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United States v. Luis Agudelo, Docket No. 04-2223-cr (2d Cir. July 13, 2005) (Pooler, Parker, and Castel, D.J.) (Op. by Parker): Defense lawyers are generally well aware of the tactical advantages of filing a less detailed affidavit, rather than a more detailed one, from a client in support of his or her suppression motion. After all, the only real goal of the affidavit is to put in enough facts to warrant an evidentiary hearing, and any additional details beyond the bare essentials just gives unnecessary notice to the prosecution as well as additional ammunition for its cross of the client. This case demonstrates an additional — and especially important — advantage that the less detailed affidavit has over the more detailed one: Your client is less likely to receive an obstruction enhancement even if the district judge buys the Government’s story at the hearing and denies the motion. Fortunately …

United States v. Perez, Docket No. 03-1445(L) (2d Cir. July 11, 2005) (Calabresi, Katzmann, Parker) (per curiam): In this very short per curiam opinion, the Circuit rules that even wholly intra-state phone calls (here, phone calls from one location in Connecticut to another) are sufficient to trigger federal jurisdiction under the federal “murder-for-hire” statute, 18 U.S.C. § 1958(a). This is so despite the fact that the relevant language in § 1958(a) states that “whoever … uses … any facility in interstate … commerce …” The Court ruled — after noting a circuit split on this question — that this language was trumped by § 1958(b), the “definitional subsection” of the statute, which describes (and then defines) a “facility of interstate commerce.” Op. 6. And since the phone used by the defendant was part of an inter-state network (i.e., he could make long distance calls on it), even …

United States v. Rowe, Docket No. 04-1142-cr (2d Cir. July 5, 2005) (Walker, Feinberg, Wesley) (Op. by Feinberg): This case primarily holds, in an issue of first impression in the Circuit, that in a prosecution for the crime of advertising to receive, exchange, or distribute child pornography, in violation of 18 U.S.C. § 2251(d) (formerly § 2251(c)(1)(A)), venue is proper wherever the advertisment is actually seen or accessed. Here, the defendant put up a notice soliciting others to trade kiddie porn with him on an Internet chat room. Although he physically did so from his computer in Kentucky, the (in)famous detective Shlomo Koenig (of the equally famed Rockland County Sheriff’s Department) accessed the site and defendant’s ad while sitting at his computer in Rockland County. The Court ruled that venue was proper in the Southern District of New York.

The other notable point about this opinion is its concluding, …

Hernandez v. Greiner, Docket No. 04-1517-pr (2d Cir. July 1, 2005) (Newman, Leval, Cabranes) (Op. by Newman): This case presents the very narrow question of whether a defendant has a Sixth Amendment right to counsel at a discretionary second-tier appeal (specifically, an appeal to the New York Court of Appeals) after leave-to-appeal has been granted. Actually, the question is even narrower than that, since it arises on habeas review: If such a right existed, would its recognition constitute a new rule within the meaning of Teague, and, if so, can it be retroactively applied on collateral review? We will spare you the details, but the Court holds that even if such a right exists — which the Court highly (and rightly) doubts in light of the relevant Supreme Court cases — its would constitute a new rule that does not fall under either of the Teague exception. …

Wilson v. McGinnis, Docket No. 04-4125 (2d Cir. July 5, 2005) (Feinberg, Cardamone, Sack) (Op. by Feinberg): The Circuit rejects on habeas review a petitioner’s claim that his guilty plea was not knowing and voluntary because he was not told by the judge, at the plea proceeding, that the sentence he would receive in that case would run consecutively to another sentence he was already serving. The question turns on whether the consecutiveness of this sentence is a “direct” or merely “collateral” consequence of the defendant’s guilty plea, since the Supreme Court has held that a plea of guilty is voluntary and intelligent only if the defendant enters the plea “with full awareness of its ‘direct consequences.'” Op. at 7, quoting Brady v. United States, 397 U.S. 742, 748 (1970). The Circuit has defined “direct” consequences as those that have a “definite, immediate and largely automatic effect on …

