Federal Defenders of New York Second Circuit Blog

Crawford Rule Not Applicable to Out-of-Court Statements Not Offered at Trial for Their Truth

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United States v. Andre O. Logan, Docket No. 03-1290 (2d Cir. August 15, 2005) (Op. by Cardamone): This opinion discusses some mildly interesting Confrontation Clause issues related to Crawford v. Washington, and also upholds the federal arson statute, 18 USC § 844, against a Commerce Clause challenge. It holds that (1) an out-of-court statement offered … Read more

Some Restitution Issues for the Well-to-Do Defendant

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United States v. Bernard Jaffe. Jr., Docket No. 04-1278-cr (2d Cir. August 2, 2005) (Winter, Katzmann, Raggi) (Op. by Winter): This case addresses a host of related issues concerning restitution. Jaffe pled guilty to making false statements in connection with securing a $20 million loan from a bank, and the district court ordered restitution in … Read more

Defendant in “Deadbeat Parents” Prosecution Cannot Collaterally Challenge Legitimacy of Underlying Child-Support Order, even on Jurisdictional Grounds

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United States v. Clifford Kerley, Docket No. 04-4537-cr (2d Cir. 2005) (McLaughlin, Straub, Hall) (Op. by McLaughlin): This is a prosecution under the federal Deadbeat Parents Punishment Act, 18 U.S.C. § 228, and based on defendant’s failure to comply with a child-support order issued by a New York state court. The district court granted the … Read more

Government Did Not Breach Plea Agreement Where Overall Circumstances Indicate that It Did Not Take Position Contrary to that Taken in Agreement

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United States v. Allan F. Peters et al., Docket No. 03-1435-cr (2d Cir. July 26, 2005) (Walker, Leval, Katzmann) (Op. by Leval): This case primarily holds that so long as the Government’s conduct, when looked at in light of all the circumstances, does not reasonably appear to constitute an effort to influence the sentencing court … Read more

Thank Goodness for Booker

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United States v. Tammy Brady, Docket No. 04-0729-cr (2d Cir. July 22, 2005) (Cardamone, Cabranes, Sotomayor) (Op. by Cardamone): This case is a good illustration of how the pre-Booker mandatory Guidelines regime often produced irrational and unnecessarily harsh results that fail to comport with our basic sense of justice. At a pre-Booker sentencing, Judge Gleeson … Read more

Obstructive Conduct during State Investigation Triggers Obstruction Enhancement upon Federal Conviction for Different but Related Offense

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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 … Read more

An Interesting Decision Concerning Supervised Release

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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 … Read more

The Heck with the Ninth Circuit: Second Circuit Rules that Crime of Attempted Reentry Following Deportation Is Not a Specific Intent Offense

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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 … Read more