In Rare En Banc Ruling, Second Circuit Holds that Manslaughter is a Categorically Violent Felony, Including Cases of Omission, Potentially Triggering Mandatory Minimums
On March 2, 2021, in a rare en banc decision, United States v. Scott, the Second Circuit held in a divided 9-5 opinion that New York first-degree manslaughter is categorically a “violent felony” under the Armed Career Criminal Act—potentially subjecting defendants to the statute’s mandatory minimum sentences—and a “crime of violence” under the Career Offender provision of the Sentencing Guidelines, regardless of the fact that manslaughter can be carried out by omission.
On March 1, 2021 the Second Circuit (Carney, Koetl) issued a decision in Collier v. United States, affirming the district court’s denial of Keith Collier’s habeas petition to vacate his conviction and sentence for an attempted robbery of a federal bank in the late 1990s and for using a firearm during the commission of a crime of violence, i.e., during the attempted robbery. The core issue presented was whether attempted federal bank robbery was categorically a “crime of violence” as that phrase is used in the relevant federal statute and Sentencing Guidelines. The application of the categorical approach in sorting out whether a myriad of state and federal crimes fall within the statutory definition of a “crime of violence” has been a major focus of federal criminal litigation over the past decade and a familiar focus of this blog.
Recently, the Second Circuit remanded a consolidated appeal of three cases to the district court to consider whether the government violated Brady such that new trials should be granted. In United States v. Stillwell, Nos. 18-3074, 18-3489, and 19-790, the Second Circuit (Cabranes, Raggi, Korman by designation) declined to reach defendants’ Brady claims based on evidence discovered while the cases were on appeal. Nevertheless, the Court all but urged the defendants to file post-trial motions for a new trial on Brady grounds, and directed the district court to “expeditiously” resolve the forthcoming motions.
In McCloud v. United States, the Second Circuit (Walker, Raggi, Nardini) rejected the petitioner’s contention that a development in Circuit law following a defendant’s conviction constitutes a newly-discovered fact extending the deadline for a defendant to file a habeas petition under 28 U.S.C. § 2255. In so holding, the Second Circuit reached the same conclusion as the three other circuits to have addressed the question. It effectively limits the reach of a recent favorable decision to pending and future cases.
In United States v. Gatto, the Second Circuit (Lynch, Chin, and Engelmayer, sitting by designation) issued a decision on January 15, 2021 affirming the wire-fraud convictions of James Gatto, Merl Code, and Christian Dawkins in the high-profile college basketball corruption prosecution that was tried in the Southern District of New York in October 2018. Judge Lynch wrote a separate opinion concurring in part and dissenting in part, which addressed his disagreement with the majority concerning certain evidentiary rulings. These evidentiary rulings were a key issue at trial and were the focus of the Court’s decision and Judge Lynch’s opinion.
In United States v. Clarke, the Second Circuit ventured once more into the thicket of internet crime, tangling with statutory interpretation and discovery issues complicated by their technological setting. The panel (Walker, Leval, Carney) gave an expansive read to a child pornography statute, ruling that the defendant “transported” child pornography through an online peer-to-peer network, even though the government moved the files from the defendant’s computer, and the defendant was not aware of the file transfer. In addition, the panel refused the defendant’s discovery request for inspection of law enforcement software based on the facts presented here, and declined to announce a standard for future cases involving similar law enforcement programs. The panel also rejected a bevy of challenges relating to the sufficiency of the evidence and the reasonableness of the sentence, to ultimately affirm the judgment of the district court.
In United States v. Gadsden, the Second Circuit (Walker, Katzmann and Wesley, per curiam) affirmed the decision of the Southern District of New York denying Damone Gadsden’s motion for resentencing under the First Step Act. The opinion is consistent with recent decisions in other circuits, and reinforces the principle that the exercise of sentencing discretion is not synonymous with specific procedural requirements.
In United States v. Archer, the Second Circuit (Walker, Sullivan and Nathan, sitting by designation) reversed the grant of a Rule 33 motion for new trial in the Southern District of New York to Defendant Devon Archer, following his conviction for securities fraud and conspiracy to commit securities fraud. The Circuit reinstated the jury verdict and remanded the case for sentencing. Its decision emphasized that a successful Rule 33 motion based on the weight of the evidence requires a showing that the evidence “preponderates heavily” against the verdict. The decision seems to harmonize prior law in the Circuit that offered somewhat different formulations of the relevant standard. It is a reminder of the limited nature of post-verdict relief that is available to a trial defendant.
