In 1995, the Second Circuit the Second Circuit flatly held that "Because improperly ordered restitution constitutes an illegal sentence and amounts to plain error [the failure of the defendant to object to the restitution order at trial] is not a bar to our review." U.S. v. Soto, 47 F.3d 546, ...

QUOTE OF THE WEEK - The evils of Sentencing Entrapment - as seen without blinders.

"The law of this Court ought not to be open to the just charge of having been dictated by the "odious doctrine," as Mr. Justice Brandeis called it, that the end justifies reprehensible means. To ...

This is an important sentencing entrapment case because, rather than pretending that there is no such thing as sentencing entrapment (as many courts insist), the Ninth Circuit addresses the issue honestly. In this case a confidential informant and a DEA agent (who spoke no Spanish) arranged a sting operation to ...

Court extended doctor/patient privilege to cover communications between a victim and her rape crisis counsellor even though that person was not a trained doctor.

In this case the Court considered whether a privilege should exist to protect communications between a
rape victim and employees or volunteers of a rape crisis ...

"In civil forfeiture cases brought by the government under § 881, U.S. Customs procedures control the allocation of the parties' burdens of proof. 21 U.S.C. § 881(d) (incorporating by reference U.S. Customs procedures). Those procedures employ a burden shifting mechanism. See 19 U.S.C. § 1615; United States v. $5,644,540, 799 ...

"There is sufficient support in the record for the district court's decision to impose the four level increase under U.S.S.G. SS 2B1.1(b)(4)(B). Truman's Auction in Tallequah Oklahoma was a business which received and sold stolen goods. Collins was an integral part of the scheme by which the auction house received ...

This is one of those cases that proves you can't win in the Federal criminal justice system because the playing field is not level. Here the defendant successfully moved to dismiss his original indictment on the grounds that the Government had failed to allege any overt act within the statute ...

This is a rare but important case in which a conviction was reversed because the trial court (a) failed to give an entrapment instruction as requested by the defense and (b) failed to instruct the jury specifically on the necessity of evaluating the credibility of a Government witness informant who ...

Here the Second Circuit essentially affirmed Judge Scheindlin's ruling that the State court's findings were inadequate to support an order closing the courtroom while an undercover agent, who feared for his life, testified at trial.

Citing the Supreme Court's decision in Waller v. Georgia, 467 U.S. (1984) as well as ...

Here the Court strongly disagreed with the Ninth Circuit's view that § 875(c) is a specific intent statute, stating that the Ninth Circuit view "is something of an outlier within Ninth Circuit jurisprudence, and its continued vitality has been questioned on the ground that it conflicts with both prior and ...

In Re Grand Jury, 103 F.3d 1140 (3rd Cir. 1997) (Judge Garth)
United States v. Lowe, 948 F.Supp. 97 (D.Mass. 1996) (Judge Saris)

Both of these decisions involve requests for a ruling, under Rule 501 of the Fed.R.Evid., that a privilege exists with regards to some form of confidential communications. ...

In 1995, the Second Circuit the Second Circuit flatly held that "Because improperly ordered restitution constitutes an illegal sentence and amounts to plain error [the failure of the defendant to object to the restitution order at trial] is not a bar to our review." U.S. v. Soto, 47 F.3d 546, ...

Here the Court affirmed the imposition of a fencing enhancement under § 2B1.1(b)(4)(B) because the Court found that the defendant received and sold stolen goods for profit over an extended period of time as admitted that in her presentence report.

Citing U.S. v. Warshawsky, 20 F.3d 204, 214 (6th Cir. ...

Case held that polygraph evidence is not per se inadmissible under Daubert rule.

With clear concern about the inherent reliability of polygraph evidence, the Ninth Circuit becomes the second Federal Circuit Court to hold that an absolute per se bar to the use of such evidence in now inconsistent with ...

