Harry Sandick, Partner

In United States v. Kassir, the Second Circuit (Jacobs, Nardini) held that the concurrent sentence doctrine applies to collateral review of criminal convictions.  Under the doctrine, a court may decline to consider a challenge where it would have no effect on the defendant’s term of imprisonment.  The ruling will deprive some defendants of having their 2255 petitions decided on the merits.  However, if the ruling is applied as it is written, only defendants whose sentences would not be reduced in duration will be so impacted.

In Securities and Exchange Commission v. Fowler, the Second Circuit (Lohier, Nardini, and Cronan, sitting by designation) affirmed the imposition of civil penalties and disgorgement against a financial broker.  In so doing, the Second Circuit addressed whether the statute of limitations for the commencement of S.E.C. proceedings is jurisdictional, an issue of first impression in the Circuit, and concluded that it is not.  The Court also rejected Fowler’s other arguments, including that the district court permitted the S.E.C. to improperly recharacterize its theory of Fowler’s liability, that the jury improperly found unauthorized trading in customer accounts, and that the district court erroneously imposed financial penalties as to each victim of Fowler’s conduct.

In United States v. Eldridge, the Second Circuit (Chin, Sullivan, Nardini) affirmed the convictions of a group of co-defendants who were indicted on a litany of charges, many of which related to the attempted robbery of a rival dealer.  This appeal concerned two of them, Thamud Eldridge and Kevin Allen, who raised three arguments: (1) that the placement of a waist-high curtain around the defense table during the trial prejudiced the jury; (2) that one of the convictions ought to be vacated in light of recent Supreme Court precedent; and (3) that the First Step Act qualifies the defendants for a sentence reduction. 

In United States v. Carlineo, the Second Circuit (Parker, Lohier, Menashi) vacated a special condition of supervised release requiring the defendant to participate in a restorative justice program, concluding both that the condition was impermissibly vague, and that it improperly delegated excessive authority to the Probation Office. 

In United States v. Vinokurov, the Second Circuit (Wesley, Carney, Nardini) issued a summary order directing the district court to resentence Defendant Avtandil Khurtsidze in connection with his conviction on charges of racketeering conspiracy and conspiracy to commit wire fraud.  The Court ordered that Khurtsidze be resentenced because of the district court’s comments at sentencing regarding the above-guidelines sentence that was imposed and the deterrent effect it could have in sending a message to “Russian organized crime.”

In United States v. Wedd, the Second Circuit (Cabranes, Park, Nardini), affirmed the defendant’s 2018 convictions for aggravated identity theft (among other offenses), which arose from a scheme to auto-subscribe customers to pricey premium text messaging services.  In the process, the Second Circuit—enhancing a circuit split—rejected Wedd’s argument that the scheme involved no “use[]” of a means of identification of another person, a requisite for conviction under the aggravated identity theft statute.  The panel also rejected Wedd’s contentions that the district court erred in giving a conscious avoidance instruction and in failing to recuse itself from his (third) trial.

On March 1, 2021 the Second Circuit (Carney, Koetl) issued a decision in Collier v. United States, affirming the district court’s denial of Keith Collier’s habeas petition to vacate his conviction and sentence for an attempted robbery of a federal bank in the late 1990s and for using a firearm during the commission of a crime of violence, i.e., during the attempted robbery.  The core issue presented was whether attempted federal bank robbery was categorically a “crime of violence” as that phrase is used in the relevant federal statute and Sentencing Guidelines.  The application of the categorical approach in sorting out whether a myriad of state and federal crimes fall within the statutory definition of a “crime of violence” has been a major focus of federal criminal litigation over the past decade and a familiar focus of this blog.

Recently, the Second Circuit remanded a consolidated appeal of three cases to the district court to consider whether the government violated Brady such that new trials should be granted.  In United States v. Stillwell, Nos. 18-3074, 18-3489, and 19-790, the Second Circuit (Cabranes, Raggi, Korman by designation) declined to reach defendants’ Brady claims based on evidence discovered while the cases were on appeal.  Nevertheless, the Court all but urged the defendants to file post-trial motions for a new trial on Brady grounds, and directed the district court to “expeditiously” resolve the forthcoming motions. 

