Federal Defenders of New York Second Circuit Blog

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Make Sure You Check Out Those Old Convictions!

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United States v. Jimmy Glen, Docket No. 04-2394-cr (2d Cir. August 10, 2005) (Op. by Winter): This is a great little case that serves as further reminder that counsel must always check out the details of prior convictions used to enhance a current sentence. Here, defendant pled guilty to a 21 USC § 841(b)(1)(A) charge … Read more

A Preserved Booker Error Will Almost Never Be Found Harmless on Appeal

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United States v. Francisco Lake, Docket No. 04-3238-cr (2d Cir. August 15, 2005) (Op. by Newman): Judge Newman’s monopoly in shaping Circuit law concerning appellate review of pre-Booker sentences in the wake of Booker continues. In this opinion, the Court confirms what Fagans implicitly held and what the Circuit’s practice has been since that decision: … Read more

Crawford Rule Not Applicable to Out-of-Court Statements Not Offered at Trial for Their Truth

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United States v. Andre O. Logan, Docket No. 03-1290 (2d Cir. August 15, 2005) (Op. by Cardamone): This opinion discusses some mildly interesting Confrontation Clause issues related to Crawford v. Washington, and also upholds the federal arson statute, 18 USC § 844, against a Commerce Clause challenge. It holds that (1) an out-of-court statement offered … Read more

Some Restitution Issues for the Well-to-Do Defendant

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United States v. Bernard Jaffe. Jr., Docket No. 04-1278-cr (2d Cir. August 2, 2005) (Winter, Katzmann, Raggi) (Op. by Winter): This case addresses a host of related issues concerning restitution. Jaffe pled guilty to making false statements in connection with securing a $20 million loan from a bank, and the district court ordered restitution in … Read more

Defendant in “Deadbeat Parents” Prosecution Cannot Collaterally Challenge Legitimacy of Underlying Child-Support Order, even on Jurisdictional Grounds

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United States v. Clifford Kerley, Docket No. 04-4537-cr (2d Cir. 2005) (McLaughlin, Straub, Hall) (Op. by McLaughlin): This is a prosecution under the federal Deadbeat Parents Punishment Act, 18 U.S.C. § 228, and based on defendant’s failure to comply with a child-support order issued by a New York state court. The district court granted the … Read more

Government Did Not Breach Plea Agreement Where Overall Circumstances Indicate that It Did Not Take Position Contrary to that Taken in Agreement

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United States v. Allan F. Peters et al., Docket No. 03-1435-cr (2d Cir. July 26, 2005) (Walker, Leval, Katzmann) (Op. by Leval): This case primarily holds that so long as the Government’s conduct, when looked at in light of all the circumstances, does not reasonably appear to constitute an effort to influence the sentencing court … Read more

Thank Goodness for Booker

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United States v. Tammy Brady, Docket No. 04-0729-cr (2d Cir. July 22, 2005) (Cardamone, Cabranes, Sotomayor) (Op. by Cardamone): This case is a good illustration of how the pre-Booker mandatory Guidelines regime often produced irrational and unnecessarily harsh results that fail to comport with our basic sense of justice. At a pre-Booker sentencing, Judge Gleeson … Read more

Obstructive Conduct during State Investigation Triggers Obstruction Enhancement upon Federal Conviction for Different but Related Offense

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United States v. Marshall Ayers, Docket No. 04-0103 (2d Cir. July 21, 2005) (Sack, Raggi, Hall) (per curiam): Some of us cynically speak of the “Rule of Severity” occasionally applied in criminal cases, especially when ugly facts are involved. The Rule is simple: Where a statute or rule can reasonably be interpreted in one of … Read more