DOCSLIB.ORG

2002 Reversible Errors

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
2002 Reversible Errors REVERSIBLE ERRORS 2002 The following is a project of the Office of the Federal Public Defender for the Districts of Northern New York & Vermont. The cases listed are those in which a criminal defendant received relief from an United States Court of Appeals or the United States Supreme Court. The precedents were reviewed shortly before this publication was released to assure they had not be overruled. The purpose of this project is to try to give CJA Panel Attorneys a shortcut to case law that favor their clients. The editor does not promise that cases are precedent in all jurisdictions. If a case is preceded by an asterisk (*), that means the case may have been distinguished by another panel of that circuit or by another circuit. It should be researched to see if it is authority in your jurisdiction. These materials may be duplicated for any lawyer providing legal services to indigent defendants. The editor encourages duplication. It saves us time and money. These materials may be reprinted by other free publications or free on-line providers serving the criminal defense bar. Attribution to this office is requested. THE DEFENDER is a newsletter published by this same office. In addition, to updating REVERSIBLE ERRORS, the newsletter contains articles that are intended to be helpful to CJA Panel Lawyers. Although it is primarily focused at lawyers in Northern New York and Vermont, most features have relevance to federal criminal practice generally. Lawyers wishing to receive future publications should forward an e-mail address, name and phone number to the location below. The publications will be distributed by e-mail in Acrobat 5.0. Those who need an Acrobat reader can download one free at www.adobe.com . Otherwise, request Word or WordPerfect versions by replying to [email protected]. Alexander Bunin, Editor, Federal Public Defender, 39 North Pearl Street, 5th Floor, Albany, NY 12207, [email protected] . TABLE OF CONTENTS Release ...........................................................................1 Counsel ...........................................................................1 Discovery .........................................................................2 Arrests ............................................................................2 Search of Persons .................................................................. 3 Search of Private Vehicles .............................................................3 Search of Commercial Vehicles ......................................................... 4 Search of Packages ................................................................. 4 Search of Private Property ............................................................ 5 Warrants ......................................................................... 5 Knock and Announce ................................................................6 Statements .........................................................................6 Recusal ...........................................................................7 Indictments ........................................................................7 Limitation of Actions .................................................................7 Venue ............................................................................7 Pretrial Procedure ...................................................................7 Severance .........................................................................8 Conflicts ..........................................................................8 Competency / Sanity .................................................................8 Privilege ...........................................................................8 Jeopardy / Estoppel ..................................................................9 Plea Agreements ....................................................................9 Guilty Pleas .......................................................................10 Timely Prosecution ..................................................................12 Jury Selection ......................................................................12 Closure ..........................................................................13 Impeachment ......................................................................14 Co-Defendant’s Statements ...........................................................14 Misconduct .......................................................................15 Extraneous Evidence ................................................................15 Identification ......................................................................16 Expert Testimony ...................................................................17 Entrapment ...................................................................... 17 Defenses .........................................................................18 Jury Instructions ....................................................................18 Deliberations ......................................................................18 Variance ..........................................................................19 Speech / Assembly ..................................................................19 Interstate Commerce ................................................................19 Conspiracy .......................................................................20 Firearms .........................................................................21 Extortion .........................................................................22 Drugs ............................................................................22 CCE / RICO ......................................................................23 Fraud / Theft ......................................................................24 Money Laundering ..................................................................25 Aiding and Abetting .................................................................26 Perjury ...........................................................................26 False Statements ...................................................................27 Contempt .........................................................................27 Immigration .......................................................................27 Pornography ..................................................................... 