Second Circuit Holds that Attempted Bank Robbery is Categorically a ‘Crime of Violence’
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.
Circuit Upholds FIFA Convictions, Denying Extraterritoriality and Vagueness Challenges
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 Wake of Supreme Court’s Vagueness Rulings, Second Circuit Vacates Section 924(c) Residual Clause Conviction
In United States v. Barrett, No. 14-2541 (2d Cir. Aug. 30, 2019) (Winter, Raggi, Droney), the Second Circuit vacated a defendant’s conviction for using a firearm in connection with a “crime of violence” under 18 U.S.C. § 924(c) in the wake of the Supreme Court’s recent decision striking down the residual clause of that statute in United States v. Davis, 139 S. Ct. 2319 (2019). To understand the Second Circuit’s decision, a brief discussion of Section 924(c) and Davis is warranted. Section 924(c) raises some of the same questions presented by litigation under the Armed Career Criminal Act (“ACCA”), which has been the subject of repeated litigation in the Supreme Court and the Circuit Courts of Appeal in recent years.