United States v. Jose Erbo, Docket No. 02-1665-cr (2d Cir. Oct. 25, 2006) (Wesley, Hall, Trager): Yet another awful decision from the Circuit, this time badly misreading Crawford v. Washington, 541 U.S. 36 (2004), and holding via classic circular reasoning that “a statement properly admitted under Fed. R. Evid. 803(6) [or 803(8)] cannot be testimonial because a business [or public] record is fundamentally inconsistent with what the Supreme Court has suggested comprise the defining characteristics of testimonial evidence.” Op.11. At issue specifically was whether the admission of autopsy reports prepared by the NYC Medical Examiner’s Office — which, unlike a hospital’s pathology department, generally conducts autopsies only when a person has died “from criminal violence, by casualty, by suicide . . . or in any suspicious or unusual manner,” NYC Charter § 557(f) — without testimony from the doctors who performed the autopsy violated Erbo’s Sixth Amendment …

United States v. Brand, Docket No. 05-4155-cr (2d Cir. Oct. 19, 2006) (Miner, Wesley, Friedman): It appears that child sex cases have surpassed drug cases in their ability to create bad law and erode civil liberties. We saw in last year’s “Candyman” cases an erosion of the Fourth Amendment’s probable cause requirement; in Brand, we see the Circuit (1) greatly expand the scope of evidence admissible under Rule 404, in contravention of well-settled law; and (2) conclude based on junk science (or, simply, ungrounded assumptions) that possession of images of child sex constitutes proof of a person’s predisposition to commit actual child sex. One almost wishes that these kiddie-sex cases would disappear solely because of the misguided law they leave in their wake. (Disclosure: Colleen Cassidy of this Office litigated the case on appeal).

Brand is a New Jersey voice teacher in his late 30s. He engaged …

Stanley Burrell v. United States, Docket No. 05-2945-cr (2d Cir. Oct. 18, 2006) (Cardamone, Walker, Sotomayor): This is a real snoozer; the Court narrowly holds that when it affirms a conviction and sentence but remands the case to the district court to perform a purely ministerial act (here, vacatur of one of two counts of conviction, as a lesser-included offense, where the vacatur could not affect the defendant’s sentence), the defendant’s conviction became final (for retroactivity purposes) when the Supreme Court denied cert. on the original appeal. E.g., Op. 12 (“[A] remand for ministerial purposes, such as the correction of language in a judgment or the entry of a judgment in accordance with a mandate, does not delay a judgment’s finality.”). This was critical to Burrell because while his conviction became final long before Booker under the theory adopted by the Circuit, it would not yet be …

Just to beat this issue completely to death: The version of Pereira that currently appears on Westlaw (United States v. Pereira, ___ F.3d ___, 2006 WL 2925642 (2d Cir. Oct. 13, 2006)), is the first version, in which the Court forgot its own decision in Mejia, rather than the later, corrected one. Anyone want to check LEXIS?

We assume that this will all get corrected soon enough. But the erstwhile confusion could have been avoided if the Court simply indicated that it has amended the original opinion, rather than do so without comment or remark (as if no one would notice ….).…

United States v. Pereira, Docket No. 05-5969-cr (2d Cir. Oct. 13, 2006): Sometime this morning, the Circuit altered its original opinion in this case, which as this Blog pointed out (see entry below) somehow forgot about its own decision in Mejia. The opinion now simply rejects Pereira’s fast-track disparity argument with a one-sentence cite to Mejia. New Op. 14.

Although this seems a rather substantive alteration, nowhere is there an indication that the original opinion has been amended or modified in any way. Nor did the Circuit change the date of the opinion (still October 13, 2006), even though this new opinion was issued today.

Does this seem like shoddy practice to anyone else? It certainly makes one wonder how often this kind of silent amendment goes on.…

United States v. Marvin Pereira, Docket No. 05-5969-cr (2d Cir. Oct. 13, 2006) (Miner, Leval, Calabresi): We had to do a double-take at the publication date of this opinion after reading it. Here’s why. Pereira argued on appeal (though he did not do so in the district court) that his 62-month sentence for unlawful reentry after deportation, imposed in the E.D.N.Y., was unreasonable because “the district court did not consider the disparity between his sentence and those received by defendants convicted of unlawful reentry in jurisdictions with fast-track programs.” Op. 14. This precise argument, of course, was rejected two months ago by the Circuit in United States v. Mejia, 461 F.3d 158 (2d Cir. 2006) (click here for our unhappy discussion).

