In a short opinion in United States v. Ohle, 16-601-cr, the Second Circuit (Leval, Calabresi, Cabranes) resolved two open questions about the application of Federal Rule of Appellate Procedure 4, both in the context of a proceeding brought under Title 21, United States Code, Section 853(n). Section 853(n) is the provision of forfeiture law that can be invoked by a third party who claims to have a superior interest in assets that the government is seeking to forfeit. The Circuit held that although 853(n) proceedings arise in the aftermath of a criminal conviction, these ancillary proceedings are civil in nature. The Circuit also held that when the district court issues a short order resolving a motion and promises that a more detailed opinion will follow, plaintiffs may not wait for the more detailed opinion; the time to appeal begins to run upon the issuance of the initial order.
In United States v. Gomez, 16-181-cr (Parker, Wesley, and Droney), the Second Circuit found that the defendant’s Fourth Amendment rights were violated during a five-minute traffic stop because the police officers extended the stop for reasons unrelated to the defendant’s traffic violations. However, the Court nonetheless affirmed the conviction, ruling that the good-faith exception applied given that the officers acted legally under the Second Circuit’s prior precedent.
On February 9, 2018, the Second Circuit issued a summary order vacating a sentence imposed for a violation of supervised release. United States v. Kalaba, 17-328, involved a defendant who had been convicted for credit card theft and who was sentenced to 70 months’ imprisonment. After his time in prison concluded, he began a three-year term of supervised release. Before his supervised release term ended, Kalaba was arrested and indicted with multiple narcotics offenses, for which he was sentenced to 84 months’ imprisonment, well below the 240 month sentence recommended by the U.S. Probation Office.
In a 12-page summary order issued on February 9, 2018, the Second Circuit affirmed an order of restitution in United States v. Quatrella, 17-1786. The order is interesting primarily because it addresses the question of when a victim of an offense is not really a victim but rather a fellow participant in the criminal scheme. The rule in the Circuit is clear: no order of restitution should be granted that has the effect of treating a coconspirator as a victim. At the same time, a victim may not be denied restitution simply because the victim had greedy or dishonest motives, so long as the victim’s intentions were not in pari materia with the defendant’s.
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.
In United States v. Zukerman, No. 17-948 (2d Cir. Feb. 6, 2018) (ALK, RAK, RSP) (summary order), the appellant, Morris Zuckerman, challenged the substantive and procedural reasonableness of his sentence, which was imposed following his pleading guilty for tax evasion and obstruction of the IRS, see 26 U.S.C. §§ 7201, 7212(a). While Zukerman’s plea agreement contained a stipulated fine range of $25,000 to $250,000, the district court (Torres, J.) imposed a fine of $10 million. Given that tax fraud defendants are typically required to resolve their civil tax liabilities in parallel proceedings, it is unusual for such a large fine to be imposed in this type of case. After acknowledging that fine calculations are typically committed to the discretion of the sentencing judge, the Second Circuit held that Judge Torres’ comments at the sentencing hearing and in the written statement of reasons did not provide the panel with a sufficient basis to determine how she reached the $10 million fine amount. Rather than try to guess what considerations went into this calculation, the Court ordered a so-called “Jacobson remand”—wherein it remands “partial jurisdiction to the district court to supplement the record on a discrete factual or legal issue while retaining jurisdiction over the original appeal”—and directed the district court to “elaborate on its rationale for imposing a fine greater than those typically imposed in tax prosecutions.”
Circuit Says “I’ll Drink To That,” Grants Defendant’s Appeal Challenging Alcohol-Ban Condition of Supervised Release
Update: The Second Circuit’s decision in United States v. Betts (No 17-231), which was initially released as a non-precedential summary order on February 5, 2018, was re-released as a published opinion on March 28, 2018. A copy of the opinion can be found here. This upgrade to a precedential opinion is consistent with the Circuit’s recent focus on reasonableness review of the conditions of supervised release. For more on that subject, see our recent post on United States v. Donahue (17-943-cr) Second Circuit Continues To Give A Close Look To Supervised Release Conditions. We also welcome the Court’s decision to make this ruling one with precedential impact rather than a summary order. Even when the legal standard is neither disputed nor newly pronounced, the development of the law requires the application of the standard to different sets of facts, so that attorneys may argue by analogy. Given the relative infrequency with which sentences are reversed for being unreasonable, more guidance from the Circuit is always appreciated.
