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.

Court Rejects Habeas Claim That Admission of DNA Evidence Violated Petitioner’s Confrontation Right

On Tuesday in Washington v. Griffin, 15-3831-pr (Katzmann, Kearse, Livingston), the Second Circuit affirmed the denial of a petition for a writ of habeas corpus on a Confrontation Clause challenge.  At issue was whether it was proper for the New York trial court to admit DNA profile evidence without affording the petitioner, Kenneth Washington, the opportunity to cross-examine the analysts who tested his DNA.  This case illustrates the special challenges faced by habeas petitioners where, as in the Confrontation Clause context, Supreme Court precedent is developing and fractured.  It also reflects the Circuit’s uncertainty about the state of the law in light of a series of Supreme Court precedents.  This line of authority began in 2004 with Crawford v. Washington, 541 U.S. 36 (2004), which stated a definitive rule that out-of-court statements that were “testimonial” could only be offered so long as the witness was available for cross-examination, and has continued through Williams v. Illinois, 132 S. Ct. 2221 (2012), which is far more ambiguous due to the absence of a majority opinion.

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Newman’s “Meaningfully Close Personal Relationship” Requirement No Longer Good Law

A divided Second Circuit panel (Katzmann, Pooler (dissenting), Chin) on Wednesday upheld the insider trading conviction of former SAC Capital portfolio manager Mathew Martoma.  Confronting its precedent in United States v. Newman, 773 F.3d 438 (2d Cir. 2014), for the first time since the Supreme Court struck down part of the Newman tippee liability standard this past December, see Salman v. United States, 137 S. Ct. 420 (2016), the Court ruled that the “meaningfully close personal relationship” requirement of Newman is no longer good law.  See United States v. Martoma, 14-3599 (2d Cir. Aug. 23, 2017). 

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Divided Second Circuit Panel Upholds Martoma Conviction, Ruling that Newman’s “Meaningfully Close Personal Relationship” Requirement Is No Longer Good Law After Salman

In a highly anticipated decision, a divided Second Circuit panel (Katzmann, Pooler (dissenting), Chin) today upheld the insider trading conviction of former SAC Capital portfolio manager Mathew Martoma, ruling that the “meaningfully close personal relationship” requirement set out by the Court in United States v. Newman, 773 F.3d 438 (2d Cir. 2014), does not survive the Supreme Court’s decision in Salman v. United States, 137 S. Ct. 420 (2016). See United States v. Martoma, 14-3599 (2d Cir. Aug. 23, 2017).

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Sanford v. United States

The Court in Sanford v. United States, 16-1840 (Katzmann, Wesley, Hall) yesterday dismissed Petitioner Elijah Sanford’s motion for leave to file a successive § 2255 motion to challenge his sentence, concluding that Sanford’s challenge was precluded by an enforceable collateral attack waiver, knowingly and voluntarily made, in his plea agreement.

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Court Rules That District Court Had Power to Adjudicate Supervision Violations Charged After Expiration of Supervision Term

In United States v. Edwards, the Court (Sack, Raggi, Droney) affirmed a judgment of the District Court (Chatigny, J.) revoking the supervised release of Defendant-Appellant Owen Edwards and sentencing Edwards to 24 months’ imprisonment based on four supervision violations.  Edwards had raised two issues on appeal:  first, whether the District Court had jurisdiction to revoke his supervised release based on violations charged after the scheduled expiration of his term of supervision; and second, whether the evidence was sufficient to support the particular charge that Edwards had committed a crime while under supervision.

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Evidence That Defendant Targeted Marijuana Dealer for Marijuana or Proceeds Satisfies Hobbs Act Interstate Commerce Element

The Hobbs Act makes it a crime to “obstruct[], delay[], or affect[] commerce or the movement of any article or commodity in commerce, by robbery . . . or attempt[] or conspire[] so to do.”  18 U.S.C. § 1951(a).  “[C]ommerce” is defined under the Act to include “all . . . commerce over which the United States has jurisdiction.”  Id. § 1951(b)(3).  With its opinion in United States v. Lee, 11-2539, 11-2543, 11-2834, 11-4068, the Court (Cabranes, Pooler, Lynch) has made clear that evidence that a defendant targeted a marijuana dealer for his marijuana or marijuana proceeds is sufficient to satisfy the Hobbs Act’s interstate commerce element (see Op. at 13). 

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The “Unusual Remedy” of Recalling the Mandate is Available When CJA Counsel Fails to Assist Client with Petitions for Rehearing and Rehearing En Banc

In Taylor v. United States, 15-827 (Katzman, Carbanes, Kaplan), the Court ruled that a defendant’s right to counsel under the Criminal Justice Act includes a right to assistance in petitions for rehearing and rehearing en banc, and that the “unusual remedy” of recalling the mandate is available when counsel appointed under the Act fails to provide such assistance.  In so ruling, the Court largely followed Nnebe v. United States, 534 F.3d 87 (2d Cir. 2008), which concluded that recalling the mandate was an appropriate remedy when appellate counsel appointed under the Act promised to file a certiorari petition but failed to do so; in both cases, the Court viewed such relief as necessary to fulfill its own obligations to supervise court-appointed counsel and to protect the Act’s “guarantee of representation.”

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