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Circuit Rejects Request for Rehearing After Reinstating Defendant’s Original Sentence Incorporating 15-Year Mandatory Minimum Pursuant to the ACCA

On April 26, 2019, the Second Circuit issued another decision in Shabazz v. United States (Katzmann, Leval, Berman by designation) and denied Al-Malik Shabazz’s request for rehearing in connection with the Court’s January 4, 2019 decision, which reversed the district court’s decision granting Shabazz’s habeas petition to set aside his sentence imposed under the Armed Career Criminal Act (“ACCA”).  Our prior coverage of that decision can be found here.

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Circuit Affirms Conviction of Al Qaeda Member Who Claimed He Was Denied His Right to Self-Representation

On April 24, 2019, the Second Circuit issued a per curiam decision in United States v. Hausa (Kearse, Jacobs, and Hall) affirming the conviction of Ibrahim Hausa—a member of Al Qaeda known as Spin Ghul (the “White Rose”)—on charges related to his participation in attacks on United States and coalition forces in Afghanistan, which resulted in the deaths of two U.S. soldiers.

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Court Holds Right to Speedy Trial Attaches at First Indictment or Arrest, Finds WDNY Violation for Third Time in Two Years

The Sixth Amendment guarantees that the “accused shall enjoy the right to a speedy and public trial.”  But when does the clock begin to run?  In United States v. Black, the Second Circuit (Pooler, Newman, and Cote sitting by designation and dissenting) held that the right to a speedy trial attaches at the first indictment or arrest and not when the defendant is accused of a particular charge, as is true with the right to counsel.  On that basis, the Court affirmed the dismissal of criminal charges (relating to a murder) asserted for the first time in a superseding indictment, finding that because the charges stemmed from the same conduct as the initial indictment (which charged an armed robbery that led to the death of victims), the length of delay for speedy-trial purposes was the sixty-eight months between the initial indictment and trial, rather than the considerably shorter period between the superseding indictment and trial.  As the panel repeatedly emphasized, the decision marks the third time in two years that the Circuit has found a speedy trial violation in the Western District of New York.  See United States v. Tigano, 880 F.3d 603 (2d Cir. 2018) (covered here and here); United States v. Pennick, 713 F. App’x 33 (2d Cir. 2017) (summary order). . 

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Second Circuit Rejects Sentence Based on Government’s Dramatic Shift From its Pre-Plea Pimentel Estimate

In United States v. Walker, 17-1896-cr (Jacobs, Calabresi, and Rakoff, by designation) (April 4, 2019), the Second Circuit held that the Government breached its plea agreement with the defendant by advocating for a term of imprisonment that was substantially higher than the Government’s initial sentencing estimate in the plea agreement.  In support of the increased sentence, the Government pointed only to information known to the Government at the time of the plea.  The decision addresses so-called “Pimentel estimates” used in the Eastern District of New York, in which the Government provides the defendant with pre-sentencing notice of its calculation of the applicable Sentencing Guidelines range in a plea agreement, while cautioning that this estimate may change in the future.  The panel held that, at least on these facts, the defendant was entitled to rely on the Government’s Pimentel estimate despite the cautionary language and, accordingly, the Government unlawfully changed its position based on information known from the outset.  As a result, the case will be remanded for resentencing to a new district judge.

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Second Circuit Remands for Suppression Hearing

Last week, the Second Circuit (Cabranes, Pooler, Droney) issued a non-precedential summary order remanding a case to the district court for an evidentiary hearing on a motion to suppress.  The case, United States of America v. Jacques Durand, 16-4206-cr, highlights the Court’s concerns over extending the routine booking exception to the Fifth Amendment.