Joseph Tigano’s Ticking Clock: Circuit Reverses Conviction of Defendant Forced to Wait Seven Years for Trial
On November 15, 2017, the Second Circuit reversed by summary order the conviction of Joseph Tigano III on drug charges, determining that he had been deprived of his Sixth Amendment right to a speedy trial and indicating that an opinion would follow. This week, the court issued its opinion, detailing the “exceptional facts” that had culminated in a nearly seven-year lapse between Mr. Tigano’s arrest and his trial, despite his repeated invocation of his right to a speedy trial. Indeed, the Court stated that the pretrial detention here “appears to be the longest ever experienced by a defendant in a speedy trial case in the Second Circuit.” The Court held that that length of time, combined with other relevant factors, compelled the conclusion that his Sixth Amendment rights had been violated. Judge Pooler authored the opinion, and was joined by Judge Winter and Judge Walker.
On January 9, 2018, the Second Circuit (Kearse, Cabranes, Wesley) rejected a request by ex-AOL Inc. employee Jason Smathers to junk the restitution component of his sentence, which requires him to recompense the online service provider for the losses it incurred after Smathers sold 92 million AOL screen names to spammers in the early 2000s—one of the earliest large-scale data security breaches of the Internet age. Smathers argued that his restitution award should be offset by damages later obtained by AOL in litigation against Smathers’s co-conspirators.
In a summary order on January 2, 2018 in United States v. Reyes, the Court (Winter, Lynch, Droney) vacated and remanded a life sentence as procedurally unreasonable on the ground that the district court failed to properly apply a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The decision reiterates that a three-level reduction is mandatory under certain circumstances if the district court has already imposed a two-level reduction, and that the government must formally move for a three-level reduction in order to bind the court’s hands. The third point of acceptance of responsibility under the Guidelines is not a matter of grace or kindness by the district court. When a defendant is entitled to receive the third point, the district court is obliged to award it.
In Ganek v. Leibowitz, No. 16-1463, 2017 U.S. App. LEXIS 20226 (2d Cir. Oct. 17, 2017), the U.S. Court of Appeals for the Second Circuit recently reversed a district court’s determination that federal prosecutors and agents were not entitled to qualified immunity from plaintiffs’ Bivens claims for money damages for violations of the Fourth and Fifth Amendments in procuring and executing a search warrant.
Second Circuit Remands for New Trial Based on District Court’s Improper Exclusion of Advice-of-Counsel Testimony
In United States v. Scully, 16-3073-cr (Pooler, Lynch, Cogan), the Second Circuit vacated the defendant’s conviction for various offenses, including mail and wire fraud, conspiracy to defraud the United States, the sale of misbranded and unapproved drugs, and the unlicensed wholesale distribution of prescription drugs, finding that the District Court erred in excluding evidence related to his advice-of-counsel defense. The opinion provides a helpful overview of the requirements of Rule 403 balancing and the nature of the burden in establishing an advice-of-counsel defense.
In Rare Ruling Vacating Sentence as Both Procedurally and Substantively Unreasonable, Second Circuit Expounds on the Role of Mercy in Sentencing
In United States v. Singh, 16-1111-cr (Kearse, Hall, Chin), the Second Circuit vacated the defendant’s 60-month prison sentence—which was nearly three times the top of his Guidelines range—for illegally reentering the United States after the commission of an aggravated felony on the grounds that it was both procedurally and substantively unreasonable. This opinion stands out as a rare ruling striking down a sentence as substantively unreasonable. It is also notable for the Court’s musings on the role of mercy in the sentencing process.
On Tuesday in Washington v. Griffin, 15-3831-pr (Katzmann, Kearse, Livingston), the Second Circuit affirmed the denial of a petition for a writ of habeas corpus on a Confrontation Clause challenge. At issue was whether it was proper for the New York trial court to admit DNA profile evidence without affording the petitioner, Kenneth Washington, the opportunity to cross-examine the analysts who tested his DNA. This case illustrates the special challenges faced by habeas petitioners where, as in the Confrontation Clause context, Supreme Court precedent is developing and fractured. It also reflects the Circuit’s uncertainty about the state of the law in light of a series of Supreme Court precedents. This line of authority began in 2004 with Crawford v. Washington, 541 U.S. 36 (2004), which stated a definitive rule that out-of-court statements that were “testimonial” could only be offered so long as the witness was available for cross-examination, and has continued through Williams v. Illinois, 132 S. Ct. 2221 (2012), which is far more ambiguous due to the absence of a majority opinion.
Circuit Reverses Conviction & Dismisses Indictment in Case Where Defendant Waited Seven Years for Trial
In United States v. Tigano, No. 15-3073 (Winter, Walker, Pooler), the Second Circuit issued a short order reversing the conviction of Joseph Tigano, III and dismissing the indictment with prejudice. The Court noted that a full opinion in the case would be forthcoming. Gary Stein, a former chief appellate attorney in the criminal division of the U.S. Attorney’s Office for the Southern District of New York, and now in private practice, represented Tigano pursuant to a court appointment.
