Description of Available Briefs and Motions

Editor's Note:  A number of the decisions listed below have been stored in a format known as Portable Document Format (PDF ).  To view those decisions you will need to use the Adobe Acrobat Reader, a  software program that can be downloaded - free of charge - from the Internet.  If you don't have the Adobe Acrobat Reader installed on your computer, you should.  You will find that utility useful on many different Internet sites.  To download that program, simply click here . The one drawback of the PDF format is that, unless you configure your Adobe Acrobat Reader Program to permit what is called  "page-at-a-time-downloading" it can take a long time to bring up the full text of even small documents.  If you want instructions on how to configure your Adobe Acrobat Reader Program to permit page-at-a-time downloading, click here.

Capital Punishment

Ceja v. Stewart, 134 F.3d 1368 (9th Cir. 1998)

In our March 16, 1998 issue of Punch and Jurists we described the last-minute efforts of petitioner Jose Jesus Ceja to stave off his execution on the grounds that his 23-year stay on death row in California violated the Eight Amendment's prohibition against the infliction of cruel and unusual punishment.  Over the strong dissent of Judge Fletcher, the Ninth Circuit refused to stay the execution.  Judge Fletcher's compelling dissent echoes many of the arguments set forth in the Petition for Writ of Habeas Corpus which was filed by Attorney Michael W. Patten of Phoenix, AZ.  That Petition contains a detailed analysis of the very purposes of capital punishment and of the meaning of cruel and unusual punishment under the Eighth Amendment.

Discovery

United States v. Mmahat, 106 F.3d 89 (5th Cir. 1997)
 

In our March 17, 1997 issue of Punch and Jurists, we reported this case and noted that it foretold a new prosecutorial ploy destined to destroy the efficacy of the Government's disclosure obligations required under the Brady rule.  In this case the Court approved the practice of burying defense counsel with a 500,000-page cache of documents; and ruled that prosecutors have no duty to "point the defense to specific documents" within that mass of materials.  The ruling presages a practice that will now be pushed to its logical limits - and beyond.  Because the issue is so important, we have posted the defendant's Petition for Rehearing En Banc  (PDF Format), which was forwarded to us by Attorney Thomas Kehoe of Harahan, LA.  Reading this brief helps explain why the practice of burying counsel which huge caches of documents is so unfair.

Habeas Corpus

United States v. Cavallaro, No. 95-59-P-H (D.Me.) (2/9/00)

Kikumura v. United States, 978 F.Supp. 563 (D.N.J. 1997)

In our December 22, 1997 issue of Punch and Jurists, we reported on this case which involved a Motion pursuant to 28 U.S.C. § 2255 to vacate, set or correct one of the most notorious sentences ever imposed under the Federal Sentencing Guidelines.  The defendant in that case, Yu Kikumura, was convicted of transporting explosives in interstate commerce.  His Guideline sentencing range was 27 to 33 months.  Yet Judge Lechner imposed an upward departure and sentenced Kikumura to a term of imprisonment of 360 months.  That sentence was ultimately reduced by the Third Circuit to 262 months.  After numerous court proceedings, New York Attorney Glenn A. Garber filed this monumental Motion, requesting relief on numerous grounds, including the discovery of new evidence that the FBI agent who had testified at Kikumura's sentencing hearing had provided false and misleading information.  The document is a model of a § 2255 Motion - and although Judge Lechner denied all relief requested, that decision was not unexpected.  Now it's on to the Third Circuit again; and we will keep you posted on the subsequent filings.   Both the opinion and Mr. Garber's brief are in PDF format .

Improper Venue in an 18 U.S.C. § 924(c) gun case

United States v. Palma-Ruedas, 121 F.3d 841 (3rd Cir. 1997)

In our October 6, 1997 issue of Punch and Jurists, we summarized this case which dealt with a claim that a gun conviction under 18 U.S.C. § 924(c) was invalid because the Government had failed to prove that the defendant had either "used" or "carried" the gun in question in same district where he had been convicted for committing a drug trafficking crime.  In vacating the gun conviction on the grounds of improper venue, the Third Circuit followed the holding of the Ninth Circuit in U.S. v. Corona, 34 F.3d 876 (9th Cir. 1994).  Because of the importance of that issue, Attorney John P. McDonald from Somerville, NJ  sent us his brief on this appeal, together with the the ruling of the Third Circuit which denied a Petition for Rehearing en banc.  Both of those documents can be viewed in PDF format by clicking here.

