This pair of decisions, both arising from 2255 motions, gives helpful guidance on counsel’s obligations to file a petition for a writ of certiorari. In Pena v. United States, No. 06-0218-pr (2d Cir. June 12, 2008) (Jacobs, Parker, Wesley, CJJ)(per curiam), the court held that a retained attorney was not ineffective for failing to advise … Read more
United States v. Leonard, No. 05-5523-cr (2d Cir. June 11, 2008) (Kearse, Calabresi, Katzmann, CJJ) In this case, the court concludes that interests in film production companies were “investment contracts,” and hence securities, under federal securities law. It also holds, however, that the district court erred in treating the entire cost of the securities as … Read more
United States v. Gonzalez, No. 07-4824-cr (2d Cir. June 11, 2008) (Newman, Walker, Pooler, CJJ) In this case, the circuit sets out the procedure that a district court should follow when it realizes that it has sentenced a defendant without first giving him an opportunity to allocute. It also criticizes the imposition of the statutory … Read more
United States v. Confredo, No. 06-3201-cr (2d Cir. June 10, 2008) (Newman, Winter, Parker, CJJ) This case takes on the difficult question of fixing the loss amount under the sentencing guidelines when the case involves fraudulently obtained that loans have been partially repaid. It also addresses an interesting Apprendi claim. 1. The Loss Amount Defendant … Read more
United States v. Bell, No. 07-0715-cr (2d Cir. June 10, 2008) (Jacobs, Calabresi, Sack, CJJ) (per curiam) In this case, the circuit had to sift through competing claims as to which party breached the plea agreement. Defendants Brumer and Klein pled guilty to various offenses relating to healthcare fraud. Their agreements with the government stipulated … Read more
United States v. Todd, No. 05-5525-cr (2d Cir. June 5, 2008) (per curiam) In this “reverse-Batson” decision, the court upheld the district court’s decision to re-seat a white juror against whom the defendants, all members of minority groups, had exercised a peremptory challenge. The court found no clear error in the district court’s conclusion that … Read more
This crop of summary orders of interest closes out May 2008. In United States v. McCargo, No. 07-0626-cr (2d Cir. May 30, 2008), the defendant escaped from a halfway house, then months later was found to be in possession of a firearm. The court held that the gun possession was properly deemed “in connection with” … Read more
United States v. Habbas, No. 05-6142-cr (2d Cir. May 30, 2008) (Leval, Sack, CJJ, Garaufis, DJ) This confusing opinion attempts to sort through the defendant’s claim that the government breached a plea agreement. But because of the imprecise way it is written, it is hard to know what really happened. Defendant Rahman pled guilty to … Read more
The court has only issued 2 published opinions in criminal cases in the past two weeks. But there has been a flurry of noteworthy summary orders. Here is the latest crop: In United States v. Creary, No. 06-2233-cr (2d Cir. May 27, 2008), a document fraud case, the court vacated the sentence because the district … Read more
United States v. Ellett, No. 07-3682-cr (2d Cir. May 23, 2008) (per curiam) James Ellett was a tax protester, who stopped paying his federal income tax after reading a book called “Vultures in Eagle’s Clothing,” which purported to describe a lawful way of avoiding taxes. He claimed to have read the book more than 100 … Read more