In this decision the Third Circuit considered, and rejected, a number of appeals based on a common issue: should the court recognize a parent-child privilege to prevent the Government from compelling family members to testify against each other. To date, only four states recognize the parent-child privilege. However, Rule 501 ...

The Court observed: "Under the 'conscious avoidance' or 'ostrich doctrine', knowledge may in some circumstances be inferred from strong suspicion of wrongdoing coupled with active indifference to the truth. . . . [An] ostrich instruction is appropriately given when the defendant claims that he had no guilty knowledge of the ...

The First Circuit concluded that the Government had met its burden of proving that the currency carried by the defendant was drug-related based on the following factors:

1) the defendant was "associated with two persons known to the agents as accused drug traffickers" (id., at 1054) - although the Court ...

Case held that unless a state grants a complete restoration of the right to possess all firearms, the individual remains subject to federal prosecution as a felon in possession.

In discussing the three "core" rights, the Court noted that under Massacusetts law a felon does not lose his right to ...

This case presents an important analysis of the significant distinction between claims of ineffective assistance of counsel and claims where a defendant argues that he was construtively denied any counsel at all in critical stages of the proceedings.

Although this case deals with the unpleasant subject of ineffective assistance of ...

Here the Court reversed an enhancement under § 3B1.1(c) emphasizing that the defendant's status as a police sergeant was not alone sufficient to warrant that enhancement; the key is the defendant's role in the criminal activity.

"The sole question in this appeal is whether defendant DeGovanni, who served as a ...

See the subsequent decision in this case, reported at 113 F.3d 515, where the court vacated that portion of this decision that required a special instruction dealing with the credibility of testimony from paid informants and witnesses.

Case held that it was reversible error for the court to have given ...

Court extended doctor/patient privilege to cover communications between a victim and her rape crisis counsellor even though that person was not a trained doctor.

In Re Grand Jury, 103 F.3d 1140 (3rd Cir. 1997) (Judge Garth)
United States v. Lowe, 948 F.Supp. 97 (D.Mass. 1996) (Judge Saris)

Both of these ...

Although openly disagreeing with the Second Circuit's decision in U.S. v. Foley, 73 F.3d 484 (2nd Cir. 1996), the court "reluctantly" set aside various convictions under § 666 because the Government failed to prove that the "thing of value of $5,000 or more" was lost by the state or municipal ...

Court vacated a conviction based on an illegal search of a motel room.

With his usual meticulous care and eloquent style, Judge Bennett has presented another detailed and valuable primer on a series of Fourth Amendment topics relating to a contested police entry into a motel room, the resulting arrest ...

Court held that specific evidence (e.g., drug records, admissions, or live testimony) is required to calculate drug quantities for sentencing purposes.

This is an important decision concerning the quantity of drugs that may be attributed to a defendant for purposes of sentencing under the "relevant conduct" provisions of the Sentencing ...

This is an important decision concerning the quantity of drugs that may be attributed to a defendant for purposes of sentencing under the "relevant conduct" provisions of the Sentencing Guidelines. Here, the defendant was arrested at JFK Airport because he matched numerous drug courier profiles. An X-ray revealed that he ...

This is another one of those recurrent, perplexing decisions about harmless-error. Here, the defendant robbed six retail establishments in Fort Worth, Texas during a two-week period. His total take from all six robberies was approximately $500. The Feds were obviously concerned that justice might not be achieved if the defendant ...

This is a rare but important case in which a conviction was reversed because the trial court (a) failed to give an entrapment instruction as requested by the defense and (b) failed to instruct the jury specifically on the necessity of evaluating the credibility of a Government witness informant who ...

In this case, the Court held that the Supreme Court's decision in U.S. v. Lopez, 514 U.S. 549 (1995) did not raise the Government's burden under the federal money laundering statute (18 U.S.C. § 1956(a)(3)(B)), since that statute contains a jurisdictional element requiring the financial transaction to affact interstate or ...