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 Remands Restitution Order for Further Consideration of Indigent Defendant’s Right to Counsel and Application for Expert Services

In United States v. Torriero, the Second Circuit (Chin, Droney, Restani by designation) vacated by summary order a $765,561 restitution order relating to costs incurred by the EPA in cleaning up a property that the defendant had used as an illegal landfill.  Although not the panel’s primary focus, the order also addresses a district court’s role in approving or denying an indigent defendant’s request for expert services—an issue currently being examined as part of a broader review of the defense funding under the Criminal Justice Act (“CJA”) by an ad hoc committee chaired by Judge Kathleen Cardone of the U.S. District Court for the Western District of Texas. 

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Second Circuit Denies Public Access to Monitor’s Reports on Separation-of-Powers Grounds

In a decision that will provide reassurance both to prosecutors and to the institutions with whom they enter into deferred prosecution agreements (“DPAs”), the Second Circuit (Katzmann, Lynch, Pooler (concurring)) held in United States v. HSBC Bank USA, N.A., No. 16-308(L), that the periodic reports submitted by an independent monitor responsible for evaluating compliance with a DPA are not “judicial documents” to which the public enjoys a First Amendment right of access.  To reach its holding, the Court was required to address foundational separation-of-powers questions regarding a court’s role in approving and supervising the implementation of a DPA.  The decision, written by Chief Judge Katzmann, will discourage courts from second-guessing decisions made by the executive branch in the legitimate exercise of its prosecutorial discretion.  Along with the Second Circuit’s decision in SEC v. Citigroup Global Markets, Inc., 752 F.3d 285 (2d Cir. 2014), which held that a district court reviewing a proposed SEC consent decree may only reject it under limited circumstances, last week’s decision makes clear that the Second Circuit envisions that district courts will not play a significant role in assessing the fairness of the government’s settlements with financial and other institutions.

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Court Remands Guidelines Sentence for Child Pornography Offenses Without Finding Procedural or Substantive Unreasonableness

In a summary order issued on July 11, 2017, United States v. Burghardt, No. 16-949(L) (Katzmann, Pooler, Lynch), the Second Circuit remanded a 322-month Guidelines sentence for distribution and receipt of child pornography for “further consideration” by the district court.  The Court found the sentence to be procedurally reasonable and also found it was not substantively unreasonable, but nonetheless remanded the case for further consideration, continuing the recent trend of reversals in the sentencing of child pornography cases.

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Silver Conviction Vacated Due To Jury Instructions

This morning the Second Circuit (Cabranes, Wesley, Sessions, D.J.) released an opinion vacating the conviction of Sheldon Silver and remanding the case to the district court for further proceedings including a retrial.  The Second Circuit concluded that the evidence of guilt was sufficient to permit a retrial, but found that the jury instructions did not comport with the Supreme Court’s McDonnell decision and that the error was not harmless. The panel took no joy in rendering its decision, observing that “many would view the facts adduced at Silver’s trial with distaste.”  Nor did the panel blame either the district court or the government for today’s reversal, recognizing that the McDonnell decision—which changed the law of the Circuit—was issued after the Silver trial had concluded.  Nevertheless, the panel felt itself compelled by McDonnell and the facts of the case to decide the matter as it did.

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Honest Services Fraud Conviction Upheld Despite Error In Jury Instructions

On July 10, 2017, in United States v. Boyland, No. 15-3118 (Kearse, Walker, Hall), the Second Circuit affirmed the conviction of former New York State Assembly member William F. Boyland, Jr. on twenty-one counts of public corruption offenses, including eleven counts of honest services fraud.  Many of these counts involved determining that the benefits Boyland offered in exchange for bribes amounted to “official acts” under 18 U.S.C. § 201, the federal bribery statute prohibiting public officials from “being influenced in the performance of any official act.”  Id. § 201(b)(2)(A).  The U.S. Supreme Court recently narrowed the definition of this term in McDonnell v. United States, 136 S. Ct. 2355 (2016), which led the government to concede in Boyland’s appeal that the trial court’s jury instructions on the meaning of “official act” were in part erroneous.  The Second Circuit, however, determined on plain error review that the error did not affect Boyland’s “substantial rights” and thus affirmed his convictions.  This decision may prove problematic for other high-profile former elected officials whose appeals are currently pending before the Second Circuit.

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United States v. Burden

On June 19, 2017, the Second Circuit (Katzmann, Kearse, Livingston) issued a per curiam decision in United States v. Burden, et al., vacating the term of supervised release imposed on the defendants and remanding the case for resentencing as to supervised release.  Judge Kearse concurred in a separate opinion.

