This has been a busy week in the circuit, and not just for published opinions. There are also three summary orders of interest.
United States v. Harrington, No. 09-1160-cr (2d Cir. March 23, 2010), has two noteworthy features. First, at this gun possession trial, the district court allowed the defense to present evidence of, and charged the jury on, “innocent possession,” in light of the defendant’s claim that he possessed the gun only to turn it in to the city’s “Toys for Guns” program. Second, the circuit noted that it was error, albeit harmless, to admit, under Rule 404(b), evidence of a prior robbery conviction to rebut this defense, where the certificate of conviction did not indicate that a firearm was used in the robbery.
United States v. Townsend, No. 09-1283-cr (2d Cir. March 25, 2010), considered whether evidence used against the defendant at a supervised release violation hearing was obtained in violation of the Fourth Amendment, thus implicitly agreeing that the Fourth Amendment applied at revocation hearings.
And, in United States v. Hughes, No. 09-0770-cr (2d Cir. March 26, 2010), the court left open the possibility that some crack cases where there was a Rule 11(c)(1)(C) plea agreement might nevertheless be amenable to a § 3283(c)(2) motion. The court also did not enforce the plea agreement’s § 3582(c)(2) waiver because the government did not raise waiver as a a defense.