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United States v. Myrisa V. Lewis, Docket No. 04-4105-cr (2d Cir. Sep. 15, 2005) (Feinberg, Sack, Katzmann): This is a well-reasoned and interesting opinion by Judge Sack — and another good win by Ed Zas of this Office (see here for Ed’s other win this month). The decision holds that a district court must state its reasons for imposing a sentence that is outside the advisory Chapter 7 range for revocation of supervised release or probation, a holding that obviously has broader implications given that the governing statute applies to all sentences, whether imposed upon revocation or upon conviction. The decision also contains an interesting discussion of the still-unsettled issue of whether standard plain error analysis, or a more “relaxed” form of plain error review, is applicable to errors occurring at sentencing.

The essential facts are simple. While on supervised release, Ms. Lewis tested positive for drug use …

United States v. Sean Carr, Docket No. 04-0546-cr (2d Cir. Sep. 14, 2005) (Feinberg, Sack, and Katzmann) (Op. by Sack): Despite its glorious role in our early history, the jury’s power of nullification has long been viewed with great disfavor by the Circuit. In this decisions, the Court clarifies that a district court does not error when it affirmatively tells the jury that it has “the duty to convict” if it finds that the Government has proved the defendant’s guilt beyond a reasonable doubt. This outcome should not come as a great surprise, given that a trial court is not required to inform a jury of its power to nullify, e.g., United States v. Edwards, 101 F.3d 17, 19 (2d Cir. 1996), and given the Court’s general view of nullification as a lawless and regrettable exercise of naked power, e.g., United States v. Thomas, 116 F.3d …

United States v. William MacPherson, Docket No. 04-4825-cr (2d Cir. September 13, 2005) (Op. by Raggi): In this decision, the Circuit vacates a judgment of acquittal entered by Judge Johnson in the E.D.N.Y. following a jury verdict convicting MacPherson — an NYPD officer — of structuring currency transactions to avoid reporting requirements, in violation of 31 U.S.C. § 5324(a)(3). The Circuit found that there was enough circumstantial evidence to sustain the jury’s finding that MacPherson had the requisite mens rea when he made 32 separate cash deposits, none exceeding the $10,000 trigger for a CTR filing and totalling about $250,000 over a four-month period, ruling that “a pattern of structured transactions, . . . may, by itself, permit a rational jury to infer that a defendant had knowledge of and the intent to evade currency reporting requirements.” Op. at 25.

Given the facts as recited by the opinion and …

United States v. Brian Jones, Docket No. 04-2506-cr (2d Cir. July 19, 2005): This is a decision from July that we missed before taking our summer hiatus. Guest blogger Darrell Fields of the Appeals Unit of the Federal Defenders in NYC provides the following analysis of this important decision.

In United States v. Jones, 415 F.3d 256 (2d Cir July 19, 2005) , the Circuit held that a New York State youthful offender adjudication (“YO”) qualifies as an “adult conviction” under the Career Offender Guideline (U.S.S.G. § 4B1.1), even though (1) Guidelines commentary specifically provides that a conviction sustained before age 18 will be deemed an “adult conviction” only “if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted,” id. § 4B1.2, comment. (n.1), and (2) New York State clearly does not so classify a YO adjudication. The …

United States v. Cordoba-Murgas et al., Docket No. 04-3131-cr (L) (2d Cir. Sep. 7, 2005) (Op. by Cabranes): A great decision by the Circuit, and a hard-fought win by Ed Zas of this Office. In this opinion by Judge Cabranes, the Circuit rules that in light of drug quantity’s status as an element of the § 841(a) offense, a defendant cannot be sentenced to more than 20 years’ imprisonment when the indictment (charging an offense under 21 U.S.C. § 841 et seq.) does not allege a particular quantity, even where the defendant specifically allocuted to distributing a quantity of drugs sufficient to trigger one of the aggravated offenses under § 841(b). Although such an allocution effectively waives the 6th Amendment requirement of submitting the quantity decision to the jury, e.g., United States v. Yu, 285 F.3d 192, 198 (2d Cir. 2002), it does not waive the …

