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United States v. Stefan Irving, Docket No. 04-0971-cr (2d Cir. Dec. 23, 2005) (Cardamone, Jacobs, Cabranes): The majority opinion by Judge Cardamone affirms the defendant’s conviction on most counts, but reverses on two counts that were based solely on the defendant’s admissions, made in his personal journal, whose essential facts were uncorroborated by independent evidence. Judge Cabranes dissents on this point.

The decision further holds that (1) despite the Supreme Court’s decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), no expert testimony or other extrinsic evidence is needed to prove that the children depicted in pornographic video footage are real and not virtual (on the tenuous assumption that a jury can tell the difference, at least when video footage (as opposed to still images) is at issue), and that (2) a 2003 warrant authorizing the search of Irving’s home was not based on …

United States v. Alaa Al-Sadawi, Docket No. 03-1784-cr (2d Cir. Dec. 23, 2005) (Walker, Cardamone, Parker): Yet another pyrrhic victory for the defense: The Court rules that the district court committed two evidentiary errors (one involving Crawford and the introduction of a co-defendant’s plea allocution at the defendant’s trial, and the other involving the use of flight as evidence of consciousness of guilt), but finds both harmless in light of the “overwhelming” evidence of the defendant’s guilt. What else is new?

Nothing earth shattering in the opinion. But the decision contains a good, thorough discussion of when the Government can and cannot use evidence regarding the defendant’s attempt to leave the jurisdiction as evidence of guilt. See Op. at 7-9. In sum, the probative value of the defendant’s behavior “as circumstantial evidence of guilt depends upon . . . four inferences . . . : (1) from the …

United States v. Ali Hamdi, Docket No. 03-1307-cr (2d Cir. Dec. 12, 2005) (Feinberg, Winter, Sotomayor): This decision — yet another in the criminal realm by Judge Sotomayor — has two principal holdings. First, the fact the defendant has completed his sentence and been deported does not moot the instant challenge to the length of his sentence, imposed pre-Blakely (and thus pre-Booker), because the length of the sentence “probably” would affect Hamdi’s ability, at a future date, to enter the U.S. on a non-immigrant visa. See Op. at 4-10. Second, a simple declarative statement in a plea agreement that the “[t]he defendant’s sentence is governed by the United States Sentencing Guidelines” does not prohibit the defendant from raising on appeal a claim that his sentence, imposed under the then-mandatory Guidelines regime, is invalid in light of Booker. See id. at 10-20. We will focus …

United States v. Phillips, Docket No. 04-2166-cr (2d Cir. Dec. 7, 2005) (Walker, Hall, Gibson (by desig’n)): Many had hoped that Booker‘s demotion of the Guidelines to mere advisory status would, at the very least, put an end to the endless stream of mind-numbing opinions analyzing Guidelines minutia churned out by the Circuit week after week. That hope has proven unfounded, as this decision again confirms.

The Court holds that unadjudicated juvenile conduct can constitute a predicate offense under a now-repealed version of the rarely seen enhancement under § 4B1.5(b), calling for a 5-level enhancement if the defendant, convicted of a qualifying sex crime, previously “engaged in a pattern of criminal activity involving prohibited sexual conduct.” U.S.S.G. § 4B1.5(b) (2002 ed.). Those interested in how the Court came to this fascinating conclusion are on their own. See Op. at 9-17. Suffice it to say that the …

Zapata v. United States, Docket No. 01-2575 (2d Cir. Dec. 6, 2005) (Sotomayor, Parker, Wesley): The Circuit vacates the district court’s denial of a § 2255 petition, based on Zapata’s IAC claim that trial counsel failed to consult with him about the possibility of an appeal following his 1999 sentencing, for lack of fact-finding on the critical question. The district court denied the petition on the theory that even assuming that counsel failed to consult with Zapata about an appeal, “petitioner is unable to demonstrate that his attorney had a duty to consult with him regarding his right to appeal.” Op. at 2-3. The Circuit didn’t want to play this “assumption” game, however, because it would present the following Hobson’s choice: (1) “[i]f we accept the assumption, we must engage in extensive legal reasoning predicated on a fact not yet determined”; or (2) “[i]f we reject the assumption, …

United States v. Avello-Alvarez, Docket No. 05-0638-cr (2d Cir. Dec. 6, 2005) (Sotomayor, Katzmann, Eaton (by designation)): This short opinion principally confirms that the law governing appellate review of upward departures in the length of the term of supervised release remains unchanged in light of Booker: Before and after that decision, the Circuit reviews such departures for reasonableness. The Court notes additionally, as it did in Crosby and Selioutsky, that “reasonableness has substantive and procedural dimensions,” and thus that the Court will review “both the length of the sentence as well as whether the district court treated the Sentencing Guidelines as advisory and considered the applicable Guidelines range and the factors listed in § 3553(a).” Op. at 3.