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Divided Panel Debates a Jury’s Ability to Resist the Persuasive Power of Hollywood

In United States v. Monsalvatge (Nos. 14-1113, 14-1139, and 14-1206), a divided panel of the Second Circuit explored the contentious topic of introducing blockbuster films as evidence in a criminal prosecution.  Defendants Akeem Monsalvatge, Edward Byam, and Derrick Dunkley were tried and convicted of committing (and conspiring to commit) two armed robberies of Pay-O-Matic check-cashing stores in Queens.  The robberies occurred nearly two years apart—in 2010 and 2012—and there were significant differences in the manner in which each crime was carried out.  The government believed that these differences were attributable to the fact that the defendants admired and were inspired by the 2010 Hollywood crime thriller, The Town, and altered their modus operandi to carry out the 2012 robbery in a manner resembling the crimes committed in the film.  At trial, the district court permitted the government to play for the jury several brief clips from The Town, in order to highlight the similarities between the film and the 2012 robbery.  On appeal, the Second Circuit concluded that the district court did not abuse its discretion in admitting these clips into evidence.  Judge Livingston authored an opinion joined by Judge Droney; District Judge Analisa Torres, sitting by designation, found the introduction of the clips inappropriate but ultimately concurred in the judgment based on a finding of harmless error.[1]

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Divided Court of Appeals Vacates Child Pornography Sentence for Procedural Reasonableness

In United States v. Brown, No. 13-1706, a divided panel of the Second Circuit (Pooler, Sack, Droney (dissenting)) vacated and remanded Nathan Brown’s sixty-year prison sentence on five child pornography counts out of a concern that the district court “may have based its sentence on a clearly erroneous understanding of the facts.”  Brown pleaded guilty to three counts of production of child pornography, in violation of 18 U.S.C. § 2251(a); and two counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).  Brown’s crimes were horrific and involved the creation of 145 sexually explicit images and three videos of three young girls between the ages of eight and thirteen, as well as the corresponding publication of many of those images on the Internet.  In addition, on multiple occasions, Brown hid pinhole cameras in public and private locations where they were likely to capture images of nude children.  Law enforcement also recovered over 25,000 still images and 365 videos depicting child pornography on Brown’s computer, including images involving torture, bondage, bestiality, sexual intercourse, and foreign objects.

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Court of Appeals Affirms Conviction of Former Connecticut Governor Based On Expansive Interpretation of Sarbanes-Oxley

In United States v. Rowland, No. 15-985, the Second Circuit (Winter, Chin, Carney) rejected challenges by former governor of Connecticut John Rowland to both his conviction and sentence on seven counts of violating campaign finance laws and falsifying records.  In so doing, the panel issued an important decision regarding the interpretation of 18 U.S.C. § 1519, a provision of the Sarbanes-Oxley Act, which prohibits the falsification of documents for the purpose of misleading government investigators.  The Rowland decision tacks in a different direction from the Supreme Court’s recent decision in Yates v. United States, 135 S. Ct. 1074 (2015), in which the Court narrowed the reach of this statute by adopting an interpretation rooted in the statute’s purpose.  Rowland, by contrast, seems to take a broader approach. 

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When Should A Case Be Remanded To A Different Judge For Resentencing?

In a nonprecedential summary order in United States v. Mangone, No. 15-4057, the Second Circuit (Hall, Lynch, Chin) vacated the eighteen-month prison sentence of Westchester attorney Anthony Mangone and remanded Mangone’s case to the U.S. District Court for the Southern District of New York (McMahon, J.) for resentencing.  Mangone had pleaded guilty to conspiracy, bribery, extortion, and tax evasion relating to a highly publicized real estate and political corruption scandal in Yonkers.  The Second Circuit vacated Mangone’s sentence on the ground that the district court committed clear procedural error, having calculated the applicable U.S. Sentencing Guidelines range at 37–46 months’ imprisonment, while the correct range was only 30–37 months.  Although the district court imposed a prison term below the lower of those two ranges, the Second Circuit concluded that resentencing was nonetheless required as “an incorrect calculation of the applicable Guidelines range will taint not only a Guidelines sentence … but also a non-Guidelines sentence, which may have been explicitly selected with what was thought to be the applicable Guidelines range as a frame of reference.”  The remand for resentencing was not controversial—in fact, the government had agreed that the district court committed reversible error and had consented to a remand.

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