United States v. Vaughn, Docket No. 04-5136-cr (L) (2d Cir. Dec. 1, 2005) (Newman, Sotomayor, Daniels (by designation)): In a disappointing but hardly surprising decision, the Court concludes that the standard of proof at sentencing remains the preponderance standard and that acquitted conduct can still be used to calculate the Guidelines range. The Circuit’s position on the calculation of the Guidelines range in the post-Booker world has now become quite clear: The same rules that formerly governed pre-Booker continue to govern post-Booker, the only difference being that the end result of those calculations (i.e., the Guidelines range) is merely advisory and only one factor among several to be considered under 18 U.S.C. § 3553(a) in imposing sentence.

The decision also quickly rejects an ex post facto / Due Process challenge to the use of the remedial portion of the Booker opinion to …

United States v. Steven Robinson, Docket No. 04-0889-cr (2d Cir. Dec. 5, 2005) (Walker, Leval, Lynch (by designation)): This decision upholds, on a Government appeal, the district court’s grant of the defendant’s Rule 33 motion for a new trial on two counts on which he was convicted by a jury. The principal issue on appeal concerned the effect of the defendant’s failure to timely file the Rule 33 motion in the district court — that motion (1) was not filed within the 7-day period allowed by Rule 33 and (2) defense counsel sought an extension from the district court outside of that time period. The kick is that the Government did not object to defense counsel’s extension request, nor did it oppose the Rule 33 motion on timeliness grounds in its initial response to the defendant’s motion in the district court.

The dispute thus came down to this. …

Today, the Circuit posted a reminder that new Local Rules 25 and 32(a) will be going into effect this Thursday, December 1st. New Rule 32 essentially requires counsel in all cases to submit a digitized version of any brief filed, in PDF format, via e-mail to the Circuit, in addition to the 10 paper copies of the brief already required. Rule 32 also requires counsel to submit a certification, both in writing (to be filed with the paper copies of the brief) and electronically (in PDF format, along with the PDF version of the brief), that the brief has been scanned for viruses and that it is virus free. A sample “Anti-Virus Certification” can be found on the Court’s website.

New Rule 25 additionally requires that for all papers filed with the Court, including briefs, motions, letters, and appendices, counsel must submit in addition an unbound copy of the same. …

United States v. Michael Bliss, Docket No. 04-1163-cr (2d Cir. Nov. 23, 2005) (Meskill, Sack, Parker): This case primarily confirms that a defendant’s flight from arrest, even when it results in a year-long delay in his apprehension by law enforcement, is not in itself sufficient to trigger the 2-level obstruction enhancement under U.S.S.G. § 3C1.1. See U.S.S.G. § 3C1.1 comment. (n.5). Moreover, the enhancement is not automatically triggered even when flight is coupled by the defendant’s use of aliases. Rather, the enhancement is warranted only where the Government shows, additionally, that the defendant engaged in conduct that “actually resulted in a significant hindrance to the investigation or prosecution of the instant offense.” Id. § 3C1.1 comment. (n.5(a)). Where a lengthy delay in arrest or the expenditure of significant resources by law enforcement cannot be attributed to the defendant’s actions, the enhancement is not appropriate.

The essential facts …

To our disappointment and surprise, the Circuit today declined to grant en banc rehearing in the two “Candyman” cases. See here and here for our discussions of Martin, and here and here for our discussions of Coreas. Two opinions were filed in connection with the denial of en banc rehearing — one by Judge Wesley concurring in the denial, and the other by Judge Pooler dissenting in the denial.

We have already stated our views of these cases, and will add no further words of our own — other than that we agree with Judge Pooler’s final sentence: “I urge the defense attorneys in these cases to seek certiorari, and, in the meantime, I caution the residents of New York, Connecticut, and Vermont to be careful which websites they visit because a few clicks of the mouse could subject their homes to search.” Op. 7.…

Our colleagues Tim Hoover and MaryBeth Covert of the Federal Public Defenders Office in the Western District of New York have written an excellent analysis of the Circuit’s decision in United States v. Ramirez, Docket No. 04-3147-cr (2d Cir. Aug. 26, 2005) (Walker, Hall, Gibson (by designation)). And more than that: Tim and MaryBeth also discuss some practice pointers for both state and federal defense attorneys confronted with the conditional discharge issue in light of Ramirez. A must-read!

United States v. Raoul Ramirez, 421 F.3d 159 (2d Cir. 2005): State practitioners regularly seek conditional discharge sentences in New York criminal/city/village/town courts, especially for non-criminal violation offenses, because of the lack of a term of imprisonment and the lack of supervision that a conditional discharge affords. Conditional discharges are regularly offered by prosecutors and imposed by state judges as a way to clear massive New …

Policano v. Herbert, Docket No. 04-5518-pr (2d Cir. Nov. 15, 2005) (Pooler, Sack, Garaufis (by designation)): This one is a rare bird indeed — Mr. Policano literally gets away with murder! In this case, the Circuit affirms Judge Gleeson’s grant of habeas based on the insufficiency of the evidence presented at Policano’s New York state trial for murder. Essentially, the evidence showed that Policano, who had a serious beef with the victim, walked up to this unarmed individual, pulled out a 9 mm pistol, and shot him three times in the head and neck at close range. Policano was charged with two counts of second-degree murder under New York law — one charging him with depraved-indifference murder, in violation of N.Y. Penal Law § 125.25(2), and the other charging him with intentional murder, in violation of N.Y. Penal Law § 125.25(1).

At his trial, the judge refused to grant …

United States v. Alfred G. Miller, Docket No. 04-2637-cr (2d Cir. Nov. 16, 2005) (McLaughlin, Cabranes, Mukasey (by designation)): In this unfortunate decision, the Circuit extends the protective sweep exception to the warrant requirement recognized in Maryland v. Buie, 494 U.S. 325 (1990), to situations where no arrest is at issue. In Buie, the Supreme Court authorized police officers who were lawfully in a suspect’s home to execute an arrest warrant to conduct, in addition, a limited sweep of the premises — “a cursory inspection of those places where a person may be found” — if they possess “articulable facts which . . . would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. at 334. The Circuit now holds that a protective sweep is justified whenever the police …

Our colleagues in the Federal Public Defenders Office in Portland, Oregon, have once again prepared an excellent summary of the past Supreme Court term from the criminal defense perspective. To tantalize readers, here is Steve Sady’s summary introduction:

“Three major themes emerged from the opinions. First, the protection of core constitutional rights has solidified in a surprising number of cases. Second, the Doctrine of Constitutional Avoidance continues to provide a key analytical framework for federal litigation. Lastly, the Court’s devotion of so much time to the rules of statutory construction emphasizes the need for federal defense attorneys to incorporate them into our litigation vocabulary. The overall message is to hit constitutional issues hard, but layer them with statutory arguments that avoid the necessity of resolving the constitutional questions.”

Click HERE for the full document in pdf format.…

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 …