Here, the district judge upwardly departed (presumably from a range of 3 to 5 years) and imposed a 7-year term of supervised release, citing among other things …

United States v. Estrada, Docket No. 02-1543-cr (L) (2d Cir. Nov. 29, 2005) (Winter, Sotomayor, Wesley): This decision (1) upholds evidence seized as a result of the defendant’s response to post-arrest but pre-Miranda police questioning under the “public safety” exception first laid out in New York v. Quarles, 467 U.S. 649 (1984); and (2) finds that the district court erred (though harmlessly, of course) in blanketly limiting the impeachment of Government witnesses to the mere fact of their prior felony convictions while excluding the nature / name of those convictions under Rule 609(a)(1) of the Federal Rules of Evidence.

The holding on the Miranda issue is disturbing, though the Circuit’s law on the public safety exception was bad to begin with. See Op. at 7-10. Here, police officers executed an arrest warrant for defendant DeJesus in his home, based on two probation violations. They were also …

United States v. Vaughn, Docket No. 04-5136-cr (L) (2d Cir. Dec. 1, 2005) (Newman, Sotomayor, Daniels (by designation)): In a disappointing but hardly surprising decision, the Court concludes that the standard of proof at sentencing remains the preponderance standard and that acquitted conduct can still be used to calculate the Guidelines range. The Circuit’s position on the calculation of the Guidelines range in the post-Booker world has now become quite clear: The same rules that formerly governed pre-Booker continue to govern post-Booker, the only difference being that the end result of those calculations (i.e., the Guidelines range) is merely advisory and only one factor among several to be considered under 18 U.S.C. § 3553(a) in imposing sentence.

The decision also quickly rejects an ex post facto / Due Process challenge to the use of the remedial portion of the Booker opinion to …

United States v. Steven Robinson, Docket No. 04-0889-cr (2d Cir. Dec. 5, 2005) (Walker, Leval, Lynch (by designation)): This decision upholds, on a Government appeal, the district court’s grant of the defendant’s Rule 33 motion for a new trial on two counts on which he was convicted by a jury. The principal issue on appeal concerned the effect of the defendant’s failure to timely file the Rule 33 motion in the district court — that motion (1) was not filed within the 7-day period allowed by Rule 33 and (2) defense counsel sought an extension from the district court outside of that time period. The kick is that the Government did not object to defense counsel’s extension request, nor did it oppose the Rule 33 motion on timeliness grounds in its initial response to the defendant’s motion in the district court.

The dispute thus came down to this. …

Today, the Circuit posted a reminder that new Local Rules 25 and 32(a) will be going into effect this Thursday, December 1st. New Rule 32 essentially requires counsel in all cases to submit a digitized version of any brief filed, in PDF format, via e-mail to the Circuit, in addition to the 10 paper copies of the brief already required. Rule 32 also requires counsel to submit a certification, both in writing (to be filed with the paper copies of the brief) and electronically (in PDF format, along with the PDF version of the brief), that the brief has been scanned for viruses and that it is virus free. A sample “Anti-Virus Certification” can be found on the Court’s website.

New Rule 25 additionally requires that for all papers filed with the Court, including briefs, motions, letters, and appendices, counsel must submit in addition an unbound copy of the same. …

United States v. Michael Bliss, Docket No. 04-1163-cr (2d Cir. Nov. 23, 2005) (Meskill, Sack, Parker): This case primarily confirms that a defendant’s flight from arrest, even when it results in a year-long delay in his apprehension by law enforcement, is not in itself sufficient to trigger the 2-level obstruction enhancement under U.S.S.G. § 3C1.1. See U.S.S.G. § 3C1.1 comment. (n.5). Moreover, the enhancement is not automatically triggered even when flight is coupled by the defendant’s use of aliases. Rather, the enhancement is warranted only where the Government shows, additionally, that the defendant engaged in conduct that “actually resulted in a significant hindrance to the investigation or prosecution of the instant offense.” Id. § 3C1.1 comment. (n.5(a)). Where a lengthy delay in arrest or the expenditure of significant resources by law enforcement cannot be attributed to the defendant’s actions, the enhancement is not appropriate.

The essential facts …