United States v. Quintieri, No. 13-464-cr (2d Cir. Dec. 2, 2013) (Kearse, Jacobs, and Parker) (summary order) (as amended), available here A writ of audita querela is an extraordinary remedy under the All Writs Act, 28 U.S.C. Section 1651(a), and is generally available only if the absence of any avenue of collateral attack would raise serious … Read more
UNITED STATES V. RESTREPO, NO. 12-2246-cr (2D CIR. NOV. 27, 2013) (LYNCH, CARNEY, AND DRONEY) (SUMMARY ORDER), AVAILABLE HERE This detailed summary order affirmed defendant’s conviction after trial for a drug related conspiracy and denied seven separate claims of error. First, the Court disagreed with the defendant’s jury selection challenge, which alleged that the trial court erroneously … Read more
United States v. Murray, No. 11-0351-cr (2d Cir. Nov. 27, 2013) (Leval, Sack, and Hall), available here This published decision holds that the district court’s refusal to allow the defendant to present surrebuttal evidence to respond to new evidence introduced by the government on rebuttal denied him his right to present a meaningful defense. Judge Hall dissents. … Read more
UNITED STATES V. LEE, NO. 12-2020-cr (2D CIR. NOV. 26, 2013) (KEARSE, JACOBS, AND PARKER) (SUMMARY ORDER), AVAILABLE HERE This defendant appealed his 235-month prison term for drug related offenses, which the district court imposed on remand from an earlier appeal. The Court vacated an earlier judgment and remanded for re-sentencing due to the erroneous denial of a third point for … Read more
UNITED STATES V. WHITE, NO. 12-68-cr (2D CIR. NOV. 26, 2013) (SACK, HALL, AND LIVINGSTON) (SUMMARY ORDER), AVAILABLE HERE The defendant appealed from his 18 U.S.C. § 1001 conviction and claimed three errors. First, he was deprived of a fair trial when the prosecutor acted as an “unsworn witness” by eliciting testimony about the prosecutor’s decision not … Read more
United States v. Simmons, No. 12-1637-cr (2d Cir. Nov. 26, 2013) (Pooler, Lohier, and Carney) (summary order), available here The panel held that the seizure of a firearm from the defendant’s room did not violate the Fourth Amendment because he gave “implied consent” to the seizure. The district court found that, by telling police officers the precise … Read more
United States v. Rowley, No. 12-3975 (2d Cir. Nov. 26, 2013) (Kearse, Jacobs, Parker) (summary order), available here This summary order reaffirms that the Fair Sentencing Act does not apply to defendants who were convicted and sentenced before August 3, 2010. See United States v. Diaz, 627 F.3d 930, 931 (2d Cir. 2010). The one noteworthy … Read more
United States v. Doyle, No. 11-5265-cr (2d Cir. Nov. 26, 2013) (Kearse, Jacobs, and Straub) (summary order), available here Doyle pled guilty to wire fraud and was sentenced to 72 months of imprisonment and $880,000 in restitution. On appeal, he argued that the district judge violated Fed. R. Crim. P. 11(c)(1) by participating in plea … Read more
United States v. Howe, No. 12-4394-cr (2d Cir. Nov. 25, 2013) (Pooler, Raggi, and Wesley) (summary order), available here Convicted of receiving and possessing child pornography, Howe was sentenced to 180 months of imprisonment. On appeal, he argued that the district court should have suppressed the evidence against him because (1) the police lacked probable cause … Read more
United States v. King, No. 12-2262-cr (2d Cir. Nov. 25, 2013) (Pooler, Raggi, and Wesley) (summary order), available here This summary order affirms the district court’s ruling that the defendant was not eligible for a reduced sentence under 18 U.S.C. 3582(c) and U.S.S.G. 1B1.10. The defendant pled guilty in 1999, pursuant to a Rule 11(c)(1)(C) plea agreement, … Read more