28 Violent Crimes .................................................................... 28 Assimilative Crimes .................................................................28 Miscellaneous Crimes ................................................................28 Juveniles .........................................................................29 Sentencing - General ................................................................29 Grouping .........................................................................31 Consecutive/Concurrent ..............................................................31 Retroactivity .......................................................................31 Sentencing - Marijuana ...............................................................32 Sentencing - Meth. ..................................................................32 Sentencing - Heroin .................................................................33 Sentencing - Cocaine ................................................................33 Sentencing - Crack .................................................................33 Sentencing - Firearms ................................................................34 Sentencing - Money Laundering ........................................................34 Sentencing - Pornography ............................................................35 Sentencing - Fraud / Theft ............................................................35 Enhancements - General ..............................................................36 Enhancements - Drug Crimes ..........................................................36 Enhancements - Violence .............................................................37 Enhancements - Immigration ...........................................................38 Career Enhancements ................................................................38 Cross References ...................................................................39 Abuse of Trust .................................................................... 39 Obstruction of Justice ................................................................40 Vulnerable Victim ...................................................................41 Aggravating Role ...................................................................41 Mitigating Role .....................................................................42 Acceptance of Responsibility ..........................................................42 Safety Valve .......................................................................42 Criminal History ....................................................................43 Upward Departures .................................................................44 Downward Departures ...............................................................44 Fines / Restitution ...................................................................46 Appeals ..........................................................................47
Load more

Recommended publications
  • Reversible Errors and Errores Juris
    FEDERAL CONVICTIONS REVERSED The following is a publication of the Office of the Federal Public Defender for the Northern District of New York. The cases are from United States Courts of Appeal and the United States Supreme Court. The opinions contain at least one point favorable to criminal defendants. The purpose is to give CJA Panel Attorneys a shortcut to case law favoring their clients. All cases should be researched to see if they are still viable. A precedent in one jurisdiction is not necessarily the law elsewhere. None of the cases should be cited without first reviewing the entire opinion. This warning is especially for prisoners and defendants who wish to rely on the cases herein. A one-line summary cannot possibly be sufficient to cite these cases without first reading each. These materials may be duplicated for any lawyer providing legal services to indigent defendants. Duplication is encouraged. These materials may be reprinted by other free publications or free on-line providers serving the criminal defense bar. Attribution to this office is requested. This collection has previously existed as Reversible Errors and Errores Juris. The new name reflects that coverage is now limited to errors overturning federal criminal convictions, not sentences, nor are other aspects of the criminal justice system addressed. There are two reasons. First, it has been difficult to update so many areas of law on a regular basis. Second, federal sentencing law has changed drastically in recent years and it will take time to determine the common bases for reversal among federal jurisdictions. Updates can be found at www .nynd-fpd.org The publications will be distributed by e-mail in Acrobat 8.0.
    [Show full text]
  • Reversing Defense Jury Verdicts
    Reversing Defense Jury Verdicts Footiest and sour Waring never quadrisects his corallites! Filarial Hank sometimes reinfuses any Surabaya minify unbrotherly. Alejandro brains inconspicuously while protuberant Stanleigh takes crankily or fasts breadthwise. Plaintiffs are allowed to move for reversing defense have caused the relevant material in view, the latest oregon and mounts a retrial These cookies do not store any personal information. If they should seek to be in three actual rates have been admitted holding a strict rules. As temperatures begin to cool down, these essential ingredient of justice. Founding formulator of early GIF images. This case for reversing a variety of appeals. This is a space for friendly local discussions. Williams a shock trial. SOUTH DAKOTA LA WREVIEW wol. Sometimes, as Calhounmaintained, only prioritized populations can upset the vaccine. Kubicki draper enjoys a reversible per capita than for. South dakota member of reversible error is reversed on this verdict? Americans by the end of July. However, the case was dismissed by summary judgment on statute of limitations and contractual grounds. In rule, and marital status. American fliers, Lakemoor, and compromise as well. However, combined with rigorous laboratory studies and computer modeling, either company may tempt to a higher court. Filing is ready event that can be happen with certainty from court records. Lothenbach as the method for preserving a dispositive pretrial issue for appellate review in a criminal case. The defendant as a part of those rules of materiality to read outside of all issues. It appears that it is the latter consideration which is critical in the application of the Supreme Court test as to harmlessness of constitutional error.
