Four decisions yesterday, including a new twist on Booker remands. The CA2 has been quite productive lately; I guess everyone's looking forward to summer vacation. First, though, don't forget today's arguments in Muntaqim v. Coombe (Newsday has a preview, via How Appealing)
1. United States v. Garcia: In a challenge to a drug conspiracy conviction, the court held that it was error (but harmless error) to admit the lay opinion testimony of a DEA agent under Fed. R. Evid. 701 -- the agent testified to the appellant's "partnership" role in the conspiracy. the court also affirmed the court's sentencing calculations, but remanded pursuant to Booker and Crosby.
In a footnote, the court reports that the opinion was circulated to all the judges of the Second Circuit before publication. It took me a while to figure out why: the original district judge who sentenced the defendants is dead. This makes a big difference, since Crosby's remand-to-consider-whether-resentencing-is-appropriate approach was justified on account of "the availability of the sentencing judge to advise [the CA2, which] made it appropriate to learn authoritatively what would have happened, absent error, rather than make a wrong guess or place on the defendant the risk of serving extra years because he could not prove what the right guess should be.” Even so, the court now concludes that "it is the District Court as an institution – not simply an individual judge of that court – that is better suited than the Court of Appeals to perform the comparative sentence inquiry necessary to complete plain error review." Accordingly:
Where the original sentencing judge is no longer available to speak for the district court, . . . the responsibility for identifying the sentence that the court would have imposed under a correct view of the law may properly be reassigned to another district judge. Such reassignment comports with the general provision of Rule 25 providing that, “[ a] fter a verdict or finding of guilty, any judge regularly sitting in or assigned to a court may complete the court’s duties if the judge who presided at trial cannot perform those duties because of absence, death, sickness, or other disability.” Fed. R. Crim. P. 25( b)( 1). . . . It may be useful to note that in making this determination, we do not expect a successor judge to do the impossible, i. e., determine what sentence the original judge would have imposed on behalf of the court with a correct understanding of the law and a fully developed record. Instead, on reassignment, a district judge should consider what sentence he or she would have imposed on behalf of the court with the benefit of Booker and a full record.
2. United States v. Canova: A sentencing decision; the court, reviewing for reasonableness, held that the district court partly misapplied the sentencing guidelines (insofar as they pertained to the loss amount in question) and therefore did not accurately "consider" the guidelines when sentencing; it therefore remanded for a new sentence.
3. Greco v. Trauner, Cohen & Thomas, LLP: Something about the Fair Debt Collection Practices Act. . . .
4. United States v. Mills: Defendant is charged on state gun offense. He is then interviewed without an attorney, in admitted violation of his Sixth Amendment rights, and makes a statement. Some time later, he is also charged with a substantially identical gun offense under federal law, and the feds seek to introduce his statement. No dice, says the CA2. "[T]he Sixth Amendment right of counsel extends to offenses considered to be the 'same offense' as those to which the right has already attached even when they are prosecuted by different sovereigns."