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).
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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.
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 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.
Circuit Rules Court Lacked Authority to Compel Compliance with Subpoena Issued by Expired Grand Jury
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. 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.
On December 6, 2019, the Second Circuit (Calabresi, Pooler, Park) issued a published per curiam decision in United States v. Kosic (Nunez), concerning the defendant-appellant’s motion for in forma pauperis (“IFP”) status in his direct criminal appeal. The appellant’s motion arose from a district court order denying his IFP motion based on a finding that the appeal would be frivolous pursuant to 28 U.S.C. §1915. In its published decision, the Second Circuit granted the motion and held that it is proper to consider only the defendant’s financial eligibility—and not the merits—when deciding motions for IFP status and appointment of counsel under the Criminal Justice Act (“CJA”) in a direct criminal appeal.
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 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.
Circuit Denies “Pharma Bro” Martin Shkreli’s Appeal of His Conviction and District Court’s Forfeiture Order
On July 18, 2019, the Second Circuit issued a summary order in United States v. Shkreli (Jacobs, Livingston, Bianco) affirming the conviction and sentence of Martin Shkreli after his highly publicized 2017 trial in which he was convicted on two counts of securities fraud and one count of conspiracy to commit securities fraud. Shkreli was often known as the “Pharma Bro” because of his public statements about his drug company’s price increases in the pharmaceutical industry. On appeal, Shkreli challenged the district court’s “no ultimate harm” (“NUH”) jury instruction and its order requiring him to forfeit approximately $6.5 million that had been invested in his hedge funds.
Circuit Rejects Request for Rehearing After Reinstating Defendant’s Original Sentence Incorporating 15-Year Mandatory Minimum Pursuant to the ACCA
On April 26, 2019, the Second Circuit issued another decision in Shabazz v. United States (Katzmann, Leval, Berman by designation) and denied Al-Malik Shabazz’s request for rehearing in connection with the Court’s January 4, 2019 decision, which reversed the district court’s decision granting Shabazz’s habeas petition to set aside his sentence imposed under the Armed Career Criminal Act (“ACCA”). Our prior coverage of that decision can be found here.
Circuit Affirms Conviction of Al Qaeda Member Who Claimed He Was Denied His Right to Self-Representation
On April 24, 2019, the Second Circuit issued a per curiam decision in United States v. Hausa (Kearse, Jacobs, and Hall) affirming the conviction of Ibrahim Hausa—a member of Al Qaeda known as Spin Ghul (the “White Rose”)—on charges related to his participation in attacks on United States and coalition forces in Afghanistan, which resulted in the deaths of two U.S. soldiers.
On January 31, 2019, the Second Circuit issued a per curiam decision in United States v. Thrower (Wesley, Chin, and Cote, by designation) reversing a 2017 judgment from the Eastern District of New York that reduced the defendant’s sentence from 180 months to 120 months, which resulted in the defendant’s immediate release. The district court issued that order after concluding that Thrower’s prior New York convictions for robbery in the third degree and attempted robbery in the third degree do not qualify as predicate “violent felonies” under the Armed Career Criminal Act (“ACCA”). The Second Circuit concluded that those determinations were incorrect, vacated the district court’s judgment, and remanded with instructions that the district court reinstate Thrower’s original mandatory 180-month sentence.
Appeal “Tanks” After Circuit Holds That Defendant Gave Implied Consent to Have K-9 Unit Present in His Apartment After Calling 911 to Report Prowler
On July 31, the Second Circuit issued a decision in United States v. Iverson (Kearse, Calabresi, Livingston) and affirmed the conviction of a defendant who had challenged the district court’s denial of his suppression motion and the district court’s mid-trial decision to excuse one of two black persons on the jury for cause right before summations based on an interview of the juror conducted in camera. The decision presents an interesting set of facts and applies established law in the Second Circuit.
Circuit Rules That Embezzlement of Government Property Does Not Constitute “Continuing Offense,” Generating Split with Fourth Circuit
In a brief decision issued on Tuesday, July 31, in United States v. Green, the Second Circuit (Cabranes, Carney, Goldberg by designation) vacated in part a judgment ordering the defendant to pay restitution for the theft of government property that was stolen outside the applicable statute of limitations. In doing so, the Court rejected the government’s arguments that the defendant had (i) waived her right to appeal in her plea agreement, and (ii) consented in her plea agreement to pay restitution for property stolen outside the applicable limitations period. Having disposed of these contentions, the Court rejected the government’s argument that the underlying theft was a “continuing offense” that would permit the government to obtain restitution for amounts stolen both within and outside of the limitations period.
