Today in United States v. Pattee, the Second Circuit (Calabresi, Lynch, Lohier, CJJ.) found it “disturbing that district courts do not routinely follow the minimal procedures put in place to protect defendants’ rights.” In accepting a guilty plea to producing, distributing and possessing child pornography, the district court (Geraci, Ch.J.) failed to advise the defendant of “five … Read more
The Circuit issued no published criminal decisions today. But it did issue three summary orders, including a 30-page decision (does that still qualify as a “summary” order?) affirming the fraud-related convictions of five former employees of Bernie Madoff’s investment company. United States v. Bonventre, No. 14-4714-cr(L) (2d Cir. Apr. 20, 2016) (Walker, Raggi, and Droney) … Read more
The Circuit did not issue today either a decision or a summary order relevant to criminal practice. Nor did the Supreme Court. Check back again tomorrow!
In last year’s Johnson v. United States, the Supreme Court held the residual clause of the Armed Career Criminal Act (ACCA) void for vagueness. In today’s Welch v. United States, the Supreme Court held Johnson applies retroactively. Only Justice Thomas dissented. This means defendants serving final sentences — meaning ones previously affirmed on appeal — are now eligible for … Read more
Today the Supreme Court decided that Johnson announced a new substantive rule that has retroactive effect in cases on collateral review. You can read the opinion in Welch v. United States here.
No published opinions today, and only one notable summary order involving an SEC civil enforcement action. SEC v. DAVID SMITH, LYNN SMITH, et al., Nos. 15-1314-cv(L), 15-1317-cv(con), 15-1354-cv(con) (Summary Order of April 18, 2016) (Pooler, Park, and Livingston). This summary affirmance addressed multiple disgorgement orders by a district court in a civil enforcement action relating to … Read more
No published opinions today, only two summary orders: a direct appeal and a collateral (§2255) challenge. UNITED STATES v. JAMES PASS, No. 15-1446-CR (Summary Order of April 15, 2016)(Kearse, Cabranes, and Chin). This summary affirmance is interesting for the Circuit’s criticisms of how the judge conducted this sentencing in the E.D.N.Y. Defendant Pass claims three … Read more
Defendant Cannot Benefit on Direct Appeal from Guideline Amendment that Became Effective after His Sentencing if Amendment Is Substantive rather than Clarifying (unless the Commission Determines that the Amendment Should Have Retroactive Effect under § 1B1.10) In United States v. Miguel Jesurum, No. 14-4464-cr (2d Cir. April 14, 2016), the Court (op. by Pooler, joined … Read more
Lawyers in both districts should be aware of a change in ICE detainer policy. The old so-called “detainer” form (1-247) is being retired and replaced with three different forms. The change in policy is summarized here on the ICE website. One of the new forms, the I-247N, is a request for voluntary notification of the … Read more
On Friday, in the EDNY, Magistrate Judge Viktor V. Pohorelsky found that the Adam Walsh Amendments to the Bail Reform Act violate the Due Process Clause of the Fifth Amendment and the Excessive Bail Clause of the Eighth Amendment. The case was United States v. Kim, 16-mj-280 (VVP), and the transcript is available here: Kim_16MJ280_Transcript 4.8.16. For … Read more