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Circuit Holds No Reasonable Expectation of Privacy in Rental Car for Unauthorized and Unlicensed Driver

In United States v. Lyle, 15-058-cr (April 1, 2019) (Raggi, Chin, Lohier), the Second Circuit, following a remand from the United States Supreme Court, once again held that the search of a rental car that James Lyle was driving (1) without a valid driver’s license, (2) without the permission of the rental car company, but (3) with the permission of the authorized driver, was lawful.  We covered the panel’s original opinion in United States v. Lyle, 856 F.3d 191 (2d Cir. 2017) in a June 1, 2017 post.  That post lays out the rather interesting facts and procedural history of this methamphetamine distribution and conspiracy case, and discusses each of the issues originally raised on appeal by Lyles and his co-defendant, Michael Van Praagh, including the panel’s original treatment of the rental car search issue.  Subsequent to that blog post, the United States Supreme Court granted Lyle’s petition for a writ of certiorari challenging the search of the rental car and remanded to the Second Circuit for further consideration in light of its unanimous decision in Byrd v. United States, 584 U.S. ---, 138 S. Ct. 1518 (2018).  Byrd included grand rhetoric about the Fourth Amendment, with Justice Kennedy writing that “[f]ew protections are as essential to individual liberty as the right to be free from unreasonable searches and seizures.”  138 S. Ct. at 1526.  On remand, however, the Circuit once again upheld the search of the rental car. 

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Second Circuit Vacates Life Sentence, Citing Failure to Apply the Categorical Approach

The Second Circuit (Leval, Lynch, Droney) issued a decision reversing a mandatory life sentence, finding  plain error because the district court failed to apply the categorical approach when considering whether the defendant’s prior conviction qualified for a sentencing enhancement.  The case, United States of America v. Jay Kroll, 16-4310-cr, is another example of the Second Circuit applying the categorical approach, this time to 18 U.S.C. § 3559(e) rather than to the Armed Career Criminal Act.  Section 3559(e) provides for mandatory life imprisonment when the defendant is a convicted of a child exploitation offense and has a prior sex conviction.

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Circuit Upholds Rajaratnam SEC Civil Penalty

In an appeal arising in the aftermath of Raj Rajaratnam’s criminal conviction for insider trading, the Second Circuit (Lynch, Raggi, Droney) issued an opinion upholding an almost $93 million Securities and Exchange Commission (“SEC”) civil penalty that was imposed based on the same conduct that served as the basis for Rajaratnam’s conviction.  The case, Securities and Exchange Commission v. Raj Rajaratnam, No. 11-5124-cv, demonstrates that an individual convicted of insider trading may be required to pay a sizable fine under Section 21A of the Securities Exchange Act, despite having already paid a significant criminal penalty.  Despite some provocative comments by the district court about the defendant, the Circuit held that the imposition of the maximum possible fine under the statute was supported by law.

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Circuit Grants Cooperating Witness Writ of Coram Nobis Based on Failure of Trial Counsel to Accurately Advise of Immigration Consequences

In Doe v. Unites States, the Second Circuit (Katzmann, Kearse, and Chin) reversed the district court’s denial of Doe’s petition for a writ of coram nobis.  In a partially redacted opinion (we do not even know the district from which this appeal emanated), the panel took the government to task for inconsistent legal positions and recognized the right of a defendant to make plea decisions with knowledge about the immigration consequences. Therefore, granted the Court granted this “extraordinary remedy.”

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Circuit Reverses Sentence Reduction Based on Incorrect Interpretation of ACCA

On January 31, 2019, the Second Circuit issued a per curiam decision in United States v. Thrower (Wesley, Chin, and Cote, by designation) reversing a 2017 judgment from the Eastern District of New York that reduced the defendant’s sentence from 180 months to 120 months, which resulted in the defendant’s immediate release.  The district court issued that order after concluding that Thrower’s prior New York convictions for robbery in the third degree and attempted robbery in the third degree do not qualify as predicate “violent felonies” under the Armed Career Criminal Act (“ACCA”).  The Second Circuit concluded that those determinations were incorrect, vacated the district court’s judgment, and remanded with instructions that the district court reinstate Thrower’s original mandatory 180-month sentence.

