Federal Defenders of New York Second Circuit Blog

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Year-Long Flight from Arrest, even when Coupled with Use of Alias, Not Sufficient to Justify Obstruction Enhancement

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United States v. Michael Bliss, Docket No. 04-1163-cr (2d Cir. Nov. 23, 2005) (Meskill, Sack, Parker): This case primarily confirms that a defendant’s flight from arrest, even when it results in a year-long delay in his apprehension by law enforcement, is not in itself sufficient to trigger the 2-level obstruction enhancement under U.S.S.G. § 3C1.1. … Read more

En Banc Rehearing Denied in Candyman Cases

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To our disappointment and surprise, the Circuit today declined to grant en banc rehearing in the two “Candyman” cases. See here and here for our discussions of Martin, and here and here for our discussions of Coreas. Two opinions were filed in connection with the denial of en banc rehearing — one by Judge Wesley … Read more

Conviction for Depraved-Indifference Murder Vacated Where Evidence Showed, at Best, that Defendant Committed Intentional Murder

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Policano v. Herbert, Docket No. 04-5518-pr (2d Cir. Nov. 15, 2005) (Pooler, Sack, Garaufis (by designation)): This one is a rare bird indeed — Mr. Policano literally gets away with murder! In this case, the Circuit affirms Judge Gleeson’s grant of habeas based on the insufficiency of the evidence presented at Policano’s New York state … Read more

Protective Sweep Exception to Warrant Requirement Extended to Non-Arrest Context

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United States v. Alfred G. Miller, Docket No. 04-2637-cr (2d Cir. Nov. 16, 2005) (McLaughlin, Cabranes, Mukasey (by designation)): In this unfortunate decision, the Circuit extends the protective sweep exception to the warrant requirement recognized in Maryland v. Buie, 494 U.S. 325 (1990), to situations where no arrest is at issue. In Buie, the Supreme … Read more

An Excellent Supreme Court Summary from the Criminal Defense Perspective

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Our colleagues in the Federal Public Defenders Office in Portland, Oregon, have once again prepared an excellent summary of the past Supreme Court term from the criminal defense perspective. To tantalize readers, here is Steve Sady’s summary introduction: “Three major themes emerged from the opinions. First, the protection of core constitutional rights has solidified in … Read more

Prior Drug Convictions, Resulting in Mandatory Life Sentence under § 841(b)(1)(A), Need Not Be Charged in Indictment or Proved to a Jury

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United States v. Herredia, Docket No. 02-1544-cr(L) (2d Cir. Nov. 2, 2005) (Winter, Sotomayor, Wesley): A bad result for the defendants, but the Circuit’s decision presents an opportunity for the Supreme Court to overrule both Harris and Almendarez-Torres in one fell swoop. Here, the two defendants were convicted of conspiring to distribute more than a … Read more

Extortion Conviction Vacated Because Property Was Not Taken from Victim with His “Consent”

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United States v. Xiao Qin Zhou, Docket No. 03-1575(L) (2d Cir. Nov. 1, 2005) (Miner, Calabresi, Amon (by designation)): This is an interesting opinion that discusses a critical difference between the crime of robbery and the crime of extortion under the Hobbs Act, 18 U.S.C. § 1951. While the defendants took property from the victim … Read more

Circuit Finds No Right to Cross-Examine at Batson Hearing

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Abdul Majid and Bashi Hameed v. Leonard A. Portuondo, Robert Kuhlmann, Docket Nos. 03-2608, 03-2610 (2d Cir. October 26, 2005)(Oakes, Kearse, Sack, op. by Sack). In a very long opinion that doesn’t really say much, the Court found no constitutional right to cross-examine witnesses at a Batson hearing. In 1986, Majid and Hameed, represented by … Read more