United States v. Fruchter, Docket No. 02-1422(L) (2d Cir. June 14, 2005) (Walker, Parker, and Wesley) (Op. by Walker): The Circuit concludes in this opinion that in determining the amount subject to forfeiture under the RICO criminal forfeiture statute, 18 U.S.C. § 1963, a judge need only rely upon the preponderance of the evidence standard. The Court specifically rejected appellant’s argument that under Apprendi, Blakely, and Booker, the district court was required to determine the forfeiture amount under the beyond-a-reasonable-doubt standard. This was so because criminal forfeiture “is not a determinative scheme” (emphasis in original) — like the Washington state regime invalidated in Blakely or the Sentencing Guidelines invalidated in Booker — wherein a guilty verdict (or a guilty plea) “authorizes the imposition of a sentence within a specified [or determinate] range.” Op. at 14. Rather, “criminal forfeiture is not subject to any statutory maximum,” op. …

United States v. Klimek, Docket No. 04-2459 (2d Cir. June 8, 2005) (Meskill, Newman, Cabranes) (Op. by Newman): In this case, briefed and argued by our own David Lewis, the Circuit ruled that, in the context of a supervised release revocation proceeding, a district court was not “per se precluded” from relying upon confirmatory drug test results that fall below the cutoff established by contracts between an outside testing company and the Adminstrative Officer of the United States Courts (“AO”).

The facts are straigtforward. Mr. Klimek, after serving a prison sentence but while still on supervised release, used drugs. Initially, he admitted using LSD, pled guilty to violating the terms of his supervised release for that reason, and was sentenced to a term of home confinement. But even before home confinement could be set up, he tested positive again, this time for cocaine use. He denied using cocaine, so his …

People v. Rivera (June 9, 2005) (Op. by Rosenblatt): This Blog normally confines itself to Second Circuit decisions, but since we commented yesterday on the Second Circuit’s narrow decision upholding New York’s persistent felony offender statute on AEDPA review, see Brown v. Greiner, below, we thought it appropriate in the interest of completeness to discuss the New York Court of Appeals’s decision, rendered today, upholding that law on direct review. (Our prediction of a contrary result was, alas, misguided). In Rivera, that Court ruled that N.Y. Penal Law § 70.10 did not violate either Apprendi, Ring, Blakely, or Booker. Of course, it did so only by interpreting the statue in a way that (1) flatly contradicts the plain language of the law itself, and (2) flouts years of case law and accepted practice in the New York courts.

Simply put, the Court upholds the …

Brown v. Greiner, Docket No. 03-2242(L) (2d Cir. June 3, 2005) (Walker, Leval, and Katzmann) (Op. by Leval): Too much has been made of this exceedingly narrow decision in the press (see, e.g., yesterday’s front page article in the New York Law Journal) and in the blogsphere (see, e.g., Professor Berman’s description of it as a “major habeas ruling”). Contrary to some accounts, this decision did not rule that New York’s persistent felony offender law comports with the Sixth Amendment as construed in the line of cases beginning with Apprendi (2000), running through Ring (2002) and Blakely (2004), and concluding (at least for now) with Booker (2005). Rather, this case holds merely that the New York courts’ determinations in 2000 and 2001 – when only Apprendi had been decided – that this law did not violate the Sixth Amendment was not an “unreasonable” reading of …

Christie v. Hollins, Docket No. 03-2878 (2d Cir. May 27, 2005) (Newman, Pooler, Katzmann) (Op. by Newman): A fabulous week for habeas petitioners: This is the second time in one week that the Circuit has reversed a district court’s denial of habeas and granted the writ. See Henry v. Poole, below. Here, Judge Newman concludes that the trial court’s refusal to allow the defense to introduce a witness’s exculpatory testimony from the defendant’s first trial (at which the jury acquitted the defendant of the two more serious counts, and hung on the third count), despite the defendant’s herculean efforts to ensure the presence of the witness at the second trial, violated the defendant’s right to present a defense at trial. This was so even applying AEDPA deference: The state courts’ determination that (1) the defense had not made diligent efforts to securethe witness’s presence at trial, and (2) …

