United States v. Gill, No. 12-2207-cr (2d Cir. May 7, 2014) (Katzmann, Winter, and Calabresi), available here

Section 1326(a) of title 8, U.S.C, makes it a felony for an alien who was previously deported from the United States to reenter this country without the consent of the Attorney General to reapply for admission. But, assuming certain procedural requirements are met, a defendant may defend against the charge by challenging the fundamental fairness of the underlying deportation order.

In this case, Gill was deported to Barbados in 2004, following his conviction after trial of attempted robbery, an aggravated felony. At his deportation hearing in 1997, Gill unsuccessfully requested relief from deportation under former section 212(c) of the Immigration and Nationality Act (repealed in 1996), and he appealed to the Bureau of Immigration Appeals (BIA). The BIA dismissed the appeal, ruling that the Antiterrorism and Effective Death Penalty Act of 1996 made noncitizens with aggravated felony convictions, including Gill, ineligible for …

United States v. Yousef, No 12-4822-cr (2d Cir. Apr. 29, 2014) (Sack, Lynch, and Lohier), available here

United States v. Corbett, No. 11-3678-cr (2d Cir. Apr. 29, 2014) (Katzmann, Winter, and Calabresi), available here

United States v. Griffiths, No. 13-2102-cr (2d Cir. Apr. 25, 2014) (Cabranes, Lynch, and Lohier) (per curiam), available here

United States v. Allen, No. 13-0296-cr (2d Cir. Apr. 16, 2014) (Pooler, Parker, and Wesley), available here

United States v. Crandall, No. 12-3313-cr (2d Cir. Apr. 10, 2014) (Walker, Cabranes, and Parker), available here

United States v. Miles, No. 13-1158-cr (2d Cir. Apr. 10, 2014) (Wesley, Carney, and Rakoff) (per curiam), available here

UNITED STATES V. ROSARIO, NO. 12-3963 (2D CIR. APR. 2, 2014) (WESLEY, CARNEY, AND RAKOFF) (SUMMARY ORDER), AVAILABLE HERE

The defendant in this case appealed his jury conviction for conspiracy to distribute and possession with the intent to distribute heroin.  He argued that the evidence was insufficient to support the conspiracy conviction and that other errors denied him a fair trial, including whether the jury should have considered the fact of a prior felony information.  Because the sufficiency claim related to the credibility of cooperating witnesses, the Court deferred to the jury’s credibility determinations and held that the jury had “ample evidence” to find the defendant guilty.

With regard to the prior felony information question, the Court cited the continuing validity of the Supreme Court’s decision in Almendarez-Torres and held that “the fact of a prior felony conviction may be decided by a judge, not a jury, even if that fact …

Here’s a quick summary of noteworthy summary orders recently issued by the Circuit:

United States v. Davis, No. 12-4836-cr (2d Cir. Apr. 2, 2014) (Katzmann, Livingston, and Carter) (summary order), available here

United States v. Marks, No. 12-3788-cr (2d Cir. Mar. 31, 2014) (Parker, Hall, and Livingston) (summary order), available here

This summary order upholds the district court’s decision to …

United States v. Harvey, No. 12-1490-cr (2d Cir. Mar. 26, 2014), available here

Harvey was convicted after a jury trial of one count of illegal re-entry into the United States after he was deported. He argued on appeal that the evidence was insufficient to prove his physical departure from the United States. The Circuit affirmed.

To prove Harvey left the country, the government relied on a 1992 warrant of deportation prepared by an immigration official, which indicated that the official witnessed Harvey depart on a flight from JFK airport to Kingston, Jamaica. That official was unavailable to  testify at Harvey’s 2011 illegal re-entry trial, and the government did not present any other direct evidence that Harvey left the United States in 1992.

Nevertheless, the Circuit held that the evidence permitted a rational juror to conclude that Harvey had in fact left the United States on the date specified in the warrant. The Court ruled …

United States v. Annabi, Nos. 12-4988-cr(L), 12-4990-cr(Con) (2d Cir. Mar. 25, 2014), available here

This published decision holds that where the government fails to invoke an applicable forfeiture provision in the indictment, and fails to correct that error prior to entry of a final judgment, forfeiture must be limited to that authorized by the statute cited as the basis for forfeiture, and of which the defendant had notice.

The facts: A jury convicted Annabi of, among other counts, three counts of mortgage fraud (Counts Seven, Eight, and Nine). The government sought, and the district court ordered, forfeiture of the gross proceeds of the fraudulently obtained loans described in these three counts.

The Indictment sought, on all three counts, forfeiture to the United States, citing the civil forfeiture provision (18 U.S.C. 981(a)(1)(C)), and 28 U.S.C. 2461(c). On  Counts Eight and Nine only, the Indictment also sought forfeiture under the criminal forfeiture provision (18 U.S.C. …