On November 14, 2019, the Second Circuit (Newman, Pooler, Cote) issued a decision in United States v. Van Der End, affirming the conviction of a defendant who pled guilty to drug trafficking conspiracy and activity, in violation of the Maritime Drug Enforcement Act (the “MDLEA”), 46 U.S.C. §§ 70501 et seq. Most drug prosecutions in federal court are initiated pursuant to the Controlled Substances Act but this case involved issues of maritime apprehension, and was charged under MDLEA.
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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.
Second Circuit Grants Rehearing and Vacates Guilty Plea Following Supreme Court’s Decision in Rehaif v. United States
On November 13, 2019, the Second Circuit (Hall, Lynch, Gardephe) issued a decision in United States v. Balde, vacating the defendant’s guilty plea for unlawful possession of a firearm by an alien who is in the United States illegally or unlawfully, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). The panel initially upheld Balde’s conviction on appeal, but eight days after the Court’s original decision, the United States Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019), holding that a conviction under the relevant statutes required the government to prove that the defendant knew that he or she was in the country illegally at the time he or she possessed the firearm. Prior to Rehaif, every Circuit to consider the question held that the defendant’s knowledge of this fact was not an element. The Second Circuit then granted Balde’s petition for rehearing and concluded that the district court had committed plain error in failing to ensure that Balde was apprised of this knowledge requirement before pleading guilty (even though the district court had no reason at the time to think it was an element of the crime) and because the record did not contain facts sufficient to support a conclusion that Balde was aware that he was in the country illegally.
Government Need Only Show that it Employed Procedures Reasonably Calculated to Provide Notice to a Prisoner of Civil Forfeiture Action
On November 7, 2019, the Second Circuit (Calabresi, Livingston, Lohier) issued a per curiam decision in United States v. Brome, holding that the Government generally must demonstrate the existence of procedures reasonably calculated to ensure that a prisoner receives notice of a forfeiture action against him.
Second Circuit Holds That Traveling Interstate for the Purpose of Engaging in Illegal Sexual Conduct is Not a Strict Liability Crime
On November 4, 2019, the Second Circuit (Kearse, Wesley, Chin) issued a decision in United States v. Murphy, vacating a defendant’s guilty plea for traveling interstate for the purpose of engaging in illicit sexual conduct with a minor, in violation of 18 U.S.C § 2243(b). The panel sided with several sister circuits in concluding that § 2243(b) is not a strict liability crime, and requires that the defendant travel interstate with the requisite intent, regardless of the actual age of the victim. The Court concluded that the district court had committed plain error in failing to ensure both that the defendant was adequately informed of this essential element of the crime to which he was pleading guilty, or that there was an adequate factual basis for the plea. Notwithstanding the awful nature of the crime committed here, it is important for courts to make sure that a defendant is advised of the elements of the offense, as required by Rule 11, and that he admits to those elements.
Second Circuit Overrules Precedent Requiring COA When Appealing Denial of Bail Pending Habeas Decision
In Illarramendi v. United States, 18-35 (October 16, 2018), the Second Circuit (Walker, Calabresi, Livingston) in a per curiam decision affirmed the denial of a motion for bail pending resolution of the motion to vacate petitioner’s sentence under 28 U.S.C. § 2255. In doing so, however, the Second Circuit held that the petitioner need not obtain a certificate of appealability (COA) in order to proceed with the appeal of the district court’s decision. This was a departure from Second Circuit precedent—a rare event in the absence of an en banc decision by the Court of Appeals.
Sentencing Court Must Provide Sufficient Reasons for Sentence Imposed to Determine if Factual Error Influenced Sentence
In United States v. Derek Armstrong, 18-368, the Second Circuit (Sack, Raggi, Kaplan) issued a summary order vacating a three-month prison sentence imposed on the defendant by the U.S. District Court for the Eastern District of New York for violating probation by failing to report for random drug testing. The defendant had previously been sentenced in 2015 to three years’ probation for filing false tax returns and it was his violation of that probation that resulted in the challenged sentence. On appeal, he argued that his prison sentence was procedurally unreasonable because it was based on an erroneous fact asserted by the government at sentencing: that the defendant had failed to pay any of the back-tax payments ordered by the district court.
