Harry Sandick, Partner

The Second Circuit, sitting en banc, reversed a panel decision holding that officers lacked reasonable suspicion to frisk defendant Calvin Weaver after a traffic stop.  The en banc majority (Judge Nardini, who authored the opinion, Chief Judge Livingston, and Judges Cabranes, Sullivan, Bianco, Park, and Menashi) concluded that the officers’ order to “spread eagle” did not transform the stop into a search because it did not amount to a physical trespass or invasion of an area to which Weaver had a reasonable expectation of privacy.  Moreover, the en banc majority concluded that the circumstances prior to the frisk provided reasonable suspicion that Weaver was armed and dangerous.  Two judges (Judge Lohier, along with Judge Carney) concurred in affirming the district court decision while largely rejecting the majority’s rationale, while three judges (Judges Calabresi, Pooler, and Chin) all wrote separate dissents in which each joined, leaving the Court with a 7-2-3 vote split.

Recently, the Second Circuit upheld the conviction and 40-year sentence of a Hezbollah operative.  In United States v. Kourani, No. 19-cr-4292 (Cabranes, Kearse, Pooler), the Court rejected the defendant’s various arguments that he received ineffective assistance of counsel, that the district court erred by not providing his requested jury instructions, that there was insufficient evidence to sustain his conviction, and over a dissent from Judge Pooler, held that a 40-year sentence was not substantively unreasonable.  Significantly, the Court also rejected the defendant’s argument that a confession to FBI agents, made in the presence of his attorney, was coerced. 

In United States v. Korchevsky, the Second Circuit (Walker, Parker, Carney) affirmed two defendants’ conspiracy and securities fraud convictions over defendants’ myriad claims of error, which included challenges to the sufficiency of the evidence, including as to venue; and contentions that the government constructively amended the indictment, that the district court improperly instructed the jury on conscious avoidance, and responded to a jury note in impermissible fashion.  Despite a number of close calls, the Court rejected all of these arguments, as discussed below.

In United States v. Williams, a per curiam decision, the Second Circuit (Pooler, Sullivan, Park) affirmed the imposition of a 20-year term of supervised release on a defendant convicted of child pornography offenses, holding that it is plain from the record that the sentence was based on permissible factors.

In United States v. McCoy (Kearse, Parker, Sullivan), the Second Circuit held that attempt to commit Hobbs Act robbery qualifies as a crime of violence, siding with the majority of circuit courts, and parting ways with the Fourth Circuit and numerous district courts within the Second Circuit.  The panel decision also drew a fine distinction, holding that aiding and abetting Hobbs Act robbery qualifies as a crime of violence under Section 924(c), while reaffirming that conspiracy to commit Hobbs Act robbery does not qualify as a predicate.  The court also remanded for consideration of a First Step Act question, which may permit the defendants to lessen their astronomical punishments, which were imposed prior to the First Step Act’s enactment.

In United States v. Chow, the Second Circuit (Kearse, Carney, Bianco), affirmed the defendant’s 2018 conviction for insider trading (among other offenses).  The case arose out of a failed 2016 merger spearheaded by Defendant Benjamin Chow, who passed along key details regarding merger negotiations to a business associate, who then traded based on this information.  The Court reiterated its rule, recently expressed in its 2020 Kosinski decision, that corporate outsiders assume a fiduciary duty to a corporation when they sign a confidentiality agreement. 

On March 2, 2021, in a rare en banc decision, United States v. Scott, 18-163-cr, the Second Circuit held in a divided 9-5 opinion that New York first-degree manslaughter is categorically a “violent felony” under the Armed Career Criminal Act—subjecting qualifying defendants to the statute’s mandatory minimum sentences— and a “crime of violence” under the Career Offender provision of the Sentencing Guidelines, despite the fact that manslaughter can be carried out by omission. 

On March 2, 2021, in a rare en banc decision, United States v. Scott, the Second Circuit held in a divided 9-5 opinion that New York first-degree manslaughter is categorically a “violent felony” under the Armed Career Criminal Act—potentially subjecting defendants to the statute’s mandatory minimum sentences—and a “crime of violence” under the Career Offender provision of the Sentencing Guidelines, regardless of the fact that manslaughter can be carried out by omission.

