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.

Supreme Court Unanimously Holds SEC Disgorgement Is Subject to Five-Year Limitations Period

We are attaching an article about a major Supreme Court decision that imposes a five-year statute of limitations on disgorgement actions brought by the SEC.  Justice Sotomayor, writing for a unanimous court, held that disgorgement is a financial penalty, not a form of restitution to victims.  The SEC now must either more quickly bring its charges or persuade targets of its investigation to agree to a tolling agreement.

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Second Circuit Rejects Novel Due Process Challenge to Rule Permitting Evidence of Prior Sexual Assaults

The Second Circuit joined its sister circuits and upheld the constitutionality Federal Rule of Evidence 413, which renders admissible propensity evidence about the defendant in sexual assault cases.  In United States v. Schaffer, 15-2516-cr (Walker, Cabranes, Berman[1]) the Circuit rejected as a matter of first impression the defendant’s argument that Rule 413 violates the Due Process Clause of the Fifth Amendment.  The Court also reviewed its jurisprudence on “custodial” interrogation in the course of affirming the admissibility of incriminating statements the defendant made to law enforcement agents prior to his arrest.

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Second Circuit Partially Affirms Evidentiary Ruling on Interlocutory Appeal in Decision Illustrating the Importance of Proofreading

In United States v. Brown, 16-3468-cr (Leval, Hall, Chin) the Second Circuit affirmed in part and vacated in part via summary order a ruling excluding evidence related to a firearm that had not been identified in the indictment.  The ruling is the result of a typographical error in the original indictment that went uncorrected in four superseding indictments issued over the course of nearly five years.

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Second Circuit Provides Primer on Criminal Procedure in Methamphetamine Case

In United States v. Lyle, 15-958-cr (Raggi, Chin, Lohier), the Second Circuit covered an array of criminal procedure issues—including the Fourth Amendment concerns associated with rental car searches, proffer agreement waivers, and the admissibility of a co-defendant’s confession—in the course of affirming the defendants’ narcotics conspiracy convictions.  Lyle leaves unresolved the issue of whether an unauthorized driver ever has a reasonable expectation of privacy in a rental car.  It does provide, however, an important reminder of the potential pitfalls of proffer agreements and the challenges that arise when trying multiple defendants together.

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Second Circuit Rejects Application of Collateral Order Doctrine to “Non-Colorable” Double Jeopardy Claim

In United States v. Serrano, 16-432-cr; 17-461-cr (Kearse, Calabresi, Cabranes), the Second Circuit denied the defendant’s interlocutory appeal for lack of jurisdiction, holding that the collateral order doctrine is inapplicable to “non-colorable” double jeopardy claims and reaffirming its prior rulings that the denial of a Rule 29 motion does not fall within the scope of the doctrine.  The Court infrequently polices the bounds of its appellate jurisdiction, and so it is useful to have this short decision on the subject of when a defendant may take an interlocutory appeal.

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Second Circuit Strikes Down Residual Clause of Career Offender Guideline

In United States v. Jones, 15-1518-cr (Walker, Calabresi, Hall), the Second Circuit, applying the Supreme Court’s holdings in Johnson v. United States, 559 U.S. 133 (2010) and Johnson v. United States, 134 S. Ct. 2551 (2015) (Johnson 2015), struck down the “residual clause” of the Career Offender Guideline as void for vagueness and held that a conviction for robbery in New York no longer constitutes a “crime of violence” in all circumstances.  This case reaffirms Second Circuit precedent recognizing the application of Johnson and Johnson 2015 to the sentencing guidelines, an issue that will be taken up by the Supreme Court this fall.

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Second Circuit Vacates Forfeiture Order

In In re 650 Fifth Avenue and Related Properties, 14-2027 (Kearse, Raggi, Wesley), the Second Circuit vacated an award forfeiting the appellants’—the Alavi Foundation and 650 Fifth Avenue Company—properties to the United States.  The lower court ordered the forfeiture of the properties, including inter alia, a 36-story office building located at 650 Fifth Avenue in Manhattan, on two grounds:  (1) pursuant to 18 U.S.C. § 981(a)(1)(C) as proceeds traceable to violations of the International Emergency Powers Act and certain Iranian Transactions Regulations issued by the Department of the Treasury, and (2) as property involved in money laundering transactions forfeitable under 18 U.S.C. § 981(a)(1)(A). 

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Second Circuit Remands for Resentencing to Consider Post-Sentencing Rehabilitation

In United States v. White, 15-229-cr (Cabranes, Droney, Meyer by designation), the Second Circuit ordered a remand for resentencing via summary order, instructing the lower court to consider the defendant’s post-sentencing rehabilitation. Although the order is not precedential, it represents an important reminder that practitioners can raise new factual arguments at resentencing based on changes in the defendant’s circumstances since the time of the initial sentencing proceedings.

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Second Circuit Affirms Reasonableness of Extended Terry Stop: Two Brothers, 145 Pounds of Marijuana, and a “Sudden Pepper Emergency”

In United States v. Compton, 15-942-cr (Walker, Raggi, Hall), the Second Circuit held that an extended Terry stop by Border Patrol agents was justified by reasonable suspicion and declined to suppress evidence obtained during the stop.  Compton confirms the proposition that a court may consider a defendant’s attempt to avoid a checkpoint as a relevant factor in the “reasonable suspicion analysis” and highlights the fact-intensive nature of that analysis.

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Second Circuit Finds In Camera Sentencing Colloquy Conducted in Defendant’s Absence Violated Fifth Amendment Rights

In Morales v. United States, 15-243-cv (Pooler, Parker, Livingston), the Second Circuit granted habeas relief to petitioner Jorge Luis Morales on the grounds that it was ineffective assistance of counsel for his attorney not to raise a Fifth Amendment challenge to the lower court’s (Nevas, J.) decision to conduct in camera sentencing discussions outside of Morales’s presence.  Although the Circuit chose to decide this matter via non-precedential summary order, this represents the rare case where ineffective assistance of appellate counsel excused a habeas petitioner’s procedural default.

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