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.

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.


Circuit Sidesteps Interesting Suppression Questions in Body-Packing Case

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.”