United States v. Marshall Ayers, Docket No. 04-0103 (2d Cir. July 21, 2005) (Sack, Raggi, Hall) (per curiam): Some of us cynically speak of the “Rule of Severity” occasionally applied in criminal cases, especially when ugly facts are involved. The Rule is simple: Where a statute or rule can reasonably be interpreted in one of two ways, the Court will adopt the interpretation that results in greater punishment for the well-deserving defendant. Unlike its much better known cousin, the Rule of Lenity, the Rule of Severity does not of course officially exist. Yet its force is well-known to those who practice in this field.

The issue in this case is whether the defendant’s effort to obstruct the state‘s investigation of his crime, which preceded the federal investigation and prosecution of a different but related crime, triggers the obstruction enhancement of U.S.S.G. § 3C1.1 for purposes of the federal …

United States v. Germaine Robinson, Docket No. 04-6664 (2d Cir. July 20, 2005) (Jacobs, Pooler, and Hurd, D.J.) (Op. by Jacobs): This opinion contains some interesting discussion about several issues arising in the context of revocation of supervised release. First, it discusses the type of notice that a defendant (a “supervised releas-ee”?) must be provided with before revocation. Second, it quickly rejects a Booker challenge to the revocation scheme, but then adds some curious dicta that has piqued the interest of the blogosphere (see, e.g., Professor Berman’s site). Finally, it discusses the difference between simple possession of drugs and possession of drugs with intent to distribute (or simply distribution) as it affects the advisory range upon revocation.

The essential facts are simple. Robinson was convicted in 1999 of possession of cocaine base with intent to distribute. His Guidelines range was 33 to 41 months, and he was sentenced …

United States v. Daniel Rodriguez, Docket No. 04-4157-cr (2d Cir. July 20, 2005) (Straub, Wesley, and Sessions, D.J.) (Op. by Straub): Ladies and gentlemen, we have a circuit split. In this decision, the Circuit rules that the crime of attempted reentry into the United States following deportation, in violation of 8 U.S.C. § 1326(a), is not a specific intent offense, and thus that the Government need not charge or prove that the defendant knew that his conduct was unlawful, knew that he needed the permission of the Attorney General to reenter, or knew that he did not have such permission when he intentionally attempted to reenter. Rather, the Government need only prove that the defendant intentionally attempted to reenter (as opposed to, e.g., being transported into the good ol’ U.S.A. while in a comatose state against his will). This reading of the attempted reentry offense — in accordance with …

United States v. Avtar Singh, Docket No. 04-3324-cr (2d Cir. July 19, 2005) (Walker, Cardamone, Jacobs) (Op. by Cardamone): This opinion breaks no new ground. It simply applies a well-established rule — that vehicle stops by roving patrols near an international border must be justified under the familiar “reasonable suspicion” standard, see, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975) — to a particular stop near the Canadian border. Those interested in the details can consult the opinion; suffice it to say that even to this defense-minded reader, the reasonable suspicion standard appears readily satisfied.

The opinion is otherwise of note only because it contains a folksy little map of the relevant geographic area (op. at 4), as well as a totally gratuitous mention of “the October 11, 1776 Battle of Valcour Island between the colonial Navy under General Benedict Arnold and a British squadron …

United States v. Rivera, Docket No. 04-5480-cr (2d Cir. July 18, 2005) (Walker, Jacobs, Leval) (Op. by Walker): File this one under the category of “Gee, I sure hope the defendant didn’t go to trial just to preserve this issue for appeal.” In this short opinion, the Circuit concludes that an inoperable gun (specifically, one with both a broken firing pin and a flattened “firing-pin channel,” whatever that is) qualifies as a “firearm” within the meaning of 18 U.S.C. § 922(g)(1), the felon-in-possession statute. Somewhat to our surprise, the Circuit had not previously answered this question. (Although, to our defense, several other Circuits — as well as several district courts within the Second Circuit — have answered it, and in the same way that the Court does in this opinion). The statutory language is unfortunately difficult to dispute: Section 921(a)(3) defines a “firearm” as “any weapon . . . …

Green v. Travis, Docket No. 04-0426-pr (2d Cir. July 7, 2005) (Jacobs, Sotomayor, Hall) (Op. by Sotomayor): This case recognizes for the first time in this circuit that minority groups can be combined to form a “cognizable racial group” under Batson v. Kentucky. 476 U.S. 79, 86 (1986). Affirming the decision below, the Circuit found on habeas review that the state Appellate Division’s determination that Black and Hispanic venirepersons do not constitute a “cognizable racial group” was an unreasonable application of Batson.