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Circuit Remands Case for Determination of Whether the Delay In Obtaining A Search Warrant Violated the Fourth Amendment

In a recent summary order in United States v. Smith, 17-2446, the Second Circuit (Katzmann, Kearse, Meyer by designation) remanded a case for additional fact-finding on a narrow issue relating to the duration of the time it took police to obtain a warrant to search the contents of a tablet computing device following the lawful warrantless seizure of the tablet. 

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Circuit Reverses Internet Ban Condition of Supervised Release As Substantively Unreasonable And An Excessive Limitation on Liberty, Not Reasonably Related To The Offense

In United States v. Eaglin, the Second Circuit (Cabranes, Carney, and Vilardo, by designation) considered and rejected two conditions of supervised release:  a complete ban on access to the Internet and a similarly broad ban on the possession of legal adult pornography.  The first portion of the Court’s ruling is part of a broader trend that recognizes the centrality of the Internet to our modern world; it is essential for participation in legal activities and a blanket prohibition on its use must be supported by a more compelling record than existed here.

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Galanis Appeal Leads To Limited Remand To Determine Whether Counsel Was Ineffective

The appeal in United States v. Galanis, 17-629 (Sack, Parker, Chin) resulted in a limited remand in a summary order so that the district court can determine whether there was ineffective assistance of counsel.  The facts of the case are somewhat unusual.  Galanis was indicted in two different and separately-charged securities fraud cases.  In September 2015, Galanis was indicted in the Gerova matter, and in May 2016, he was indicted in the Wakpamni matter.  He was represented by a California law firm in the Gerova matter, but that firm declined to appear in the Galanis matter (perhaps due to unpaid invoices by the client).  This left Galanis unrepresented in the Genova matter.

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“King for a Day”

In a decision extolling jurors’ use of “common sense” to evaluate insider trading charges, the Second Circuit affirmed the conviction of Robert Schulman in United States v. Klein (Schulman), No. 17-3355.  Though the government’s case rested on only one piece of direct evidence—a statement by Schulman to a friend that he’d like to be “king for a day,” the Court (Katzmann, Kearse, Chin) rejected Schulman’s challenge to the sufficiency of evidence that he intended to pass on inside information to his investment advisor for purposes of trading.  The standard of review for sufficiency of the evidence on appeal is very deferential to the government, drawing all permissible inferences in favor of guilt.  Here, even one “boastful, impudent” remark has resulted in a criminal conviction.

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Gupta Summary Order Republished As Opinion

Earlier this week, we discussed the Second Circuit’s summary order in the insider trading appeal by Rajat Gupta.  Gupta was convicted in SDNY as part of the string of successful prosecutions brought during the tenure of U.S. Attorney Preet Bharara.  The summary order affirmed the denial of Gupta’s 2255 petition, thereby leaving in place his conviction.  The Second Circuit, without explanation, has withdrawn the summary order and published the same decision as a per curiam opinion.  Other than the correction of minor typos, there appear to be no changes in the Court’s ruling.  A link to the published opinion is here.

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Second Circuit Holds that Connecticut Robbery Inherently Involves Violent Force Under ACCA

In Shabazz v. United States, the Second Circuit (Katzmann, Leval, Berman by designation) again addressed the meaning of “violent felony” under the Armed Career Criminal Act (“ACCA”), this time under its “force clause.”  As readers of this blog will recall, ACCA has been the subject of many appeals during the past year.  See Jacqueline L. Bonneau & Harry Sandick, The Second Circuit Counts to Three: How One Defendant Became a Career Criminal Over the Course of an Hour (Apr. 2, 2018); Joshua Kipnees & Harry Sandick, In Split Decision, Court Again Applies Castleman To Interpret the “Force Clause” of the Armed Career Criminal Act (July 18, 2018); D. Brandon Trice & Harry Sandick, Court Regrets Allowing Successive 2255 Petition in Massey v. United States (July 16, 2018).  At issue in this case was whether Shabazz’s convictions for first and second-degree robbery under Connecticut law constitute violent felonies.  The Circuit held that all convictions for robbery in Connecticut inherently involve the use or threatened use of violent force, and therefore reversed the District Court’s grant of Shabazz’s habeas petition.  Interestingly, the Court based its holding not on an interpretation of the elements of robbery by the Connecticut Supreme Court, but on the inherent danger of violent force associated with the act of robbery.  Given the breadth of this holding, any robbery offense that is similar to the common law definition now likely qualifies as an ACCA predicate offense in the Second Circuit, perhaps cutting off future appeals arising out of convictions for robbery in other jurisdictions.