In United States v. Razzouk, the Second Circuit (Walker, Carney, Koeltl by designation) considered the meaning of an “offense against property” as used by the Mandatory Victim Restitution Act (“MVRA”). The panel rejected a categorical approach, and instead permitted consideration of the facts and circumstances of the defendant’s crimes. Restitution is one of the areas in sentencing law that has seen major developments over the past few years. This decision appears to continue the Second Circuit’s long tradition of being a generally favorable forum for victims of crime.
In United States v. Villafane-Lozada, No. 19-2098 (2d Cir. Sept. 3, 2020) (Livingston, Sullivan, Park), the Second Circuit rejected a defendant’s challenge to the district court’s delegation to probation the decision of which type of technology to use in order to verify the defendant’s compliance with the conditions of his supervised release.
To protect the integrity of federal elections, Congress has passed a variety of laws directed at the election process, including those criminalizing fraudulent voter registration and voter bribery. Due to the overlapping nature of our election system, those federal laws will often impact state elections, leading some defendants to argue that Congress overstepped its bounds. Such an argument was recently made, and rejected, in United States v. Smilowitz (Walker, Parker, Carney).
In United States v. Birkedahl, 19-2304, the Second Circuit (Sullivan, Park, Nardini) rejected Defendant-Appellant Eric Birkedahl’s challenges to the conditions of his supervised release imposed subsequent to his conviction for possession of child pornography. Birkedahl pleaded guilty in the United States District Court for the Western District of New York to one count of possession of child pornography. He was sentenced principally to 24 months’ imprisonment, to be followed by a supervised release period of five years. Among the conditions of supervised released imposed by the district court were: (1) participation in a sex offender treatment program; (2) submission to computerized voice stress analyzer (“CVSA”) testing or, alternatively, polygraph testing, to ensure compliance with the conditions of supervised release, referred to as the “verification testing condition”; and (3) a so-called “risk condition,” standard in the Western District of New York, whereby Birkedahl could be required to notify members of the public that he posed a risk to them. Birkedahl objected to the imposition of each at the time of sentencing, and challenged on appeal the district court’s imposition of each. He did not appeal his term of incarceration, which was a below-the-range sentence.
In United States v. Purcell, the Second Circuit (Lynch, Pooler, and Park) considered the conviction of defendant Lavellous Purcell on five counts all arising out of his operation of a prostitution business. On appeal, Purcell argued that the warrants obtained in New York state court to retrieve data from Facebook violated the Fourth Amendment, that the convictions were based on insufficient evidence, and that the district court erroneously admitted certain testimony at trial. In a thorough and detailed opinion, the Court denied nearly all of Purcell’s arguments. However, in a reminder that venue is not to be assumed – nor can it involve “guesswork” – the Court reversed and remanded one of Purcell’s five convictions due to insufficient evidence of venue in the Southern District of New York. The U.S. Attorney for the Southern District of New York has at times taken a broad view of venue, and while the Circuit has approved of its long reach in many prior cases, this was a bridge too far for the Circuit.
Fourth Amendment Rights Without Remedies: Split Panel Holds That Delayed Warrant Was Unreasonable, But Exclusionary Rule Does Not Attach
In United States v. Smith, the Second Circuit (Katzmann, Kearse, Meyer, by designation) issued a split opinion weighing whether a month-long delay between authorities’ seizure of a tablet computer and their application for a search warrant violated the Fourth Amendment. The full panel upheld the conviction, but by different routes. The majority opinion found a Fourth Amendment violation, but held that evidence from the tablet should not be suppressed because the delay was due to “isolated negligence,” and thus the exclusionary rule did not attach. Judge Kearse wrote separately, explaining her view that the month-long delay did not violate the Fourth Amendment, largely because the investigating officer had other demands on his time. Speaking with one voice, the panel also rejected substantive and procedural reasonableness challenges to the 212-month child pornography sentence. The opinion highlights the extreme difficulty in mounting suppression challenges—both in persuading jurists that law enforcement officers have acted improperly, and in ultimately winning suppression under the vanishing exclusionary rule. The panel applies controlling law in its Fourth Amendment analysis, making it fair to ask whether the legal system provides optimal deterrence of constitutional violations.
