Just to beat this issue completely to death: The version of Pereira that currently appears on Westlaw (United States v. Pereira, ___ F.3d ___, 2006 WL 2925642 (2d Cir. Oct. 13, 2006)), is the first version, in which the Court forgot its own decision in Mejia, rather than the later, corrected one. Anyone want to … Read more
United States v. Pereira, Docket No. 05-5969-cr (2d Cir. Oct. 13, 2006): Sometime this morning, the Circuit altered its original opinion in this case, which as this Blog pointed out (see entry below) somehow forgot about its own decision in Mejia. The opinion now simply rejects Pereira’s fast-track disparity argument with a one-sentence cite to … Read more
United States v. Marvin Pereira, Docket No. 05-5969-cr (2d Cir. Oct. 13, 2006) (Miner, Leval, Calabresi): We had to do a double-take at the publication date of this opinion after reading it. Here’s why. Pereira argued on appeal (though he did not do so in the district court) that his 62-month sentence for unlawful reentry … Read more
United States v. Samuel Ness, Docket No. 05-4401-cr (2d Cir. Oct. 10, 2006) (Winter, Calabresi, Pooler): This decision confirms a split among the Circuits concerning the meaning of the concealment element of the “transaction” and “transportation” money laundering statutes, 18 U.S.C. § 1956(a)(1)(B)(i) & (1)(2)(B)(i). Specifically, while some Circuits have ruled that the defendant has … Read more
Steve Sady of the Oregon FPD has made available the latest version of his article, “Developments in Federal Search and Seizure Law” (click here for a link to the PDF version). The article outlines in detail all the key issues in search and seizure law, with an emphasis on “trac[ing] recent developments in selected areas … Read more
United States v. Giovanelli, Docket No. 04-5763-cr (2d Cir. Sep. 27, 2006) (Calabresi, Pooler, Parker) (per curiam): This opinion principally holds that when a defendant is constructed of “endeavoring” to obstruct an on-going criminal investigation (here, by passing secret grand jury information to a target of the investigation) under 18 U.S.C. § 1503’s “omnibus” clause, … Read more
United States v. Stinson, Docket No. 05-5336-cr (2d Cir. Sep. 26, 2006) (Winter, Cabranes, Pooler) (per curiam): This very short opinion clarifies that, post-Booker, litigants still cannot appeal from a district court’s discretionary refusal to depart (subject only to the “misapprehension of authority to depart” exception). Though this is well-settled law, e.g., United States v. … Read more
United States v. Rangolan, Docket No. 04-5126-cr (2d Cir. Sep. 21, 2006) (Calabresi, Parker, Wesley): Another great win by Ed Zas of this Office. The Circuit vacates on sufficiency grounds Rangolan’s criminal contempt conviction for violating 18 U.S.C. § 401(1), prohibiting “[m]isbehavior of any person in [the court’s] presence or so near thereto as to … Read more
United States v. Sloley, Docket No. 05-1748-cr (2d Cir. Sep. 15, 2006) (Walker, Cardamone, Sotomayor): This is an odd opinion that fails to answer what appears to be the central question on appeal: Whether the Government may refuse to move for the 3rd acceptance point, under U.S.S.G. § 3E1.1(b), for reasons other than the timeliness … Read more
Taveras v. Smith, Docket No. 05-5579-pr (2d Cir. Sep. 11, 2006) (Cardamone, Calabresi, Pooler): This decision answers a very narrow question: May the New York State Appellate Division — the state’s first-tier, “as of right” appellate court — exercise its discretion to dismiss, on fugitive disentitlement grounds, the appeal of an apparently indigent defendant without … Read more