Federal Defenders of New York Second Circuit Blog


Tuesday, July 19th, 2005

An Inoperable Gun Qualifies as a “Firearm” within Meaning of Felon-in-Possession Statute

United States v. Rivera, Docket No. 04-5480-cr (2d Cir. July 18, 2005) (Walker, Jacobs, Leval) (Op. by Walker): File this one under the category of “Gee, I sure hope the defendant didn’t go to trial just to preserve this issue for appeal.” In this short opinion, the Circuit concludes that an inoperable gun (specifically, one with both a broken firing pin and a flattened “firing-pin channel,” whatever that is) qualifies as a “firearm” within the meaning of 18 U.S.C. § 922(g)(1), the felon-in-possession statute. Somewhat to our surprise, the Circuit had not previously answered this question. (Although, to our defense, several other Circuits — as well as several district courts within the Second Circuit — have answered it, and in the same way that the Court does in this opinion). The statutory language is unfortunately difficult to dispute: Section 921(a)(3) defines a “firearm” as “any weapon . . . …

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Friday, July 15th, 2005

Circuit approves of combining minority groups in a Batson challenge, but “race-neutral” justifications remain easily acceptable on habeas review

Green v. Travis, Docket No. 04-0426-pr (2d Cir. July 7, 2005) (Jacobs, Sotomayor, Hall) (Op. by Sotomayor): This case recognizes for the first time in this circuit that minority groups can be combined to form a “cognizable racial group” under Batson v. Kentucky. 476 U.S. 79, 86 (1986). Affirming the decision below, the Circuit found on habeas review that the state Appellate Division’s determination that Black and Hispanic venirepersons do not constitute a “cognizable racial group” was an unreasonable application of Batson.

During the defendant’s state trial for possession and sale of cocaine, defense counsel raised a Batson challenge after the prosecutor used three peremptory challenges to strike one Black man, one Black woman and one Hispanic woman during the first round of jury selection (leaving no minorities at the end of the round), and two peremptory challenges to strike one Black Man and one Hispanic woman during …

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Thursday, July 14th, 2005

Another Advantage of a Less Detailed Affidavit in Support of a Suppression Motion

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 …

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Wednesday, July 13th, 2005

Did the Circuit Overlook a Controlling Decision by Judge Friendly in Ruling that Purely Intra-State Phone Calls Are Sufficient under § 1958?

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 …

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Saturday, July 9th, 2005

Venue for Offense of Advertisting to Receive Child Porn, Placed on Internet Chat Room, Is Proper Wherever Advertisement Is Accessed or Viewed

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, …

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Even If It Existed, Right to Counsel at Second-Tier State Appeal, after Grant of Leave to Appeal, Would Be Non-Retroactive New Rule under Teague

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. …

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Thursday, July 7th, 2005

Defendant Need Not Be Told at Plea That His Sentence Will Run Consecutively to an Undischarged Sentence

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 …

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Wednesday, July 6th, 2005

Does the Circuit’s Grant of a COA Foreclose a Subsequent Anders Motion?

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 …

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Even Better Language Limiting the Reach of the Almendarez-Torres Exception

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 ApprendiBlakely 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 …

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Wednesday, June 29th, 2005

Another Habeas Petition Dismissed on Procedural Grounds

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 …

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Draconian Forfeiture Penalty Upheld in Money Laundering Case

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,” …

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