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Rajat Gupta’s Insider Trading Conviction Affirmed

In a brief summary order issued yesterday, the Second Circuit denied Rajat Gupta’s collateral attack on his insider trading conviction in Gupta v. United States, Nos. 15-2707(L), 15-2712(C).  In a decision reminiscent of the recent summary order in Whitman v. United States, the panel (Kearse, Wesley, Droney) passed on the opportunity to develop the law on the “personal benefit” element of insider trading and instead denied Gupta’s habeas petition on the primary ground that he procedurally defaulted by failing to raise the issue on direct appeal.

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United States v. Mears: A Reminder About Supervised Release Conditions

In United States v. Mears, 18-460-cr, the Second Circuit (Sack, Livingston, Chin) issued a summary order that merits attention primarily because of the Court’s decision to remand for further proceedings based on the imposition on an unwarranted supervised release condition. 

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Second Circuit Continues To Scrutinize Drug Trafficking Offenses After Townsend

The Second Circuit has once again confronted the issue of what is a “controlled substance” for purposes of sentencing enhancements under the Guidelines.  Earlier this year, the Second Circuit held that the phrase “controlled substance” in U.S.S.G. § 2K2.1(a)(2)—a section that enhances the guidelines sentence for a felon in possession of a firearm previously convicted of two felonies for either a crime of violence or a “controlled substance offense”—refers “exclusively to those substances in the [federal Controlled Substances Act (“CSA”)].” United States v. Townsend, 897 F.3d 66, 75(2d Cir. 2018).  This meant that not all state law drug offenses were suitable to be used as sentencing enhancements.  Now, in United States v. Guerrero, the Circuit held that the phrase “controlled substance offense” construed in Townsend has the same meaning as the term “felony drug trafficking offense” found in Section 2L1.2(b)(1)(B) of the 2014 Sentencing Guidelines, which is used for illegal reentry offenses.  United States v. Guerrero, No. 17-cv-851 (2d Cir. Dec. 10, 2018). 

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Circuit Holds Appeal Waivers in Plea Agreements Must Be Backed By Consideration

In United States v. Lutchman, No. 17-291 (2d Cir. Dec. 6, 2018) (Newman, Jacobs, Pooler), the Second Circuit exercised appellate jurisdiction over defendant’s challenge to his sentence, even though his plea agreement contained an appellate waiver.  The Court concluded that the defendant’s appellate waiver in his plea agreement was not supported by consideration, and thus did not bar defendant’s challenge to his sentence on appeal.  The Court addressed defendant’s arguments on the merits, affirming defendant’s sentence.

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Walters Case Commands Tougher Cure for Government Misconduct

In United States v. Walters, 17-2373 (Dec. 4, 2018), the Second Circuit (Jacobs, Chin, Kuntz (by designation)) affirmed the conviction of professional gambler William T. Walters for securities fraud and related claims arising out of insider trading.  On appeal, Walters argued that the indictment should be dismissed in light of repeated leaks of confidential grand jury information made by the FBI to reporters from The Wall Street Journal and The New York Times in violation of Federal Rule of Criminal Procedure 6(e) and the Due Process Clause of the Fifth Amendment.  