[Editor's Note:  The decision in this case was reversed by the Supreme Court on March 30, 1999 in U.S. v. Rodriguez-Moreno, Docket No. 97-1139 (See P&J, March 22, 1999)]

Money Transmitting and Forfeiture

United States v. Velastegui, 1999 WL 262282 (S.D.N.Y. 3/30/99)

In our April 26, 1999 issue of Punch and Jurists, we reported that District Judge Schendlin had agreed to dismiss two counts of an indictment in this case which charged the defendants with illegal money transmitting under 18 U.S.C. § 1960.  The basis of her ruling was that the rule of lenity requires dismissal of charges when the underlying criminal statutes (here provisions of the New York Banking Law) failed to provide fair warning that the conduct in question was illegal.  The defendants also moved to vacate a restraining order imposed on their bank account on the grounds that the assets seized were substitute assets that cannot, under prevailing law, be seized prior to conviction.  As of the date of this posting, Judge Scheindlin has not yet ruled on that latter motion.  However, through the courtesy of Attorney Raymond J. Aab of New York City, we are pleased to include both of his briefs filed in this action.  The first brief contains the arguments that led the court to dismiss the money transmitting counts; and the second brief contains the arguments why the restraining order should be lifted.

Newly Discovered Evidence

Testa v. United States, 971 F.Supp. 833 (S.D.N.Y. 1997)

In our October 6, 1997 issue of Punch and Jurists, we reported this case which dealt with a motion for a new trial, pursuant to Rule 33 of the Federal Rules of Criminal Procedure.  As noted in our review of that case, Judge Rakoff met that request with an openly hostile attitude that seems inconsistent with the points raised by the appellant, as set forth in the Brief filed by New York Attorney Herald Price Fahringer.  That brief details how the Government "knowingly introduced perjured testimony" and withheld critical information from the defendants.  We have posted that brief on this site (in PDF format) because we feel that it contains a textbook analysis of how to file a motion for a new trial based on newly-discovered evidence.

Proffers

United States v. Pielago, 135 F.3d 703 (11th Cir. 1998)

In our March 23, 1998 issue of Punch and Jurists, we noted this case as an example of the bear-traps that await a defendant who expects fair treatment when making a proffer to the Government.  In this case, the defendant's husband offered to testify against members of a drug conspiracy.  After he was murdered, the Government demanded that his terrified widow testify in place of her deceased husband.  When she refused, she was vindictively tried and convicted on the basis of testimony given during her allegedly sacrosanct debriefing.  The defendant appealed her conviction arguing that the Government had used indirectly evidence that it could not use directly and that the indicmnet should have been dismissed.  Despite a strong dissent from Judge Kravitch, the Eleventh Circuit affirmed the conviction and nine-year sentence.  Through the courtesy of Attorney Benjamin S. Waxman of Miami, FL, we are pleased to present his Opening Brief and his Reply Brief in this case, both of which are in PDF format.

Prosecutorial Misconduct

United States v. Scheer, 168 F.3d 445 (11th Cir. 1999)

As we noted in the 4/5/99 issue of P&J, this is not your average case of outrageous prosecutorial misconduct. It has at least four features that make it stand out as a significant case in American jurisprudence. First, A.U.S.A. Lothar Genge clearly exhibited a brand of insolence that - even for prosecutors - is astonishing. Second, the case proves beyond doubt the absolute impotence of the Justice Department’s infamous Office of Professional Responsibility (OPR). Third, the case may well represent the high-water mark of, and the turning point for, an agency that has, for far too long, treated with contempt Justice Sutherland’s admonition that in a criminal case it is not that the Government shall win but that "justice shall be done." Finally, the Eleventh Circuit’s courageous ruling casts an important - if oft-forgotten - light on the power of the courts to deal with abuses that undermine our confidence in the outcome of trials.

The story of that case is more fully explained in our review of that case.  Here, through the courtesy of Attorneys Jane W. Moscowitz of Miami and William J. Sheppard of Jacksonville, Florida, we are pleased to include the Initial Brief and the Reply Brief that were filed in that case.  Both are excellent examples of how to prove that prosecutorial misconduct does indeed warrant a reversal of a conviction.

RICO

United States v. Lynnwood Barron, Docket No. 96-185-004 (W.D.Pa. 1996)

With great justification, the courts have often noted that the RICO statutes are "one of the most confusing crimes ever devised by the United States Congress."  Casey v. Department of State, 980 F.2d 1472, 1477 (D.C. Cir. 1992).  The unpublished case cited was one of many related cases in which over 50 members of a street gang were charged with various RICO and related offenses.  Attorney Bruce A. Antkowiak of Greenburg, PA filed this outstanding  Trial Brief on behalf of a subgroup of six of the defendants who were scheduled to be tried at the same time.  In response to the issues raised in this Trial Brief, the Government quickly moved to resolve the case by accepting plea bargains which led to sentences far short of the the draconian penalties it originally sought in the main Indictment.  Through the courtesy of Attorney Antkowiak, we offer this Trial Brief (in PDF format) in the hope that it may be of some value to other criminal defense attorneys facing cases of a similar nature.

