Federal Defenders of New York Second Circuit Blog

NEW RULES OF THE ROAD FOR CJA COUNSEL ABOUT INFORMING CLIENTS OF THEIR RIGHT TO SEEK REHEARING AND REHEARING EN BANC

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 Today’s published decision,  JAVEL TAYLOR  v. UNITED  STATES No. 15-827  (Opinion of May 13, 2016)(Katzmann, Chief Judge, Cabranes, Circuit Judge, and Kaplan, District Judge), is addressed to how appointed appellate counsel should advise clients about  seeking rehearing and rehearing en banc from an adverse decision in their case.  Addressing  an issue of first impression for … Read more

District Court Updates: Driving While Impaired Violation Under NY VTL 1192.1 Does Not Count For Criminal History; Career Offender Guideline Too Harsh

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In United States v. Paredes, 15-Cr-436, EDNY Judge Jack B. Weinstein held that a defendant’s conviction for violating New York Vehicle and Traffic Law Section 1192.1, a violation and not a crime, does not result in criminal history points, thereby allowing the defendant to qualify for safety valve relief from a mandatory minimum sentence.  Judge Weinstein … Read more

Advising Clients Regarding Sexual Polygraph Exams and the Fifth Amendment in Child Pornography Cases

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Earlier this week, in United States v. Von Behren, the Tenth Circuit Court of Appeals held that requiring that a person on supervised release answer questions on a sexual history polygraph that are designed to elicit admissions of criminal conduct violates the Fifth Amendment’s privilege against self-incrimination.  You can read a copy of the opinion here.  … Read more

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