What Was Decided Before Has Been Decided Again: The Amended Opinion in Martoma Cuts Back On The Initial Decision, But Still Affirms
On Monday a divided Second Circuit panel (Katzmann, Pooler, Chin) issued an amended decision upholding the conviction of former SAC Capital portfolio manager Mathew Martoma on one count of conspiracy to commit securities fraud and two substantive counts of securities fraud. The amended decision—like the original decision—is a major decision expounding on the common law of insider trading, from the leading Court on questions of federal securities law. The decision—both the majority and the dissent—requires close study not only of its 61 combined pages, but several prior Supreme Court and Second Circuit decisions upon which it is premised. In this regard, the decision reflects the continuing uncertainty that is created by the absence of a statute that specifically addresses insider trading. Both the majority and the dissent make compelling arguments, and the question of what should be permitted and prohibited would be resolved most constructively by the legislative branch.
Circuit Reverses Conviction & Dismisses Indictment in Case Where Defendant Waited Seven Years for Trial
In United States v. Tigano, No. 15-3073 (Winter, Walker, Pooler), the Second Circuit issued a short order reversing the conviction of Joseph Tigano, III and dismissing the indictment with prejudice. The Court noted that a full opinion in the case would be forthcoming. Gary Stein, a former chief appellate attorney in the criminal division of the U.S. Attorney’s Office for the Southern District of New York, and now in private practice, represented Tigano pursuant to a court appointment.
The Second Circuit issued a published opinion on September 11, 2017 in United States v. Pabon, No. 16-1754 (Cabranes, Livingston, Pauley), a case arising from an interesting set of facts involving the warrantless arrest of an individual suspected of body-packing narcotics who behaved erratically while in police custody. On appeal, the defendant argued that evidence he had been body-packing narcotics should have been suppressed because it was obtained only after probable cause to detain him had dissipated. In the alternative, the defendant argued that suppression was warranted because police allegedly failed obtain a probable cause determination from a neutral magistrate in a timely fashion (typically 48 hours).
Second Circuit Affirms Sentence Based on Correct Application of Career Offender Guideline, Yet Majority of Panel Agrees the Result is “Unjust” and “Close to Absurd”
On Monday, September 11, the Second Circuit issued a published opinion in United States v. Jones, No. 15-1518 (Walker, Calabresi, Hall), a case with a complicated procedural history in which the Court affirmed a defendant’s sentence as a career offender under the now-removed residual clause of the Career Offender Sentencing Guideline. The decision was accompanied by a concurrence authored by Judge Calabresi and joined by Judge Hall, which upheld the sentence while calling the result “unjust” and “close to absurd.” We have reported on this case before, when the Circuit reversed and remanded the sentence; subsequent to our earlier blog post the case was re-opened for additional argument, and this week’s decision now affirms.
Upon Further Review, Second Circuit Holds That Defendant’s Conduct not “in Furtherance of” Alien’s Unlawful Presence in United States
In United States v. Khalil, No. 15-3819 (2d Cir. May 16, 2017) (Calabresi, Wesley, Lohier), the Second Circuit reversed the defendant’s conviction for transporting an alien within the United States for profit in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and § 1324(a)(1)(B)(i). It did so based on the Government’s failure to put forward sufficient evidence at trial to establish that Khalil transported an alien “in furtherance of” the alien’s illegal stay in the United States.
In Summary Order, Second Circuit Provides Guidance to Courts Deciding Motions for Sentence Reductions
On February 16, 2017, the Second Circuit (Leval, Calabresi, Carney) issued a summary order in United States v. Lopez, No. 16-1019, vacating and remanding for reconsideration the district court’s denial of the appellant’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on a recent change to the United States Sentencing Guidelines. The Second Circuit has recently issued several summary orders reversing similar denials. (See our prior coverage here.)
Second Circuit Rules That Defendant Who Pleads Guilty Mid-Trial May Testify as Cooperating Witness Against Former Co-Defendants
On Wednesday, February 15, the Second Circuit issued a published opinion in United States v. Barret, No. 12-4663(L) (Pooler, Hall, Carney), addressing an issue of first impression in the Circuit—whether testimony of a former co-defendant who pleads guilty during trial and agrees to testify as a government witness is admissible at that same trial. The Second Circuit answered that question in the affirmative, holding that such testimony is admissible so long as the district court takes certain steps to avoid undue prejudice to the remaining defendants. Those steps include limiting the testimony to events other than the witness’s involvement in joint defense planning and properly instructing the jury regarding the changed circumstances. The Second Circuit noted that its holding was consistent with decisions issued in the First, Third, Seventh, and Eleventh Circuits.
Dissenting from Order Denying Rehearing En Banc, Judges Voice Concerns About Overbroad Criminal Statutes Enabling Prosecutorial Abuse
Yesterday the Second Circuit issued an order denying rehearing en banc in United States v. Marinello, No. 15-224, after an active judge of the Court had requested a poll as to whether the case should be reheard by the full Court. Two judges (Jacobs and Cabranes) dissented from the denial of rehearing en banc. Writing for the dissenters, Judge Jacobs wrote that the panel decision placed the Second Circuit “on the wrong side of a circuit split” by affirming a conviction based on “the most vague of residual clauses,” and that in doing so the Court had paved the way for “prosecutorial abuse.”