Howard Bashman (of the must-read How Appealing blog) wrote this critique of the Second Circuit’s website in a recent article for law.com ranking the websites of the various federal Circuits: “My final bit of criticism is reserved for the New York City-based 2nd U.S. Circuit Court of Appeals, which allows visitors to access newly issued … Read more
Brown v. Miller, Docket No. 05-5014-pr (2d Cir. June 7, 2006) (Cabranes, Sotomayor, Raggi): In this disappointing opinion, the Circuit relies on the same ad hoc reasoning it first used in Brown v. Greiner, 409 F.3d 523 (2d Cir. 2005) (click here for our discussion), to reject the habeas petitioner’s claim that his sentence, imposed … Read more
Zedner v. United States, Supreme Court Docket No. 05-5992 (June 5, 2006): A big Congratulations to Ed Zas of this Office, as well as to Barry Leiwant and Sean Hecker, for winning the long and hard-fought appeal in Zedner. In a 9-0 decision by Justice Alito reversing the Second Circuit (click here for our critique … Read more
United States v. John A. Gotti, Docket No. 05-6872-cr (Walker, Leval, Sotomayor): This is the opinion the Court promised in February when it rejected Gotti, Jr.’s interlocutory appeal. Gotti claimed that his retrial on two RICO counts was barred by the Double Jeopardy Clause because the jury at his first trial could not unanimously agree … Read more
United States v. Hilario, Docket No. 05-3972-cr (2d Cir. May 24, 2006) (Sotomayor, Wesley, Hall) (per curiam): This Blog is puzzled once more by the Court’s decision to issue a published decision rather than a summary order in this case (while giving seemingly more deserving appeals the ol’ back-of-the-hand summary order treatment). Here, the Court … Read more
United States v. Toohey, Docket No. 05-4688-cr (2d Cir. May 17, 2006) (Winter, Cabranes, Raggi): In light of the Circuit’s extremely lax standard for determining whether a sentencing court has fulfilled its obligation to “consider” the Section 3553(a) factors in imposing sentence as required by Booker, see, e.g., United States v. Fernandez, 443 F.3d 19, … Read more
Smith v. Hollins, Docket No. 03-2250-pr (2d Cir. May 15, 2006) (McLaughlin, Sack, Koeltl (by desig’n)): This decision is but the latest in a long line of Second Circuit cases in which the Circuit has “expressed its strong devotion to the preservation of an individual’s right to have family and friends present at his trial” … Read more
United States v. Adams, Docket No. 04-5391-cr (2d Cir. May 10, 2006) (Cardamone, McLaughlin, Pooler): This opinion does not break new ground, but is a good reminder that while the substantive distribution offense under the drug laws, e.g., 21 U.S.C. § 841(a), does not (as the law currently stands) require proof that the defendant knew … Read more
United States v. Flores, Docket No. 05-2385-cr (2d Cir. May 3, 2006) (Kearse, Raggi, Restani (by desig’n)): This opinion affirms Flores’s conviction for conspiring to import heroin and his 210-month sentence, discussing along the way (1) the standards for tolling the statute of limitations under 18 U.S.C. § 3290 based on the defendant’s “fl[ight] from … Read more
United States v. Goffi, Docket No. 05-3329-cr (2d Cir. May 4, 2006) (Kearse, Sack, Stanceu (by desig’n)): The Circuit finally holds what most have long assumed — that the maximum sentence upon revocation of probation (as opposed to supervised release) is the maximum for the original, underlying offense. Surprisingly, this was technically an open question … Read more