In Mata v. United States, the Second Circuit (Park, Nardini, Menashi) issued a per curiam opinion denying the petitioner’s motion for leave to file a second motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255(h). Proceeding pro se, Mata argued that his conviction under 18 U.S.C. § 922(g) should be vacated in light of the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), which clarified what the government must prove in order to meet the “knowingly” mens rea requirement of § 922(g). Consistent with prior decisions issued by the Third and Eleventh Circuits, the Second Circuit held that Rehaif concerned an issue of statutory interpretation and did not announce a new rule of constitutional law. Accordingly, Mata’s motion did not meet the requirements of 28 U.S.C. § 2255(h).
In United States v. Huberfeld, the Second Circuit (Pooler, Lynch, Menashi) vacated the sentence imposed on Murray Huberfeld, a co-founder of the now-defunct Platinum Partners hedge fund (“Platinum”), and reversed the district court’s order requiring Huberfeld to pay $19 million in restitution to the Corrections Officers Benevolent Association (“COBA”), which is New York City’s largest union for corrections officers. The Circuit’s decision took issue with several aspects of the district court’s Guidelines calculation, as well as its determination that COBA was a “victim” of the wire-fraud crime to which Huberfeld pleaded guilty.
Second Circuit Again Finds Plain Error in Use of “Motive to Lie” Jury Instruction When Criminal Defendants Take the Stand
In United States v. Solano, the Second Circuit (Kearse, Calabresi, and Carney) vacated and remanded a conviction for attempted possession of cocaine with intent to distribute on the grounds that the district court had committed plain error when it instructed the jury that “any witness who . . . has[s] an interest in the outcome of this trial” has “a motive . . to testify falsely” – including, here, the defendant. In so holding, the Circuit reiterated that it will not permit a district court to instruct a jury in a way that presupposes the guilt of the defendant, even if the parties fail to object. Future parties should pay careful attention to the procedural aspects of jury instructions, which can impact a defendant’s constitutional rights, even though the Circuit stands ready to correct these errors on appeal.
As Second Circuit Affirms Conviction for Failure to Register as a Sex Offender, Judge Calabresi Questions “Non-Punitive” Nature of Registration Statutes
In a per curiam opinion, United States v. Diaz, the Second Circuit (Calabresi, Chin, and Carney) held that the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250(a), does not permit a defendant to collaterally attack his or her predicate sex offender conviction in a subsequent proceeding. Relying on its own precedent, the Court also concluded that SORNA’s registration and notification requirements are not punitive, and therefore do not violate the prohibitions against cruel and unusual punishment or double jeopardy found in the Eighth and Fifth Amendments. Despite the panel’s agreement as to the result, Judge Calabresi’s concurring opinion emphasized that, while the Second Circuit’s and Supreme Court’s precedent compels this conclusion, he believes that precedent is incorrect.
In United States v. Walker, the Second Circuit (Calabresi, Pooler, Carney) considered a challenge to the conviction of Jaquan Walker on drug charges. Police officers found drugs on Walker after they stopped and questioned him. The justification for the stop was that Walker resembles an image of a black man believed to have been involved in a shooting, and because Walker happened to be walking about five blocks from the site of that shooting. In a remarkably pointed decision, the Circuit threw out the conviction.
In United States v. Jones, the Second Circuit (Kearse, Cabranes, Sack) considered the admissibility of DNA evidence based on the “Forensic Statistical Tool” method (“FST”), which was previously utilized exclusively by New York City’s Office of the Chief Medical Examiner (“OCME”), but has since been abandoned because it does not meet the requirements of the FBI’s national DNA database. One presumes that the mode of analysis used by the Circuit will be used by district courts to analyze the new methods of DNA analysis, meaning that the case will outlive the specific facts presented.
In United States v. Peeples, the Second Circuit (Walker, Cabranes and Sack) affirmed the conviction of Joseph W. Peeples, III in the Western District of New York on bank robbery charges. Peeples argued that the district court should have dismissed his charges based on violations of Federal Rules of Criminal Procedure 3 and 5(c)(2), and that it erroneously admitted bank employee testimony and certain physical evidence at trial. The Circuit rejected the challenge on all fronts.