During the defendant’s state trial for possession and sale of cocaine, defense counsel raised a Batson challenge after the prosecutor used three peremptory challenges to strike one Black man, one Black woman and one Hispanic woman during the first round of jury selection (leaving no minorities at the end of the round), and two peremptory challenges to strike one Black Man and one Hispanic woman during …

United States v. Luis Agudelo, Docket No. 04-2223-cr (2d Cir. July 13, 2005) (Pooler, Parker, and Castel, D.J.) (Op. by Parker): Defense lawyers are generally well aware of the tactical advantages of filing a less detailed affidavit, rather than a more detailed one, from a client in support of his or her suppression motion. After all, the only real goal of the affidavit is to put in enough facts to warrant an evidentiary hearing, and any additional details beyond the bare essentials just gives unnecessary notice to the prosecution as well as additional ammunition for its cross of the client. This case demonstrates an additional — and especially important — advantage that the less detailed affidavit has over the more detailed one: Your client is less likely to receive an obstruction enhancement even if the district judge buys the Government’s story at the hearing and denies the motion. Fortunately …

United States v. Perez, Docket No. 03-1445(L) (2d Cir. July 11, 2005) (Calabresi, Katzmann, Parker) (per curiam): In this very short per curiam opinion, the Circuit rules that even wholly intra-state phone calls (here, phone calls from one location in Connecticut to another) are sufficient to trigger federal jurisdiction under the federal “murder-for-hire” statute, 18 U.S.C. § 1958(a). This is so despite the fact that the relevant language in § 1958(a) states that “whoever … uses … any facility in interstate … commerce …” The Court ruled — after noting a circuit split on this question — that this language was trumped by § 1958(b), the “definitional subsection” of the statute, which describes (and then defines) a “facility of interstate commerce.” Op. 6. And since the phone used by the defendant was part of an inter-state network (i.e., he could make long distance calls on it), even …

United States v. Rowe, Docket No. 04-1142-cr (2d Cir. July 5, 2005) (Walker, Feinberg, Wesley) (Op. by Feinberg): This case primarily holds, in an issue of first impression in the Circuit, that in a prosecution for the crime of advertising to receive, exchange, or distribute child pornography, in violation of 18 U.S.C. § 2251(d) (formerly § 2251(c)(1)(A)), venue is proper wherever the advertisment is actually seen or accessed. Here, the defendant put up a notice soliciting others to trade kiddie porn with him on an Internet chat room. Although he physically did so from his computer in Kentucky, the (in)famous detective Shlomo Koenig (of the equally famed Rockland County Sheriff’s Department) accessed the site and defendant’s ad while sitting at his computer in Rockland County. The Court ruled that venue was proper in the Southern District of New York.

The other notable point about this opinion is its concluding, …

Hernandez v. Greiner, Docket No. 04-1517-pr (2d Cir. July 1, 2005) (Newman, Leval, Cabranes) (Op. by Newman): This case presents the very narrow question of whether a defendant has a Sixth Amendment right to counsel at a discretionary second-tier appeal (specifically, an appeal to the New York Court of Appeals) after leave-to-appeal has been granted. Actually, the question is even narrower than that, since it arises on habeas review: If such a right existed, would its recognition constitute a new rule within the meaning of Teague, and, if so, can it be retroactively applied on collateral review? We will spare you the details, but the Court holds that even if such a right exists — which the Court highly (and rightly) doubts in light of the relevant Supreme Court cases — its would constitute a new rule that does not fall under either of the Teague exception. …

Wilson v. McGinnis, Docket No. 04-4125 (2d Cir. July 5, 2005) (Feinberg, Cardamone, Sack) (Op. by Feinberg): The Circuit rejects on habeas review a petitioner’s claim that his guilty plea was not knowing and voluntary because he was not told by the judge, at the plea proceeding, that the sentence he would receive in that case would run consecutively to another sentence he was already serving. The question turns on whether the consecutiveness of this sentence is a “direct” or merely “collateral” consequence of the defendant’s guilty plea, since the Supreme Court has held that a plea of guilty is voluntary and intelligent only if the defendant enters the plea “with full awareness of its ‘direct consequences.'” Op. at 7, quoting Brady v. United States, 397 U.S. 742, 748 (1970). The Circuit has defined “direct” consequences as those that have a “definite, immediate and largely automatic effect on …