United States v. John Doe, Docket No. 04-5677-cr (L) (2d Cir. March 27, 2006) (Cardamone, Sack, Casey (by desig’n)): This decision does not appear to break new ground in remanding the case back to the district court for an evidentiary hearing on whether the Government’s refusal to file a § 3553(e) / § 5K1.1 letter was made in bad faith. In United States v. Knights, 968 F.2d 1483, 1488 (2d Cir. 1992), the Court sensibly ruled that the Government cannot refuse to file a 5K letter on the basis of facts known to it at the time the agreement was executed. As the Court explained there, “Not only would it be unfair for the government to rely upon . . . known, pre-agreement circumstances as reasons for not moving [under 3553(e) / 5K], it would have been fraudulent to have induced a defendant’s plea with a …

United States v. Jermi Francisco Lopez, Docket No. 03-1476-cr (2d Cir. April 4, 2006) (Sack, Sotomayor, Raggi):

Where an element of a crime, in this case a prior deportation, depends on an administrative finding, due process requires that that finding have been subject to judicial review, to ensure its accuracy and make it a proper basis for criminal sanctions. See United States v. Mendoza-Lopez, 481 U.S. 828 (1987); 18 U.S.C. § 1326(d). In this case, the defendant had sought dismissal of his illegal reentry indictment on the ground that he had been denied judicial review of his deportation by misinformation given him at his hearing and by the Immigration Judge’s failure to advise him of the availability of collateral relief by habeas corpus. In 1997, just at the time of amendment of new immigration laws eliminating much of the existing discretionary relief for deportation, the defendant had …

United States v. Mayra Fernandez, Docket No. 05-1596-cr (2d Cir. April 3, 2006) (Miner, Cabranes, Curtin (by desig’n)): This important decision settles some lingering uncertainties concerning post-Booker appellate review of sentences in this Circuit. Some of the Court’s conclusions are good from a defense perspective, some not so good. But there’s a benefit to clarity all the same.

First, the Court finally explicitly holds that it possesses statutory authority to review the reasonableness of any sentence, even those falling within a properly calculated Guidelines range. (Fernandez received a sentence of 151 months, the bottom of the correctly calculated range). The Court explains that when a defendant challenges a sentence on appeal as unreasonable (either as to the process of its selection or as to its length), s/he “effectively claims that the sentence, whether a Guidelines sentence or a non-Guidelines sentence, was ‘imposed in violation of law,'” …

United States v. Charles Novak, Docket No. 05-0108-cr (2d Cir. April 3, 2006) (Sotomayor, Katzmann, Eaton (by desig’n)): This interesting opinion affirms some counts of conviction (e.g., for unlawful receipt of labor payments and for RICO conspiracy), vacates others (e.g., for mail fraud and for making false statements under ERISA), and requests supplemental briefing on the effect of its partial vacatur on the other counts of conviction (e.g., money laundering). This Blog will discuss two issues: (1) whether 29 U.S.C. § 186(b)(1), prohibiting a union official from receiving anything of value from anyone who employs a member of the union, requires proof that the employer knew that the money it gave to an employee would be re-directed (as kickbacks) to the defendant union official; and (2) whether a mail fraud conviction can be sustained where the evidence fails to show that the defendant’s …

U.S. v. Paulino, Docket No. 04-2553-cr (2d Cir. March 29, 2006) (Oakes, Raggi, Wesley):

Having decided a routine Crawford issue in U.S. v. Snype, the Court, again by Judge Raggi, turns in this case to a more complicated situation. The case raises the interesting question whether a court’s instruction to a jury that a hearsay statement is not to be considered for its truth eliminates all Sixth Amendment concerns, even where no alternate purpose for its admission seems obvious, and where the district court’s limiting instruction may not have obviated all need for cross-examination.

The police executed an arrest warrant for the defendant’s father, Adolfo, at Adolfo’s apartment, where the defendant was living. Adolfo gave consent to search, and the officers found cocaine in the hall closet. Adolfo stated, apparently with respect to these drugs, that he owned them and that “no one else was involved in …

Lynn v. Bliden, Docket No. 04-6280-pr (2d Cir. March 30, 2006) (Miner, Raggi, Karas (by desig’n)): The Circuit reverses the district court’s grant of Lynn’s § 2254 petition in this opinion, concluding essentially that there was no Strickland violation because trial counsel’s errors did not create a reasonable probability of a different result. This Blog is skeptical. Although the opinion does not contain enough information to evaluate fully the soundness of this determination, the fact remains that (1) Lynn was convicted solely on the testimony of two alleged eyewitnesses, and (2) counsel’s errors concern (largely) his failure to discredit the eyewitnesses’ testimony by their prior inconsistent statements (in which one witness told the police after the shooting that he could not recognize the shooter, and the other witness failed to select Lynn’s picture from a photo array the first time he was shown an array). But it …