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Court Clarifies Knowledge Standard Required for Analogue Act Conviction

In United States v. Demott, No. 13-3410 (2d Cir. Oct. 9, 2018) (Leval, Pooler, Wesley), the Second Circuit vacated two convictions under the Controlled Substance Analogue Enforcement Act of 1986 (the "Analogue Act"), 21 U.S.C. § 802(32)(A), 813, due to errors in the district court’s jury instructions relating to the statute’s knowledge element.  The Court also found error in the admission of certain hearsay testimony by a case agent about the underlying investigation.  The defendants in Demott were convicted of participating in a conspiracy to distribute two different synthetic “designer drugs” substantially similar to the listed controlled substance MDMA.  The defendants were thus prosecuted under the Analogue Act, which functions as a catch-all statute to enable prosecutions of crimes involving drugs that are substantially similar to drugs already listed in the schedule set forth in the Controlled Substances Act (“CSA”), 21 U.S.C. § 812.  See id. §§ 802(32)(A), 813.

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Notable Insider Trading Decision Affirmed, Despite Asserted “Personal Benefit” Error

In a short summary order issued on October 25, 2018, the Second Circuit (Newman, Lynch, Droney) affirmed the denial of a habeas petition in the case of Whitman v. United States.  This case could have given the Second Circuit an opportunity to address again a complicated area of insider trading law, but the Court instead rejected the appeal based on procedural grounds, holding that procedural default prevented the district court from granting the petition.

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Second Circuit Overrules Precedent Requiring COA When Appealing Denial of Bail Pending Habeas Decision

In Illarramendi v. United States, 18-35 (October 16, 2018), the Second Circuit (Walker, Calabresi, Livingston) in a per curiam decision affirmed the denial of a motion for bail pending resolution of the motion to vacate petitioner’s sentence under 28 U.S.C. § 2255.  In doing so, however, the Second Circuit held that the petitioner need not obtain a certificate of appealability (COA) in order to proceed with the appeal of the district court’s decision.  This was a departure from Second Circuit precedent—a rare event in the absence of an en banc decision by the Court of Appeals.

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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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Court Restrains Improper Application of “Physical Restraint” Enhancement

In United States v. Paul, the Second Circuit (Newman and Pooler Circuit Judges, and Cote, J., by designation) issued an opinion interpreting the meaning of the phrase “physically restrained” during a commission of a crime for the purpose of applying the physical restraint enhancement set forth in Sentencing Guidelines Section 2B3.1.

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Circuit Determines that Attempted Robbery Under New York Law Constitutes a “Crime of Violence” Pursuant to 2014 Federal Sentencing Guidelines

In United States v. Pereira-Gomez, a panel of the Second Circuit (Cabranes, Carney, Caproni, D.J.) issued an opinion analyzing whether attempted robbery under New York law qualifies as a “crime of violence” for enhancement purposes under Section 2L1.2 of the November 2014 United States Sentencing Guidelines.  Engaging in a meticulous exercise in statutory interpretation, the panel concluded that while the offense is not specifically enumerated in the Guidelines’ definition of “crime of violence,” it does fall within the residual “force clause” of the relevant Guidelines application note, thereby resulting in a substantial prior offense enhancement to the applicable sentencing range.  This case demonstrates the difficulties that courts and litigators experience in interpreting sentencing enhancement provisions that are based on the categorical nature of a prior conviction.

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Second Circuit Limits Reach of FCPA to Persons Present in the United States

In an important decision issued on August 24, the Second Circuit limited the reach of the Foreign Corrupt Practices Act (“FCPA”) by holding that theories of conspiracy or complicity cannot be used to charge non-U.S. citizens who do not work for an American business and whose furtherance of corrupt schemes takes place outside the United States.  Judge Pooler wrote the majority decision in United States v. Hoskins, No. 16-1010, and Judge Wesley authored a concurring opinion.  This decision is notable because FCPA cases are rarely litigated because the stakes are ordinarily too high for corporations to challenge the  government’s theory of liability in court, and individual prosecutions are rare.  Hoskins is also particularly interesting because it appears to contradict the DOJ and SEC’s own interpretation of the FCPA, as set out in the FCPA resource guide

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Circuit Affirms Conviction under Biological Weapons Act

In United States v. Le, No. 16-819, the Second Circuit considered the constitutionality of the Biological Weapons Anti-Terrorism Act of 1989 and whether it can reach “purely local” conduct.  The panel (Sack, Raggi, Gardephe, D.J.), affirmed the conviction of Cheng Le for attempting to acquire the toxin ricin to create a foolproof murder method, rejecting his constitutional challenges.