United States v. Selioutsky, Docket No. 04-2740 , (2d Cir. May 27, 2005) (Newman, Wesley, Hall) (Op. by Newman): This is yet another opinion by Judge Newman fleshing out some important details of the post-Booker sentencing (and appellate) world left unresolved by Booker itself. In this case, the Circuit (1) excises Section 3553(b)(2), which required mandatory application of the Guidelines, except for a few very narrow departure grounds, in child pornography and other sex offense cases; and (2) holds that it will review departure decisions by district courts under the pre-PROTECT Act standard of review — abuse of discretion. Additionally, the Court clarifies that although Booker implements a general standard of reasonableness in evaluating the propriety of a sentence on appeal, the Court will review legal questions leading to the imposition of that sentence de novo, questions of fact under the clearly erroneous standard, and mixed questions …

Henry v. Poole, Docket No. 03-2884 (2d Cir. May 24, 2005) (Oakes, Kearse, Sack) (Op. by Kearse): This probably happens once in a blue moon: Judge Weinstein denies habeas, but the Circuit reverses and grants habeas. But, alas, that is what occurred in this case. The Circuit, by Judge Kearse, ruled that state trial counsel was ineffective for advancing a “fallacious” alibi defense at trial. The decision also has an interesting discussion on whether New York State’s IAC standard, see People v. Benevento, 91 N.Y.2d 708, 697 N.E.2d 584 (1998), is “contrary to” the federal Strickland standard for purposes of AEDPA deference. Although the Circuit held in an earlier case that the two standards are not contrary to each other, see Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2001), both Judge Kearse and Judge Sack, in a separate concurrence, apparently disagree with that earlier case …

U.S. v. Swindle, Docket No. 03-1773 (2d Cir. May 11, 2005) (Feinberg, Cardamone, and Parker)(Op. by Feinberg)

In a refreshingly frank decision, the Second Circuit upheld the denial of a suppression motion, finding that it was “constrained by relevant Supreme Court precedent” in affirming the legality of a seizure. In doing so, the Court was highly critical of that precedent — California v. Hodari D., 499 U.S. 621 (1991) — finding no “principled basis” for the decision.

The facts of Swindle are straightforward. While on patrol in an unmarked car in Buffalo, police were searching for a suspect whose physical description did not match that of the defendant, Swindle. While patrolling, they saw Swindle exit a “known drug house” that the suspect had supplied in the past, get in a car that resembled a car that the suspect had “been seen near” and drive away. The officers followed …

Usama Whab v. United States, Docket No. 05-1214 (2d Cir. May 19, 2005) (Walker, Leval, Duplantier) (Op. by Leval): This is a surprisingly good, pro-defendant opinion — in a case litigated by a pro se petitioner, no less. (Two cheers for the Court!) Essentially, the Circuit held that if a defendant files a second 2255 motion before his first 2255 petition has become “final” (i.e., before the time for seeking cert. on the first petition has run), the defendant need not satisfy 2244(b)(3)(A)’s rigorous requirements for “second or successive petitions” (including the requirement of prior approval from the Circuit before filing) . While the traditional “abuse of the writ” doctrine would still apply to such petitions, a petitioner need not satisfy 2244’s gatekeeping requirements in such a situation.

The essential facts are as follows. After the Circuit affirmed his conviction on direct appeal, Whab filed his first …

United States v. Evelyn Gonzalez, Docket No. 04-1956-cr (2d Cir. May 3, 2005) (Meskill, Calabresi, Wesley) (Op. by Meskill): This odd case has already received a good deal of attention from Professor Berman and others. And rightly so, for it seems to suggest — if only in dicta and only by silence — that a district court has the authority, after Booker, to use the beyond-a-reasonable-doubt (“BRD”) standard of proof to determine facts relevant to Guidelines enhancements.

The facts are simple. The defendant was charged with conspiracy to distribute 5 kilograms of cocaine. She was convicted at trial by a jury. However, in response to two questions, the jury specfically found that Ms. Gonzalez’s offense did not involve either 5 kilograms or more, or 500 grams or more, of cocaine.

At the pre-Booker sentencing, the Government relied on Watts to argue that in determining the appropriate offense …

Yesterday, April 29th, the Court issued the following blanket order, which applies to all appeals raising a Booker claim in which the error was not preserved (i.e., primarily cases in which the sentencing occurred before Blakely was decided in June 2004). It states, in is cryptic entirety,

“John M. Walker, Jr., Chief Judge of the United States Court of Appeals for the Second Circuit, today announced the following: In cases pending on direct review involving appeals of sentences imposed prior to United States v. Booker, 125 S. Ct. 738 (2005), in which the sentencing judge’s error in applying the Sentencing Guidelines mandatorily was not preserved for appellate review by an appropriate objection, the Court will be receptive to motions agreed to by all parties to the appeal to remand pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), without the need for briefing …