Hanson v. Phillips, Docket No. 04-0940-pr (2d Cir. March 30, 2006) (Leval, Straub, Katzmann): An astonishingly good result for Mr. Hanson (and perhaps for thousands of fellow travelers in the New York State courts): The Circuit grants Hanson’s § 2254 petition because the record of his state guilty plea (to a misdemeanor charge of criminal contempt in the 2d degree in an Orange County city court, for which he was ultimately sentenced to 15 days in the county pen and 3 years’ probation) failed to “affirmatively disclose that [he] intelligently and voluntarily pleaded guilty,” as required under Boykin v. Alabama, 395 U.S. 238 (1969). For those interested, the plea allocution is quoted in full at pages 3 to 6 of the opinion. It is undeniably bare bones — not even close to the full Rule 11 colloquy required in federal court. And Boykin undeniably stands for the …

United States v. Goldstein, Docket No. 04-1689-cr (2d Cir. March 29, 2006) (Walker, Hall, Gibson (by desig’n)): Goldstein raises a host of challenges to his conviction for credit card fraud and his 70-month sentence. Only a few are worth mention (and barely so).

First, Goldstein argues that the trial court erred in instructing the jury about his good faith as a defense. While the court properly told the jury that good faith is a complete defense to the fraud charges, Goldstein claims that this correct statement was undermined when the court “added language that improperly required the jury to find that Goldstein’s good faith was objectively reasonable.” Op. 6; see Cheek v. United States, 498 U.S. 192, 203 (1991) (good-faith belief, as a defense, need not be objectively reasonable). The problematic language is the highlighted portion of the following instruction: “If the defendant actually believed that he was …

United States v. Walker, Docket No. 05-3851-cr (2d Cir. March 30, 2006) (Straub, Sack, Trager (by desig’n)) (per curiam): Not much to this opinion, which holds that a conviction in New York State for attempted assault in the second degree, in violation of N.Y. Penal Law §§ 110/120.05(2), qualifies as a conviction for a “violent felony” within the meaning of 18 U.S.C. § 924(e)(1) & (e)(2)(B), and thus can serve as one of the three required predicates triggering the 15-year minimum under the ACCA. The statutory language seems to fit, Op. 3-4, [but see “Comments” below] and Congress can enact dumb laws if it so wishes.

The Circuit also quickly rejects Walker’s argument that his conviction should not be counted as an ACCA predicate because New York’s own definition of “violent felony” (for purposes of its sentencing laws) does not include attempted assault-2d: “Congress chose to …

United States v. Snype, Docket No. 04-3299-cr(L) (2d Cir. March 17, 2006) (Cabranes, Raggi, Sand):

This thoroughly litigated case produced a lengthy opinion touching on important Fourth Amendment, trial, and sentencing issues. These issues ranged from intertwined issues of a “warrantless” search and its fruits, the voluntariness of a consent to search, and the lawful scope of that consent, various trial errors including an error under Crawford v. Washington, and several challenges to the mandatory life sentence. The Circuit ultimately rejected all, although the defendant’s arguments appear in a number of cases to be more substantial than the Court’s opinion might suggest.

The defendant Snype was charged with conspiracy to commit bank robbery. According to the government’s cooperating witness, who said he had acted as a lookout, Snype and another man robbed the bank at gunpoint. When police arrived, Snype and his partner fled, shooting at police, and …

United States v. Rasheim Carlton, Docket No. 05-0974-cr (2d Cir. March 24, 2006) (Cardamone, Cabranes, Pooler): This opinion principally rejects an Apprendi and Blakely based Sixth Amendment challenge to the district court’s decision to revoke Carlton’s supervised release and resentence him to 25 months’ imprisonment based solely on the court’s own fact-finding, on a preponderance standard, that he committed a new crime. The outcome is hardly unexpected — the Circuit has repeatedly refused to apply the Sixth Amendment implications of Apprendi, Blakely, and Booker to revocation proceedings in recent decisions. E.g., United States v. McNeil, 415 F.3d 273 (2d Cir. 2005).

The opinion is of interest only because it goes beyond citing precedent and attempts to offer a rationale for why the jury trial and beyond-a-reasonable-doubt protections do not apply at revocation proceedings. Indeed, the Circuit acknowledged that “some tension exists between § …