In United States v. Napout, the Second Circuit (Sack, Hall and Bianco) affirmed the 2017 convictions of Juan Ángel Napout and José Maria Marin in the Eastern District of New York on charges arising out of commercial bribery related to the International Federation of Association Football (“FIFA”) scandal. The Circuit rejected all of the defendants’ arguments: the Circuit held that (i) that there had not been an impermissible extraterritorial application of the wire fraud statute, and (ii) the honest service wire fraud statute was not unconstitutionally vague as applied to them. The Circuit also denied challenges to the sufficiency of the evidence and several trial rulings. Judge Hall wrote a short concurring opinion that addressed one aspect of the parties’ contentions relating to their vagueness challenge.
In United States v. Davis, the Second Circuit (Katzmann, Wesley, Bianco) affirmed the district court’s order granting the defendant’s motion for a reduced sentence under Section 404 of the First Step Act of 2018. The government had appealed the order, arguing that eligibility for Section 404 relief turns on a defendant’s actual conduct as opposed to the statutory offense for which a defendant was sentenced. The Court disagreed and issued a decision that brings the Second Circuit in line with at least six other circuit courts that have issued precedential opinions in the last year with similar holdings. It is reassuring to see the Circuit rule in a way that reinforces the protections offered by the First Step Act, over the government’s objections in this case.
Second Circuit Vacates Sentence, Citing Failure to Apply Categorical Approach and Finding No Predicate Felony Drug Offense
The Second Circuit (Walker, Carney, and Koeltl) issued a decision vacating a 10-year sentence of imprisonment for conspiracy to distribute and possess with intent to distribute marihuana. The Court held that, contrary to the district court’s finding, a prior conviction for the attempted sale of a controlled substance in the fifth degree, in violation of N.Y. Penal Law (NYPL) § 220.31, was not a conviction for a “felony drug offense,” as defined by 21 U.S.C. § 802(44). The case, United States of America v. Jeremy L. Thompson, 18-2545-cr, clarifies that courts must use the “categorical approach” when identifying predicate felony drug offenses, and that the Second Circuit will not expand § 802(44)’s reach beyond its enumerated classes of drugs. Although this case arises in the context of the government’s use of a prior felony information, the Court has employed the same type of categorical analysis we see in cases brought under the Armed Career Criminal Act.
Circuit Rules Court Lacked Authority to Compel Compliance with Subpoena Issued by Expired Grand Jury
On June 3, 2020, the Circuit (Winter, Pooler, Sullivan) issued a noteworthy decision in In re: Grand Jury Proceeding regarding the authority of a district court to enforce a grand jury subpoena. Relying in part on a nearly 100-year-old decision and exposing a circuit split on an issue central to the enforcement of grand jury subpoenas, the decision reaffirms the importance of the grand jury as an independent investigative entity and serves as a reminder to defense counsel to diligently monitor the authority underlying government demands for documents and testimony in connection with an investigation.
Plea Agreement Not Violated, But Sentence Vacated and Remanded for Reconsideration of Hobbs Act Robbery Enhancements
In United States v. Oneal, 18-1710 (May 27, 2020) (Katzmann, Kearse, Bianco), the Second Circuit limited the scope of the Hobbs Act robbery Sentencing Guidelines enhancements for possessing a dangerous weapon and for physical restraint, vacating and remanding for consideration of whether the enhancements applied under the strict standards announced by the court. However, the court rejected Defendant-Appellant Xavier Oneal’s argument that the government had violated the terms of his plea agreement by siding with the Probation Office’s recommendation that the enhancements applied, even after not including the enhancements in its pre-plea Guidelines stipulation with the defendant. On remand, given the law and the facts in the panel’s opinion, it would appear that the defendant may receive a reduced sentence.
In United States v. Zapatero, the Second Circuit (Hall, Sullivan, Bianco) issued a published opinion concerning a narrow sentencing issue, ruling that a district court may not rely on a Sentencing Guidelines § 5G1.3(b) adjustment made at a defendant’s original sentencing to subsequently reduce the defendant’s sentence, pursuant to 18 U.S.C. § 3582(c)(2), to one that falls below the defendant’s amended Guidelines range. The decision is based on strict interpretation of the Guidelines, which only permit reductions under Section 3582(c)(2) in fairly narrow circumstances.