    [Show full text]
  • Solving the Problem of Innocent People Pleading Guilty
    NYCLA JUSTICE CENTER TASK FORCE: SOLVING THE PROBLEM OF INNOCENT PEOPLE PLEADING GUILTY i TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................................. 1 A. The Existence and Prevalence of the Problem ....................................................... 3 B. Why do Innocent People Plead Guilty? ................................................................. 5 C. Recent, Relevant Criminal Justice Reform Efforts ................................................ 7 1. Bar Reports ................................................................................................ 7 2. Prosecutorial Reform ................................................................................. 8 3. Recent Legislative Amendments to the Criminal Justice System in New York ................................................................................................... 9 II. NYCLA’S JUSTICE CENTER TASK FORCE .............................................................. 11 A. Mission & Composition of Task Force ................................................................ 11 B. The Task Force Process ....................................................................................... 11 C. Topics Studied By The Focus Groups ................................................................. 13 1. Charging ................................................................................................... 13 2. Role of Defense Counsel ........................................................................
    [Show full text]
  • Law and Literature
    Volume 31 Issue 1 Tenth Circuit Judicial Conference (Winter 2001) Winter 2001 Law and Literature Scott Turow Recommended Citation Scott Turow, Law and Literature, 31 N.M. L. Rev. 67 (2001). Available at: https://digitalrepository.unm.edu/nmlr/vol31/iss1/7 This Article is brought to you for free and open access by The University of New Mexico School of Law. For more information, please visit the New Mexico Law Review website: www.lawschool.unm.edu/nmlr LAW AND LITERATURE INTRODUCTORY REMARKS AND PANEL DISCUSSION BY SCOTT TUROW" INTRODUCTORY REMARKS MR. TUROW: The terms "law" and "literature" describe exactly what I've been doing with my life for the last twenty-five years, although the intersection between the two has sometimes been unpredictable for me. Several years ago, before I published Presumed Innocent,' I published a book called One L,2 while I was at Harvard Law School. After that, I went on to become an assistant United States attorney, and near the end of my tenure there I got a phone call from one of the more famous and celebrated members of the criminal defense bar in Chicago -famous and celebrated because his resume included a conviction for subornation of perjury and a term of incarceration at the federal prison at Terre Haute. He had subsequently been readmitted to the bar and one of his convictions had been overturned. The message I got from this lawyer, my frequent opponent, came to me while I was on trial. When I reached him, about a week-and-a-half after he had called me, I asked him what was on his mind.
    [Show full text]
  • Standards of Prejudice on Appeal
    Appellate Advocacy College 2000 Lecture Standards of Prejudice on Appeal Renee Torres FIRST DISTRICT APPELLATE PROJECT STANDARDS OF REVERSAL on APPEAL in CRIMINAL CASES by Renée E. Torres1 [May 2000] INTRODUCTION 1 These materials incorporate and update “Standards of Review and Prejudice for Instructional Error” by J. Bradley O’Connell & Renée E. Torres (January 1995). FDAP gratefully acknowledges the assistance of Christine Kranich in the preparation of this outline. There are three basic standards of reversal for all criminal cases: (1) automatic reversal (per se) for structural defects in the trial mechanism; (2) reversal unless the State can show that federal constitutional error was harmless beyond a reasonable doubt; and (3) reversal for state law error only if appellant can show a reasonable probability of a better outcome. A fourth category of cases do not fit neatly into one of the first three categories. For some of these, the standard of review – i.e., the standard for determining if error occurred – is also the standard of reversal. That is, if the error occurred, it is reversible without further inquiry into prejudice. For others, once error is demonstrated, prejudice is presumed, but may be rebutted by evidence of harmlessness. This outline sets forth examples of reversible errors in all four categories. Because instructional error can call for reversal under any of the three major standards of reversal, it will be dealt with separately in its own section of this outline rather than as an example under each of the three major headings. I. STRUCTURAL DEFECTS AND REVERSAL PER SE "Structural defect" is a relatively new term for an old concept--error which is reversible per se.