Love v. McCray, Docket No. 03-2307-pr (2d Cir. July 1, 2005) (Walker, Jacobs, Wesley) (per curiam): It’s hard to know what to make of this very short opinion, since it’s very light on the relevant facts. The gist of it is that the Court denies appointed counsel’s motion (filed pursuant to Anders v. California) to be relieved as counsel on appeal on the ground that there are no non-frivolous appellate issues, because the Court disagrees that there are only frivolous issues to appeal. As the Court concludes, counsel’s argument (in support of his Anders motion) shows only “that the appeal is likely without merit, not that it is frivolous.” Op. at 6. Because the opinion is short on facts, however, it’s hard to evaluate who’s right (even assuming that a line can be drawn between a merely meritless appeal (which appointed counsel must prosecute) and a frivolous one …

United States v. Weisser, Docket No. 01-1588 (2d Cir. 2005) (Decided June 20, 2005; Amended July 5, 2005): Two weeks ago, this Blog pointed out that in this opinion, the Court stated in significant dicta that certain facts concerning a defendant’s criminal history do not fall within the Almendarez-Torres exception to the Apprendi–Blakely rule, thus limiting the scope of this often-critized decision. Yesterday, the Court issued an amended opinion in the same case and expanded upon this language. The amended opinion now explicitly states that certain facts relating to criminal history are indeed too far removed from “the conclusive significance of a prior judicial record to fall within that exception.” Amended Op. at 27 fn. 10, quoting Shepard, 125 S. Ct. at 1262. Kudos to the Court for clarifying its position on an important issue!

As this Blog previously noted:

“Weisser also appealed various aspects of …

Smith v. Duncan, Docket No. 04-0604-pr (2d Cir. June 21, 2005) (Meskill, Calabresi, Wesley) (Op. by Wesley): This is yet another habeas petition, raising potentially meritorious substantive claims, that is dismissed by the Court because of defense counsel’s failure to preserve or present the relevant issues to the state courts. No new rule is established by the decision; it is nonetheless worth a perusal, if only to remind oneself of the hazards faced by habeas petitioners if counsel in state proceedings fail to exercise great care in prosecuting the state appeal.

The essential facts are simple. Smith was tried for murder in state court after he shot the victim to death. Smith’s sole claim is self-defense, arguing that the victim was a gang member of whom he was quite afraid. Smith sought to introduce 2 pieces of evidence to corroborate this defense — the tape of Smith’s 911 call …

United States v. Bermudez, Docket No. 02-1699 (L) (2d Cir. June 29, 2005) (Walker, Pooler, Wesley) (per curiam): Let this be a warning to all the kids out there: You launder money, you lose something even more precious than your freedom — your Miami condo and even your Swiss bank account. In this short opinion, the Court affirms a district court’s order (1) requiring the defendant — convicted of laundering drug proceeds in Colombia — to forfeit $14.2 million to the Government (the amount of money he was accused of laundering on behalf of his drug dealin’ clients), and (2) substituting his Miami residence and funds in a Swiss bank account in lieu of this amount because the defendant did not actually have this money (after all, he was only laundering it for his clients, not keeping it). The Court acknowledged that such forfeiture was “extremely punitive and burdensome,” …

Credit must be given to Professor Berman for spotting some great language from the Supreme Court’s recent decision in Halbert v. Michigan (link here for his discussion) that seriously undermines the Second Circuit’s decision in Morgan, which enforced an appellate waiver entered into by the defendant before Blakely was decided. Justice Ginsburg’s opinion for the majority, expecially as highlighted and construed by Justice Thomas in his dissent, contains great language gutting Morgan‘s rationale and supporting an argument that a defendant cannot waive a right that was not previously recognized — e.g., his Sixth Amendment right not to be sentenced under the mandatory Guidelines regime.

Halbert‘s primary holding is that a defendant has the constitutional right to appointed counsel on his/her first appeal, even where the state has made that appeal a discretionary one rather than one that the defendant is entitled to as a matter …

United States v. Tesoriero, Docket No. 04-2017 (2d Cir. June 28, 2005): The Government is apparently still quite sore about Crosby (and likely even more so about Fagans) and its holding that all plain-error cases pending on direct review must be remanded to the district court for a determination of whether the defendant’s “substantial rights” (in plain error parlance) were affected by the Booker error (i.e., the use of mandatory Guidelines). In this case, the defendant was sentenced to the 10-year statutory minimum for a § 841(b)(1)(A) offense at the pre-Blakely sentencing, despite the fact that he cooperated with the Government and earned a § 3553(e) / 5K1.1 motion as a result. Defendant sought a Crosby remand on appeal and the Government opposed, citing United States v. Sharpley, 399 F.3d 123 (2d Cir. 2005), and arguing that because the defendant received the statutory minimum …