Category: Fifth Amendment

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. Brennan, the Second Circuit (Kearse, Winter, Pooler) rejected an as-applied challenge to 18 U.S.C. § 4241(d), which requires a defendant who has been found incompetent to stand trial to be committed to the custody of the Attorney General to determine whether he is likely to attain competency in the future.  Section 4241(d), as discussed below, is a statute meant to guarantee a constitutional right to be free from unreasonable restraint.  Brennan argued that his commitment violated his right to due process because a physician had already found that his mental illness was unlikely to improve.  The Court rejected this argument, noting that determining the likelihood of a defendant’s future competency is a question for the District Court to decide after a period of reasonable commitment under the statute. 

Last week, the Second Circuit (Cabranes, Pooler, Droney) issued a non-precedential summary order remanding a case to the district court for an evidentiary hearing on a motion to suppress.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.

In United States v. Haak, 16-3876-cr, the Second Circuit (Raggi, Hall, Carney) reversed a suppression order, finding that local law enforcement authorities did not falsely promise the defendant immunity from prosecution and his statements therefore were not coerced in violation of the Fifth Amendment.

In a short summary order issued on February 9, 2018, in the case of United States v. Muir, 17-150, the Second Circuit affirmed a sentence and reminded everyone that nothing about Apprendi, Booker and their progeny changes the rule that existed even prior to the Sentencing Reform Act:  uncharged and acquitted conduct can be relied upon by the district court at sentencing.  This is not a violation of either the Due Process Clause or the Double Jeopardy Clause of the Fifth Amendment, nor does it violate the Sixth Amendment’s guarantee of the right to trial by jury.  So long as the court finds that the relevant facts are proved by a preponderance of the evidence and do not increase either the statutory minimum or maximum sentence, there is no violation of law.

On July 19, 2017, in United States v. Allen, et al. (16-cr-98) (Cabranes, Pooler, Lynch), the Second Circuit issued a decision reversing the convictions of defendants Anthony Allen and Anthony Conti for wire fraud and conspiracy to commit wire fraud and bank fraud.  This was the first federal criminal appeal in connection with the London Interbank Offered Rated (“LIBOR”) prosecutions, which involved allegations that various individuals and banks manipulated the LIBOR.  The LIBOR is a benchmark interest rate intended to reflect the available rates at which banks borrow money from other banks; the LIBOR is incorporated into the terms of financial transactions worldwide. We provided a brief summary of the opinion a few hours after the decision was rendered; here is our more detailed summary.

The Second Circuit joined its sister circuits and upheld the constitutionality Federal Rule of Evidence 413, which renders admissible propensity evidence about the defendant in sexual assault cases.  In United States v. Schaffer, 15-2516-cr (Walker, Cabranes, Berman[1]) the Circuit rejected as a matter of first impression the defendant’s argument that Rule 413 violates the Due Process Clause of the Fifth Amendment.  The Court also reviewed its jurisprudence on “custodial” interrogation in the course of affirming the admissibility of incriminating statements the defendant made to law enforcement agents prior to his arrest.

In United States v. Hill, 14-3872-cr (August 3, 2016) (Jacobs, Livingston, Droney), the Court affirmed Defendant’s conviction in the Eastern District of New York (Matsumoto, J.) pursuant to 18 U.S.C. § 924(j)(1) for a firearm-related murder committed in the course of a “crime of violence.”

In United States v. White, 15-229-cr (Cabranes, Droney, Meyer by designation), the Second Circuit ordered a remand for resentencing via summary order, instructing the lower court to consider the defendant’s post-sentencing rehabilitation. Although the order is not precedential, it represents an important reminder that practitioners can raise new factual arguments at resentencing based on changes in the defendant’s circumstances since the time of the initial sentencing proceedings.

In Morales v. United States, 15-243-cv (Pooler, Parker, Livingston), the Second Circuit granted habeas relief to petitioner Jorge Luis Morales on the grounds that it was ineffective assistance of counsel for his attorney not to raise a Fifth Amendment challenge to the lower court’s (Nevas, J.) decision to conduct in camera sentencing discussions outside of Morales’s presence.  Although the Circuit chose to decide this matter via non-precedential summary order, this represents the rare case where ineffective assistance of appellate counsel excused a habeas petitioner’s procedural default.