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Murray Law LLC Quarterly Newsletter
November 2008

In This Issue

Murray Law LLC
Murray Law LLC specializes in criminal cases, government investigations and complex civil litigation.

Our Blog
Principal attorney JaneAnne Murray is the author of the New York Federal Criminal Practice Blog, which offers posts on decisions and developments of interest.
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Murray Law LLC
Woolworth Building
233 Broadway,
22nd Floor
New York, NY 10279
t: (212) 941-9266
f: (866) 259-7819

Conspiracy Prosecutions Under Fire
Conspiracy has been known as the prosecutor’s darling because it is so easy to charge.  Several recent Second Circuit decisions, however, highlight that it is not so easy to prove.  In Lorenzo (Murray Law LLC’s own case), Wexler, Ogando, and Kapelioujnyj, the Court reversed conspiracy convictions for insufficient evidence of the defendants’ knowledge and criminal intent.  In addition, in Huezo, the Court discarded a troubling principle that once a conspiracy has been established, only “slight evidence” is necessary to link another defendant to it.  Finally, in Graziano, a district judge emphasized that Pinkerton liability — the theory that one can be held responsible for the reasonably foreseeable acts of one’s co-conspirators — is not equivalent to vicarious liability.

Notable Opinions on Opinion Testimony
Several recent Second Circuit decisions address the parameters and limits of opinion testimony, expert and otherwise.  In Yannotti, the Court set out criteria for the admission of lay opinion testimony under Fed.R.Evid. 701.  In Mejia, the Court reversed because a police officer had been permitted to testify beyond the permissible bounds of the “officer-expert” rule.  And in Joseph, the Court gave its imprimatur to the expertise and research methods of social scientists.  At the district court level, Glynn, a decision with implications for all cases involving expert testimony, holds that a ballistics expert may not testify that ballistics is a science or that he reached his conclusions with any degree of certainty. 

Developments in Money Laundering, Securities Fraud and the FCPA
The Supreme Court's recent landmark money laundering rulings have yielded some notable decisions in this circuit, including Ness, Diaz, Catapano and Mercedes.  In Finnerty, the Second Circuit ruled that a charge of securities fraud premised on deceptive conduct requires some statement or act creating a false impression to investors.  In Kozeny, a district judge ruled that the Foreign Corrupt Practices Act does not apply to “true extortions,” i.e., payments made under duress.

Developments in Sentencing, Restitution & Forfeiture
As the Second Circuit eloquently captures in Jones, individualized sentencing and the primacy of the district court’s discretion are now at the heart of the new federal sentencing landscape.  In two recent cases, Smith and Parris, district courts granted substantial departures from lengthy guideline ranges in white collar cases, and in Handy, a district court rejected a guideline enhancement as unconstitutional and irrational.  As courts move away from lengthy prison sentences, particularly in white collar cases, one can expect restitution and forfeiture to become the new punitive focal point.  Several recent decisions add to this burgeoning area of jurisprudence: Amato, Donaghy, BrennanYalincak, and Sabhnani.  Finally, Abiodun and Ferguson continue to build on recent decisions addressing loss calculations under the Sentencing Guidelines.

Subscribe to Our Blog!
Murray Law LLC launched its blog in September 2007, and now has over 135 postings on decisions and developments of interest.  The blog has an extensive and growing following of loyal subscribers via email or RSS feed. You can sign up for regular e-mail updates of new content at our blog.

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