Apparently, however, judges of the Circuit do not always read their own opinions. Rather than rejecting Pereira’s argument with a one-sentence cite to Mejia, this …

United States v. Samuel Ness, Docket No. 05-4401-cr (2d Cir. Oct. 10, 2006) (Winter, Calabresi, Pooler): This decision confirms a split among the Circuits concerning the meaning of the concealment element of the “transaction” and “transportation” money laundering statutes, 18 U.S.C. § 1956(a)(1)(B)(i) & (1)(2)(B)(i). Specifically, while some Circuits have ruled that the defendant has “conceal[ed] or disguise[d] the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity” only where s/he has attempted to create a false appearance that the funds are legitimate, e.g., United States v. Cuellar, 441 F.3d 329 (5th Cir. 2006), the Second Circuit has ruled that the concealment element is satisifed merely by a showing that defendant has engaged in conduct designed to conceal the identity of the funds, see United States v. Gotti, 459 F.3d 296 (2d Cir. 2006).

Applying Gotti to …

Steve Sady of the Oregon FPD has made available the latest version of his article, “Developments in Federal Search and Seizure Law” (click here for a link to the PDF version). The article outlines in detail all the key issues in search and seizure law, with an emphasis on “trac[ing] recent developments in selected areas and juxtapos[ing] the lead cases [(often pro-Government)] with federal court cases in which the defendant prevailed.” Although most of the examples of favorable lower court cases are from the Ninth Circuit, Steve’s article should prove invaluable in “encourag[ing] creative use of the available precedents that may make a decisive difference for our clients in state or federal court.” So print it out, read it on the subway, and dream of the Ninth Circuit!…

United States v. Giovanelli, Docket No. 04-5763-cr (2d Cir. Sep. 27, 2006) (Calabresi, Pooler, Parker) (per curiam): This opinion principally holds that when a defendant is constructed of “endeavoring” to obstruct an on-going criminal investigation (here, by passing secret grand jury information to a target of the investigation) under 18 U.S.C. § 1503’s “omnibus” clause, Section 2J1.2(c) of the Guidelines — the general obstruction Guideline that requires, via cross-reference, the use of Section 2X3.1 (accessory after the fact) whenever the “offense involved obstructing the investigation or prosecution of a criminal offense” — governs. Giovanelli argued that because he was convicted only of endeavoring to obstruct rather than actually obstructing, § 2J1.2(c) (and a fortiori § 2X3.1) was not implicated. Cf. United States v. Aguilar, 515 U.S. 593, 601-02 (1995) (explaining that “endeavoring” prong of § 1503 “makes conduct punishable where the defendant acts with an intent …

United States v. Stinson, Docket No. 05-5336-cr (2d Cir. Sep. 26, 2006) (Winter, Cabranes, Pooler) (per curiam): This very short opinion clarifies that, post-Booker, litigants still cannot appeal from a district court’s discretionary refusal to depart (subject only to the “misapprehension of authority to depart” exception). Though this is well-settled law, e.g., United States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005), some of you out there (and you know who you are) apparently have not gotten the message. So stop raising those “failure to depart” arguments!…

United States v. Rangolan, Docket No. 04-5126-cr (2d Cir. Sep. 21, 2006) (Calabresi, Parker, Wesley): Another great win by Ed Zas of this Office. The Circuit vacates on sufficiency grounds Rangolan’s criminal contempt conviction for violating 18 U.S.C. § 401(1), prohibiting “[m]isbehavior of any person in [the court’s] presence or so near thereto as to obstruct the administration of justice.” Essentially, Rangolan was convicted under § 401(1) for approaching a juror, during a civil trial in which Rangolan was a plaintiff, in the cafeteria of the courthouse, at 9:15 a.m. (and thus before the trial session started that day), and showing the juror a document supporting Rangolan’s claims. The cafeteria was on the 1st floor, while the trial was occurring on the 10th floor.

The Circuit vacates the conviction, finding that Rangolan’s contumacious act did not occur “in the court’s presence or so near thereto” within the meaning …