Second Circuit Holds Government Can Establish Venue By Directing Cooperator to Place Calls to Co-Conspirators From That District
In United States v. Tank Yuk, et al., 15-131 (March 15, 2018), the Second Circuit (Chin (dissenting), Carney, Forrest, sitting by designation) affirmed the convictions of three defendants in a drug trafficking conspiracy who were prosecuted and convicted by a jury in the U.S. District Court for the Southern District of New York, despite the fact that the bulk of defendants’ criminal activities took place in the U.S. Virgin Islands and Florida. The central issue on appeal was whether venue was proper in the S.D.N.Y.; the majority held that it was, but Judge Chin dissented, concluding that it was not foreseeable to the defendants that an act in furtherance of the conspiracy would occur in the S.D.N.Y.
Second Circuit Reminds Courts They Must Advise Defendants of the Immigration Consequences of Guilty Pleas
In United States v. Gonzales, 16-4318 (March 13, 2018), the Second Circuit (Sack, Parker, Carney) in a per curiam order vacated the conviction of a defendant who had pled guilty without being informed that he was likely to be deported at the end of his sentence. On June 23, 2015, Wilfredo Gonzales appeared before the Western District of New York (Geraci, C.J.) and pled guilty pursuant to a plea agreement to one count of conspiracy to manufacture, possess with intent to distribute, and distribute cocaine, and one count of possessing a firearm in furtherance of a drug trafficking offense. During the plea colloquy, the District Court failed to inform Gonzales, who was a lawful permanent resident, that he could be removed from the United States as a result of his conviction.
On September 11, 2017, the Second Circuit (Parker, Carney, Stanceu) reversed by summary order the sentence of the defendant in United States v. Soborski (16-cr-3369). The panel remanded the case to the U.S. District Court for the Southern District of New York (Swain, J.) for resentencing so that the district court could consider whether Soborski should receive a minor-role reduction under an amendment to the Sentencing Guidelines.
On July 19, 2017, in United States v. Allen, et al. (16-cr-98) (Cabranes, Pooler, Lynch), the Second Circuit issued a decision reversing the convictions of defendants Anthony Allen and Anthony Conti for wire fraud and conspiracy to commit wire fraud and bank fraud. This was the first federal criminal appeal in connection with the London Interbank Offered Rated (“LIBOR”) prosecutions, which involved allegations that various individuals and banks manipulated the LIBOR. The LIBOR is a benchmark interest rate intended to reflect the available rates at which banks borrow money from other banks; the LIBOR is incorporated into the terms of financial transactions worldwide. We provided a brief summary of the opinion a few hours after the decision was rendered; here is our more detailed summary.
On July 19, 2017, in United States v. Allen, et al. (16-cr-98) (Cabranes, Pooler, Lynch), the Second Circuit issued a decision reversing the convictions of defendants Anthony Allen and Anthony Conti for wire fraud and conspiracy to commit wire fraud and bank fraud. This was the first federal criminal appeal in connection with the London Interbank Offered Rated (“LIBOR”) prosecutions, which involved allegations that various individuals and banks manipulated the LIBOR.
A Second Circuit panel has ruled that infamous mob boss Carmine “The Snake” Persico will continue serving his 100-year sentence in federal prison. In United States v. Persico, 16-2361, the Second Circuit (Walker, Jacobs, Parker) affirmed by summary order the decision of the United States District Court for the Southern District of New York (Duffy, J.), denying Persico’s motion to shorten his sentence pursuant to the old Federal Rule of Criminal Procedure 35(a).
District Court Must Consider Significant Disparity Between Plea Offer and Ultimate Sentence When Assessing Ineffective Assistance Claims
In Reese v. United States, 16-516, the Second Circuit (Pooler, Wesley, Carney) vacated by summary order the order of the U.S. District Court for the Southern District of New York (Marrero, J.) denying Reese’s petition to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. Reese claimed that his counsel had provided ineffective assistance, an argument the district court rejected on the grounds that Reese could not establish prejudice because the evidence of guilt presented at trial was “overwhelming.”
In United States v. Viktor Bout, 15-3592, the Second Circuit (Walker, Hall, Chin) issued a summary order affirming the decision of the District Court for the Southern District of New York (Scheindlin, J.) denying the defendant’s motion for a new trial. Bout was convicted following trial on four counts arising from a sting operation that involved Bout’s participation in a conspiracy to sell 100 surface-to-air missiles to the Colombian terrorist group Fuerzas Armadas Revoluncionarias de Colombia (“FARC”), and sentenced to 300 months in prison.
