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United States v. Kurti, Docket No. 04-2239-cr (2d Cir. Oct. 19, 2005) (Winter, Katzmann, Murtha (by designation)): Praise the lord: The often ignored and little understood provision of the Guidelines establishing the “procedure for determining the specific sentence to be formally imposed on each count in a multiple-count case,” i.e., U.S.S.G. § 5G1.2, has officially been declared merely advisory in light of Booker. Here, Kurti pled guilty to two counts charging him with conspiring to distribute an unspecified quantity of narcotics (one count concerned marijuana and the other concerned ecstacy). The statutory maximum on each was 20 years. His Guidelines range was 360 to life, and the district judge at the pre-Booker sentencing imposed a sentence of 360 months. She did not specify, however, “either the length of time to be served on each count or which portion of the sentence of a count was to …

Gersten v. Senkowski, Docket No. 04-0935-pr (2d Cir. Oct. 17, 2005) (Winter, Pooler, Brieant (by designation)): A great win for the defense. This is (at least) the third case in recent memory in which the Circuit granted habeas relief to a state prisoner claiming that he received ineffective assistance of counsel at his trial for child molestation because his attorney failed to consult with, or call as witnesses at trial, medical and psychiatric experts who could have undermined the testimony of the prosecution’s so-called experts. In a classic “he said, she said” case in which the prosecution won conviction by proffering now-discredited expert testimony against the defendant, defense counsel’s complete ignorance of the medical and psychatric literature on child abuse, and his cavalier failure to make even the slightest effort to educate himself on these crucial matters, required vacatur of defendant’s conviction even under AEDPA’s highly deferential standards.…

United States v. Wendell Smith, Docket No. 03-1588-cr (2d Cir. Oct. 17, 2005) (Winter, Sotomayor, Parker): During Smith’s trial in a courtroom located in the federal building complex in Rochester, the U.S. Marshals Service, in coordination with the Department of Homeland Security (DHS), required all visitors to the complex to show a photo identification before they would be allowed to enter. Those without photo IDs (or refused to show IDs) would be denied entry. This was done because the “National Alert Level” (set by DHS) at that time was 3 (that’s “yellow” to you and me), and the Marshals had a policy (adopted after 9/11/01) of requiring presentation of a photo ID as a condition for entry whenever the alert level was 3 or above (4 is orange and 5 is the dreaded red). The policy’s stated justification is that “someone who is forced to identify themselves is …

United States v. John Fuller, Docket No. 04-4595-cr (2d Cir. Oct. 17, 2005) (Oakes, Cabranes, Goldberg (by designation)): In this case, litigated by Colleen Cassidy of this Office, the Circuit primarily holds that remand for resentencing is required pursuant to Fagans even where the sentencing judge announced, at a sentencing that occurred post-Blakely but pre-Booker, that she would impose the same sentence even if the Guidelines were subsequently held unconstitutional by the Supreme Court. There was dicta in Crosby to this precise effect, of course, see 397 F.3d at 118, and the Circuit simply adopts this dicta as its ruling in this opinion. Op. at 9. The Booker error was not harmless despite the judge’s pronouncement of the “alternative sentence,” the Court explained, because such an “alternative sentence is not necesssarily the same one that the judge would have imposed in compliance with the duty …

United States v. Samuel Yakobowicz, Docket No. 04-0201-cr (2d Cir. October 14, 2005) (Winter, Sotomayor, Parker): Sometimes those visiting judges are more trouble than they’re worth. Here, a visiting judge from the Northern District of Ohio, presiding over the defendant’s E.D.N.Y. trial for filing false tax returns, sua sponte adopted a trial procedure we’ve never seen in a criminal case — allowing the parties to make summations after the testimony of each witness. The Circuit ruled that even assuming that such a procedure is permissible in a particularly lengthy or complicated case, it was not warranted in this typical one. The Court also ruled, over Judge Sotomayor’s dissent, that the court’s error of allowing these “interim summations” constitutes a structural error requiring automatic reversal without harmless-error analysis.

