United States v. Daidone, Docket No. 04-3784-cr (2d Cir. Dec. 15, 2006) (Newman, McLaughlin, Hall) (per curiam): This opinion does not appear to break new ground, but simply confirms that in a RICO prosecution, proof of “horizontal relatedness” between the alleged predicate acts — i.e., proof that the predicates are related to each other — … Read more
United States v. Gilmore, Docket No. 05-6195-cr (2d Cir. Dec. 8, 2006) (Miner, Pooler, Katzmann) (per curiam): In United States v. Anati, 457 F.3d 233 (2d Cir. 2006), the Circuit held that a district court must give reasonable notice of its intent to exceed the advisory Guidelines range (via consideration of the § 3553(a) factors) … Read more
The Supreme Court ruled yesterday in Lopez v. Gonzales that a state felony conviction for simple drug possession does not qualify as an “aggravated felony” for purposes of the Immigration and Nationality Act. And although the Court had granted cert. in a companion case involving the same interpretive question but in the Sentencing Guidelines context, … Read more
United States v. Acosta, Docket No. 05-3346-cr (L) (2d Cir. Nov. 30, 2006) (Jacobs, Parker, Oberdorfer) (per curiam): This short opinion holds that convictions under (1) the second clause of 18 U.S.C. § 242 (violating someone’s civil rights when either “bodily injury results” or involved “the use, attempted use, or threatened use of a dangerous … Read more
United States v. Ministro-Tapia, Docket No. 05-5101-cr (2d Cir. Nov. 28, 2006) (Walker, Leval, Raggi): The Parsimony Clause is alive in the Second Circuit! See 18 U.S.C. § 3553(a) (“The district court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of [§ 3553(a)].”). … Read more
United States v. Parker, Docket No. 05-6991-cr (2d Cir. Nov. 14, 2006) (Cabranes, Sotomayor, Raggi): This opinion does not break new legal ground, but is nonetheless of interest in highlighting the disparate treatment of defendants who can afford retained counsel and defendants who cannot. The contrast between (1) the Circuit’s easy affirmance here of the … Read more
United States v. Pressley, Docket No. 05-2487-cr (L) (2d Cir. Nov. 14, 2006) (Cardamone, Walker, Straub) (per curiam): In United States v. Harrison, 241 F.3d 289 (2d Cir. 2001), the Circuit ruled that where a defendant is convicted of two or more separate substantive counts of drug distribution, in violation of 21 U.S.C. § 841(a), … Read more
Yung v. Walker, Docket No. 03-3023-pr (2d Cir. Oct. 31, 2006) (Pooler, Sotomayor, Kaplan): This is but the most recent iteration of a long and tedious line of habeas cases in which the petitioner claims that his Sixth Amendment public trial right was violated when the New York state trial judge, at the prosecutor’s request, … Read more
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 … Read more
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 … Read more