United States v. Frias, No. 06-5381-cr (2d Cir. March 31, 2008) (Cardamone, Sack, Katzmann, CJJ)

The ten-day time for filing a notice of appeal in a criminal case under Fed.R.Ap.Proc. 4(b) is not jurisdictional, which means that the court can consider an untimely appeal if the government forfeits a claim of untimeliness failing to raising it.

For many years, both the Second Circuit and the Supreme Court were somewhat careless in using the term “jurisdictional” in the context of time limits and filing deadlines, collectively known as “claim processing rules.” However, a string of Supreme Court cases in the past few years has clarified the terminology: since only Congress can determine a lower federal court’s subject matter jurisdiction, only those claim processing rules that have statutory origins are truly “jurisdictional.” Thus, for example, the seven-day deadline for filing a motion for a new trial under Fed.R.Crim.P. 33(a) is not jurisdictional …

It has been a slow week in Foley Square – lots of civil and immigration decisions, but not too much on the criminal front. So, here are some recent summary orders of interest:

In United States v. Williams, No. 06-5530-cr (2d Cir. March 27, 2008), the court dealt with an unusual circumstance in this circuit – an illegal reentry jury trial. The court rejected several case-specific evidentiary claims, but also touched on – without resolving – an interesting and important question: is the defendant’s claim of derivative citizenship an affirmative that he bears the burden of proving, or must the government disprove the possibility of derivative citizenship beyond a reasonable doubt?

Title 18 U.S.C. § 3664(h) permits the sentencing judge to apportion restitution liability among defendants based both on their economic circumstances and level of contribution to the loss. In United States v. Rammelkamp, No. 06-4359-cr (2d Cir. March 19, …

United States v. Dominguez, No. 05-7005-cr (2d Cir. February 15, 2008, amended March 20, 2008) (Miner, Sack, Hall, CJJ)

Last month, when we wrote up this case, we noted with alarm the circuit’s holding that, for cases where the defendant faced a mandatory minimum but provided substantial assistance to the government, under § 3553(e) “any reduction [in sentence] may be based only on substantial assistance to the government and on no other mitigating considerations.” We commented that this did “not really make much sense,” since it seemed to preclude application of § 3553(a) at this type of sentencing, even though that statute is supposed to apply in all sentencings. See The Government Giveth and the Government Taketh Away, posted February 24, 2008.

I guess the circuit reads this blog. In the amended version of the opinion, it has added the following sentence at the end of the paragraph that contains …

United States v. Sero, No. 05-6967-cr (2d Cir. March 19, 2008) (per curiam)

Defendant Sero, who pled guilty to illegally exporting weapons to the Philippines, challenged his sentence. In doing so, he gave the court its first opportunity to consider U.S.S.G. § 2M5.2 and its “bump-down.” This particular Guideline ordinarily calls for a base offense level of 26, but this is reduced to 14 if the offense involved “only non-fully automatic small arms” and “the number of weapons did not exceed ten.” He argued that he was entitled to the lower level because his conduct was “minor,” although it included ammunition, which is not mentioned in the bump-down. He lost under the plain language of the guideline. “We find that the guideline does not permit finding an exception for including ammunition, no matter how small the quantity.” He was also disentitled to the bump-down because his shipment consisted of components …

It’s been a slow month for summary orders, but at last the court has eked out three of them worth noting.

First, in United States v. Spencer, No. 06-2517-cr (2d Cir. February 26, 2008), the court reversed both defendants’ conviction of conspiracy to commit bankruptcy fraud because the judge erroneously charged the jury that the defendant who testified had a “deep personal interest in the outcome of his prosecution” that created “a motive for false testimony.”

The “mandate rule” prohibits relitigating on remand issues that the appellate court has already ruled on. In United States v. Argentina, No. 06-1989-cr (2d Cir. February 26, 2008), the court noted that there is an exception to the mandate rule for “cogent and compelling reasons” such as new evidence; here, however, any error in the district court’s refusal to apply the exception was harmless.

Finally, in United States v. Sutton, No. 06-2522-cr (February 11, …