In United States v. Alexander, the Second Circuit (Sack, Wesley, Livingston) issued a summary order that, among other things, vacated the district court’s restitution order as to two defendants, Marc and Rachael Alexander. The order is notable primarily because it shows the Circuit’s willingness to scrutinize restitution orders.
Second Circuit Affirms Sentencing Enhancement for Altered Serial Number on a Gun, Despite Legible Serial Numbers On Other Parts of the Firearm
In United States v. St. Hilaire, 19-640 (May 21, 2020), the Second Circuit (Jacobs, Calabresi, Chin) affirmed a sentencing enhancement for possessing a firearm with an altered serial number, even though at least one of the serial numbers on the weapon was legible. The appeal raises an interesting question about the purpose behind this enhancement (and the underlying statute, 18 U.S.C. § 922(k)), which is meant to punish those who possess untraceable firearms.
Second Circuit Concludes that Restitution Includes Losses from Wire Fraud Scheme that Occurred Outside the Limitations Period
In United States v. Parnell, 19-649-cr (May 19, 2020), the Second Circuit (Hall, Lohier, Park) affirmed a judgment ordering the defendant-appellant to pay restitution for the total amount of losses resulting from her crime of wire fraud, including losses that occurred outside the limitations period.
“The evil that men do lives after them; The good is oft interred with their bones.” William Shakespeare, Julius Caesar, Act III, scene ii. In United States v. Mladen, the Second Circuit (Kearse, Walker, Livingston) grappled with whether Dusan Mladen’s convictions would live on after he passed away during the pendency of his appeal.
In United States v. Richardson, the Second Circuit (Walker, Chin, Menashi) concluded that the defendant’s sentence was both procedurally and substantively reasonable and, therefore, affirmed. Richardson pleaded guilty to distribution and possession with intent to distribute a controlled substance, under 21 U.S.C. § 841(a)(1), and was sentenced, as a career offender under U.S.S.G. § 4B1.1, to a prison term of 210 months.
In United States v. Haverkamp, the Second Circuit (Sack, Parker, Chin) wrote a short decision that answered a single question: in a case in which a defendant is sentenced to pay an additional special assessment pursuant to 18 U.S.C. § 3014, is this amount imposed on a per-count or per-offender basis. Ordinarily, under 18 U.S.C. § 3013, a special assessment is imposed on a per-count basis (plead guilty to 10 counts, pay 10 special assessments).
Hating The Game: Counsel’s Strategic Concessions in Rapper-Related Shooting Case Cannot Support IAC Claim
In United States v. Rosemond, 18-3561-cr (May 1, 2020) (Sack, Chin, Bianco), the Second Circuit held principally that Defendant-Appellant James R. Rosemond’s Sixth Amendment “Right to Autonomy” was not violated when his defense attorney, over his objection, conceded an element of the charged murder-for-hire offense—that he had hired individuals to shoot the victim—and instead argued that the government had failed to prove Rosemond’s intent to kill the victim. The court also rejected Rosemond’s ineffective assistance of counsel claim under Strickland and an evidentiary challenge. The case is a notable decision for the criminal defense bar, as it lays out the circumstances in which the Circuit believes that a defense lawyer must follow his client’s wishes in planning his defense strategy.
On April 15, 2020, the Second Circuit (Rakoff, by designation, Sack, Hall) vacated the conviction of Ralph Nolan, who was convicted of conspiracy and attempt to commit a Hobbs Act robbery, on ineffective assistance of counsel grounds. The panel ruled that Nolan’s trial counsel’s failure to challenge the introduction of eyewitness identification evidence against him or to call an expert witness to guide the jury on evaluating that evidence departed from the standard of reasonable professional care. The case, United States of America v. Ralph Nolan, No. 16-3423, represents a significant endorsement by the Circuit of research showing that in certain circumstances, such as those present here, eyewitness identification evidence will often be unreliable. Nolan will be cited frequently by defendants pressing forward to seek post-conviction relief and it will also serve as a wake-up call for defense counsel who might have been unfamiliar with this research or on the fence about whether to call an expert witness to testify on the subject of eyewitness identification.
