Blog Posts: 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.

Supervised Release Condition Struck Due To Improper Delegation

In a short summary order issued in United States v. Levy, the Second Circuit (Hall, Lynch, and Kuntz, D.J.) struck a condition of supervised release that delegated to the United States Probation Department the authority to decide whether to impose a curfew on the defendant.  This condition was discussed briefly at sentencing, with the district court advising the defendant as follows:  “They tell you you have to stay home at a certain hour or curfew, you have to obey.  You understand?”  The witness answered in the affirmative, and defense counsel did not object.[1] 

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Second Circuit Affirms Use of Handcuffs During Late Night Terry Stop

In United States v. Bekim Fiseku, the Second Circuit (Cabranes, Lynch, Carney) rejected the defendant’s argument that police officers unlawfully seized evidence from the trunk of his co-defendant’s vehicle.  The Panel held that an officer acted reasonably and consistent with the Fourth Amendment when he handcuffed Fiseku—despite lacking probable cause to believe Fiseku was engaged in criminal activity and having already determined that Fiseku was unarmed—due to the “unusual circumstances” of the encounter.  Despite the Court’s assertions that its holding was based on the “unusual circumstances” presented by the case, the decision could be incorrectly taken by law enforcement personnel as permission to handcuff a suspect during a routine Terry stop, even in the absence of more tangible indications that the suspect is armed or otherwise dangerous.

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Despite Recent Supreme Court Precedent, and In A Departure From The “Categorical Approach,” Circuit Affirms Conviction Under Section 924(c)

In United States v. Barrett, the Second Circuit (Winter, Raggi, Droney) rejected a defendant’s argument that his conviction under Title 18, United States Code, Section 924(c), for using firearms in the commission of a violent crime, should be reversed based on the recent Supreme Court decisions in Sessions v. Dimaya, 138 S. Ct. 1204 (2018) and Johnson v. United States, 135 S. Ct. 2551 (2015).  Barrett admitted on appeal that the evidence showed that he was a member of a violent robbery conspiracy but still contended that the firearms counts could not be upheld because the underlying Hobbs Act predicates did not categorically fall within the definition of a crime of violence in Section 924(c)(3).  While Dimaya and Johnson have changed how courts must construe Section 924(c)(3), those precedents did not lead the Court to reverse Barrett’s conviction, leaving in place his 90-year sentence.  This is a major decision for those who practice in the violent crimes area and given the novelty of the issues the decision covers, it seems likely to be the subject of further review, perhaps by the Supreme Court.

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Conviction and Sentence Affirmed, Rejecting Sufficiency, Evidentiary Arguments

In United States v. Spoor, the Second Circuit (Cabranes, Carney, and District Judge Caproni) affirmed a conviction for production and possession of child pornography.  In a decision by Judge Caproni, the Court rejected a number of arguments made by the defense.

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Guidelines Commentary Leads To Affirmance in Sentencing Appeal

In a short per curiam opinion in United States v. Lobo (Parker, Hall, Lohier), the Second Circuit affirmed the imposition of a Guidelines enhancement based on the importation of a controlled substance into the United States. 

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Second Circuit Holds Life Term of Supervised Release for Non-Violent Drug Offender is Unreasonable

On May 2, 2018, the Second Circuit held in United States v. Jamaal Brooks (Parker, Lynch, Chin) (per curium) that the district court erred in imposing a sentence of lifetime supervised release on a defendant who had violated prior terms of supervised release due to continued drug use and failure to report to scheduled drug testing.  The Court stressed that while the sentencing court has substantial discretion in fashioning an appropriate sentence, a term of supervised release is nonetheless substantially unreasonable if it is improperly justified by retribution and deviates significantly from the sentence given to similarly-situated violators.  Supervised release imposes real burdens on both defendants and the justice system, and this decision is a reminder that, as in other aspects of federal sentencing, the punishment should fit the crime.

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Takeaways From 2nd Circ. Reversal Of Litvak Conviction

In United States v. Litvak, the Second Circuit (Winter, Chin, Korman D.J.) reversed the conviction of Jesse Litvak, a securities trader at investment bank Jefferies & Co., for securities fraud premised on Litvak’s misrepresentations to trading counterparties about Jefferies’ profits on the transaction. The Court held that the district court improperly admitted testimony that Litvak’s counterparty believed that Litvak was acting as his fiduciary agent—even though in fact no such relation existed.  The Court explained that the counterparty’s erroneous, subjective belief was irrelevant as to the objective materiality of the misstatement, but likely swayed the jury in convicting.  The decision also raises interesting questions about expectations between traders and their customers, and the Government’s role in policing that relationship. For our discussion and commentary on this decision, please see our article on Law 360.

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Second Circuit Reverses Conviction Due to Unlawful Curtilage Search

On May 1, 2018, the Second Circuit (Lynch, Carney, Hellerstein D.J. (concurring)) reversed the district court’s denial of Defendant Robert Alexander’s motion to suppress guns found after a search of a bag in front of a shed in Alexander’s backyard.  The panel closely reviewed Supreme Court case law on whether certain areas near the home are considered the “curtilage,” and thus are protected to by the Fourth Amendment.  The decision also includes a notable concurrence from Judge Hellerstein, who argued for extending Terry v. Ohio’s “stop and frisk” doctrine to include searches of areas near the home based on reasonable suspicion of wrongdoing.

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