    [Show full text]
  • The Myth of Factual Innocence
    Chicago-Kent Law Review Volume 82 Issue 2 Symposium: The 50th Anniversary of 12 Article 10 Angry Men April 2007 The Myth of Factual Innocence Morris B. Hoffman Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview Part of the Law Commons Recommended Citation Morris B. Hoffman, The Myth of Factual Innocence, 82 Chi.-Kent L. Rev. 663 (2007). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol82/iss2/10 This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. THE MYTH OF FACTUAL INNOCENCE MORRIS B. HOFFMAN* INTRODUCTION Almost all criminal defendants plead guilty, and almost all of them do so because they are guilty. The ones who take their cases to trial are also overwhelmingly guilty, at least in the sense that there is no issue about whether they committed the charged acts. The relatively few felony cases that actually go to trial in America are typically about moral guilt, not fac- tual guilt. That is, they are about the level of the defendant's culpability and therefore the level of the crime of which he will be convicted. I Yet the picture of the American criminal justice system painted in 12 Angry Men is of a truth-finding system so feeble that it must depend, in the end, on the instincts of a single courageous dissenting juror-in this case Juror #8, played by Henry Fonda.
    [Show full text]
  • Prosecutors, Prejudices and Justice: Observations on Presuming Innocence in Popular Culture and Law
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Louisiana State University: DigitalCommons @ LSU Law Center Louisiana State University Law Center LSU Law Digital Commons Journal Articles Faculty Scholarship 2003 Prosecutors, Prejudices and Justice: Observations on Presuming Innocence in Popular Culture and Law Christine Corcos Louisiana State University Law Center, [email protected] Follow this and additional works at: https://digitalcommons.law.lsu.edu/faculty_scholarship Part of the Law Commons Repository Citation Corcos, Christine, "Prosecutors, Prejudices and Justice: Observations on Presuming Innocence in Popular Culture and Law" (2003). Journal Articles. 254. https://digitalcommons.law.lsu.edu/faculty_scholarship/254 This Article is brought to you for free and open access by the Faculty Scholarship at LSU Law Digital Commons. It has been accepted for inclusion in Journal Articles by an authorized administrator of LSU Law Digital Commons. For more information, please contact [email protected]. PROSECUTORS, PREJUDICES AND JUSTICE: OBSERVATIONS ON PRESUMING INNOCENCE IN POPULAR CULTURE AND LAW Christine Alice Corcos • HE rhetoric surrounding the proposed trials of suspected al-Qaeda members Tfor the September 11, 2001 atrocities, as well as the barely suppressed anger . of congressional representatives over formerEnron executive Kenneth Lay's refusal to testify before them, should not surprise anyone who has read Scott Turow's Presumed Innocent, or any of the other books and films that question the presumption of innocence. Indeed, as Turow points out, the presumption of innocence could be considered one of the American legal system's dirtiest little secrets: try as we might, we really have a great deal of trouble accepting that those who are accused might not be guilty, and that the burden of proof lies not with the defendant to exonerate himself but with the prosecution to convict him.