On March 5, 2020, the Second Circuit (Katzmann, Kearse, Bianco) issued a brief per curiam opinion in United States v. Alcius, et al., affirming the defendant’s 20-year sentence on sex trafficking related charges. Defendant-Appellant Almonte challenged the sufficiency of the evidence supporting her conviction and also appealed the procedural and substantive reasonableness of her sentence. The court affirmed both the conviction and sentence.
In United States v. Ojeda, the Second Circuit (Cabranes, Raggi, Korman, by designation) affirmed a 2018 judgment issued in the Southern District of New York ordering a mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”) for a felon-in-possession conviction. The Court rejected defendant’s arguments that his prior convictions did not qualify as ACCA predicates and that ACCA’s definition of “serious drug offense” is unconstitutionally vague. Defense counsel made the right arguments, but recent changes in the law seem to have compelled this ruling.
In United States v. Pilcher, the Second Circuit (Leval, Cabranes, Sack) (per curiam) considered whether a habeas petitioner could proceed anonymously—in this instance holding that he could not (as the case’s caption makes clear).
Second Circuit Employs “Mini-En Banc” to Relieve District Court of Requirement to Complete Non-Existent Form
In United States v. Karim Smith, the Second Circuit (Wesley, Chin, Sullivan) overturned its prior precedent and held that district courts need not complete a written ‘statement of reasons’ (“SOR”) form when sentencing a defendant during a violation of supervised release (“VOSR”) proceeding, at least until such a form is created by the Sentencing Commission.
As Second Circuit Remands on Procedural Reasonableness Grounds, Judge Calabresi Calls for More Searching Review of Obstruction of Justice Sentences
In United States v. Pugh, No. 17-1889 (2d Cir. Dec. 10, 2019, as amended) (Calabresi, Droney, Underhill, by designation), the Second Circuit affirmed a defendant’s convictions for attempting to provide material support to a foreign terrorist organization and obstruction of justice but vacated the resulting sentence on procedural reasonableness grounds.
On December 6, 2019, the Second Circuit (Calabresi, Pooler, Park) issued a published per curiam decision in United States v. Kosic (Nunez), concerning the defendant-appellant’s motion for in forma pauperis (“IFP”) status in his direct criminal appeal. The appellant’s motion arose from a district court order denying his IFP motion based on a finding that the appeal would be frivolous pursuant to 28 U.S.C. §1915. In its published decision, the Second Circuit granted the motion and held that it is proper to consider only the defendant’s financial eligibility—and not the merits—when deciding motions for IFP status and appointment of counsel under the Criminal Justice Act (“CJA”) in a direct criminal appeal.
On December 3, 2019, the Second Circuit (Kearse, Pooler, Livingston) issued a decision in United States v. Calderon, et al., reversing an $18 million restitution order and otherwise affirming the defendants convictions and sentences. In reversing the restitution order, the Court determined that the defendants’ fraud had not proximately caused the financial losses suffered by the U.S. Department of Agriculture (“USDA”) and certain banks.
On November 14, 2019, the Second Circuit (Newman, Pooler, Cote) issued a decision in United States v. Van Der End, affirming the conviction of a defendant who pled guilty to drug trafficking conspiracy and activity, in violation of the Maritime Drug Enforcement Act (the “MDLEA”), 46 U.S.C. §§ 70501 et seq. Most drug prosecutions in federal court are initiated pursuant to the Controlled Substances Act but this case involved issues of maritime apprehension, and was charged under MDLEA.
Second Circuit Grants Rehearing and Vacates Guilty Plea Following Supreme Court’s Decision in Rehaif v. United States
On November 13, 2019, the Second Circuit (Hall, Lynch, Gardephe) issued a decision in United States v. Balde, vacating the defendant’s guilty plea for unlawful possession of a firearm by an alien who is in the United States illegally or unlawfully, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). The panel initially upheld Balde’s conviction on appeal, but eight days after the Court’s original decision, the United States Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019), holding that a conviction under the relevant statutes required the government to prove that the defendant knew that he or she was in the country illegally at the time he or she possessed the firearm. Prior to Rehaif, every Circuit to consider the question held that the defendant’s knowledge of this fact was not an element. The Second Circuit then granted Balde’s petition for rehearing and concluded that the district court had committed plain error in failing to ensure that Balde was apprised of this knowledge requirement before pleading guilty (even though the district court had no reason at the time to think it was an element of the crime) and because the record did not contain facts sufficient to support a conclusion that Balde was aware that he was in the country illegally.