In McCloud v. United States, the Second Circuit (Walker, Raggi, Nardini) rejected the petitioner’s contention that a development in Circuit law following a defendant’s conviction constitutes a newly-discovered fact extending the deadline for a defendant to file a habeas petition under 28 U.S.C. § 2255.  In so holding, the Second Circuit reached the same conclusion as the three other circuits to have addressed the question.  It effectively limits the reach of a recent favorable decision to pending and future cases.

In United States v. Gadsden, the Second Circuit (Walker, Katzmann and Wesley, per curiam) affirmed the decision of the Southern District of New York denying Damone Gadsden’s motion for resentencing under the First Step Act.  The opinion is consistent with recent decisions in other circuits, and reinforces the principle that the exercise of sentencing discretion is not synonymous with specific procedural requirements.

In United States v. Archer, the Second Circuit (Walker, Sullivan and Nathan, sitting by designation) reversed the grant of a Rule 33 motion for new trial in the Southern District of New York to Defendant Devon Archer, following his conviction for securities fraud and conspiracy to commit securities fraud.  The Circuit reinstated the jury verdict and remanded the case for sentencing.  Its decision emphasized that a successful Rule 33 motion based on the weight of the evidence requires a showing that the evidence “preponderates heavily” against the verdict.  The decision seems to harmonize prior law in the Circuit that offered somewhat different formulations of the relevant standard.  It is a reminder of the limited nature of post-verdict relief that is available to a trial defendant.

In United States v. Villafane-Lozada, No. 19-2098 (2d Cir. Sept. 3, 2020) (Livingston, Sullivan, Park), the Second Circuit rejected a defendant’s challenge to the district court’s delegation to probation the decision of which type of technology to use in order to verify the defendant’s compliance with the conditions of his supervised release.

In United States v. Purcell, the Second Circuit (Lynch, Pooler, and Park) considered the conviction of defendant Lavellous Purcell on five counts all arising out of his operation of a prostitution business.  On appeal, Purcell argued that the warrants obtained in New York state court to retrieve data from Facebook violated the Fourth Amendment, that the convictions were based on insufficient evidence, and that the district court erroneously admitted certain testimony at trial.  In a thorough and detailed opinion, the Court denied nearly all of Purcell’s arguments.  However, in a reminder that venue is not to be assumed – nor can it involve “guesswork” – the Court reversed and remanded one of Purcell’s five convictions due to insufficient evidence of venue in the Southern District of New York.  The U.S. Attorney for the Southern District of New York has at times taken a broad view of venue, and while the Circuit has approved of its long reach in many prior cases, this was a bridge too far for the Circuit.

In United States v. Smith, the Second Circuit (Katzmann, Kearse, Meyer, by designation) issued a split opinion weighing whether a month-long delay between authorities’ seizure of a tablet computer and their application for a search warrant violated the Fourth Amendment.  The full panel upheld the conviction, but by different routes.  The majority opinion found a Fourth Amendment violation, but held that evidence from the tablet should not be suppressed because the delay was due to “isolated negligence,” and thus the exclusionary rule did not attach.  Judge Kearse wrote separately, explaining her view that the month-long delay did not violate the Fourth Amendment, largely because the investigating officer had other demands on his time.  Speaking with one voice, the panel also rejected substantive and procedural reasonableness challenges to the 212-month child pornography sentence.  The opinion highlights the extreme difficulty in mounting suppression challenges—both in persuading jurists that law enforcement officers have acted improperly, and in ultimately winning suppression under the vanishing exclusionary rule.  The panel applies controlling law in its Fourth Amendment analysis, making it fair to ask whether the legal system provides optimal deterrence of constitutional violations.

In United States v. Huberfeld, the Second Circuit (Pooler, Lynch, Menashi) vacated the sentence imposed on Murray Huberfeld, a co-founder of the now-defunct Platinum Partners hedge fund (“Platinum”), and reversed the district court’s order requiring Huberfeld to pay $19 million in restitution to the Corrections Officers Benevolent Association (“COBA”), which is New York City’s largest union for corrections officers.  The Circuit’s decision took issue with several aspects of the district court’s Guidelines calculation, as well as its determination that COBA was a “victim” of the wire-fraud crime to which Huberfeld pleaded guilty. 

