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.

Skelos Vacated: For The Second Time This Year, Conviction Of Leading New York State Legislator Is Undone Due To McDonnell

The Second Circuit (Winter, Raggi, Hellerstein by designation) today vacated by summary order the convictions of former New York State Senate Majority Leader Dean Skelos and his son Adam Skelos.  Dean and Adam Skelos were convicted of Hobbs Act conspiracy and substantive offenses, honest services wire fraud conspiracy, and federal program bribery, after a jury trial in which the government presented evidence that the elder Skelos had taken official actions to benefit certain companies in exchange for payments to his son.  Much like the conviction of his fellow senior state legislator, Assembly Speaker Sheldon Silver, the conviction was reversed in light of the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2016), which narrowed the definition of an “official act.”  As the Court rejected the defense contention that insufficient evidence supported the convictions, both Skelos and his son will be retried by the U.S. Attorney’s Office for the Southern District of New York.  Like the Silver reversal, this ruling reflects the ways in which the McDonnell decision has complicated that office’s investigation and prosecution of public corruption in New York state government.


Second Circuit Holds That “Rule of Specialty” Objection Belongs to Nations, Not Defendants

Last week, in Barinas v. United States, the Second Circuit held that a defendant who is extradited to the United States to face charges, pursuant to agreement with the asylum nation, may not raise the objection that the prosecution exceeds the scope of the extradition agreement or that he is to be tried on charges other than those for which he is extradited.  That objection, known as a “rule of specialty” objection, may be raised only by the asylum nation itself.  The panel also held that when a defendant on supervised release becomes a fugitive, his supervised-release term is tolled during the period of fugitivity.  The impact of this ruling is that a defendant who commits another crime while a fugitive from supervised release can be charged with a violation specification even if, at the time he committed the second crime, his term of supervised release otherwise would have ended.


Section 2255 Petition Challenging Ineffectiveness Of Trial Counsel Denied

Last week, in Weingarten v. United States, the Second Circuit denied the Section 2255 petition of a convicted child sex offender, who claimed that his counsel had rendered ineffective assistance by failing to challenge the timeliness of the Government’s indictment.  The panel—consisting of Judge Wesley, who authored the opinion, as well as Judge Parker and Judge Droney—unanimously concluded that the timeliness issue was too complex, and too uncertain, to support a finding that trial counsel made a “significant and obvious” error by declining to raise it.


When A Police Stop Is Not A Stop

Yesterday the Second Circuit, in United States v. Huertas (15-4014) weighed in on the question of when a suspect’s brief encounter with police can support a finding that the suspect was “seized” within the meaning of the Fourth Amendment.  Judge Jacobs, joined by Judge Winter, concluded that a suspect who briefly pauses to answer a police officer’s questions, but then proceeds to flee, has not been “seized.”  Judge Pooler dissented, pointing to out-of-Circuit precedent and arguing that a suspect’s encounter with police generally constitutes a seizure if it extends beyond a “momentary halt.”


Second Circuit Affirms “One-Book Rule”: No Sampling from Different Versions of the Sentencing Guidelines

Yesterday the Second Circuit affirmed, in United States v. Ramirez (No.15-2570), the so-called “one-book rule”:  if sentenced criminals want to seek a reduction in sentence based on changes in the Sentencing Guidelines, they have to accept the new Guidelines wholesale.  They can’t pick and choose the most favorable provisions from the various iterations of the Guidelines that might potentially apply.  Judge Droney wrote the opinion, with Judges Raggi and Chin also on the panel.


Sharply Divided Circuit Denies Government’s En Banc Petition In Microsoft Appeal

In July 2016, the Second Circuit ruled that the Government could not employ a domestic search warrant, issued pursuant to the Stored Communications Act, 18 U.S.C. § 2703 (the “SCA”), to compel disclosure of an email account that Microsoft stored on servers in Ireland.  (See our coverage of that decision here.)  Yesterday, a sharply divided Court denied the Government’s petition for rehearing en banc, leaving the decision intact.  The decision will presumably be met with relief in the technology sector, some of whose major players submitted amici briefs in support of Microsoft’s position.  But the four dissenters expressed concern that it hamstrings the Government in its pursuit of electronic evidence, jeopardizing national security.  And all of the Judges agreed that the SCA – which was passed in 1986 – is due for congressional review in light of the dramatic changes in electronic data storage that have occurred over the past 30 years.