United States v. Herredia, Docket No. 02-1544-cr(L) (2d Cir. Nov. 2, 2005) (Winter, Sotomayor, Wesley): A bad result for the defendants, but the Circuit’s decision presents an opportunity for the Supreme Court to overrule both Harris and Almendarez-Torres in one fell swoop. Here, the two defendants were convicted of conspiring to distribute more than a kilogram of heroin, which ordinarily carries a mandatory minimum sentence of 10 years and a maximum sentence of life under 21 U.S.C. § 841(b)(1)(A). However, both defendants had sustained at last two prior drug felonies before committing the instant offense. This fact dramatically altered their sentence: Upon conviction, they would face a mandatory life sentence.

Prior to trial, the Government filed a prior felony information pursuant to 21 U.S.C. § 851 for each defendant, listing their prior drug felonies. These priors were not alleged in the indictment, however, nor were they presented to …

United States v. Xiao Qin Zhou, Docket No. 03-1575(L) (2d Cir. Nov. 1, 2005) (Miner, Calabresi, Amon (by designation)): This is an interesting opinion that discusses a critical difference between the crime of robbery and the crime of extortion under the Hobbs Act, 18 U.S.C. § 1951. While the defendants took property from the victim by force (indeed, at gunpoint), they were not guilty of extortion (the sole offense with which they were charged in connection with this particular victim) because they did not give the victim the choice of refusing to turn over the property. The “element of consent” by the victim in turning over money or property, the Court explains, “is the razor’s edge that distinguishes extortion from robbery,” which involves taking money or property from a person “against his will.” Op. 15. And because the evidence was insufficient to show that the victim was …

Abdul Majid and Bashi Hameed v. Leonard A. Portuondo, Robert Kuhlmann, Docket Nos. 03-2608, 03-2610 (2d Cir. October 26, 2005)(Oakes, Kearse, Sack, op. by Sack). In a very long opinion that doesn’t really say much, the Court found no constitutional right to cross-examine witnesses at a Batson hearing.

In 1986, Majid and Hameed, represented by William Kunstler and our own Mark Gombiner, were convicted of murdering a New York City police officer. During jury selection, the prosecutor exercised perempetory challenges against twelve of the fifteen African-American members of the venire (and against two African-American alternates), and six of the thirty-six others. During the trial, the Supreme Court decided Batson v. Kentucky. On appeal, the defendants successfully argued that the prosecutor’s conduct raised an inference of purposeful discrimination, and the Appellate Division remitted the case to the trial court for a hearing.

The hearing took place in 1992, some six years …

Eliot S. Sash v. Michael Zenk, Docket No. 04-6206-pr (2d Cir. Oct. 26, 2005) (Sotomayor, Wesley, Brieant (by designation)): In this case, brought pursuant to 28 U.S.C. § 2241 by a prisoner in BOP custody and litigated by David Lewis of this Office, the Circuit upholds as “reasonable” the BOP’s odd & stingy interpretation of the good-conduct time statute, 18 U.S.C. § 3624(b). This statute states in sum and substance that a “prisoner who is serving a term of imprisonment of more than 1 year . . . may receive credit toward the service of the prisoner’s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment.” While Sash reads this statute to mean that he should receive up to 54 days of credit for each year of the sentence imposed, the BOP reads …

United States v. John J. Cassese, Docket No. 03-1710 (2d Cir. Oct. 24, 2005) (Calabresi, Parker, Raggi): Oh what it must be like to be John Cassese — lucky enough to draw Judge Sweet as his trial judge, and rich enough (and smart enough) to hire a former star of the SDNY USAO as his defense attorney. If we were he, we would spend the bulk of our next paycheck on the SuperLotto!

Cassesse was prosecuted for securities fraud in connection with his purchase, based on insider information, of the stock of a company two days before the announcement of a tender offer. His sale of the stock, made upon the announcement of the tender offer, resulted in a net profit of $149,000. Not bad for two days’ “work”!

