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Brown v. Miller, Docket No. 05-5014-pr (2d Cir. June 7, 2006) (Cabranes, Sotomayor, Raggi): In this disappointing opinion, the Circuit relies on the same ad hoc reasoning it first used in Brown v. Greiner, 409 F.3d 523 (2d Cir. 2005) (click here for our discussion), to reject the habeas petitioner’s claim that his sentence, imposed after the sentencing court determined that he was a persistent felon under N.Y. Penal Law § 70.10, violated the Sixth Amendment. The sole difference between this case and Greiner is that while this petitioner’s conviction became final after both Apprendi and Ring, the Greiner petitioner’s conviction became final after Apprendi but before Ring. This difference, in turn, alters the question presented on federal habeas in light of the AEDPA: While the question in Greiner was whether the state court’s decision upholding § 70.10 was an unreasonable application of Apprendi, …

Zedner v. United States, Supreme Court Docket No. 05-5992 (June 5, 2006): A big Congratulations to Ed Zas of this Office, as well as to Barry Leiwant and Sean Hecker, for winning the long and hard-fought appeal in Zedner. In a 9-0 decision by Justice Alito reversing the Second Circuit (click here for our critique of the Circuit’s decision), the Court held that the protections of the Speedy Trial Act cannot be prospectively waived by the defendant and that harmless error analysis is not applicable when a district court makes no findings on the record to support an “interests of justice” exclusion under 18 U.S.C. § 3161(h)(8).

The only remedy for the Speedy Trial violation here, the Court held, is dismissal of the indictment (either with or without prejudice). Let us hope that wiser heads prevail on remand and end this long, sad saga.…

United States v. John A. Gotti, Docket No. 05-6872-cr (Walker, Leval, Sotomayor): This is the opinion the Court promised in February when it rejected Gotti, Jr.’s interlocutory appeal. Gotti claimed that his retrial on two RICO counts was barred by the Double Jeopardy Clause because the jury at his first trial could not unanimously agree that the Government had proved the existence of at least two predicate racketeering acts. Gotti argues that because the Government thus failed to prove the “pattern of racketeering activity” element of the RICO offense, he was entitled to acquittal on the RICO charges (and thus could not be re-prosecuted on these charges at a new trial under the Double Jeopardy Clause).

The Circuit rejects this “extraordinary argument,” adhering to the general rule that jury unanimity is required for either conviction or acquittal. Op. 6 (citing Fed. R. Crim. P. 31(a) (“The verdict must …

United States v. Hilario, Docket No. 05-3972-cr (2d Cir. May 24, 2006) (Sotomayor, Wesley, Hall) (per curiam): This Blog is puzzled once more by the Court’s decision to issue a published decision rather than a summary order in this case (while giving seemingly more deserving appeals the ol’ back-of-the-hand summary order treatment). Here, the Court rejects Hilario’s two challenges to his sentence (for importing ecstasy), challenges that — at least as described in the opinion, or unless this Blog is missing something — seem to straddle the silly-to-frivolous line.

First, Hilario claims that the district court erred because it departed downward by only 26 months to account for the 26 months that he previously spent in a Belgian jail for a “related offense.” Hilario claims that the court should have departed downward by an additional 4 months because he “might have earned [the 4 months as good-conduct …

United States v. Toohey, Docket No. 05-4688-cr (2d Cir. May 17, 2006) (Winter, Cabranes, Raggi): In light of the Circuit’s extremely lax standard for determining whether a sentencing court has fulfilled its obligation to “consider” the Section 3553(a) factors in imposing sentence as required by Booker, see, e.g., United States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006) (appellate court will assume that the requisite consideration has been made, even where record is silent); United States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005) (same), this may be the first decision by the Circuit vacating a sentence on the ground that record suggests that the district court failed to consider the Section 3553(a) factors in imposing the 15-month sentence (the bottom of the applicable Guidelines range). But the circumstances were odd and unlikely to recur with any frequency: The sentencing followed two…

Smith v. Hollins, Docket No. 03-2250-pr (2d Cir. May 15, 2006) (McLaughlin, Sack, Koeltl (by desig’n)): This decision is but the latest in a long line of Second Circuit cases in which the Circuit has “expressed its strong devotion to the preservation of an individual’s right to have family and friends present at his trial” and granted habeas based on the exclusion of the defendant’s family members from the courtroom. Op. 13 (citing numerous cases from 1994 (Vidal v. Williams, 31 F.3d 67 (2d Cir. 1994)) to 2006 (Rodriguez v. Miller, 439 F.3d 68 (2d Cir. 2006) (click here for our discussion of Miller)). It is also further evidence that neither state courts nor state prosecutors pay any attention to the Second Circuit. In this case, in which the state trial occurred in 1997, the judge and the ADA should have known …

