Federal Defenders of New York Second Circuit Blog

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DOJ Reverses Course: Government Agrees that Notice Is Required before Court Can Exceed Guidelines Range (whether via Departure or via 3553(a) Factors)

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We recently received a copy of a letter written by the Criminal Division of the Department of Justice, addressed to the Clerk of the First Circuit, in which the Government adopts the position — directly contrary to its earlier view — that Fed. R. Crim. P. 32 requires prior notice to the parties if a … Read more

Evidentiary Hearing Required Where Government May Have Denied 5K1.1 Letter Based on Known Pre-Agreement Misconduct

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United States v. John Doe, Docket No. 04-5677-cr (L) (2d Cir. March 27, 2006) (Cardamone, Sack, Casey (by desig’n)): This decision does not appear to break new ground in remanding the case back to the district court for an evidentiary hearing on whether the Government’s refusal to file a § 3553(e) / § 5K1.1 letter … Read more

Misinformation to Immigrant at Deportation Hearing Causes Deprivation of Judicial Review, Invalidating Subsequent Reentry Conviction

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United States v. Jermi Francisco Lopez, Docket No. 03-1476-cr (2d Cir. April 4, 2006) (Sack, Sotomayor, Raggi): Where an element of a crime, in this case a prior deportation, depends on an administrative finding, due process requires that that finding have been subject to judicial review, to ensure its accuracy and make it a proper … Read more

Crosby Redux: Circuit Clarifies Some Important Post-Booker Issues

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United States v. Mayra Fernandez, Docket No. 05-1596-cr (2d Cir. April 3, 2006) (Miner, Cabranes, Curtin (by desig’n)): This important decision settles some lingering uncertainties concerning post-Booker appellate review of sentences in this Circuit. Some of the Court’s conclusions are good from a defense perspective, some not so good. But there’s a benefit to clarity … Read more

Mail Fraud Conviction Vacated: Defendant’s Deceptive Conduct Did Not Deprive Other Party of Any Anticipated Benefits

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United States v. Charles Novak, Docket No. 05-0108-cr (2d Cir. April 3, 2006) (Sotomayor, Katzmann, Eaton (by desig’n)): This interesting opinion affirms some counts of conviction (e.g., for unlawful receipt of labor payments and for RICO conspiracy), vacates others (e.g., for mail fraud and for making false statements under ERISA), and requests supplemental briefing on … Read more

Crawford Not Violated Because Statement Not Admitted for Its Truth; Statment Was Relevant for Its Truth, However, Since Defense Raised It. Clear?

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U.S. v. Paulino, Docket No. 04-2553-cr (2d Cir. March 29, 2006) (Oakes, Raggi, Wesley): Having decided a routine Crawford issue in U.S. v. Snype, the Court, again by Judge Raggi, turns in this case to a more complicated situation. The case raises the interesting question whether a court’s instruction to a jury that a hearsay … Read more

No Strickland Violation Because Counsel’s Errors Would Not Have Affected Outcome

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Lynn v. Bliden, Docket No. 04-6280-pr (2d Cir. March 30, 2006) (Miner, Raggi, Karas (by desig’n)): The Circuit reverses the district court’s grant of Lynn’s § 2254 petition in this opinion, concluding essentially that there was no Strickland violation because trial counsel’s errors did not create a reasonable probability of a different result. This Blog … Read more

State Misdemeanor Plea Vacated: Record of Allocution Failed to Show Knowing and Voluntary Waiver of Trial Rights

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Hanson v. Phillips, Docket No. 04-0940-pr (2d Cir. March 30, 2006) (Leval, Straub, Katzmann): An astonishingly good result for Mr. Hanson (and perhaps for thousands of fellow travelers in the New York State courts): The Circuit grants Hanson’s § 2254 petition because the record of his state guilty plea (to a misdemeanor charge of criminal … Read more