In a per curiam opinion, United States v. Diaz, the Second Circuit (Calabresi, Chin, and Carney) held that the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250(a), does not permit a defendant to collaterally attack his or her predicate sex offender conviction in a subsequent proceeding.  Relying on its own precedent, the Court also concluded that SORNA’s registration and notification requirements are not punitive, and therefore do not violate the prohibitions against cruel and unusual punishment or double jeopardy found in the Eighth and Fifth Amendments.  Despite the panel’s agreement as to the result, Judge Calabresi’s concurring opinion emphasized that, while the Second Circuit’s and Supreme Court’s precedent compels this conclusion, he believes that precedent is incorrect.

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.

In United States v. Napout, the Second Circuit (Sack, Hall and Bianco) affirmed the 2017 convictions of Juan Ángel Napout and José Maria Marin in the Eastern District of New York on charges arising out of commercial bribery related to the International Federation of Association Football (“FIFA”) scandal.  The Circuit rejected all of the defendants’ arguments:  the Circuit held that (i) that there had not been an impermissible extraterritorial application of the wire fraud statute, and (ii) the honest service wire fraud statute was not unconstitutionally vague as applied to them.  The Circuit also denied challenges to the sufficiency of the evidence and several trial rulings.  Judge Hall wrote a short concurring opinion that addressed one aspect of the parties’ contentions relating to their vagueness challenge.

The Second Circuit (Walker, Carney, and Koeltl) issued a decision vacating a 10-year sentence of imprisonment for conspiracy to distribute and possess with intent to distribute marihuana.  The Court held that, contrary to the district court’s finding, a prior conviction for the attempted sale of a controlled substance in the fifth degree, in violation of N.Y. Penal Law (NYPL) § 220.31, was not a conviction for a “felony drug offense,” as defined by 21 U.S.C. § 802(44).  The case, United States of America v. Jeremy L. Thompson, 18-2545-cr, clarifies that courts must use the “categorical approach” when identifying predicate felony drug offenses, and that the Second Circuit will not expand § 802(44)’s reach beyond its enumerated classes of drugs.  Although this case arises in the context of the government’s use of a prior felony information, the Court has employed the same type of categorical analysis we see in cases brought under the Armed Career Criminal Act.

In United States v. Zapatero, the Second Circuit (Hall, Sullivan, Bianco) issued a published opinion concerning a narrow sentencing issue, ruling that a district court may not rely on a Sentencing Guidelines § 5G1.3(b) adjustment made at a defendant’s original sentencing to subsequently reduce the defendant’s sentence, pursuant to 18 U.S.C. § 3582(c)(2), to one that falls below the defendant’s amended Guidelines range.  The decision is based on strict interpretation of the Guidelines, which only permit reductions under Section 3582(c)(2) in fairly narrow circumstances.

In United States v. Alexander, the Second Circuit (Sack, Wesley, Livingston) issued a summary order that, among other things, vacated the district court’s restitution order as to two defendants, Marc and Rachael Alexander.  The order is notable primarily because it shows the Circuit’s willingness to scrutinize restitution orders.

In United States v. Parnell, 19-649-cr (May 19, 2020), the Second Circuit (Hall, Lohier, Park) affirmed a judgment ordering the defendant-appellant to pay restitution for the total amount of losses resulting from her crime of wire fraud, including losses that occurred outside the limitations period.

In United States v. Richardson, the Second Circuit (Walker, Chin, Menashi) concluded that the defendant’s sentence was both procedurally and substantively reasonable and, therefore, affirmed.  Richardson pleaded guilty to distribution and possession with intent to distribute a controlled substance, under 21 U.S.C. § 841(a)(1), and was sentenced, as a career offender under U.S.S.G. § 4B1.1, to a prison term of 210 months.

In United States v. Rosemond, 18-3561-cr (May 1, 2020) (Sack, Chin, Bianco), the Second Circuit held principally that Defendant-Appellant James R. Rosemond’s Sixth Amendment “Right to Autonomy” was not violated when his defense attorney, over his objection, conceded an element of the charged murder-for-hire offense—that he had hired individuals to shoot the victim—and instead argued that the government had failed to prove Rosemond’s intent to kill the victim.  The court also rejected Rosemond’s ineffective assistance of counsel claim under Strickland and an evidentiary challenge.  The case is a notable decision for the criminal defense bar, as it lays out the circumstances in which the Circuit believes that a defense lawyer must follow his client’s wishes in planning his defense strategy.