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The Circuit Affirms Public Corruption Conviction, Rejecting A Slew Of Arguments And Narrowing The Reach Of Its Prior Decisions On Witness Tampering

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.

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Courts Reinstates Embezzlement Charges Dismissed as Untimely, Holding that Dismissal was Based on a Premature Assessment of the Government’s Evidence

In United States v. Sampson, decided August 6, 2018, the Court (Cabranes, Livingston, Carney, C.J.J.) reversed the district court’s dismissal of embezzlement charges levied against former New York State Senator John Sampson.  In a companion decision issued the same day, which we summarize in a separate post, the Court affirmed Sampson’s conviction on obstruction and false statement charges that proceeded to trial.

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Court Affirms Drug Conviction Notwithstanding Post-Trial E-mail from Juror Raising “Several Concerns”

In United States v. Baker, the Court (Livingston, Chin, C.J.J., Koeltl, D.J.) affirmed the conviction of Raymond Baker, who after a jury trial in the Northern District of New York was convicted of participating in a conspiracy to distribute and possess with intent to distribute more than 100 grams of heroin, in violation of the Controlled Substances Act, 21 U.S.C. §§841(a)(1), 841(b)(1)(B), 846 and 851.

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Appeal “Tanks” After Circuit Holds That Defendant Gave Implied Consent to Have K-9 Unit Present in His Apartment After Calling 911 to Report Prowler

On July 31, the Second Circuit issued a decision in United States v. Iverson (Kearse, Calabresi, Livingston) and affirmed the conviction of a defendant who had challenged the district court’s denial of his suppression motion and the district court’s mid-trial decision to excuse one of two black persons on the jury for cause right before summations based on an interview of the juror conducted in camera.  The decision presents an interesting set of facts and applies established law in the Second Circuit.

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Second Circuit’s Lambus Decision Analyzes the Admissibility of Wiretap and GPS Evidence

On July 25, 2018, in United States v. Lambus, No. 16-4296 (Kearse, Livingston, Jeffrey Meyer, D.J.), the Second Circuit issued a lengthy decision analyzing two questions related to the suppression of  GPS data from an ankle bracelet and evidence obtained from a wiretap.  The GPS question raises interesting issues about when a federal prosecution can make use of evidence obtained in connection with state parole supervision without a federal warrant and the relevance of state-federal coordination when making that assessment.  And the wiretap issue addresses whether an undisputed, but inadvertent, error in a wiretap application should result in the suppression of evidence.  On both issues, the district court (Weinstein, J.) granted the defendants’ motions to suppress, but the Circuit reversed.

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Circuit Rules That Embezzlement of Government Property Does Not Constitute “Continuing Offense,” Generating Split with Fourth Circuit

In a brief decision issued on Tuesday, July 31, in United States v. Green, the Second Circuit (Cabranes, Carney, Goldberg by designation) vacated in part a judgment ordering the defendant to pay restitution for the theft of government property that was stolen outside the applicable statute of limitations.  In doing so, the Court rejected the government’s arguments that the defendant had (i) waived her right to appeal in her plea agreement, and (ii) consented in her plea agreement to pay restitution for property stolen outside the applicable limitations period.  Having disposed of these contentions, the Court rejected the government’s argument that the underlying theft was a “continuing offense” that would permit the government to obtain restitution for amounts stolen both within and outside of the limitations period.

