Law Office of Kenneth M. Tuccillo

EXCERPTS FROM SOME SUCCESSFUL APPEALS U.S. v. COLLADO, 106 F.3d 1097 (2nd Cir. 1997) "For the reasons that follow, we find that: (i) based on 21 U.S.C. Section(s) 851(a)(2), a defendant's conviction for a prior felony offense cannot be used as the basis for enhancement of a sentence, in accordance with 21 U.S.C. (s) 851, unless that prior felony offense was prosecuted by indictment or waiver thereof." U.S. v. POSADO, 57 F.3d 428 (5th Cir. 1995) ""It is with a high degree of ...caution that we have today opened the door to the possibility of polygraph evidence in certain circumstances. We may indeed be opening a legal Pandora's box. However, that the task is full of uncertainty and risk does not excuse us from our mandate to follow the Supreme Court's lead. Rather, "[m]indful of our position in the hierarchy of the federal judiciary, we take a deep breath and proceed with this heady task." . . . "the district court's ruling on the motion to suppress is REVERSED, the defendants' convictions are VACATED and the case is REMANDED to the district court for consideration of the evidentiary reliability and relevance of the polygraph evidence proffered by the defendants under the principles embodied in the Federal Rules of Evidence and the Supreme Court's decision in Daubert." FOWLER v. UNITED STATES PAROLE COMMISSION, 94 F.3d 835 (3rd Cir. 1996) "We are asked to determine if the United States Parole Commission has the authority to impose a new term of special parole under 21 U.S.C. 841(c) following revocation of his original special parole term. We conclude that the Parole Commission does maintain jurisdiction over Fowler under 841(c), but that the non-incarcerative sanction that it can impose is not special parole, but traditional parole. To the extent that the Parole Commission's regulations at 28 C.F.R. 2.52(b) and 2.57(c) allow a contrary result, we hold that they are inconsistent with 841(c). Accordingly, we will vacate the judgment of the district court"