United States v. Parker, Docket No. 05-6991-cr (2d Cir. Nov. 14, 2006) (Cabranes, Sotomayor, Raggi): This opinion does not break new legal ground, but is nonetheless of interest in highlighting the disparate treatment of defendants who can afford retained counsel and defendants who cannot. The contrast between (1) the Circuit’s easy affirmance here of the … Read more

United States v. Pressley, Docket No. 05-2487-cr (L) (2d Cir. Nov. 14, 2006) (Cardamone, Walker, Straub) (per curiam): In United States v. Harrison, 241 F.3d 289 (2d Cir. 2001), the Circuit ruled that where a defendant is convicted of two or more separate substantive counts of drug distribution, in violation of 21 U.S.C. § 841(a), … Read more

Yung v. Walker, Docket No. 03-3023-pr (2d Cir. Oct. 31, 2006) (Pooler, Sotomayor, Kaplan): This is but the most recent iteration of a long and tedious line of habeas cases in which the petitioner claims that his Sixth Amendment public trial right was violated when the New York state trial judge, at the prosecutor’s request, … Read more

United States v. Jose Erbo, Docket No. 02-1665-cr (2d Cir. Oct. 25, 2006) (Wesley, Hall, Trager): Yet another awful decision from the Circuit, this time badly misreading Crawford v. Washington, 541 U.S. 36 (2004), and holding via classic circular reasoning that “a statement properly admitted under Fed. R. Evid. 803(6) [or 803(8)] cannot be testimonial … Read more

United States v. Brand, Docket No. 05-4155-cr (2d Cir. Oct. 19, 2006) (Miner, Wesley, Friedman): It appears that child sex cases have surpassed drug cases in their ability to create bad law and erode civil liberties. We saw in last year’s “Candyman” cases an erosion of the Fourth Amendment’s probable cause requirement; in Brand, we … Read more

Stanley Burrell v. United States, Docket No. 05-2945-cr (2d Cir. Oct. 18, 2006) (Cardamone, Walker, Sotomayor): This is a real snoozer; the Court narrowly holds that when it affirms a conviction and sentence but remands the case to the district court to perform a purely ministerial act (here, vacatur of one of two counts of … Read more

Just to beat this issue completely to death: The version of Pereira that currently appears on Westlaw (United States v. Pereira, ___ F.3d ___, 2006 WL 2925642 (2d Cir. Oct. 13, 2006)), is the first version, in which the Court forgot its own decision in Mejia, rather than the later, corrected one. Anyone want to … Read more

United States v. Pereira, Docket No. 05-5969-cr (2d Cir. Oct. 13, 2006): Sometime this morning, the Circuit altered its original opinion in this case, which as this Blog pointed out (see entry below) somehow forgot about its own decision in Mejia. The opinion now simply rejects Pereira’s fast-track disparity argument with a one-sentence cite to … Read more

United States v. Marvin Pereira, Docket No. 05-5969-cr (2d Cir. Oct. 13, 2006) (Miner, Leval, Calabresi): We had to do a double-take at the publication date of this opinion after reading it. Here’s why. Pereira argued on appeal (though he did not do so in the district court) that his 62-month sentence for unlawful reentry … Read more

United States v. Samuel Ness, Docket No. 05-4401-cr (2d Cir. Oct. 10, 2006) (Winter, Calabresi, Pooler): This decision confirms a split among the Circuits concerning the meaning of the concealment element of the “transaction” and “transportation” money laundering statutes, 18 U.S.C. § 1956(a)(1)(B)(i) & (1)(2)(B)(i). Specifically, while some Circuits have ruled that the defendant has … Read more