In United States v. Clarke, the Second Circuit ventured once more into the thicket of internet crime, tangling with statutory interpretation and discovery issues complicated by their technological setting.  The panel (Walker, Leval, Carney) gave an expansive read to a child pornography statute, ruling that the defendant “transported” child pornography through an online peer-to-peer network, even though the government moved the files from the defendant’s computer, and the defendant was not aware of the file transfer.  In addition, the panel refused the defendant’s discovery request for inspection of law enforcement software based on the facts presented here, and declined to announce a standard for future cases involving similar law enforcement programs.  The panel also rejected a bevy of challenges relating to the sufficiency of the evidence and the reasonableness of the sentence, to ultimately affirm the judgment of the district court.  

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.

To protect the integrity of federal elections, Congress has passed a variety of laws directed at the election process, including those criminalizing fraudulent voter registration and voter bribery.  Due to the overlapping nature of our election system, those federal laws will often impact state elections, leading some defendants to argue that Congress overstepped its bounds.  Such an argument was recently made, and rejected, in United States v. Smilowitz (Walker, Parker, Carney). 

In United States v. Birkedahl, 19-2304, the Second Circuit (Sullivan, Park, Nardini) rejected Defendant-Appellant Eric Birkedahl’s challenges to the conditions of his supervised release imposed subsequent to his conviction for possession of child pornography.  Birkedahl pleaded guilty in the United States District Court for the Western District of New York to one count of possession of child pornography.  He was sentenced principally to 24 months’ imprisonment, to be followed by a supervised release period of five years.  Among the conditions of supervised released imposed by the district court were:  (1) participation in a sex offender treatment program; (2) submission to computerized voice stress analyzer (“CVSA”) testing or, alternatively, polygraph testing, to ensure compliance with the conditions of supervised release, referred to as the “verification testing condition”; and (3) a so-called “risk condition,” standard in the Western District of New York, whereby Birkedahl could be required to notify members of the public that he posed a risk to them.  Birkedahl objected to the imposition of each at the time of sentencing, and challenged on appeal the district court’s imposition of each.  He did not appeal his term of incarceration, which was a below-the-range sentence.

In Mata v. United States, the Second Circuit (Park, Nardini, Menashi) issued a per curiam opinion denying the petitioner’s motion for leave to file a second motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255(h).  Proceeding pro se, Mata argued that his conviction under 18 U.S.C. § 922(g) should be vacated in light of the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), which clarified what the government must prove in order to meet the “knowingly” mens rea requirement of § 922(g).  Consistent with prior decisions issued by the Third and Eleventh Circuits, the Second Circuit held that Rehaif concerned an issue of statutory interpretation and did not announce a new rule of constitutional law.  Accordingly, Mata’s motion did not meet the requirements of 28 U.S.C. § 2255(h).

In United States v. Solano, the Second Circuit (Kearse, Calabresi, and Carney) vacated and remanded a conviction for attempted possession of cocaine with intent to distribute on the grounds that the district court had committed plain error when it instructed the jury that “any witness who[] . . . has[s] an interest in the outcome of this trial” has “a motive  . . to testify falsely” – including, here, the defendant.  In so holding, the Circuit reiterated that it will not permit a district court to instruct a jury in a way that presupposes the guilt of the defendant, even if the parties fail to object.  Future parties should pay careful attention to the procedural aspects of jury instructions, which can impact a defendant’s constitutional rights, even though the Circuit stands ready to correct these errors on appeal.

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.

In United States v. Peeples, the Second Circuit (Walker, Cabranes and Sack) affirmed the conviction of Joseph W. Peeples, III in the Western District of New York on bank robbery charges.  Peeples argued that the district court should have dismissed his charges based on violations of Federal Rules of Criminal Procedure 3 and 5(c)(2), and that it erroneously admitted bank employee testimony and certain physical evidence at trial.  The Circuit rejected the challenge on all fronts.

