New Evidence that Gotti Threatened to Kill Co-Defendant’s Counsel If He Abandoned Joint Defense

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Frank Locascio v. United States of America, Docket No. 03-2485 (2d Cir. Jan. 12, 2005) (Walker, Winter, and Jacobs) (Op. by Winter) Facts: In October 2000, Frank Locacio filed a Section 2255 petition, alleging that he was not afforded the effective assistance of counsel at his 1992 trial with co-defendant John Gotti. The petition was … Read more

Circuit Vacates Grant of Habeas Based on Prosecution’s Use of Incriminating Statement Obtained during Un-Mirandized Pedigree Questioning of Defendant

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Jose Rosa v. Frank McCray, Docket No. 04-2188 (2d Cir. Jan. 27, 2005) (Miner, Cabranes, and Straub) (Op. by Miner) (Dissent Op. by Straub) Facts: On September 5, 1997, the victim (“V”) was robbed at gunpoint by two men. V subsequently went to the police and described one of the robbers — the one carrying … Read more

Creating Perverse Incentives for Lackluster Advocacy in the New York Court of Appeals? The Second Circuit’s Exhaustion Jurisprudence, Cont’d.

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(By guest blogger Darrell Fields, Associate Counsel, Appeals Bureau of the Federal Defender Division): In Galdamez v. Keane, No. 03-2595, 2005 WL 15136 (2d Cir. Jan. 4, 2005) (Op. by Sotomayor), the Second Circuit held that a New York prisoner seeking habeas corpus relief (28 U.S.C. § 2254) had exhausted all of the claims he … Read more