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United States v. McGriff, Docket No. 06-2014-cr (2d Cir. Jan. 5, 2007) (Parker, Wesley, Hall): In a matter of first impression in this Circuit, the Court holds here that a district court’s denial of the defendant’s motion to strike the Government’s death notice for untimeliness under 18 U.S.C. § 3593(a) is not immediately appealable under the collateral order exception to the final judgment rule. The Court rejects McGriff’s effort to characterize the right conferred by § 3593(a) — requiring the Government to notify a defendant of its intent to seek the death penalty, and the aggravating factor(s) justifying such a sentence, at “a reasonable time before the trial or before acceptance by the court of a guilty plea” — as a right “not to stand trial for a capital offense except upon adequate notice.” Op. 7. Rather, the Court explained that the protection offered by § 3593(a) …

United States v. Moreno-Rivera, Docket No. 05-5760-cr (2d Cir. Dec. 22, 2006) (Cabranes, Sack, Hall) (per curiam): In United States v. Fuller, 332 F.3d 60 (2d Cir. 2003), the defendant claimed, as Moreno-Rivera does in this appeal, that his attorney failed to follow his explicit instruction to file a notice of appeal, resulting in the defendant’s failure to file a timely pro se notice of appeal. In Fuller, it was undisputed that Fuller timely asked his attorney to file the notice of appeal, and that the attorney failed to do so. As a result, the Circuit dismissed Fuller’s late appeal, but remanded the case to the district court with instructions to vacate the judgment and enter a new judgment, so that Fuller can timely appeal from the new judgment.

The Circuit denies the same remedy to Moreno-Rivera, however, and dismisses his late appeal. This is …

United States v. Daidone, Docket No. 04-3784-cr (2d Cir. Dec. 15, 2006) (Newman, McLaughlin, Hall) (per curiam): This opinion does not appear to break new ground, but simply confirms that in a RICO prosecution, proof of “horizontal relatedness” between the alleged predicate acts — i.e., proof that the predicates are related to each other — may be satisfied by the same evidence used to prove “vertical relatedness” — i.e., evidence establishing that the predicates are related to the RICO enterprise. Daidone, a made guy in the Luchese family of LCN, complains on appeal that his RICO convictions under § 1962(c) & (d) must be vacated because the three predicate acts (two whackings and a long-term shylocking) “were committed years apart, by different people and for entirely different reasons,” and thus did not constitute a “pattern of racketeering activity” as required under RICO. He especially complains …

United States v. Gilmore, Docket No. 05-6195-cr (2d Cir. Dec. 8, 2006) (Miner, Pooler, Katzmann) (per curiam): In United States v. Anati, 457 F.3d 233 (2d Cir. 2006), the Circuit held that a district court must give reasonable notice of its intent to exceed the advisory Guidelines range (via consideration of the § 3553(a) factors) prior to sentencing. Here, the Court extends Anati and holds that failure to provide the notice required by Anati constitutes “plain error” warranting reversal and remand for resentencing, even where the defendant failed to object to the lack of notice at sentencing.…

The Supreme Court ruled yesterday in Lopez v. Gonzales that a state felony conviction for simple drug possession does not qualify as an “aggravated felony” for purposes of the Immigration and Nationality Act. And although the Court had granted cert. in a companion case involving the same interpretive question but in the Sentencing Guidelines context, the Court dismissed that criminal case in a one-sentence order stating that the “writ of certiorari is dismissed as improvidently granted.”

This outcome yields some uncertainty for those who practice in the Second Circuit, because this Circuit has divergent holdings on this issue depending on whether it arises in the immigration context or the Guidelines context. Thus, on the one hand, the Circuit ruled in Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996), that a state possession felony is not an aggravated felony in the immigration context. On the other hand, the Circuit …

United States v. Acosta, Docket No. 05-3346-cr (L) (2d Cir. Nov. 30, 2006) (Jacobs, Parker, Oberdorfer) (per curiam): This short opinion holds that convictions under (1) the second clause of 18 U.S.C. § 242 (violating someone’s civil rights when either “bodily injury results” or involved “the use, attempted use, or threatened use of a dangerous weapon”) and (2)18 U.S.C. § 241 (conspiring “to injure, oppress, threaten, or intimate” a person exercising his/her civil rights) both qualify as a “crime of violence” under 18 U.S.C. § 924(c) (mandating additional consecutive sentence when a firearm was possessed / used / brandished “during and in relation to any crime of violence . . . for which the person may be prosecuted in a court of the United States”), which defines a “crime of violence” as a felony that either “(A) has as an element the use, attempted use, or threatened …

United States v. Ministro-Tapia, Docket No. 05-5101-cr (2d Cir. Nov. 28, 2006) (Walker, Leval, Raggi): The Parsimony Clause is alive in the Second Circuit! See 18 U.S.C. § 3553(a) (“The district court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of [§ 3553(a)].”). Though Mr. Ministro-Tapia loses his appeal challenging his bottom-of-the-Guidelines-range sentence, the Court’s opinion represents a great win for criminal defendants generally. (Disclosure: Phil Weinstein of this Office represents Mr. Ministro-Tapia on appeal). While ultimately rejecting the defendant’s argument that the district court violated the parsimony command by imposing a Guidelines sentence when a below-the-range sentence would have advanced the ends of sentencing equally well, the Circuit unequivocally rules that “if a district court were explicitly to conclude that two sentences equally served the statutory purpose of § 3553, it could not, …

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 …