Andre Porter v. Thomas A. Coughlin, III, et al., Docket No. 03-0273 (2d Cir. August 31, 2005) (Op. by Sotomayor): No new ground is broken in this opinion, which simply re-affirms the Second Circuit’s earlier decision in United States v. Hernandez-Fundora, 58 F.3d 802 (2d Cir. 1995), holding that a criminal prosecution and a prison disciplinary proceeding based on the same conduct do not implicate double jeopardy concerns. The prisoner here, Porter, argued that Hernandez-Fundora was no longer good law in light of the Supreme Court’s decision in Hudson v. United States, 522 U.S. 93 (1997), which adopted a somewhat different analysis for determining whether a subsequent sanction is to be deemed “criminal” or “civil” for purposes of the Double Jeopardy Clause. The Circuit rejected Porter’s argument, finding that even under the Hudson mode of analysis, the sanction imposed for his violation of prison disciplinary rules (3 …

United States v. Jose Saldana et al., Docket No. 03-1452 (L) (2d Cir. August 26, 2005) (Straub, Wesley, and Sessions, D.J.) (Op. by Straub): This hard-to-read opinion holds — I think — that a defendant who pleaded guilty before Blakely and was misinformed by the court at his plea that sentence would be imposed pursuant to mandatory Guidelines cannot withdraw his guilty plea based on a claim that, due to this misinformation (in light of Booker), his plea was not knowing and intelligent. The qualification results from the opinion’s muddled discussion, and especially its collapsing of two distinct issues: Whether the plea itself was knowing and voluntary, and whether an appellate waiver provision contained in a plea agreement is enforceable.

These are distinct issues, yet the opinion treats them interchangeably. Here’s a typical passage:

“The issue presented to us here is whether a defendant who, prior to …

United States v. Manuel Gonzalez, Docket No. 03-1356 (2d Cir. August 22, 2005) (Sack, Sotomayor, Raggi) (Op. by Raggi): This is a significant opinion that is long overdue. The Court finally clarified that, in light of the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its own en banc decision in United States v. Thomas, 274 F.3d 655 (2d Cir. 2001), drug quantity is always an element of 21 U.S.C. § 841, regardless of whether the actual sentence imposed exceeds the 20-year maximum for offenses involving an unspecified quantity of drugs under § 841(b)(1)(C). This decision thus puts an end to the Government’s nonsensical, schizophrenic interpretation of § 841 — that quantity sometimes is, but sometimes is not, an element (depending post-hoc on whether the actual sentence imposed exceeds 20 years). The takeaway is that in order for a district judge to …

United States v. Madori, Docket No. 03-1526 (2d Cir. August 19, 2005) (Op. by B.D. Parker): No new ground is broken in this fact-intensive opinion, which principally affirms a loan-sharking conviction against sufficiency and Brady/Giglio challenges. It is worth reading only for the richness of the background story: A Mob-connected lender; a loan made at 150% interest; meetings at the Diamond Club, a local strip joint; a co-defendant clandestinly cooperating with the FBI on an unrelated case (thus generating the Brady dispute); and threats involving the “twist[ing]” of the late-paying borrower’s “nuts”. Who needs “The Sopranos”! (But does anyone know when the new season starts?)…

United States v. Shitian Wu, Docket No. 03-1503 (2d Cir. August 18, 2005) (McLaughlin, Pooler, Wesley) (Op. by Wesley): Because this case was litigated by attorneys from this Office, we will refrain from commentary and stick to description.

Essentially, the majority held, with a dissent from Judge Pooler, that a false statement made in one immigration document, though immaterial to the purposes of that particular document, is nonetheless material under 18 U.S.C. § 1546(a) — prohibiting the making of “any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder” — because that document “is part of a larger application process . . . and the statute is best understood as encompassing misrepresentations of material facts in that process no matter how many documents that may include.” Op. at 4. While Wu’s false statements were …

United States v. Willie Coreas, Docket No. 03-1790-cr (2d Cir. August 18, 2005) (Jacobs, Calabresi & Rakoff, D.J.) (Op. by Rakoff): Our faith in the rule of law has been restored. In this opinion, Judge Rakoff of the SDNY, writing for Judges Jacobs & Calabresi as well (thus covering the political spectrum from the Federalist Society to the ACS), concluded that the now-infamous “Operation Candyman” affidavit, excised of the Government agent’s fabrications, was insufficient to support the issuance of numerous search warrants, including that leading to Coreas’s arrest and prosecution for possession of child pornography. Unfortunately, because a prior panel of the Circuit reached an opposite conclusion on the same issue two weeks earlier in Martin (click here for our less-than-subtle critique of Martin), the panel in Coreas nonetheless upheld the search warrant.

The opinion in Coreas is highly recommended. Some examples to entice the reader: A powerful …