In United States v. Heath Powers, 15-3867, the Second Circuit (Cabranes, Pooler, Parker) issued a per curiam decision remanding to the U.S. District Court for the Northern District of New York (D’Agostino, J.) with instructions to vacate an erroneous count of conviction on a child pornography charge and for de novo resentencing. The defendant had been charged by a federal grand jury of eleven counts of production of child pornography, one count of distribution of child pornography, and one count of possession of child pornography. The Court’s description of the underlying facts indicated that the defendant also engaged in sexual acts with the seven-year old girl he had photographed. After the defendant pleaded guilty to all counts, the district court sentenced him to a below-Guidelines 480-month term of imprisonment, which included terms of imprisonment on each count, all to be served concurrently.
In Jane Doe v. USA, 15-1967, the Second Circuit (Pooler, Livingston, Lohier) vacated the decision of the District Court (Gleeson, J.) granting the petitioner’s motion to expunge all records of her criminal conviction and holding that the District Court lacked subject matter jurisdiction to entertain the motion.
In United States v. Lee, 14-548, the Second Circuit (Kearse, Cabranes, Chin) held that the value of stolen property is an element of a felony offense under 18 U.S.C. § 641 and that, therefore, a grand jury indictment charging the defendant for a felony offense under that statute should have alleged the value of the property. Nevertheless, the Second Circuit concluded that the failure to do so in this case was harmless error and affirmed the defendant’s conviction. This case—which seems to be straight out of the files of the newest prosecutor in the SDNY General Crimes Unit—considers some weighty legal issues in the context of a straightforward offense.
In United States v. Stavros Ganias, 12-240, the Second Circuit, in a rare en banc ruling jointly written by Judges Livingston and Lynch, sidestepped a complicated Fourth Amendment issue related to the government’s retention of files from a hard drive outside the scope of a warrant, and instead affirmed the defendant’s conviction on the ground that, regardless of whether there was a Fourth Amendment violation, the government reasonably relied in good faith on a later warrant to search those files. The en banc holding reversed the decision of a divided Second Circuit panel that came down nearly a year ago, which reversed the district court’s denial of the motion to suppress and vacated the judgment of conviction. All of the judges on the Court, except for Judge Chin, either joined in the opinion or concurred in the result. The novel and important question raised in this appeal—whether the government can retain electronic files collected pursuant to a search warrant and later search those files for a separate purpose, pursuant to a second search warrant—will need to be addressed in another case or by Congress.
Release of Right to Bring Qui Tam Action Not Enforceable If Government Had No Other Way To Learn About the Violation
In USA ex rel. v. Exelis, Inc. (14-4155), the Second Circuit (Kearse, Pooler, Droney) held that the right to bring a qui tam suit on behalf of the federal government can be contractually released, but that such a release is unenforceable as against public policy where the government did not have knowledge of the allegations of fraud before the release was signed. The decision complicates somewhat the process of negotiating binding releases with employees at companies that are engaged in government contracting work. That said, such releases still have value to employers and will often be enforceable because in many cases the government will have knowledge of the fraud allegations before the release is signed.
In United States v. Bladimir Rigo, 15-1914, the Second Circuit remanded for resentencing by summary order, finding that the District Court plainly erred when it sentenced the defendant based on the criminal activity of coconspirators without first making certain particularized “relevant conduct” findings about that activity. On June 2, 2015, the U.S. District Court for the Southern District of New York (Sweet, J.) sentenced Bladimir Rigo for his involvement in a conspiracy to commit healthcare fraud and unlawfully distribute prescription pills. The District Court applied a $2.9 million loss calculation to its determination of Rigo’s sentence, some portion of which may have been based on the acts of Rigo’s coconspirators. The District Court concluded that because Rigo “pled guilty to participating in a conspiracy, he is equally liable for the acts of his coconspirators, including others who may have written [the records found in Rigo’s home], and the plans and intentions of the conspiracy, whether consummated or not.” United States v. Rigo, 86 F. Supp. 3d 235, 242 (S.D.N.Y. 2015).