The jury returned a guilty verdict, but Judge Sweet granted the defendant’s Rule 29 motion for judgment of acquittal. …

United States v. Shlomo Cohen, Docket No. 04-0983-cr (2d Cir. Oct. 20, 2005) (Meskill, Cabranes, Nevas (by designation)): The Court principally rejects an IAC claim, following Cohen’s conviction for conspiring to import ectasy from Belgium and to distribute it in the United States, based on counsel’s failure to (1) object to the prosecutor’s off-hand reference, during summations, to the existence of unknown conspirators (“other people overseas”) whose existence may or may not have been supported by the evidence, and (2) object to the court’s charge, in which it may or may not have told the jury that a co-defendant was an actual co-conspirator rather than merely an alleged one. The Court found no error on either point, and thus no error in counsel’s failure to object. Additionally, given that “the evidence of defendant’s conspiracy with [a co-defendant who had pleaded guilty] was overwhelming — a point that defendant’s …

United States v. Kurti, Docket No. 04-2239-cr (2d Cir. Oct. 19, 2005) (Winter, Katzmann, Murtha (by designation)): Praise the lord: The often ignored and little understood provision of the Guidelines establishing the “procedure for determining the specific sentence to be formally imposed on each count in a multiple-count case,” i.e., U.S.S.G. § 5G1.2, has officially been declared merely advisory in light of Booker. Here, Kurti pled guilty to two counts charging him with conspiring to distribute an unspecified quantity of narcotics (one count concerned marijuana and the other concerned ecstacy). The statutory maximum on each was 20 years. His Guidelines range was 360 to life, and the district judge at the pre-Booker sentencing imposed a sentence of 360 months. She did not specify, however, “either the length of time to be served on each count or which portion of the sentence of a count was to …

Gersten v. Senkowski, Docket No. 04-0935-pr (2d Cir. Oct. 17, 2005) (Winter, Pooler, Brieant (by designation)): A great win for the defense. This is (at least) the third case in recent memory in which the Circuit granted habeas relief to a state prisoner claiming that he received ineffective assistance of counsel at his trial for child molestation because his attorney failed to consult with, or call as witnesses at trial, medical and psychiatric experts who could have undermined the testimony of the prosecution’s so-called experts. In a classic “he said, she said” case in which the prosecution won conviction by proffering now-discredited expert testimony against the defendant, defense counsel’s complete ignorance of the medical and psychatric literature on child abuse, and his cavalier failure to make even the slightest effort to educate himself on these crucial matters, required vacatur of defendant’s conviction even under AEDPA’s highly deferential standards.…

United States v. Wendell Smith, Docket No. 03-1588-cr (2d Cir. Oct. 17, 2005) (Winter, Sotomayor, Parker): During Smith’s trial in a courtroom located in the federal building complex in Rochester, the U.S. Marshals Service, in coordination with the Department of Homeland Security (DHS), required all visitors to the complex to show a photo identification before they would be allowed to enter. Those without photo IDs (or refused to show IDs) would be denied entry. This was done because the “National Alert Level” (set by DHS) at that time was 3 (that’s “yellow” to you and me), and the Marshals had a policy (adopted after 9/11/01) of requiring presentation of a photo ID as a condition for entry whenever the alert level was 3 or above (4 is orange and 5 is the dreaded red). The policy’s stated justification is that “someone who is forced to identify themselves is …

United States v. John Fuller, Docket No. 04-4595-cr (2d Cir. Oct. 17, 2005) (Oakes, Cabranes, Goldberg (by designation)): In this case, litigated by Colleen Cassidy of this Office, the Circuit primarily holds that remand for resentencing is required pursuant to Fagans even where the sentencing judge announced, at a sentencing that occurred post-Blakely but pre-Booker, that she would impose the same sentence even if the Guidelines were subsequently held unconstitutional by the Supreme Court. There was dicta in Crosby to this precise effect, of course, see 397 F.3d at 118, and the Circuit simply adopts this dicta as its ruling in this opinion. Op. at 9. The Booker error was not harmless despite the judge’s pronouncement of the “alternative sentence,” the Court explained, because such an “alternative sentence is not necesssarily the same one that the judge would have imposed in compliance with the duty …

United States v. Samuel Yakobowicz, Docket No. 04-0201-cr (2d Cir. October 14, 2005) (Winter, Sotomayor, Parker): Sometimes those visiting judges are more trouble than they’re worth. Here, a visiting judge from the Northern District of Ohio, presiding over the defendant’s E.D.N.Y. trial for filing false tax returns, sua sponte adopted a trial procedure we’ve never seen in a criminal case — allowing the parties to make summations after the testimony of each witness. The Circuit ruled that even assuming that such a procedure is permissible in a particularly lengthy or complicated case, it was not warranted in this typical one. The Court also ruled, over Judge Sotomayor’s dissent, that the court’s error of allowing these “interim summations” constitutes a structural error requiring automatic reversal without harmless-error analysis.

The essential facts are thus. Yakobowicz was prosecuted for filing false excise tax returns and impeding the administration of tax …