Second Circuit Criminal Law Blog

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The Second Circuit Criminal Law Blog is your place to follow the criminal law decisions rendered by the U.S. Court of Appeals for the Second Circuit.  With a rich 225-year history of legendary judges like Learned Hand and Henry Friendly, the Second Circuit has long been known for writing important and thoughtful opinions on many subjects, including the criminal law.  We review every published criminal law opinion handed down by the Second Circuit in order to provide you with a summary of the holding, an assessment of the key legal issues, and practice pointers based on the Court’s ruling.  Our focus is on white-collar criminal cases and matters relating to internal investigations.  Our blog is written by a team of experienced attorneys, including many former law clerks for the Second Circuit and other federal courts.  The blog’s editor in chief is a former Deputy Chief Appellate Attorney in the U.S. Attorney’s Office for the Southern District of New York who has appeared in more than 100 Second Circuit criminal appeals.

Court Holds Hobbs Act Extends to Robberies Involving Forced ATM Withdrawals

In United States v. Rose, the Court (Katzmann, Walker, and Bolden, sitting by designation) rejected a jurisdictional challenge to a guilty plea to violating the Hobbs Act, potentially giving rise to a Circuit split.  The defendant, Floyd Rose, was charged with robbing his victim by forcing them to withdraw money from their bank’s ATM and then hand it over to Rose.  After pleading guilty to Hobbs Act robbery, Rose argued that his plea should be set aside because the robbery lacked any connection to interstate commerce.

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Promises, Promises: Second Circuit Reverses District Court’s Ruling That Suppressed Post-Arrest Statements Based On Allegedly Coercive Promises By Law Enforcement

In United States v. Haak, 16-3876-cr, the Second Circuit (Raggi, Hall, Carney) reversed a suppression order, finding that local law enforcement authorities did not falsely promise the defendant immunity from prosecution and his statements therefore were not coerced in violation of the Fifth Amendment.

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In Divided Decision, Court Rejects Challenge to Conspiracy Conviction Based on Grand Jury Clause

In United States v. Dove, 14-1150-cr, the Second Circuit (Walker, Pooler, Chin) upheld a drug conspiracy conviction against claims that the government improperly shifted its case away from the broader conspiracy charge in the indictment.  The defendant alleged that this amounted to a constructive amendment or a prejudicial variance, in violation of the Fifth Amendment Grand Jury Clause.  The 2-1 decision, with Judge Chin dissenting, raises thorny questions about the evidence necessary to prove a defendant’s awareness of his role in a larger conspiracy and the government’s ability to thwart a lack-of-awareness defense through its selection of evidence at trial.  Although the Court affirmed, the extended discussion and the dissent may be useful to future litigants who wish to invoke these defenses.

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Court Holds New York Second-Degree Robbery is Crime of Violence Under 2014 Sentencing Guidelines

In United States v. Smith, No. 15-3313-cr, the Second Circuit (Winter, Cabranes, Restani, sitting by designation) held that New York second-degree robbery is a “crime of violence” under § 4B1.2(a) of the 2014 United States Sentencing Guidelines.  As the panel acknowledged, Smith follows directly from United States v. Jones (2d Cir. Oct. 5, 2017), covered here and here, which held that New York first-degree robbery is a crime of violence under the same Guidelines provision because the official commentary lists robbery as a crime of violence, and New York generically defines first-degree robbery to include as an element the taking of property from another person, or person’s immediate presence, by force or intimidation.  The panel reasoned that the rationale of Jones was “directly applicable” because New York second-degree robbery has the same element involving the use of force or intimidation. 

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Circuit Vacates Sentence for Failure to Correctly Apply Acceptance-of-Responsibility Guideline

In a summary order on January 2, 2018 in United States v. Reyes, the Court (Winter, Lynch, Droney) vacated and remanded a life sentence as procedurally unreasonable on the ground that the district court failed to properly apply a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.  The decision reiterates that a three-level reduction is mandatory under certain circumstances if the district court has already imposed a two-level reduction, and that the government must formally move for a three-level reduction in order to bind the court’s hands.  The third point of acceptance of responsibility under the Guidelines is not a matter of grace or kindness by the district court.  When a defendant is entitled to receive the third point, the district court is obliged to award it.

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Court Finds Condition of Supervised Release Invalid

In United States v. Browder, the Second Circuit (Cabranes, Lohier, Forrest, sitting by designation) has vacated in part an order finding that the defendant violated two conditions of supervised release. The Court’s decision sheds light on the respective roles of the district court and the Probation Office in entering and executing an order of supervised release, and it suggests that the Court may look with increased scrutiny at generalized conditions that defer to the Probation Office without sufficient judicial scrutiny, and may reject violation specifications based on those infirm conditions.

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Court Upholds Murder-for-Hire Conviction, Rejects Fourth Amendment Challenges

The murder-for-hire statute makes it a crime to agree to commit murder in exchange for “anything of pecuniary value.” 18 U.S.C. § 1958. The Second Circuit has understood this language to require that, at the time of the agreement, there was a quid pro quo or at least the promise of some pecuniary consideration. In United States v. Babilonia, No. 14-3739, the Court (Chin, Carney, and Cogan, sitting by designation) reaffirmed this “pecuniary consideration” requirement, but then suggested it presents a minimal hurdle where there was payment after the fact.[1]

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In Summary Order, Court Vacates Denial of Resentencing Motion, Citing Ambiguities in the Sentencing Record

On January 31, 2017, the Court (Katzmann, Kearse, Livingston) issued a nonprecedential summary order vacating and remanding an order denying a motion for resentencing in United States v. Majors, No. 15-4022. The remand was required in part due to substantial ambiguity over the sentencing range that applied at the defendant’s sentencing, an ambiguity caused in part by the enactment of the Fair Sentencing Act of 2010, after the defendant’s guilty plea, which reduced the Sentencing Guidelines ranges for defendants convicted of crack cocaine offenses in order to address long-standing racial disparity concerns about these provisions.

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