United States v. Sheikh, Docket No. 05-1747-cr (2d Cir. Amended Jan. 13, 2006) (Sotomayor, Meskill, Kaplan (by desig’n)): When the Court issued the original version of this decision last week, we pointed out that it included dicta seemingly undercutting the Supreme Court’s decision in Harris v. United States, 536 U.S. 545 (2002). (Click here for our earlier discussion). As the Court originally stated, “So long as the facts found by the district court do not trigger a mandatory minimum sentence authorized by the verdict or increase the sentence beyond the statutory maximum authorized by the verdict, the district court does not violate a defendant’s Fifth and Sixth Amendment rights by imposing a sentence based on facts not alleged in the indictment.” Op. at 4.

Alas, that anti-Harris dicta is no more. The Court today amends its decision to clarify that when it refered to “a …

United States v. Martha Stewart and Peter Bacanovic, Docket Nos. 04-3953(L) (2d Cir. Jan. 6, 2005): Yet another reminder of the White Album’s timelessness:

Don’t forget me martha my dear
Hold your head up you silly girl look what you’ve done
When you find yourself in the thick of it
Help yourself to a bit of what is all around you
Silly girl.

Martha Stewart’s troubles began when she helped herself to a bit too much information regarding Sam Waksal’s sale of his ImClone stock. And when she found herself in the thick of an SEC investigation into the questionable timing of her sale of that stock, she (allegedly) concocted a ridiculous story instead of just telling the truth. We all know the end result.

The Circuit today affirms her conviction in a 74-page opinion rejecting each argument raised by Stewart and co-defendant Peter Bacanovic. Having labored through the …

Our colleague Steve Sady over at the Ninth Circuit Blog has once again written a great resource for criminal defense lawyers — this time concerning immigration-related issues that arise in criminal cases. (Click here for Steve’s discussion). Steve focuses in particular on how to use the Supreme Court’s decision in Leocal to fight the Government’s aggressive and continuing effort to expand the definition of “aggravated felony.” Steve also provides information on and links to immigration-law resources for the criminal defense lawyer.

For those who finds immigration law to be a realm of poorly drafted statutes, incoherent regulations, and unprincipled decisions, Steve’s discussion is well worth a look.…

United States v. Sheikh, Docket No. 05-1747-cr (2d Cir. Jan. 5, 2006) (Meskill, Sotomayor, Kaplan (by desig’n)): We were puzzled by why the Court decided to publish this very short opinion, in which the Court rejects the defendant’s claim that “the district court violated his [Fifth and Sixth Amendment] rights by enhancing his sentence on the basis of a fact — the loss amount — not alleged in the indictment,” even where the sentence did not exceed the statutory maximum for the offense of conviction. Our puzzlement stems both from the fact that this argument was essentially rejected in Booker, and the fact that the Court simultaneously issued an unpublished summary order rejecting other arguments raised by Sheikh — thus evidencing a conscious choice to publish this decision on a well-settled issue.

Readers, if there are any, are invited to offer speculations as to the Court’s motive. …

Monroe v. Kuhlman, Docket No. 03-3703 (2d Cir. Jan. 3, 2006) (Winter, Feinberg, Straub): This is somewhat of a rare bird: The Circuit concludes that the New York Court of Appeals improperly applied the state’s own contemporaneous objection rule and thus that its finding of a procedural default on direct appeal was “inadequate” to bar federal habeas review of the same question. Monroe claimed that his right to be present at all critical stages of the trial, as well as his right to “judicial supervision” of the trial, were violated when the state trial judge allowed the jury to view previously admitted evidence outside the presence of the judge and the parties during adjournments of the trial. Unfortunately, trial counsel did not object to the procedure. These claims were rejected on direct appeal. The N.Y. Court of Appeals found that (1) Monroe’s right to be present was not …

Sapia v. United States, Docket No. 03-2087 (2d Cir. Dec. 28, 2005) (Winter, Straub, Lay (by desig’n)): Section 851 of Title 21 provides that the enhanced penalties set forth in § 841(b) for defendants who commit a drug offense after sustaining prior drug convictions are triggered only if the Government files, before trial or the entry of a guilty plea, an information “stating in writing the previous convictions to be relied upon.” In this decision, the Court holds that the prior felony information requirement is not jurisdictional, and thus that an argument, raised in a collateral attack, that the sentencing court erred in imposing an enhanced sentence in the absence of a § 851 information is subject to procedural default analysis. And because Sapia could not satisfy the cause-and-prejudice inquiry, the Court dismisses his § 2255 petition.

