Federal Defenders of New York Second Circuit Blog

Judge Rakoff Rejects Proposed Handwriting Expert Testimony

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In an opinion released May 6, in the case Almeciga v. Center for Investigative Reporting, 15-cv-4319, SDNY Judge Jed S. Rakoff granted a defense motion to exclude proposed expert handwriting analysis testimony, holding that “handwriting analysis in general is unlikely to meet the admissibility requirements of Federal Rules of Evidence 702.”  The opinion documents the … Read more

Summary Order Reaffirms Second Circuit Rule that Youthful Offender Adjudications Can Count as Crimes of Violence under the Guidelines even after Sellars

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There is only one summary order today, United States v. Oscar Cardoza, 15-1602-cr. The Second Circuit reaffirmed its rule that a New York youthful offender adjudication counts as a crime of violence under USSG 2L1.2(b)(1)(A)(ii), if the nature of the proceedings, the sentence received, and the actual time served shows that the state treated the … Read more

District Court Plainly Erred by Using a Guideline Unsupported by the Facts, Even Where the Parties Stipulated to that Guideline in a Plea Agreement

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In United States v. Rendsland, Docket No. 14-3942-cr, a summary order issued today, the Circuit ruled that the district court committed plain error in relying on U.S.S.G. § 2A2.2 (“Aggravated Assault”) to calculate Mr. Rendsland’s Guideline range, rather than § 2A2.4 (“Obstructing or Impeding Officers”), even though the parties had stipulated that this was the … Read more

Circuit affirms denial of 18 U.S.C. 3582 sentence reduction

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In United States v. Jimenez, 15-1624, the Circuit affirmed the District Court’s denial of a reduction in sentence pursuant to 18 U.S.C. 3582.  The Circuit held that when the District Court stated that a lower sentence was “foreclose[d]” by the defendant’s participation in four murders, it meant that the original sentence was the minimum sentence … Read more

No need to dismiss juror who learned the defendant had been shackled but did not see him shackled; Circuit declines to decide whether USSG 4B1.3 is susceptible to a vagueness challenge; affirms prosecutor’s comments on summation

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In United States v. Nastri, 15-489, the Circuit held that the District Court did not err either by declining to dismiss a juror or by applying USSG 4B1.3’s criminal livelihood enhancement, and that the prosecutor’s remarks in summation were not improper. The juror in question learned from a third party that another juror had been dismissed after … Read more

Second Circuit Affirms District Court’s Determination of Weight of Controlled Substance and Reliance on Acquitted Conduct

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In United States v. Guerra, 14-1025, the Second Circuit affirmed by summary order the District Court’s methodology for determining the weight of oxycodone prior to sentencing.  The District Court’s finding after relying on “documentary medical and telephone records, recorded conversations, and witness testimony regarding the methodology of the scheme” was a permissible view of the … Read more

Second Circuit: Conviction for Investment Adviser Fraud Requires Only Intent To Deceive, Not Intent To Harm

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In United States v. Tagliaferri, No. 15–536, the Second Circuit held that a conviction for investment adviser fraud, under section 206 of the Investment Advisers Act of 1940, 15 U.S.C. § 80b–6 and 80b–17, requires only intent to deceive one’s clients, not intent to harm them as well. Tagliaferri ran a boutique investment advisory firm … Read more

Second Circuit affirms above-guideline sentence; declines to consider one IAC claim on direct review, but rejects another where record below was sufficiently developed on the point

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In United States v. Pendergrass, 15-1965, the Second Circuit affirmed the conviction of Terrence Pendergrass, a former captain at Rikers Island, on one count of willfully violating the constitutional rights of an inmate, who died following the ingestion of cleaning supplies, by refusing to get him medical attention and prohibiting other guards from getting him … Read more