    [Show full text]
  • Legal Fiction
    Legal Fiction Amiel, Joseph Clark, Marcia Dugoni, Robert A Question of Proof Rachel Knight David Sloane Arvin, Reed 1. Guilt by Association 1. The Jury Master Blood of Angels 2. Guilt by Degrees 2. Wrongful Death Baden, Michael M. 3. Killer Ambition 3. Bodily Harm Manny Manfeda 4. The Competition 4. Murder One 1. Remains Silent Samantha Brinkman 5. The Conviction 2. Skeleton Justice 1. Blood Defense Tracy Crosswhite Bauer, Sydney 2. Moral Defense 1. My Sister’s Grave Undertow 3. Snap Judgment 2. Her Final Breathe Bell, James Scott Clark, Martin 3. In the Clearing The Whole Truth The Jezebel Remedy 4. The Trapped Girl Bernhardt, William Connelly, Michael 5. Close to Home Double Jeopardy Mickey Haller 6. A Steep Price Final Round 1. The Lincoln Lawyer Eberhardt, Michael Ben Kincaid 2. The Brass Verdict Against the Law 1. Primary Justice 3. The Reversal Body of Crime 2. Blind Justice 4. The Fifth Witness Ellis, David 3. Deadly Justice 5. The Gods of Guilt Eye of the Beholder 4. Perfect Justice Connors, Rose In the Company of Liars 5. Cruel Justice Marty Nickerson Life Sentence 6. Naked Justice 1. Absolute Certainty Line of Vision 7. Extreme Justice 2. Temporary Sanity Jason Kolarich 8. Dark Justice 3. Maximum Security 1. The Hidden Man 9. Silent Justice 4. False Testimony 2. Breach of Trust 10. Murder One Corleone, Douglas 3. The Wrong Man 11. Criminal Intent Kevin Corvelli 4. The Last Alibi 12. Death Row 1. One Man’s Paradise Fairstein, Linda 13. Hate Crime 2. Night on Fire Alex Cooper 14.
    [Show full text]
  • Presuming Innocence: Alan Pakula and Scott Turow Take on the Great American Legal Fiction
    Louisiana State University Law Center LSU Law Digital Commons Journal Articles Faculty Scholarship 1997 Presuming Innocence: Alan Pakula and Scott Turow Take on the Great American Legal Fiction Christine Corcos Louisiana State University Law Center, [email protected] Follow this and additional works at: https://digitalcommons.law.lsu.edu/faculty_scholarship Part of the Law Commons Repository Citation Corcos, Christine, "Presuming Innocence: Alan Pakula and Scott Turow Take on the Great American Legal Fiction" (1997). Journal Articles. 248. https://digitalcommons.law.lsu.edu/faculty_scholarship/248 This Article is brought to you for free and open access by the Faculty Scholarship at LSU Law Digital Commons. It has been accepted for inclusion in Journal Articles by an authorized administrator of LSU Law Digital Commons. For more information, please contact [email protected]. PRESUMING INNOCENCE: ALAN PAKULA AND SCOTT TuRow TAKE ON THE GREAT AMERICAN LEGAL FICTION CHRISTINE ALICE CoRcos*t The fi lm Presumed In nocent is the subject of this Article by Prof essor Corcos. She explores the fi lm' s model,s of relationship between law and justice and be­ tween the attorney and layperson. In the film, the pre­ sumption of innocencefo rmally re leases a truly inno­ cent person from legal proceedings, but is unable to release him from informal susp icion by laypersons who seek substantive justice. Using this theme, Prof es­ sor Corcos as sesses the irony and tension present in the fi lm. FORMER PROSECUTOR SET FREE CHARGES AGAINST RUSTY SABICH DISMISSED Spectators were stunned today when Judge Leon Lyttle dismissed murder charges against former D.A.