The essential facts are simple. Sapia was indicted for conspiring to …

United States v. Stefan Irving, Docket No. 04-0971-cr (2d Cir. Dec. 23, 2005) (Cardamone, Jacobs, Cabranes): The majority opinion by Judge Cardamone affirms the defendant’s conviction on most counts, but reverses on two counts that were based solely on the defendant’s admissions, made in his personal journal, whose essential facts were uncorroborated by independent evidence. Judge Cabranes dissents on this point.

The decision further holds that (1) despite the Supreme Court’s decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), no expert testimony or other extrinsic evidence is needed to prove that the children depicted in pornographic video footage are real and not virtual (on the tenuous assumption that a jury can tell the difference, at least when video footage (as opposed to still images) is at issue), and that (2) a 2003 warrant authorizing the search of Irving’s home was not based on …

United States v. Alaa Al-Sadawi, Docket No. 03-1784-cr (2d Cir. Dec. 23, 2005) (Walker, Cardamone, Parker): Yet another pyrrhic victory for the defense: The Court rules that the district court committed two evidentiary errors (one involving Crawford and the introduction of a co-defendant’s plea allocution at the defendant’s trial, and the other involving the use of flight as evidence of consciousness of guilt), but finds both harmless in light of the “overwhelming” evidence of the defendant’s guilt. What else is new?

Nothing earth shattering in the opinion. But the decision contains a good, thorough discussion of when the Government can and cannot use evidence regarding the defendant’s attempt to leave the jurisdiction as evidence of guilt. See Op. at 7-9. In sum, the probative value of the defendant’s behavior “as circumstantial evidence of guilt depends upon . . . four inferences . . . : (1) from the …

United States v. Ali Hamdi, Docket No. 03-1307-cr (2d Cir. Dec. 12, 2005) (Feinberg, Winter, Sotomayor): This decision — yet another in the criminal realm by Judge Sotomayor — has two principal holdings. First, the fact the defendant has completed his sentence and been deported does not moot the instant challenge to the length of his sentence, imposed pre-Blakely (and thus pre-Booker), because the length of the sentence “probably” would affect Hamdi’s ability, at a future date, to enter the U.S. on a non-immigrant visa. See Op. at 4-10. Second, a simple declarative statement in a plea agreement that the “[t]he defendant’s sentence is governed by the United States Sentencing Guidelines” does not prohibit the defendant from raising on appeal a claim that his sentence, imposed under the then-mandatory Guidelines regime, is invalid in light of Booker. See id. at 10-20. We will focus …

United States v. Phillips, Docket No. 04-2166-cr (2d Cir. Dec. 7, 2005) (Walker, Hall, Gibson (by desig’n)): Many had hoped that Booker‘s demotion of the Guidelines to mere advisory status would, at the very least, put an end to the endless stream of mind-numbing opinions analyzing Guidelines minutia churned out by the Circuit week after week. That hope has proven unfounded, as this decision again confirms.

The Court holds that unadjudicated juvenile conduct can constitute a predicate offense under a now-repealed version of the rarely seen enhancement under § 4B1.5(b), calling for a 5-level enhancement if the defendant, convicted of a qualifying sex crime, previously “engaged in a pattern of criminal activity involving prohibited sexual conduct.” U.S.S.G. § 4B1.5(b) (2002 ed.). Those interested in how the Court came to this fascinating conclusion are on their own. See Op. at 9-17. Suffice it to say that the …

Zapata v. United States, Docket No. 01-2575 (2d Cir. Dec. 6, 2005) (Sotomayor, Parker, Wesley): The Circuit vacates the district court’s denial of a § 2255 petition, based on Zapata’s IAC claim that trial counsel failed to consult with him about the possibility of an appeal following his 1999 sentencing, for lack of fact-finding on the critical question. The district court denied the petition on the theory that even assuming that counsel failed to consult with Zapata about an appeal, “petitioner is unable to demonstrate that his attorney had a duty to consult with him regarding his right to appeal.” Op. at 2-3. The Circuit didn’t want to play this “assumption” game, however, because it would present the following Hobson’s choice: (1) “[i]f we accept the assumption, we must engage in extensive legal reasoning predicated on a fact not yet determined”; or (2) “[i]f we reject the assumption, …