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Hanson v. Phillips, Docket No. 04-0940-pr (2d Cir. March 30, 2006) (Leval, Straub, Katzmann): An astonishingly good result for Mr. Hanson (and perhaps for thousands of fellow travelers in the New York State courts): The Circuit grants Hanson’s § 2254 petition because the record of his state guilty plea (to a misdemeanor charge of criminal contempt in the 2d degree in an Orange County city court, for which he was ultimately sentenced to 15 days in the county pen and 3 years’ probation) failed to “affirmatively disclose that [he] intelligently and voluntarily pleaded guilty,” as required under Boykin v. Alabama, 395 U.S. 238 (1969). For those interested, the plea allocution is quoted in full at pages 3 to 6 of the opinion. It is undeniably bare bones — not even close to the full Rule 11 colloquy required in federal court. And Boykin undeniably stands for the …

United States v. Goldstein, Docket No. 04-1689-cr (2d Cir. March 29, 2006) (Walker, Hall, Gibson (by desig’n)): Goldstein raises a host of challenges to his conviction for credit card fraud and his 70-month sentence. Only a few are worth mention (and barely so).

First, Goldstein argues that the trial court erred in instructing the jury about his good faith as a defense. While the court properly told the jury that good faith is a complete defense to the fraud charges, Goldstein claims that this correct statement was undermined when the court “added language that improperly required the jury to find that Goldstein’s good faith was objectively reasonable.” Op. 6; see Cheek v. United States, 498 U.S. 192, 203 (1991) (good-faith belief, as a defense, need not be objectively reasonable). The problematic language is the highlighted portion of the following instruction: “If the defendant actually believed that he was …

United States v. Walker, Docket No. 05-3851-cr (2d Cir. March 30, 2006) (Straub, Sack, Trager (by desig’n)) (per curiam): Not much to this opinion, which holds that a conviction in New York State for attempted assault in the second degree, in violation of N.Y. Penal Law §§ 110/120.05(2), qualifies as a conviction for a “violent felony” within the meaning of 18 U.S.C. § 924(e)(1) & (e)(2)(B), and thus can serve as one of the three required predicates triggering the 15-year minimum under the ACCA. The statutory language seems to fit, Op. 3-4, [but see “Comments” below] and Congress can enact dumb laws if it so wishes.

The Circuit also quickly rejects Walker’s argument that his conviction should not be counted as an ACCA predicate because New York’s own definition of “violent felony” (for purposes of its sentencing laws) does not include attempted assault-2d: “Congress chose to …

United States v. Snype, Docket No. 04-3299-cr(L) (2d Cir. March 17, 2006) (Cabranes, Raggi, Sand):

This thoroughly litigated case produced a lengthy opinion touching on important Fourth Amendment, trial, and sentencing issues. These issues ranged from intertwined issues of a “warrantless” search and its fruits, the voluntariness of a consent to search, and the lawful scope of that consent, various trial errors including an error under Crawford v. Washington, and several challenges to the mandatory life sentence. The Circuit ultimately rejected all, although the defendant’s arguments appear in a number of cases to be more substantial than the Court’s opinion might suggest.

The defendant Snype was charged with conspiracy to commit bank robbery. According to the government’s cooperating witness, who said he had acted as a lookout, Snype and another man robbed the bank at gunpoint. When police arrived, Snype and his partner fled, shooting at police, and …

United States v. Rasheim Carlton, Docket No. 05-0974-cr (2d Cir. March 24, 2006) (Cardamone, Cabranes, Pooler): This opinion principally rejects an Apprendi and Blakely based Sixth Amendment challenge to the district court’s decision to revoke Carlton’s supervised release and resentence him to 25 months’ imprisonment based solely on the court’s own fact-finding, on a preponderance standard, that he committed a new crime. The outcome is hardly unexpected — the Circuit has repeatedly refused to apply the Sixth Amendment implications of Apprendi, Blakely, and Booker to revocation proceedings in recent decisions. E.g., United States v. McNeil, 415 F.3d 273 (2d Cir. 2005).

