Summary Summary

Two summary orders of interest:

In United States v. McDarrah, No. 07-1849-cr (2d Cir. November 5, 2009), a child enticement case, the district court admitted opinion testimony from an FBI agent that was improper in two ways. First, the agent used “we” to preface one of his opinions, which suggested that the opinion was based on his and other agents’ collective knowledge and experience, and thus was “specialized knowledge” and not a “lay” opinion. Second, the agent expressed his opinion that the defendant was in fact guilty of attempted enticement. However, the court found the errors to be harmless.

In United States v. Creary, No. 06-2233-cr (2d Cir. November 3, 2009), the court noted that it is “plain error” for a district court not to adopt the presentence report in open court at sentencing, but not where the report adequately supports any contested enhancements.