On Tuesday, in Bravo-Fernandez v. United States, the Court decided that, when a jury has returned inconsistent verdicts in a multi-count criminal case—acquittals on some counts but a conviction on another—and the conviction is subsequently vacated on appeal because of erroneous jury instructions, the double jeopardy clause does not preclude the government from retrying the … Read more
No Second Circuit decisions today. But yesterday there was a decision out of the SDNY on the issue of whether a juvenile should be transferred for prosecution as an adult. Judge Paul Engelmayer decided that a juvenile who was almost 18 years old at the time he was indicted for committing a number of violent … Read more
As blogged about here, the Second Circuit held in United States v. Jones that New York robbery is not a “crime of violence” for federal sentencing purposes. And as blogged about here, the Circuit then vacated that ruling pending the Supreme Court’s decision in Beckles v. United States. Notwithstanding Jones being put on hold, Judge Cogan of the … Read more
The Supreme Court has scheduled the oral argument in Beckles v. United States for Monday, November 28. The issues in Beckles are whether the Court’s decision in Johnson v. United States applies retroactively on collateral review to cases challenging sentences imposed under the Career Offender Guideline, USSG 4B1.2(a)(2), whether Johnson renders that section of the Guidelines … Read more
In today’s United States v. Stevens, the Second Circuit (Winter, Chin, Droney) remanded a case for further proceedings because it was unclear whether the district court made the findings needed to support its restitution order. Stevens fraudulently obtained a loan, ultimately acquired by Capital One Bank, for his business partnership. The partnership later repaid Capital One in full and … Read more
In United States v. Vincent Tabone and Malcolm Smith, Docket Nos. 15-2351 (L) & 15-2433 (Con), the Court (Newman, Lynch & Droney) in a summary order affirmed the convictions of both defendants, thus concluding (at least at the Circuit level) the saga of Democrat Malcolm Smith’s attempt to run for Mayor of New York City … Read more
In United States v. Anthony Lewis, Docket Nos. 15-3245-cr (L) & 15-3307-cr (CON), an unpublished summary order, the Court (Calabresi, Livingston & Rakoff (by designation)) rejected two appeals by Mr. Lewis from two denials of two § 3582(c)(2) motions for a reduced sentence based on two retroactively applicable Guideline amendments, one in 2010 and the … Read more
In a recent ruling, Judge Woods of the Southern District held first-degree manslaughter in violation of N.Y. Penal Law § 125.20(1) is not a “crime of violence” under the pre-August 1, 2016, Career Offender Guideline, U.S.S.G. § 4B1.2. A person commits such manslaughter when, “[w]ith intent to cause serious physical injury to another person, he causes the … Read more
Eastern District Judge Cheryl Pollak has scheduled a hearing on the conditions of confinement, particularly for women, at the MDC. For years, lawyers have raised issues about the conditions of confinement in general and the conditions of confinement for women in particular. As reported in today’s New York Daily News, the National Association of Women Judges … Read more
The Second Circuit decided the case of United States v. Marinello (Docket No. 15-2224) on Friday. You can see the 44-page decision here. The case involved small businessman, Carlo Marinello, who did not keep corporate records or file personal or corporate income tax returns for nearly two decades. Marinello was convicted by a jury in … Read more