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.

Second Circuit Affirms Mandatory Restitution Award for Bribery Conviction

In United States v. Razzouk, the Second Circuit (Walker, Carney, Koeltl by designation) considered the meaning of an “offense against property” as used by the Mandatory Victim Restitution Act (“MVRA”).  The panel rejected a categorical approach, and instead permitted consideration of the facts and circumstances of the defendant’s crimes.  Restitution is one of the areas in sentencing law that has seen major developments over the past few years.  This decision appears to continue the Second Circuit’s long tradition of being a generally favorable forum for victims of crime.


Second Circuit Nixes Conviction Based on Racially-Motivated Stop

In United States v. Walker, the Second Circuit (Calabresi, Pooler, Carney) considered a challenge to the conviction of Jaquan Walker on drug charges.  Police officers found drugs on Walker after they stopped and questioned him.  The justification for the stop was that Walker resembles an image of a black man believed to have been involved in a shooting, and because Walker happened to be walking about five blocks from the site of that shooting.  In a remarkably pointed decision, the Circuit threw out the conviction.


Second Circuit OKs Use of Now-Defunct DNA Testing Method

In United States v. Jones, the Second Circuit (Kearse, Cabranes, Sack) considered the admissibility of DNA evidence based on the “Forensic Statistical Tool” method (“FST”), which was previously utilized exclusively by New York City’s Office of the Chief Medical Examiner (“OCME”), but has since been abandoned because it does not meet the requirements of the FBI’s national DNA database.  One presumes that the mode of analysis used by the Circuit will be used by district courts to analyze the new methods of DNA analysis, meaning that the case will outlive the specific facts presented.


Habeas Petitioner Not Permitted to Proceed Anonymously

In United States v. Pilcher, the Second Circuit (Leval, Cabranes, Sack) (per curiam) considered whether a habeas petitioner could proceed anonymously—in this instance holding that he could not (as the case’s caption makes clear).


Second Circuit Employs “Mini-En Banc” to Relieve District Court of Requirement to Complete Non-Existent Form

In United States v. Karim Smith, the Second Circuit (Wesley, Chin, Sullivan) overturned its prior precedent and held that district courts need not complete a written ‘statement of reasons’ (“SOR”) form when sentencing a defendant during a violation of supervised release (“VOSR”) proceeding, at least until such a form is created by the Sentencing Commission.


Circuit Adopts Expansive Reading of the Criminal Livelihood Sentencing Enhancement

In United States v. Moran, the Second Circuit (Calabresi, Cabranes, Chin) affirmed the sentence of Lamont Moran, who was convicted of conspiracy to distribute heroin. On appeal, Moran challenged the application of two sentencing enhancements, one for acting as a supervisor in the course of his criminal activities (the “Aggravating Role Enhancement” of U.S.S.G. § 3B1.1) and one for engaging in criminal activities as his livelihood (the “Criminal Livelihood Enhancement” of U.S.S.G. § 4B1.3). In affirming, the Court clarified several elements of the Criminal Livelihood Enhancement. While the Guidelines are only advisory, they remain an important part of federal criminal sentencing, although as we will see here, the particular Guidelines enhancement addressed by the panel may not have made a difference in the sentence imposed.


Second Circuit Upholds Mandatory Commitment for Defendant Found Incompetent to Stand Trial

In United States v. Brennan, the Second Circuit (Kearse, Winter, Pooler) rejected an as-applied challenge to 18 U.S.C. § 4241(d), which requires a defendant who has been found incompetent to stand trial to be committed to the custody of the Attorney General to determine whether he is likely to attain competency in the future.  Section 4241(d), as discussed below, is a statute meant to guarantee a constitutional right to be free from unreasonable restraint.  Brennan argued that his commitment violated his right to due process because a physician had already found that his mental illness was unlikely to improve.  The Court rejected this argument, noting that determining the likelihood of a defendant’s future competency is a question for the District Court to decide after a period of reasonable commitment under the statute. 


Second Circuit Holds Constitutional Challenge to Prosecution Was Untimely

In United States v. O’Brien, the Second Circuit (Kearse, Livingston, Carney) affirmed the conviction of Michael O’Brien for importing and possessing with intent to distribute methylone and anabolic steroids.  The Court held that (1) the District Court properly denied O’Brien’s suppression motion based on the fact that he was experiencing drug withdrawal symptoms at the time of his arrest, (2) the evidence at trial was sufficient to sustain O’Brien’s conviction, and (3) O’Brien failed to timely raise his defense that methylone was designated as a controlled substance through an unconstitutional delegation of Congressional legislative authority to the Attorney General and the DEA.


Second Circuit Holds that Connecticut Robbery Inherently Involves Violent Force Under ACCA

In Shabazz v. United States, the Second Circuit (Katzmann, Leval, Berman by designation) again addressed the meaning of “violent felony” under the Armed Career Criminal Act (“ACCA”), this time under its “force clause.”  As readers of this blog will recall, ACCA has been the subject of many appeals during the past year.  See Jacqueline L. Bonneau & Harry Sandick, The Second Circuit Counts to Three: How One Defendant Became a Career Criminal Over the Course of an Hour (Apr. 2, 2018); Joshua Kipnees & Harry Sandick, In Split Decision, Court Again Applies Castleman To Interpret the “Force Clause” of the Armed Career Criminal Act (July 18, 2018); D. Brandon Trice & Harry Sandick, Court Regrets Allowing Successive 2255 Petition in Massey v. United States (July 16, 2018).  At issue in this case was whether Shabazz’s convictions for first and second-degree robbery under Connecticut law constitute violent felonies.  The Circuit held that all convictions for robbery in Connecticut inherently involve the use or threatened use of violent force, and therefore reversed the District Court’s grant of Shabazz’s habeas petition.  Interestingly, the Court based its holding not on an interpretation of the elements of robbery by the Connecticut Supreme Court, but on the inherent danger of violent force associated with the act of robbery.  Given the breadth of this holding, any robbery offense that is similar to the common law definition now likely qualifies as an ACCA predicate offense in the Second Circuit, perhaps cutting off future appeals arising out of convictions for robbery in other jurisdictions.