Government Need Only Show that it Employed Procedures Reasonably Calculated to Provide Notice to a Prisoner of Civil Forfeiture Action
On November 7, 2019, the Second Circuit (Calabresi, Livingston, Lohier) issued a per curiam decision in United States v. Brome, holding that the Government generally must demonstrate the existence of procedures reasonably calculated to ensure that a prisoner receives notice of a forfeiture action against him.
Second Circuit Holds That Traveling Interstate for the Purpose of Engaging in Illegal Sexual Conduct is Not a Strict Liability Crime
On November 4, 2019, the Second Circuit (Kearse, Wesley, Chin) issued a decision in United States v. Murphy, vacating a defendant’s guilty plea for traveling interstate for the purpose of engaging in illicit sexual conduct with a minor, in violation of 18 U.S.C § 2243(b). The panel sided with several sister circuits in concluding that § 2243(b) is not a strict liability crime, and requires that the defendant travel interstate with the requisite intent, regardless of the actual age of the victim. The Court concluded that the district court had committed plain error in failing to ensure both that the defendant was adequately informed of this essential element of the crime to which he was pleading guilty, or that there was an adequate factual basis for the plea. Notwithstanding the awful nature of the crime committed here, it is important for courts to make sure that a defendant is advised of the elements of the offense, as required by Rule 11, and that he admits to those elements.
In United States v. Moran, the Second Circuit (Calabresi, Cabranes, Chin) affirmed the sentence of Lamont Moran, who was convicted of conspiracy to distribute heroin. On appeal, Moran challenged the application of two sentencing enhancements, one for acting as a supervisor in the course of his criminal activities (the “Aggravating Role Enhancement” of U.S.S.G. § 3B1.1) and one for engaging in criminal activities as his livelihood (the “Criminal Livelihood Enhancement” of U.S.S.G. § 4B1.3). In affirming, the Court clarified several elements of the Criminal Livelihood Enhancement. While the Guidelines are only advisory, they remain an important part of federal criminal sentencing, although as we will see here, the particular Guidelines enhancement addressed by the panel may not have made a difference in the sentence imposed.
In United States v. Arrington, 17-4092-cr (October 18, 2019) (Lynch, Lohier, Judge Brian M. Cogan of the United States District Court for the Eastern District of New York, sitting by designation), the Second Circuit vacated Defendant-Appellant Roderick Arrington’s convictions for murder in aid of racketeering and related convictions, and remanded for a new trial, holding that he was not provided with adequate information prior to waiving his attorney’s actual conflict of interest. While defendants should have their counsel of choice, and have the right to waive most conflicts of interest, the defendant needs to have sufficient information and independent advice to make a knowing and intelligent waiver of the right to conflict-free counsel. The Court of Appeals has long policed the boundaries of this issue and Arrington will give courts and counsel further guidance about how to approach these notoriously tricky Sixth Amendment questions.
On Friday, the Second Circuit (Livingston, Carney, Sullivan) reinstated the conviction of a former Nomura Securities International, Inc. (“Nomura”) bond trader, Michael Gramins, in United States v. Gramins, No. 18-2007-cr, finding the lower court’s decision to grant Gramins a new trial pursuant to Rule 33 was based on an “overbroad” reading of the Circuit’s 2018 ruling in United States v. Litvak (“Litvak II”) that “cannot be located within the range of permissible decisions.” Litvak II was a major decision and the Gramins decision implicitly limits the reach of Litvak II to cases in which the government or its witnesses expressly described a broker as an agent when he or she is not, in fact, an agent. Future decisions will no doubt revisit these cases, looking for the dividing line between the two.
In United States v. Brown (Newman, Hall, and Chin), the Second Circuit addressed two related questions. First, the Circuit held that Dean v. United States, 137 S. Ct. 1170 (2017), abrogated prior circuit precedent in United States v. Chavez, 549 F.3d 119 (2d Cir. 2008), thereby allowing district courts to consider the severity of applicable mandatory consecutive sentences in determining the sentences for underlying predicate offenses. And, second, the panel concluded that the appropriate remedy under the facts presented was remand for resentencing, rather than merely for clarification.
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