In United States v. Davis, the Second Circuit (Katzmann, Wesley, Bianco) affirmed the district court’s order granting the defendant’s motion for a reduced sentence under Section 404 of the First Step Act of 2018.  The government had appealed the order, arguing that eligibility for Section 404 relief turns on a defendant’s actual conduct as opposed to the statutory offense for which a defendant was sentenced.  The Court disagreed and issued a decision that brings the Second Circuit in line with at least six other circuit courts that have issued precedential opinions in the last year with similar holdings.  It is reassuring to see the Circuit rule in a way that reinforces the protections offered by the First Step Act, over the government’s objections in this case.

On June 3, 2020, the Circuit (Winter, Pooler, Sullivan) issued a noteworthy decision in In re: Grand Jury Proceeding regarding the authority of a district court to enforce a grand jury subpoena.  Relying in part on a nearly 100-year-old decision and exposing a circuit split on an issue central to the enforcement of grand jury subpoenas, the decision reaffirms the importance of the grand jury as an independent investigative entity and serves as a reminder to defense counsel to diligently monitor the authority underlying government demands for documents and testimony in connection with an investigation.

In United States v. Oneal, 18-1710 (May 27, 2020) (Katzmann, Kearse, Bianco), the Second Circuit limited the scope of the Hobbs Act robbery Sentencing Guidelines enhancements for possessing a dangerous weapon and for physical restraint, vacating and remanding for consideration of whether the enhancements applied under the strict standards announced by the court.  However, the court rejected Defendant-Appellant Xavier Oneal’s argument that the government had violated the terms of his plea agreement by siding with the Probation Office’s recommendation that the enhancements applied, even after not including the enhancements in its pre-plea Guidelines stipulation with the defendant.  On remand, given the law and the facts in the panel’s opinion, it would appear that the defendant may receive a reduced sentence.

In United States v. St. Hilaire, 19-640 (May 21, 2020), the Second Circuit (Jacobs, Calabresi, Chin) affirmed a sentencing enhancement for possessing a firearm with an altered serial number, even though at least one of the serial numbers on the weapon was legible.  The appeal raises an interesting question about the purpose behind this enhancement (and the underlying statute, 18 U.S.C. § 922(k)), which is meant to punish those who possess untraceable firearms.

“The evil that men do lives after them; The good is oft interred with their bones.”  William Shakespeare, Julius Caesar, Act III, scene ii.  In United States v. Mladen, the Second Circuit (Kearse, Walker, Livingston) grappled with whether Dusan Mladen’s convictions would live on after he passed away during the pendency of his appeal.

In United States v. Haverkamp, the Second Circuit (Sack, Parker, Chin) wrote a short decision that answered a single question:  in a case in which a defendant is sentenced to pay an additional special assessment pursuant to 18 U.S.C. § 3014, is this amount imposed on a per-count or per-offender basis.  Ordinarily, under 18 U.S.C. § 3013,  a special assessment is imposed on a per-count basis (plead guilty to 10 counts, pay 10 special assessments).

On April 15, 2020, the Second Circuit (Rakoff, by designation, Sack, Hall) vacated the conviction of Ralph Nolan, who was convicted of conspiracy and attempt to commit a Hobbs Act robbery, on ineffective assistance of counsel grounds.  The panel ruled that Nolan’s trial counsel’s failure to challenge the introduction of eyewitness identification evidence against him or to call an expert witness to guide the jury on evaluating that evidence departed from the standard of reasonable professional care.  The case, United States of America v. Ralph Nolan, No. 16-3423, represents a significant endorsement by the Circuit of research showing that in certain circumstances, such as those present here, eyewitness identification evidence will often be unreliable.  Nolan will be cited frequently by defendants pressing forward to seek post-conviction relief and it will also serve as a wake-up call for defense counsel who might have been unfamiliar with this research or on the fence about whether to call an expert witness to testify on the subject of eyewitness identification.