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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 …

Jackson v. Attorney General, Docket No. 05-2766-pr (2d Cir. Feb. 8, 2006) (Walker, Winter, Jacobs): This short habeas-related decision was rendered on February 8, 2006, but not posted on the Circuit’s website until March 10th. No harm — the Court simply holds that a Certificate of Appealability (“COA”) is required to appeal a district court’s denial of a Rule 59(e) motion (seeking to alter or amend a judgment) when the underlying judgment is one that denies or dismisses a § 2254 petition. The Court relied largely on its earlier decision in Kellogg v. Strack, 269 F.3d 100, 103 (2d Cir. 2001), which held that a COA is required to appeal from the denial of a Rule 60(b) motion (seeking relief from a judgment) when the underlying judgment is a denial or dismissal of a habeas petition.…

United States v. Philip Giordano, Docket No. 03-1394 (2d Cir. March 3, 2006) (Jacobs, Sotomayor, Hall): Giordano is the former mayor of Waterbury, Connecticut. He was convicted by a jury of (1) two counts of 18 U.S.C. § 242 (violating someone’s civil rights “under color of [] law”) (the “civil rights counts”); (2) fourteen counts of 18 U.S.C. § 2425 (using a “facility of interstate commerce” to transmit the name or other identifying information of a person under age 16, with the intent to entice or solicit the person to engage in sexual activity) (the “phone counts”); and (3) one § 371 conspiracy count involving the § 2425 violations. On appeal, he raised numerous arguments, three of which are discussed by the Court in this published decision (the remaining arguments are discussed — and rejected — in an unpublished summary order): (1st) that the § 2425 convictions must …

United States v. Fairclough, Docket No. 05-2799-cr (2d Cir. Feb. 17, 2006) (Jacobs, Leval, Straub) (per curiam): The Circuit holds in this short opinion that (1) there is no Ex Post Facto problem when the Booker remedy (i.e., the advisory Guidelines regime) is used to sentence a defendant who committed his offense before Booker was decided in January 2005; and (2) a 48-month non-Guidelines sentence, more than twice the midpoint of the applicable range (21 to 27 months), was reasonable in light of the recidivism (Fairclough “had a relatively uninterrupted string of criminal activity and arrests” from 1998 to 2002) and “seriousness of the offense” concerns (Fairclough did not merely possess a gun, but sold it to an undercover believing that the buyer “was about to do bad with it”) cited by the district court to justify the sentence. No new legal ground is broken on either …

U.S. District Court for the Western District of New York v. Darnyl Parker, Docket No. 04-5175-cr (2d Cir. Feb. 21, 2006) (Walker, Wesley, Hall): In a lengthy opinion touching on rarely encountered issues, the Court concludes that (1) the district court did not err in denying the defendant’s mid-case request that his retained counsel be appointed under the Criminal Justice Act, 18 U.S.C. § 3006A(c), based on a finding that the defendant was not financially unable to pay for counsel; and that (2) the W.D.N.Y.’s practice of inquiring of retained counsel at an early stage of the proceedings whether s/he is “fully retained” (rather than retained only for limited purposes) does not violate § 3006A(c)’s explicit allowance for mid-case appointment of assigned counsel. See18 U.S.C. § 3006A(c) (“If at any stage of the proceedings, . . . the court finds that the person is financially unable …

Sash v. Zenk, Docket No. 04-6206-pr (2d Cir. Feb. 22, 2006) (denial of petition for rehearing) (Sotomayor, Wesley, Brieant (by desig’n)): The Circuit denies Sash’s petition for rehearing in this published opinion. In its earlier opinion, Sash v. Zenk, 428 F.3d 132 (2d Cir. 2005) (click here for this Blog’s discussion), the Circuit upheld as “reasonable” the BOP’s odd & stingy interpretation of the good-conduct time statute, 18 U.S.C. § 3624(b). This statute states in sum and substance that a “prisoner who is serving a term of imprisonment of more than 1 year . . . may receive credit toward the service of the prisoner’s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment.” While Sash read the statute to mean that he should receive up to 54 days of credit for each …

Rodriguez v. Miller, Docket No. 04-6665-pr (2d Cir. Feb. 17, 2006) (Cardamone, McLaughlin, Parker): In this opinion, the Circuit reverses the district court’s denial of Rodriguez’s § 2254 petition and grants the writ. The Court concluded that the state trial court violated Rodriguez’s 6th Amendment right to a public trial when it excluded his mother and brother from the courtroom during the testimony of the state’s sole witness — an undercover cop who claimed to have purchased drugs from Rodriguez in this buy & bust case — without any specific evidence showing that the relatives posed a danger to the undercover’s safety or future effectiveness. Even more: The Court found a 6th Amendment violation even though the trial judge had proposed the alternative of allowing his relatives to remain in the courtroom if they agreed to sit behind a screen that would shield the undercover from their view. …

This Blog now returns after a short vacation. We will catch up with the three or four criminal and habeas cases decided by the Court during our break — none earth-shattering, on first glance — in the next several days.…

United States v. Dmitry Proshin, Docket No. 04-5308-cr (2d Cir. Feb. 16, 2006) (Kearse, Cardamone, Cabranes) (per curiam): Sometimes one reads a decision and wonders, “Why in the world did the Court decide to publish this?” This opinion is a good example. The Circuit upholds a 6-level enhancement under U.S.S.G. § 2L2.1(b)(2), concluding that the district court’s factual determination that Proshin’s crime (conspiring to produce, and producing, false identification documents) involved between 25 and 99 fraudulent documents was not clearly erroneous.

The opinion is fact-specific and breaks no legal ground whatsoever. The Court simply points out that although no evidence placed Proshin physically at the Brooklyn location where 27 fraudulent documents were found, ample evidence linked Proshin with the co-conspirator who operated out of that location. Op. 7-8.…

United States v. Titemore, Docket No. 05-1380-cr (2d Cir. Feb. 9, 2006) (Walker, Calabresi, Straub): In an opinion of little use to us city folks (and perhaps of only slightly greater relevance to our rural kin given its highly fact-specific nature), the Court rejects Titemore’s effort to suppress evidence (a rifle) seized after a state trooper, standing near “a principal entrance to [Titemore’s] home [after approaching it] using a route [through his property] that other visitors could be expected to take,” saw it in plain view. After an encyclopedic survey of the law regarding “curtilage” (one that took us back to those dreamy law school days), see Op. 12-21, and a mind-numbing discussion of minutiae regarding the layout of Titemore’s house and property, id. 5-9, the Court ruled that regardless of whether this area constitutes “curtilage” under the common law, Titemore had no reasonable expectation of privacy …

United States v. Osama Awadallah, Docket No. 05-2566-cr (2d Cir. Jan. 26, 2006) (Feinberg, Parker, Cudahy (by desig’n)): A very fine opinion by Judge Parker that (1) upholds Judge Scheindlin’s pretrial ruling limiting the testimony of grand jurors the Government proposed to call as witnesses at Awadallah’s perjury trial, and (2) rejects the Government’s request to remove Judge Scheindlin from the case because of her alleged bias in favor of the defense. Much has already been said about the removal issue (see here and here for example), so this Blog will concentrate on the evidentiary ruling.

The essential facts are simple. Awadallah was arrested shortly after September 11, 2001, on a material witness warrant based on allegations that he knew and had contact with some of the 9/11 hijackers. Eventually, he was called before a grand jury in the SDNY and asked by the prosecutor (1) whether he …