United States v. Adams, Docket No. 04-5391-cr (2d Cir. May 10, 2006) (Cardamone, McLaughlin, Pooler): This opinion does not break new ground, but is a good reminder that while the substantive distribution offense under the drug laws, e.g., 21 U.S.C. § 841(a), does not (as the law currently stands) require proof that the defendant knew the type and quantity of drugs he was selling or carrying for purposes of sentencing under the enhanced penalty provisions of § 841(b), the same is not true of the conspiracy offense under § 846. In order for a defendant charged with drug conspiracy under § 846 to be sentenced under the enhanced penalties of § 841(b)(1)(A) for cocaine, for instance, the Government must prove to a jury that the particular defendant either knew or reasonably should have known that the conspiracy he joined involved distribution of five or more kilograms of …

United States v. Flores, Docket No. 05-2385-cr (2d Cir. May 3, 2006) (Kearse, Raggi, Restani (by desig’n)): This opinion affirms Flores’s conviction for conspiring to import heroin and his 210-month sentence, discussing along the way (1) the standards for tolling the statute of limitations under 18 U.S.C. § 3290 based on the defendant’s “fl[ight] from justice”; (2) whether testimony by cooperating witnesses alone, without independent corroboration, is sufficient to convict the defendant; and (3) whether the 210-month sentence is reasonable given that Flores’s brother Chepe, who appeared to be equally culpable, received only a 120-month sentence (imposed by a different judge). The bulk of the opinion is spent on the tolling question, Op. 5-16, but this Blog will focus on the sentencing issue.

Flores claims that his 210-month sentence is unreasonable because of its disparity with his brother’s 120-month sentence. This is so even though Flores actually faced …

United States v. Goffi, Docket No. 05-3329-cr (2d Cir. May 4, 2006) (Kearse, Sack, Stanceu (by desig’n)): The Circuit finally holds what most have long assumed — that the maximum sentence upon revocation of probation (as opposed to supervised release) is the maximum for the original, underlying offense. Surprisingly, this was technically an open question in the Circuit until this decision, in which the Second joins many other circuits in so holding. Op. 9-10. Those interested in the statutory parsing can look to pages 7 to 8.

In this case, Goffi was originally sentenced to 5 years’ probation after pleading guilty to embezzlement. While on probation, he pleaded guilty in state court to child molestation. The same misconduct led to revocation of probation in federal court, upon which he was sentenced to 24 months’ imprisonment. Though this sentence exceeds the 6 to 12 months Guidelines range Goffi originally …

United States v. Thorn, Docket No. 03-1602(L) (2d Cir. April 27, 2006) (Jacobs, Sotomayor, Hall): A very bad day for Mr. Thorn. In this opinion, involving an appeal by Thorn and a cross-appeal by the Government following a resentencing in the wake of an earlier Circuit decision in the same case, United States v. Thorn, 317 F.3d 107 (2d Cir. 2003), the Circuit (1) rejects all of Thorn’s challenges to his sentence on the ground that they are either barred by the law of the case doctrine (because they are foreclosed by the earlier decision) or waived because he failed to raise them at the initial sentencing, and (2) accepts all of the Government’s arguments — that the district judge on remand erred in (a) failing to impose an abuse-of-trust enhancement and (b) departing downwardly because Thorn’s conduct was (allegedly) not within the heartland of money laundering …

United States v. Temple, Docket No. 05-0165-cr(L); 05-0679(XAP) (2d Cir. May 1, 2006) (Miner, Wesley, Rakoff)

Eva Temple, an IRS employee, was charged with disruptive behavior in two separate incidents. In the first, two New York City Police Detectives came to arrest her at her place of work, and, as they did, she verbally abused them. In the police car on the way to the precinct, she told the detectives that “she had the ‘ability to initiate investigations and audits into the[ir] tax histories'” and that she had co-workers who held a grudge against the police whom she could tell to audit their tax returns. For this, she was charged with willfully oppressing a person under color of law while acting in connection with a revenue law of the United States. 26 U.S.C. § 7214(a). Ms. Temple was subsequently fired from her job and made a telephone …