Jason Vitullo, Partner

In a lengthy opinion in United States v. Sampson on August 6, 2018, the Second Circuit (Cabranes, Livingston, Carney) affirmed the conviction of former New York State Senator John Sampson for obstruction of justice and false statements.  Sampson challenged his conviction at trial on a variety of different grounds.  The strongest possible basis for reversal was based on two prior decisions of the Second Circuit that limited the reach of Section 1503(a), one of the statutes that prohibits obstruction of justice.  In order for the Court to affirm, it needed to limit the apparent reach of these decisions, coming right up to the line that prohibits one panel of the Second Circuit from revisiting a prior panel decision without an en banc ruling by the Court.  In the end, the Court rejected this claim and the many other claims presented by Sampson, leaving both his conviction and sentence in place.

In United States v. Gasperini, the Court (Cabranes, Lynch, Carney) resolved various challenges by Fabio Gasperini, an Italian citizen, to his conviction under the Computer Fraud and Abuse Act of 1986 (“CFAA”).  Gasperini was convicted following an elaborate hacking scheme in which he exploited a “backdoor” of certain internet-connected devices around the globe to seize control of the devices, used the compromised devices to search for other vulnerable devices to grow his computer army, and then unleashed his “botnet” of over 155,000 machines to generate “ad click” revenue and launch distributed denial-of-service attacks.  Gasperini was ultimately arrested in the Netherlands and tried in the Eastern District of New York.

In United States v. Holcombe, 16-1429-cr, the Second Circuit (Jacobs, Leval, Lohier) resolved three open issues involving a conviction for failing to register pursuant to the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250(a).  First, the Court held that the interstate travel offense at issue “began” in the state the defendant left, New York, and thus venue in SDNY was proper.  Second, the Court held that any potential vagueness in a 30-day window for updating registration did not render defendant’s conviction here void for vagueness given the passage of at least 18 months.  Last, the Court rejected defendant’s claim that the SORNA registration requirement violated his constitutional right to travel.

In a short opinion in United States v. Ohle, 16-601-cr, the Second Circuit (Leval, Calabresi, Cabranes) resolved two open questions about the application of Federal Rule of Appellate Procedure 4, both in the context of a proceeding brought under Title 21, United States Code, Section 853(n).  Section 853(n) is the provision of forfeiture law that can be invoked by a third party who claims to have a superior interest in assets that the government is seeking to forfeit.  The Circuit held that although 853(n) proceedings arise in the aftermath of a criminal conviction, these ancillary proceedings are civil in nature.  The Circuit also held that when the district court issues a short order resolving a motion and promises that a more detailed opinion will follow, plaintiffs may not wait for the more detailed opinion; the time to appeal begins to run upon the issuance of the initial order.

In United States v. Bodouva, 16-3937 (March 22, 2017) (Katzmann, C.J., Pooler and Lynch, J.), the Court held in a per curiam order that a defendant convicted of embezzlement must forfeit the full amount of her illicit gains to the government even after paying restitution to victims.  The ostensibly “duplicative” financial penalty entered against the defendant was not only permissible, but in fact required by statute.  The district court thus appropriately ruled at sentencing that it lacked discretion to modify the forfeiture amount.  With this decision, the Second Circuit joined several other circuits in holding that restitution and forfeiture serve distinct purposes and, absent clear statutory authority to the contrary, may not offset each other.

In United States v. Jiamez-Dolores, et al., 14-1840(L) (August 3, 2016) (Hall, Lynch, Chin), the Court in a per curiam order affirmed above-guidelines sentences given to two defendants who each pleaded guilty to one count of conspiracy for their participation in a sex-trafficking enterprise.  Both defendants appealed the reasonableness of their sentences.  One defendant also challenged his sentence based on an incomplete transcript from his plea and sentencing hearing.

In United States v. Caraballo, 12-3839-cr (L) (August 1, 2016) (Calabresi, Lynch, Lohier), the Court held that “exigent circumstances”—here, suspicion of involvement in a recent murder and potential danger to law enforcement—justified a warrantless “pinging” of defendant’s cell phone to determine his location.  The Court accordingly affirmed the district court’s denial of defendant’s motion to suppress statements he made after police located him through a series of “pings” executed by his cell phone carrier.