Tax Evasion

United States v. Silkman, 156 F.3d 833 (8th Cir. 1998) (Judge Loken)

This is a rare tax evasion case which the defendant won, largely because he was able to convince the Court of the inherent unfairness of the IRS's practice of issuing "naked assessments."  Technically, the issue in this case was "whether an IRS tax assessment that is administratively final for the purposes of the agency's civil collection remedies is also conclusive proof of the tax deficiency in a tax evasion prosecution?"  (Id., at 835).  To that question of first impression on the Eighth Circuit, the Court answered in the negative, concluding that the Government had no authority for its "startling contention"; and it therefore reversed the defendant's conviction.

In fact, the arguments raised in this case were much broader than the single issue addressed by the Court, and for that reason we have included a copy of the brief filed in this case by famed tax attorney Lowell H. Becraft, Jr.  We also note that Attorney Becraft maintains his own Web site at http://home.HiWAAY.net/~becraft, where there is a valuable collection of articles dealing with many current and provocative tax issues.

The facts of this case are as follows: In March 6, 1991, the IRS issued a statutory "notice of deficiency" to the defendant Silkman, seeking to assess Federal income taxes against him for the years 1981 through 1985.  Silkman responded to the notice by sending letters to the IRS expressing his objections to the calculation of the taxes due; and when the IRS did not respond to his letters, Silkman concluded that the matter had been resolved.

Silkman, however, did not petition the Tax Court for any relief; and this failure to challenge this determination through the Tax Court led to an administrative assessment of a large amount of taxes against him on  September 16, 1991.  When Silkman failed to pay the amount set forth in the deficiency notice, he was indicted for wilful evasion of income taxes under 26 U.S.C. § 7201.  The indictment alleged that Silkman had used various schemes to liquidate his property for the purpose of preventing the Internal Revenue Service from collecting the taxes due.

It should be noted that Silkman had tax problems of various sorts in the past; and, while in previous litigation the IRS had issued a summons to him to obtain information about his income, in this case it refused to avail itself of that remedy.  Instead, it relied on government statistics and Form 1099 information to conclude what Silkman's income had been in the years in question.  Concluding that the Government's calculation of the taxes was both arbitrary and erroneous, Attorney Becraft's commented on the IRS's procedures with these words:

"Naturally, the amount of taxes allegedly due for these years according to the IRS' calculations was just simply a wild guess. From Silkman's viewpoint, during these years he had large losses and the reason why he did not file returns was because he believed that with losses he was not required to file returns.  Silkman's beliefs that he did have substantial losses was a provable fact; he meticulously kept most of the records regarding his business expenses incurred during these years and just these records alone demonstrated large expenditures for his farming operation. When these expenses are compared against the income the IRS proclaimed Silkman made during these years, losses are shown for four of the five years at issue. But the losses for the first four of these years are so large that any alleged gain in the last year is negated by loss carryovers. Consequently, Silkman had an excellent case that he owed no taxes and thus could not be convicted of tax evasion."

Before the case went to trial, Silkman filed various discovery requests for the IRS's actual assessment documents; but, in accordance with its practice of keeping its assessment procedures secret, the IRS simply stonewalled those discovery requests.  When the trial commenced, Silkman attempted to introduce evidence supporting his contention that he owed no taxes and that he did not intend to evade taxes.  At the Government's urging, the district court (Judge Battey) refused to allow him to introduce such evidence.  Effectively agreeing with the Government's theory of the case that "once a tax is assessed, that is the tax liability", the court instructed the jury that the tax assessment for each year "establishes the tax liability" - even though the Government made absolutely no effort to show what Silkman had earned during the years in question.

When Silkman was convicted, he appealed, raising several issues, one of which was that the district court had erred in excluding all evidence of his actual income and expenses in the years in question.  On that issue, the Court firmly ruled that "an assessed deficiency may be challenged by the defendant accused of tax evasion, and the issue is one for the jury. . . . The government argues, in effect, that the alleged tax deficiency may be conclusively presumed from an administratively final assessment.  But conclusive presumptions are invalid in criminal cases because they ‘conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime, and which would invade the factfinding function which in a criminal case the law assigns solely to the jury' Sandstrom v. Montana, 442 U.S. 510 (1979). . .  [I]t is not rational to make the assessment conclusive proof of the deficiency, particularly because in the absence of a tax return an assessment is based upon a ‘substitute' return prepared by the IRS without the benefit of factual input from the taxpayer."  (Id., at 835-36).