The opinion is of interest only because it goes beyond citing precedent and attempts to offer a rationale for why the jury trial and beyond-a-reasonable-doubt protections do not apply at revocation proceedings. Indeed, the Circuit acknowledged that “some tension exists between § …

Campusano v. United States, Docket No. 04-5134-pr (2d Cir. March 23, 2006) (Pooler, Sotomayor, Korman (by desig’n)): A fine opinion that reaches the right result and contains enough praise of the importance of a criminal defendant’s right to appeal to warm the heart of even the most jaded appellate counsel. The issue is simply whether an attorney is required to file a notice of appeal when requested by the client, even though the client entered into a plea agreement containing an appeal waiver provision that seemingly bars an appeal. Relying on the Supreme Court’s decision in Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Circuit held that, yes, a lawyer is indeed required to file a notice of appeal under such circumstances, and that it is per se ineffective assistance not to do so. The proper procedure is to file the notice of appeal and then — …

United States v. Roberts, Docket No. 04-6610-cr (2d Cir. March 23, 2006) (Sotomayor, Raggi, Cedarbaum (by desig’n)) (per curiam): This is an odd one: The Circuit affirms a sentence that included an enhancement under U.S.S.G. § 2K2.1(a)(5), calling for an enhanced base offense level of 18 when the offense “involved a firearm described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30),” because Roberts’s firearm (a Tech 9 pistol) qualified as a “semiautomatic assault weapon” under § 921(a)(30) — even though § 921(a)(30) had been repealed by the time of Roberts’s sentencing. The Court upheld the sentence by reading the Guideline literally, and after noting that it was “aware of no authority that prevents Congress, or the Sentencing Commission acting under congressional authority, from incorporating by reference any definition they choose in the Sentencing Guidelines, whether or not that definition is contained in a currently operative provision of …

United States v. Paul Williams, Docket No. 05-0458-cr (2d Cir. March 22, 2006) (Kearse, Miner, Hall): This interesting opinion affirms a judgment revoking Williams’s supervised release and imprisoning him for three years (the statutory maximum). The district court found that Williams violated supervised release by committing a new crime — i.e., by shooting and then robbing one Ryan. The principal issue on appeal concerned whether the court erred in basing this finding upon hearsay evidence, since no eyewitness testified at the revocation hearing. The hearsay evidence consisted of testimony by an NYPD detective and by the probation officer, as well as a sworn complaint by Ryan, regarding conversations with Ryan in which Ryan identified Williams, on at least three separate occasions, as his assailant. Ryan also made several out-of-court statements denying that Williams was his attacker, however, and refused to testify against him.

The Circuit upheld …

United States v. Skelly and Gross, Docket No. 05-4261-cr (L) (2d Cir. March 21, 2006) (Newman, Katzmann, Rakoff (by desig’n)): A rather rambling opinion by one SDNY judge affirming a judgment of conviction rendered by another SDNY judge following a jury trial convicting the two defendants of various counts of securities fraud. The Government’s primary theory at trial was that Skelly and Gross, the principals of Walsh Manning Securities (a registered broker / dealer), engaged in a pump-and-dump scheme wherein they (and the registered reps they employed) “used manipulative techniques to artificially inflate the price of certain thinly-traded securities in which they held a substantial interest, and then used fraudulent and high-pressure tactics to unload the (largely worthless) securities on unsuspecting customers.” Op. 2. This theory was, we are told, “amply supported by the evidence.” Id.

Employing the “kitchen sink” mode of litigation so in favor at One St. …

United States v. Frank Quattrone, Docket No. 04-5007 (2d Cir. March 20, 2006) (Wesley, Hall, Scullin (by designation)): We have not yet had time to read the decision and will do a full summary later. Even a quick look, though, confirms a big (though not total) victory for the defense: The Circuit (1) vacates Quattrone’s conviction because of errors in the district court’s charge to the jury (the charge failed to tell the jury that it had to determine that Quattrone knew that the documents he was asking to be destroyed were the same ones sought by the Government, thus “remov[ing] the defendant’s specific knowledge of the investigatory proceedings and the subpoenas / document requests from the obstruction equation” and “leaving a bare-bones strict liability case”) ; (2) rejects Quattrone’s claim that the evidence was insufficient to sustain the verdict; and (3) remands the case to a …

United States v. DeFonte, Docket No. 06-1046-cr (March 14, 2006) (before Jacobs, Wesley, C.J.J., Koeltl, D.J.)

This interesting per curiam decision holds that a prison inmate retains her attorney-client prvilege with respect to a diary that she maintained while incarcerated.

Facts: Defendant DeFonte, a (former, presumably) correction officer at the MCC, was on trial for crimes that he was charged with having committed in the course of his employment. One of the witnesses against him was to be an inmate, Francia Collazos. Shortly before trial, the government learned, and ultimately obtained possession of, a diary that she maintained in her cell containing her writings about incidents inovling DeFonte and conversations with her own attorney and the prosecutors. When DeFonte’s attorney learned of the diary, he requested that it be turned over to the defense as 3500 and Giglio material. Collazos moved to intervene. She sought a protective order claiming …