United States v. Thorn, Docket No. 03-1602(L) (2d Cir. April 27, 2006) (Jacobs, Sotomayor, Hall): A very bad day for Mr. Thorn. In this opinion, involving an appeal by Thorn and a cross-appeal by the Government following a resentencing in the wake of an earlier Circuit decision in the same case, United States v. Thorn, … Read more
United States v. Temple, Docket No. 05-0165-cr(L); 05-0679(XAP) (2d Cir. May 1, 2006) (Miner, Wesley, Rakoff) Eva Temple, an IRS employee, was charged with disruptive behavior in two separate incidents. In the first, two New York City Police Detectives came to arrest her at her place of work, and, as they did, she verbally abused … Read more
United States v. Barraza, Docket No. 05-1454-cr (2d Cir. May 2, 2006) (Walker, Leval, Sotomayor): It’s hard to believe that this isn’t a settled issue in the Circuit, but apparently it’s not. In this opinion, the Court rules that for purposes of determining whether a defendant qualifies for safety-valve relief under § 5C1.2, as well … Read more
We recently received a copy of a letter written by the Criminal Division of the Department of Justice, addressed to the Clerk of the First Circuit, in which the Government adopts the position — directly contrary to its earlier view — that Fed. R. Crim. P. 32 requires prior notice to the parties if a … Read more
United States v. Reifler, Docket No. 03-1244 (L) (2d Cir. April 18, 2006) (Kearse, Jacobs, Calabresi): Guest Blogger wanted: Anyone wishing to throw in his or her 2 cents about this 164 page opinion should email me. I can’t even make myself print it out, much less read it. (At least this week …) But … Read more
United States v. William Hayes, Docket No. 05-2321-cr (2d Cir. April 18, 2006) (Winter, Calabresi, Pooler): The Circuit upholds a lifetime supervised release term imposed upon Mr. Hayes, who pled guilty to transporting child porn in interstate commerce in violation of 18 U.S.C. § 2252A. That Hayes must first serve 151 months in prison and … Read more
United States v. John Doe, Docket No. 04-5677-cr (L) (2d Cir. March 27, 2006) (Cardamone, Sack, Casey (by desig’n)): This decision does not appear to break new ground in remanding the case back to the district court for an evidentiary hearing on whether the Government’s refusal to file a § 3553(e) / § 5K1.1 letter … Read more
United States v. Jermi Francisco Lopez, Docket No. 03-1476-cr (2d Cir. April 4, 2006) (Sack, Sotomayor, Raggi): Where an element of a crime, in this case a prior deportation, depends on an administrative finding, due process requires that that finding have been subject to judicial review, to ensure its accuracy and make it a proper … Read more
United States v. Mayra Fernandez, Docket No. 05-1596-cr (2d Cir. April 3, 2006) (Miner, Cabranes, Curtin (by desig’n)): This important decision settles some lingering uncertainties concerning post-Booker appellate review of sentences in this Circuit. Some of the Court’s conclusions are good from a defense perspective, some not so good. But there’s a benefit to clarity … Read more
United States v. Charles Novak, Docket No. 05-0108-cr (2d Cir. April 3, 2006) (Sotomayor, Katzmann, Eaton (by desig’n)): This interesting opinion affirms some counts of conviction (e.g., for unlawful receipt of labor payments and for RICO conspiracy), vacates others (e.g., for mail fraud and for making false statements under ERISA), and requests supplemental briefing on … Read more