Harry Sandick, Partner

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.

On March 5, 2020, the Second Circuit (Katzmann, Kearse, Bianco) issued a brief per curiam opinion in United States v. Alcius, et al., affirming the defendant’s 20-year sentence on sex trafficking related charges.  Defendant-Appellant Almonte challenged the sufficiency of the evidence supporting her conviction and also appealed the procedural and substantive reasonableness of her sentence.  The court affirmed both the conviction and sentence. 

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).

In United States v. Pugh, No. 17-1889 (2d Cir. Dec. 10, 2019, as amended) (Calabresi, Droney, Underhill, by designation), the Second Circuit affirmed a defendant’s convictions for attempting to provide material support to a foreign terrorist organization and obstruction of justice but vacated the resulting sentence on procedural reasonableness grounds.

On December 3, 2019, the Second Circuit (Kearse, Pooler, Livingston) issued a decision in United States v. Calderon, et al., reversing an $18 million restitution order and otherwise affirming the defendants convictions and sentences.  In reversing the restitution order, the Court determined that the defendants’ fraud had not proximately caused the financial losses suffered by the U.S. Department of Agriculture (“USDA”) and certain banks.

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. 

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.

In United States v. Arrington, 17-4092-cr (October 18, 2019) (Lynch, Lohier, Judge Brian M. Cogan of the United States District Court for the Eastern District of New York, sitting by designation), the Second Circuit vacated Defendant-Appellant Roderick Arrington’s convictions for murder in aid of racketeering and related convictions, and remanded for a new trial, holding that he was not provided with adequate information prior to waiving his attorney’s actual conflict of interest. While defendants should have their counsel of choice, and have the right to waive most conflicts of interest, the defendant needs to have sufficient information and independent advice to make a knowing and intelligent waiver of the right to conflict-free counsel. The Court of Appeals has long policed the boundaries of this issue and Arrington will give courts and counsel further guidance about how to approach these notoriously tricky Sixth Amendment questions.

On September 3, 2019, a divided panel issued a decision in United States v. Wallace (Winter, Pooler, Abrams, by designation) affirming the district court’s denial of Wallace’s suppression motion as well as Wallace’s 15-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”).  Judge Pooler wrote an 18-page dissent explaining why she believed Wallace’s suppression motion should have been granted.  The primary issue addressed in the competing opinions was whether the prolonging of a traffic stop was supported by reasonable suspicion.

In United States v. Barrett, No. 14-2541 (2d Cir. Aug. 30, 2019) (Winter, Raggi, Droney), the Second Circuit vacated a defendant’s conviction for using a firearm in connection with a “crime of violence” under 18 U.S.C. § 924(c) in the wake of the Supreme Court’s recent decision striking down the residual clause of that statute in United States v. Davis, 139 S. Ct. 2319 (2019).  To understand the Second Circuit’s decision, a brief discussion of Section 924(c) and Davis is warranted.  Section 924(c) raises some of the same questions presented by litigation under the Armed Career Criminal Act (“ACCA”), which has been the subject of repeated litigation in the Supreme Court and the Circuit Courts of Appeal in recent years.

In United States v. DiTomasso, Defendant was convicted of producing child pornography and transporting and distributing child pornography in the Southern District of New York.  The Second Circuit (Kearse, Jacobs, and Sack) held that searches of Defendant’s emails and chats on internet service providers AOL and Omegle, used for a search warrant leading to evidence against Defendant, did not violate Defendant’s Fourth Amendment rights, and that Defendant failed to preserve on appeal his argument that an entity which reports illegal user activity to authorities was a government entity or actor, subjecting that entity’s search to the Fourth Amendment.  In addition, the Circuit held that Defendant’s trial counsel was not ineffective where counsel made a strategy decision not to call Defendant’s uncle (“Marcus”)—who allegedly admitted to Defendant’s crimes—as a witness.

In United States v. Sierra, the Second Circuit (Newman, Jacobs, Droney) wrote a short published decision that rejected the argument raised by several defendants that it violated the “cruel and unusual” provision of the Eighth Amendment to impose a mandatory life sentence in this case involving convictions for murder in aid of racketeering. 

The Second Circuit (Walker, Cabranes, Sack) issued a per curiam decision in United States v. Bleau, 18-cr-1574 affirming a sentence based on a conviction for receiving and possessing child pornography, but remanding for further consideration of whether to impose a particular special condition of supervised release.