Federal Defenders of New York Second Circuit Blog

Prior Drug Convictions, Resulting in Mandatory Life Sentence under § 841(b)(1)(A), Need Not Be Charged in Indictment or Proved to a Jury

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United States v. Herredia, Docket No. 02-1544-cr(L) (2d Cir. Nov. 2, 2005) (Winter, Sotomayor, Wesley): A bad result for the defendants, but the Circuit’s decision presents an opportunity for the Supreme Court to overrule both Harris and Almendarez-Torres in one fell swoop. Here, the two defendants were convicted of conspiring to distribute more than a … Read more

Extortion Conviction Vacated Because Property Was Not Taken from Victim with His “Consent”

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United States v. Xiao Qin Zhou, Docket No. 03-1575(L) (2d Cir. Nov. 1, 2005) (Miner, Calabresi, Amon (by designation)): This is an interesting opinion that discusses a critical difference between the crime of robbery and the crime of extortion under the Hobbs Act, 18 U.S.C. § 1951. While the defendants took property from the victim … Read more

Circuit Finds No Right to Cross-Examine at Batson Hearing

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Abdul Majid and Bashi Hameed v. Leonard A. Portuondo, Robert Kuhlmann, Docket Nos. 03-2608, 03-2610 (2d Cir. October 26, 2005)(Oakes, Kearse, Sack, op. by Sack). In a very long opinion that doesn’t really say much, the Court found no constitutional right to cross-examine witnesses at a Batson hearing. In 1986, Majid and Hameed, represented by … Read more

IAC Claim Rejected, and Federal Drug Conspiracy Statutes Apply Extraterritorially

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United States v. Shlomo Cohen, Docket No. 04-0983-cr (2d Cir. Oct. 20, 2005) (Meskill, Cabranes, Nevas (by designation)): The Court principally rejects an IAC claim, following Cohen’s conviction for conspiring to import ectasy from Belgium and to distribute it in the United States, based on counsel’s failure to (1) object to the prosecutor’s off-hand reference, … Read more

Section 5G1.2 of Guidelines No Longer Mandatory

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United States v. Kurti, Docket No. 04-2239-cr (2d Cir. Oct. 19, 2005) (Winter, Katzmann, Murtha (by designation)): Praise the lord: The often ignored and little understood provision of the Guidelines establishing the “procedure for determining the specific sentence to be formally imposed on each count in a multiple-count case,” i.e., U.S.S.G. § 5G1.2, has officially … Read more

Counsel’s Failure to Consult with or Call Expert Medical and Psychiatric Witnesses Requires Vacatur of Defendant’s Child Molestation Conviction

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Gersten v. Senkowski, Docket No. 04-0935-pr (2d Cir. Oct. 17, 2005) (Winter, Pooler, Brieant (by designation)): A great win for the defense. This is (at least) the third case in recent memory in which the Circuit granted habeas relief to a state prisoner claiming that he received ineffective assistance of counsel at his trial for … Read more

Requiring Courthouse Visitors to Show Photo ID as Condition for Entry Implicates Sixth Amendment Public Trial Concerns

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United States v. Wendell Smith, Docket No. 03-1588-cr (2d Cir. Oct. 17, 2005) (Winter, Sotomayor, Parker): During Smith’s trial in a courtroom located in the federal building complex in Rochester, the U.S. Marshals Service, in coordination with the Department of Homeland Security (DHS), required all visitors to the complex to show a photo identification before … Read more

Remand for Resentencing Required even where Sentencing Judge, Acting Post-Blakely but Pre-Booker, Announced Alternative “Non-Guidelines” Sentence

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United States v. John Fuller, Docket No. 04-4595-cr (2d Cir. Oct. 17, 2005) (Oakes, Cabranes, Goldberg (by designation)): In this case, litigated by Colleen Cassidy of this Office, the Circuit primarily holds that remand for resentencing is required pursuant to Fagans even where the sentencing judge announced, at a sentencing that occurred post-Blakely but pre-Booker, … Read more