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MATTHEWS v. U.S.

Docket No. 09-0321-pr.

616 F.3d 251 (2010)

Curtis MATTHEWS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

United States Court of Appeals, Second Circuit.

Decided August 6, 2010.

Attorney(s) appearing for the Case

Brendan White, White & White, New York, NY, for Petitioner-Appellant.

Richard M. Tucker, Assistant United States Attorney (Jo Ann M. Navickas, Assistant United States Attorney, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, New York, for Respondent-Appellee.

Before RAGGI and LYNCH, Circuit Judges, GARAUFIS, District Judge.

GERARD E. LYNCH, Circuit Judge:

This case requires us to decide whether the Fifth Amendment guarantees an unwaivable right to indictment by grand jury if the statute under which the defendant is charged authorizes capital punishment under some circumstances. We hold that such an unwaivable right exists only where the charging instrument exposes the defendant to the risk of capital punishment.

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