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Second Circuit Affirms $10 million Fine in Tax Evasion Case

In a per curiam decision issued on July 27, 2018, the Second Circuit affirmed a $10 million fine imposed on Morris Zukerman as part of a sentence for tax evasion in United States v. Zukerman, No. 17-948 (Katzmann, Kearse, Pooler).  The Court summarized its reason for affirming the fine, which was well above the $250,000 Guidelines ceiling, by writing that “Zukerman, a very wealthy man who has repeatedly and brazenly committed sophisticated tax fraud—a rarely caught and more rarely punished offense that undercuts the functioning of state and federal governments—ought to pay a fine hefty enough to take any financial benefit out of his crimes and to give pause to others who might be tempted to commit similar crimes.”  While tax cases often involve downward variances to a non-incarceratory sentence, this case involved a district judge’s strongly held belief that the high fine was important to the purposes of sentencing and that it merited an upward variance.  The Circuit agreed.

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Second Circuit Reverses Immigration Proceeding Based on Constitutional Violation, Criticizes Immigration Enforcement Based on Ethnic Generalizations As "Teeter[ing] On The Verge of The Ugly Abyss of Racism"

In the context of an appeal from a decision of the Board of Immigration appeals, Zuniga-Perez v. Sessions, the Second Circuit (Pooley, Wesley, Chin, C.JJ) ruled that a search conducted by law enforcement personnel violated the Fourth Amendment.  The Court recognized that the petitioner “made a sufficient showing of an egregious constitutional violation” by law enforcement agents, and reversed the immigration judge’s decision to deny a suppression motion without a hearing.  While this is not a criminal law decision, it raises some important criminal law issues, so we have decided to cover it.

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When Is a Controlled Substance Not a Controlled Substance?

Human Chorionic Gonadotropin is a hormone produced during pregnancy that is prescribed as part of some fertility treatments and, less legitimately, sold as a dieting aid.  In New York, it is considered a controlled substance, but it’s not listed on the federal controlled substance schedule.  In United States v. Townsend, the Second Circuit (Cabranes, Carney, Lawrence Vilardo, D.J.) faced a defendant with a prior conviction for possession of HCG, and considered whether his base offense level should be increased based on a prior conviction for an “offense under federal or state law . . . that prohibits . . . distribution . . . of a controlled substance.”   USSG § 2K2.1(a).  Applying a presumption that the Guidelines refer to federal law unless they explicitly incorporate state law, the panel said no:  because HCG is not banned on the federal level, its possession is not an offense for possession of a “controlled substance” for sentencing purposes.

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United States v. Smith

The Second Circuit issued an amended opinion in United States v. Smith (Cabranes, Winter, Restani by designation).  Both the original decision, which we covered on the blog earlier this year and the amended decision held that the defendant was subject to an enhanced Guidelines range as a result of having committed the New York offense of robbery in the second degree.  This crime constituted a crime of violence within the meaning of the residual clause of Sentencing Guidelines Section 4B1.2(a)(2), which was in effect when Smith was sentenced on October 1, 2015.

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Court Rejects MS-13 Gang Member’s Challenge to Conviction and Sentence

In United States v. Hernandez, 16-2765, the Second Circuit (Kearse, Cabranes, Lohier) affirmed the conviction of a member of La Mara Salvatrucha (MS-13), a street gang that operates in certain parts of the country, arising out of an initiation shooting in Brentwood. 

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In Split Decision, Court Again Applies Castleman To Interpret the “Force Clause” of the Armed Career Criminal Act

In Villanueva v. United States, the Second Circuit held by a 2-1 vote (Newman and Leval, with Pooler dissenting) that a conviction for first degree assault under Connecticut law qualifies as a violent felony under the Armed Career Criminal Act of 1984 (“ACCA”).  The question before the Court was whether the Connecticut statute, analyzed under the “modified categorical approach,” is a violent felony that requires the use of physical force.  The Court reversed the district court’s decision to grant the petition under Section 2255 and remanded the case for resentencing.

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