Federal Defenders of New York Second Circuit Blog

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Little New in the Amended Rattoballi Opinion

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United States v. Rattoballi, Docket No. 05-1562-cr (amended opinion June 21, 2006) (Walker, Winter, Jacobs): Yesterday, the panel in Rattoballi (click here for our critique of the original opinion) sua sponte issued an amended opinion. However, because the Circuit (1) never informs its readers what portion(s) of the original opinion has been altered in an … Read more

Fair Market Value Should Generally Be Used to Determine Value of Offset Property in Setting Amount of Restitution

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United States v. Francis Boccagna, Docket No. 04-5099-cr (2d Cir. June 13, 2006) (Jacobs, Sack, Raggi): (By Lara Samet, rising 2-L at NYU Law School and intern at FDNY) Boccagna ran an intricate scheme. Distilled to its essentials, he made false statements to procure loan guarantees from the Department of Housing and Urban Development (HUD), … Read more

First Amendment Does Not Bar Sentencing Court from Considering Defendant’s Writings to Rebut His Claims about His Character and Chance of Recidivism

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United States v. Kane, Docket No. 05-2714-cr (2d Cir. June 19, 2006) (Meskill, Straub, Katzmann) (per curiam): This opinion primarily holds that while a sentencing court may not rely on a defendant’s abstract beliefs (or writings) for the purpose of demonstrating that those beliefs / writings (and by extension the defendant) are “morally reprehensible” (and … Read more

Have the Mandatory Guidelines Been Reenacted?

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United States v. Rattoballi, Docket No. 05-1562-cr (2d Cir. June 15, 2006) (Walker, Winter, Jacobs): Someone please wake us up: We read this opinion and had a nightmare that we lived either in another Circuit or in an alternate universe in which Booker had never happened. In an extraordinary act of law-making that flouts Booker … Read more

Corrections Department May Not Unilaterally Add Term of Supervision to Sentence, even if Such Term Is Mandated under Law

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Earley v. Murray, Docket No. 04-4098-pr (2d Cir. June 9, 2006) (Walker, Leval, Sotomayor): This seems an easy case, though the learned district judge somehow got it wrong. The Circuit (by the Chief, no less) reverses the district court and grants the writ to the habeas petitioner, concluding that state courts acted contrary to clearly … Read more

Is the Circuit’s Website Not-So-Appealing?

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Howard Bashman (of the must-read How Appealing blog) wrote this critique of the Second Circuit’s website in a recent article for law.com ranking the websites of the various federal Circuits: “My final bit of criticism is reserved for the New York City-based 2nd U.S. Circuit Court of Appeals, which allows visitors to access newly issued … Read more

Yet Another Misreading of Apprendi and Ring and Their Application to New York’s Persistent Felon Statute

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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 … Read more

We Win!

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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 … Read more

Jury Must Be Unanimous that RICO Predicate Was Not Proved to Yield an Acquittal; Lack of Unanimity Results in Hung Jury

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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 … Read more