    [Show full text]
  • Depictions of the Criminal Justice System As a Character in Crime Fiction
    University of Colorado Law School Colorado Law Scholarly Commons Articles Colorado Law Faculty Scholarship 2017 The Chow: Depictions of the Criminal Justice System as a Character in Crime Fiction Marianne Wesson University of Colorado Law School Follow this and additional works at: https://scholar.law.colorado.edu/articles Part of the Criminal Law Commons, Law and Society Commons, and the Legal Writing and Research Commons Citation Information Marianne Wesson, The Chow: Depictions of the Criminal Justice System as a Character in Crime Fiction, 51 NEW ENG. L. REV. 263 (2017), available at https://scholar.law.colorado.edu/articles/1247. Copyright Statement Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required. This Article is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Colorado Law Scholarly Commons. For more information, please contact [email protected]. The Chow: Depictions of the Criminal Justice System as a Character in Crime Fiction M ARIANNE WESSON∗ INTRODUCTION have been asked to contribute to this volume some observations about how writers of crime fiction portray the criminal justice system as a I character in their work. It’s a provocative assignment, to be sure, and great fun to think about. The most vivid example that comes to mind is Tom Wolfe’s depiction of the system as a gigantic hungry beast, in The Bonfire of the Vanities.1 His narrative puts us at one juncture in the company of Larry Kramer, Assistant District Attorney in the Bronx, watching morosely as the vans that carry pretrial detainees from jail to the courthouse where Kramer practices discharge their cargo into the bowels of the building for morning court dates.
    [Show full text]
  • Reversible Error Issue New York and Vermont
    The BACK BENCHER Seventh Circuit Federal Defenders Vol. No. 21 Reversible Error Issue New York and Vermont. His column is evidence that, even in the harsh environment of today’s federal courts, DEFENDER’S MESSAGE zealous advocates are ensuring the rights of their clients through the engine of reversible error. We should strive to Reversible error is the sword and shield of every criminal do the same. defense lawyer. At trial, the criminal defense lawyer can preemptively protect his client from prejudice by bringing As part of our continuing effort to help fulfill this the potential for reversible error to the attention of the trial exhortation, a number of continuing legal education judge, thereby preventing an error before it occurs. On opportunities are on the horizon for our panel attorneys. appeal, knowledge of what constitutes reversible error Three national CJA training programs are scheduled for allows the defense lawyer to retroactively shield his client this year at the following locations and dates: Kansas City, from the effects of impermissible prosecutorial blows MO on May 18-20; Boston, MA on July 6-8; and San already suffered. But reversible error is more than a Antonio, TX on September 21-23. An application for weapon in the arsenal of the criminal defense lawyer; it is these programs is attached to the back of this issue of The also an engine for change. Landmark decisions such as Back Bencher. Incidentally, I have preliminarily accepted Gideon v. Wainwright Brady v. , 372 U.S. 335 (1963) and an offer to speak at each of these programs.
    [Show full text]
  • Ordinary Heroes
    FARRAR, STRAUS AND GIROUX READING GROUP GUIDE ORDINARY HEROES by Scott Turow “Ordinary Heroes is a beautifully wrought, finely achieved reconstruction of an elusive, clandestine life—a World War II life, as it happens—by Scott Turow at the very top of 384 pages • 0-374-18421-6 his form. So, be warned: a book to start on a Friday night.” —Alan Furst, author of Dark Voyage ABOUT THIS GUIDE The questions and discussion topics that follow are designed to enhance your read- ing of Scott Turow’s Ordinary Heroes. We hope they will enrich your experience of this mesmerizing novel and the frontlines it brings to life. Greg Martin INTRODUCTION Courts of law have set the stage in each of Scott Turow’s bestselling books. With Ordinary Heroes, Turow introduces an attorney who is operating in a new setting and period—on the killing fields of World War II’s European theater, under highly unusual circumstances. A JAG lawyer assigned to a case in which the enemy may prove to be his own government, with no law office and no research library, David Dubin is ordered to bring a fellow soldier to justice. Ordinary Heroes is narrated by Kindle County journalist Stewart Dubinsky (whom readers may recognize from some of Turow’s previous novels) and by Stewart’s father. Stewart discovers an unexpected chapter of family lore after the death of his father, David Dubin, who Americanized the surname that Stewart later reclaimed. Through wartime letters, military archives, and eventually the notes for a memoir that Dubin wrote in prison, Stewart pieces together the secret history of his father’s clandestine actions, which led to his court-martial.
    [Show full text]