Federal Defenders of New York Second Circuit Blog

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Court Reverses Conviction for “Assault by Voicemail” but Upholds Charge of Willfully Oppressing a Person in Connection with Revenue Laws

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United States v. Temple, Docket No. 05-0165-cr(L); 05-0679(XAP) (2d Cir. May 1, 2006) (Miner, Wesley, Rakoff) Eva Temple, an IRS employee, was charged with disruptive behavior in two separate incidents. In the first, two New York City Police Detectives came to arrest her at her place of work, and, as they did, she verbally abused … Read more

Constructive Possession of Firearm Suffices to Disqualify Defendant from Safety-Valve Relief

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United States v. Barraza, Docket No. 05-1454-cr (2d Cir. May 2, 2006) (Walker, Leval, Sotomayor): It’s hard to believe that this isn’t a settled issue in the Circuit, but apparently it’s not. In this opinion, the Court rules that for purposes of determining whether a defendant qualifies for safety-valve relief under § 5C1.2, as well … Read more

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