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 …

Love v. McCray, Docket No. 03-2307-pr (2d Cir. July 1, 2005) (Walker, Jacobs, Wesley) (per curiam): It’s hard to know what to make of this very short opinion, since it’s very light on the relevant facts. The gist of it is that the Court denies appointed counsel’s motion (filed pursuant to Anders v. California) to be relieved as counsel on appeal on the ground that there are no non-frivolous appellate issues, because the Court disagrees that there are only frivolous issues to appeal. As the Court concludes, counsel’s argument (in support of his Anders motion) shows only “that the appeal is likely without merit, not that it is frivolous.” Op. at 6. Because the opinion is short on facts, however, it’s hard to evaluate who’s right (even assuming that a line can be drawn between a merely meritless appeal (which appointed counsel must prosecute) and a frivolous one …

United States v. Weisser, Docket No. 01-1588 (2d Cir. 2005) (Decided June 20, 2005; Amended July 5, 2005): Two weeks ago, this Blog pointed out that in this opinion, the Court stated in significant dicta that certain facts concerning a defendant’s criminal history do not fall within the Almendarez-Torres exception to the Apprendi–Blakely rule, thus limiting the scope of this often-critized decision. Yesterday, the Court issued an amended opinion in the same case and expanded upon this language. The amended opinion now explicitly states that certain facts relating to criminal history are indeed too far removed from “the conclusive significance of a prior judicial record to fall within that exception.” Amended Op. at 27 fn. 10, quoting Shepard, 125 S. Ct. at 1262. Kudos to the Court for clarifying its position on an important issue!

As this Blog previously noted:

“Weisser also appealed various aspects of …