Sunday, May 10th, 2009

Summary Summary

There have been five summary orders of interest in the past month or so. Here they are:

In United States v. Al Manware, No. 08-2235-cr (2d Cir. May 4, 2009), the court ordered resentencing on a supervised release violation because the district court did not provide the defendant an opportunity to allocute before imposing sentence.

In United States v. McGowan, No. 08-2603-cr (2d Cir. May 4, 2009), the court found no abuse of discretion in the district court’s permitting hearsay at a supervised release revocation hearing. The declarant was a 12-year-old child victim and the district court “implicitly found” that her age and the “suggestive nature of the offense weighed in favor of not requiring her testimony.” Moreover, the hearsay was trustworthy, since it was supported by “ample circumstantial evidence” such as surveillance photographs and the defendant’s own admissions.

In United States v. Scott, No. 08-1489-cr (2d Cir. April 14, 2009), the court held that a restitution order could include lost investment returns from funds that were stolen from variable annuities and IRA’s.

In United States v. Hamilton, No. 07-2874-cr (2d Cir. April 14, 2009), the court vacated a sentence under Kimbrough where the district court indicated that it would not consider the defendant’s age because the guidelines forbade it. The circuit would not “assume that the district court understood that it had discretion to consider age and its correlation with recidivism.”

In United States v. Cayce, No. 08-3784-cr (2d Cir. April 2, 2009), the court remanded the case for further consideration of the defendant’s motion to withdraw his plea. It noted that at least two factors supported the motion: he moved to withdraw on the next business day after the plea hearing, and the basis was a statute of limitations defense, a claim of “legal – though not factual – innocence.”

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