The essential facts are thus. Yakobowicz was prosecuted for filing false excise tax returns and impeding the administration of tax …

Apologies for this diversion, which has nothing to do with criminal law in the Second Circuit. But here’s a great gift idea for that rare teen (or the teen in all of us) with aspirations to become a member of This Great Profession. (Click HERE).…

United States v. Coreas, Docket No. 03-1790-cr (2d Cir. Oct. 12, 2005) (Jacobs, Calabresi, Rakoff) (per curiam): Yesterday, the Circuit denied defendant Coreas’s petition for rehearing, thus adding to the confusion surrounding the legality of the Candyman search warrants. To recap the relevant events, in chronological order, for those not keeping score at home:

(1st) In United States v. Martin (click here for our discussion), the majority upheld (over a dissent by Judge Pooler) a search warrant based primarily on the defendant’s membership in the “girls12-16” e-group.

(2nd) In United States v. Coreas, (click here for our discussion), the Court was confronted with essentially the same affidavit at issue in Martin (containing the same false statements by the same agent) but concerning the Candyman e-group rather than the girls12-16 e-group. The panel found the differences between the two groups to be immaterial and concluded, contrary to Martin…

Davis v. Greiner, Docket No. 04-4087-pr (2d Cir. Oct. 11, 2005) (Calabresi, Cabranes, Pooler): The Circuit affirms the district court’s denial of Davis’s § 2254 petition, based on a Sixth Amendment IAC claim that Davis’s attorney failed to warn him that statements he made during proffer sessions with prosecutors could be used against him at trial if the plea deal collapsed. Although the Court agreed with Davis that his attorney’s conduct fell below professional norms, it upheld (with some reservations) the district court’s largely factual finding that Strickland‘s prejudice prong was not satisfied because Davis would have participated in the proffer sessions even if his lawyer had told him that his statements could eventually be used against him.

The essential facts are sad and simple. Sixteen-year-old Davis and his half-brother were recruited by their foster sister to attack the sister’s ex-boyfriend, who died as a result. All …

United States v. Felix Valdez, Docket No. 04-3811-cr (2d Cir. Oct. 5, 2005) (Walker, Cardamone, Parker): There is little of interest in this largely fact-specific opinion, discussing the well-established contours of the diminished capacity departure under U.S.S.G. § 5K2.13. Valdez argues on appeal that the district court (Judge Duffy) “incorrectly applied the Guidelines by using the wrong legal standard when it denied a downward departure for dimished capacity.” Op. at 10. After reviewing the record of the sentencing proceeding, the Circuit disagrees and concludes that Judge Duffy, despite some questionable grumblings to the contrary, understood the nature of his departure authority under § 5K2.13.

The Court remands for a Crosby proceeding, however, since the sentencing occurred before Booker. (At which proceeding, one assumes, Valdez will simply convert his unsuccessful pitch for a § 5K2.13 departure into an equally unsuccessful argument for a below-the-Guidelines sentence pursuant to Booker and …

United States v. Martin, Docket No. 04-1600-cr (L) (Petition for Rehearing Denied, Oct. 3, 2005) (Walker & Wesley) (Pooler, dissenting): In a published decision, Chief Judge Walker sticks to his guns and denies the defendant’s petition for rehearing in this controversial case involving a Fourth Amendment challenge to a search warrant issued in connection with the infamous “Candyman” investigation. (Click here for the original opinion by the Chief, and click here for our criticism of it). Judge Pooler again dissents, as she did originally. Given this continuing disagreement, and given in addition the directly contrary views of the panel in United States v. Coreas (click here for our over-the-top praise of Judge Rakoff’s critique of the Martin majority opinion), we suggest once more that en banc rehearing is appropriate.

We add only one additional point in this post, concerning the majority’s continuing insistance that, somehow, the “welcome message” …

United States v. Rodriguez et al., Docket No. 03-1639 (2d Cir. Oct. 3, 2005) (Calabresi, Pooler, Parker): How does that line go — “Oh what a tangled web we weave, when we first practice to deceive”? Here, the defendants’ “practice to deceive” — a rather inspired scheme to rip off a drug dealer (who turned out to be an actual, undercover DEA agent posing as a drug dealer) by pretending to be DEA agents themselves — led not only to a tangled web, but also to a federal indictment for conspiracy to commit a Hobbs Act robbery. The defense at trial was that although the defendants conspired to take drugs from the (fake) drug dealer by trickery (i.e., the ruse of being DEA agents “confiscating” the dealer’s drugs), they did not conspire to take the drugs by force (an essential element of the Hobbs Act robbery …