 Trial Issues

U.S. v. Messina, 131 F.3d 36 (2nd Cir. 1997)

In our January 19, 1998 issue, we reported on this case and noted that it raised two critical trial issues.  The first dealt with a defendant's right to have CJA counsel appointed after he had run out of funds to pay his privately retained counsel; and the second dealing with the remedies that are available at trial when the judge decides to interrogate the defendant in such a hostile and demeaning manner that affects the jury's evaluation of the defendant's credibility.  Both of those critical issues were virtually ignored by the Second Circuit on appeal.  Nevertheless, because of the importance of those issues, we have presented three of the Briefs filed by New York Attorney Georgia J. Hinde in this case: her initial Brief; her Petition for Rehearing; and her Reply Brief in response to the Government's answer.  Combined these documents present a remarkeably different picture than the one contained in the Second Circuit's rather bland and brusque treatment of the issues presented.  One could even argue that Court's response to the issues presented was a callous and calculated ploy to dismiss the issues without addressing the law and the facts presented.  We feel that one must read Ms. Hinde's briefs to get a full and fair picture of what really happened at Mr. Messina's trial.

Sentencing - Collateral Consequences

U.S. S.E.C. v. Monarch Funding Corporation, 983 F.Supp. 442 (S.D.N.Y. 1997)

In our December 22, 1997 issue we reported on this important case which dealt with some of the unheralded collateral consequences that can result by not contesting disputed factors at sentencing hearings.  As this case shows, some of the sentencing findings can have a preclusive effect on unrelated proceedings, here a separate civil litigation.  In this case, after the defendant was convicted of various crimes, the SEC, relying principally on the findings of the sentencing court, sought disgorgement of some of the monies that had been taken by the defendant.  In that separate civil proceeding, the Court applied the doctrine of offensive collateral estoppel - which effectively precluded the defendant from raising any defenses in the civil case on the grounds that those issues had already been litigated in the criminal proceeding.

Protesting that the defendant had not had a fair chance to contest some of those findings at the sentencing hearing, New York Attorney Richard Ware Levitt argued in his brief that factual findings at a sentencing hearing should never have a preclusive effect in a sepatate civil litigation.  His brief is available in PDF format .  In addition, due to the importance of this issue, Mr. Levitt was joined in his argument by an amicus brief filed jointly by the New York Council of Defense Attorneys and the New Jersey Association of Criminal Defense Attorneys.  That amicus brief is also available in PDF format .

Sentencing - Motion for Downward Departure

United States v. Kaye, 140 F.3d 86 (2nd Cir. 1998)

In our March 23, 1998 issue we reported on this important decision in which the Second Circuit reconsidered its decision, previously reported at 65 F.3d 240 (2nd Cir. 1995), and in which the Court denied a downward departure based on a defendant's cooperation to local law enforcement authorities.  Upon reconsideration, the Court concluded that U.S.S.G. § 5K1 is "properly interpreted to refer only to federal offenses" and that, as a result, a district court has the authority to grant a downward sentence reduction under the provisions of U.S.S.G. § 5K2.0 when he renders assistance to local law enforcement officials, even if the Federal Government does not support that request.  Through the courtesy of Attorney Allan Sturim of Kew Gardens, NY, we are pleased to make available his  brief (in PDF format) that was filed on this appeal.  It is particularly signnificant because of the lengthy recistation of some 50 provisions in Title 18 to the U.S.Code where Congress used the words "Federal, State of local" (or words of similar import) when referring to various crimes - words that are noticeably absent from the language of U.S.S.G. § 5K1.1.

Sentencing Memoranda

United States v. Jackson 986 F.Supp. 829 (S.D.N.Y 1997)

This was the high profile case in which the defendant, Autumn Jackson, was accused of attempting to extort funds from Actor Bill Cosby.  The Legal Aid Society of New York submitted an excellent Sentencing Memorandum to Judge Barbara Jones in support of a downward departure; and a copy of that 18-page Memorandum is available (in PDF format) by clicking here.

Supervised Release

United States v. Crea, 968 F.Supp. 826 (E.D.N.Y. 1997)

In our September 1, 1997 issue of Punch and Jurists, we reported this case which dealt with the so-called "standard conditions" of supervised release.  Those conditions are set forth in U.S.S.G.  §  5B1.4(a) and they are also contained in the Probation Department's standard Probation Form 7-A.  In this case, Judge Johnson of the Sourthern District of New York ruled that the Probation Department had the authority to impose all 13 of the standard conditions on a probationer, whether or not the sentencing court had ever addressed what conditions would apply to the probationers upon his release from prison.  Defense Counsel Paul A. Victor of New York, N.Y. immediately filed an appeal of that ruling to the Second Circuit.  Through his courtesy, we have posted a copy of his Brief  (PDF Format) appealing the ruling of Judge Johnson.  The brief sets forth two important arguments on this issue:  first,  Mr. Victor argued that an amendment of the conditions of supervised release after sentence has been imposed is violative of Rule 43 of the Fed.R.Crim.P. and of the defendant's right to due process; and second, 18 U.S.C. § 3583(e)(2) does not permit the court to enlarge the conditions of supervised release in the absence of changed circumstances.

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