United States v. Vaughn, Docket No. 04-5136-cr (L) (2d Cir. Dec. 1, 2005) (Newman, Sotomayor, Daniels (by designation)): In a disappointing but hardly surprising decision, the Court concludes that the standard of proof at sentencing remains the preponderance standard and that acquitted conduct can still be used to calculate the Guidelines range. The Circuit’s position … Read more

United States v. Steven Robinson, Docket No. 04-0889-cr (2d Cir. Dec. 5, 2005) (Walker, Leval, Lynch (by designation)): This decision upholds, on a Government appeal, the district court’s grant of the defendant’s Rule 33 motion for a new trial on two counts on which he was convicted by a jury. The principal issue on appeal … Read more

Today, the Circuit posted a reminder that new Local Rules 25 and 32(a) will be going into effect this Thursday, December 1st. New Rule 32 essentially requires counsel in all cases to submit a digitized version of any brief filed, in PDF format, via e-mail to the Circuit, in addition to the 10 paper copies … Read more

United States v. Michael Bliss, Docket No. 04-1163-cr (2d Cir. Nov. 23, 2005) (Meskill, Sack, Parker): This case primarily confirms that a defendant’s flight from arrest, even when it results in a year-long delay in his apprehension by law enforcement, is not in itself sufficient to trigger the 2-level obstruction enhancement under U.S.S.G. § 3C1.1. … Read more

To our disappointment and surprise, the Circuit today declined to grant en banc rehearing in the two “Candyman” cases. See here and here for our discussions of Martin, and here and here for our discussions of Coreas. Two opinions were filed in connection with the denial of en banc rehearing — one by Judge Wesley … Read more

Our colleagues Tim Hoover and MaryBeth Covert of the Federal Public Defenders Office in the Western District of New York have written an excellent analysis of the Circuit’s decision in United States v. Ramirez, Docket No. 04-3147-cr (2d Cir. Aug. 26, 2005) (Walker, Hall, Gibson (by designation)). And more than that: Tim and MaryBeth also … Read more

Policano v. Herbert, Docket No. 04-5518-pr (2d Cir. Nov. 15, 2005) (Pooler, Sack, Garaufis (by designation)): This one is a rare bird indeed — Mr. Policano literally gets away with murder! In this case, the Circuit affirms Judge Gleeson’s grant of habeas based on the insufficiency of the evidence presented at Policano’s New York state … Read more

United States v. Alfred G. Miller, Docket No. 04-2637-cr (2d Cir. Nov. 16, 2005) (McLaughlin, Cabranes, Mukasey (by designation)): In this unfortunate decision, the Circuit extends the protective sweep exception to the warrant requirement recognized in Maryland v. Buie, 494 U.S. 325 (1990), to situations where no arrest is at issue. In Buie, the Supreme … Read more

Our colleagues in the Federal Public Defenders Office in Portland, Oregon, have once again prepared an excellent summary of the past Supreme Court term from the criminal defense perspective. To tantalize readers, here is Steve Sady’s summary introduction: “Three major themes emerged from the opinions. First, the protection of core constitutional rights has solidified in … Read more

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