The Second Circuit has denied the government’s request for rehearing en banc in United States v. Allen, et al. (16-cr-98).
The Klansman and His Death Ray: Second Circuit Affirms Conviction and Sentence in Bizarre Domestic Terrorism Plot
In United States v. Crawford, 16-4261-cr (Kearse, Cabranes, Wesley), the Second Circuit affirmed via summary order the terrorism-related conviction and sentence of a Klansman in upstate New York. This case represented the first conviction under the 2004 law barring the acquisition and use of so-called “dirty bombs” and provided a rare opportunity for the Circuit to interpret several terrorism statutes. It is most notable, however, for its bizarre fact pattern—involving Ku Klux Klan business cards, a modified x-ray machine, and a plot to kill President Barack Obama and an unknown number of Muslims. In August 2015, Glendon Scott Crawford—a Navy veteran and an avowed member of the Ku Klux Klan—was convicted of several counts of domestic terrorism and was subsequently sentenced to 30 years’ imprisonment for his crimes.
Federal Agent’s Misrepresentation in LG Search Warrant Affidavit Insufficient to Clear Qualified Immunity Hurdle
In Ganek v. Leibowitz, No. 16-1463 (2d Cir. Oct. 17, 2017) (Raggi, Chin, Carney), the Second Circuit reversed and remanded a district court’s determination that federal law enforcement authorities were not entitled to qualified immunity from plaintiff’s Bivens claims for money damages for violations of the Fourth and Fifth Amendment in procuring and executing a search warrant.
Circuit Amends Decision Affirming Sentence Two Panel Members Deemed “Absurd,” Remands for Resentencing
On October 5, 2017 the Circuit published an amended opinion in United States v. Jones, No. 15-1518 (Walker, Calabresi, Hall), which supplanted a decision issued on September 11 that we covered in an earlier blog post. The amended decision differs from its forbearer in one key respect. In the initial decision, Judge Calabresi authored a concurring opinion (joined in by Judge Hall) that chided the district court’s sentence, as affirmed by the Circuit, as “little short of absurd” given the defendant’s borderline IQ, old crimes, and the “timing quirks” that rendered the sentence “very, very high . . . in contrast with almost every similarly situated defendant.” Now, in this amended opinion, the panel affirmed but still remanded “for further consideration as may be just in light of the circumstances.”
Circuit Remands Restitution Order for Further Consideration of Indigent Defendant’s Right to Counsel and Application for Expert Services
In United States v. Torriero, the Second Circuit (Chin, Droney, Restani by designation) vacated by summary order a $765,561 restitution order relating to costs incurred by the EPA in cleaning up a property that the defendant had used as an illegal landfill. Although not the panel’s primary focus, the order also addresses a district court’s role in approving or denying an indigent defendant’s request for expert services—an issue currently being examined as part of a broader review of the defense funding under the Criminal Justice Act (“CJA”) by an ad hoc committee chaired by Judge Kathleen Cardone of the U.S. District Court for the Western District of Texas.
The Second Circuit issued a published opinion on September 11, 2017 in United States v. Pabon, No. 16-1754 (Cabranes, Livingston, Pauley), a case arising from an interesting set of facts involving the warrantless arrest of an individual suspected of body-packing narcotics who behaved erratically while in police custody. On appeal, the defendant argued that evidence he had been body-packing narcotics should have been suppressed because it was obtained only after probable cause to detain him had dissipated. In the alternative, the defendant argued that suppression was warranted because police allegedly failed obtain a probable cause determination from a neutral magistrate in a timely fashion (typically 48 hours).
Second Circuit Finds Death Extinguishes Trial Convictions and Related Restitution Order – But Tax Offenses and Bail Forfeiture Survive
In 2010, a federal jury in the Eastern District of New York convicted body-armor tycoon David H. Brooks of multiple counts of conspiracy, insider trading, fraud, and obstruction of justice for his role in a $200 million scheme to enrich himself from company coffers. Brooks was the founder and former chief executive of DHB Industries, the leading supplier of bulletproof vests to police departments and the U.S. military. Brooks later pleaded guilty to associated charges of conspiracy to defraud the IRS and filing false income tax returns that had been severed from the rest of the case. While he appealed the result of his jury trial, he did not appeal the tax fraud convictions (pursuant to the terms of a plea agreement). Brooks died in prison while his appeal was pending, forcing the Second Circuit to revisit an obscure area of law to decide what aspects of his convictions, if anything, survived his death. Ultimately, Brooks’s death in prison led to the abatement of his trial convictions, and with that abatement, the erasure of significant restitution obligations that Brooks otherwise would have owed.
Skelos Vacated: For The Second Time This Year, Conviction Of Leading New York State Legislator Is Undone Due To McDonnell
The Second Circuit (Winter, Raggi, Hellerstein by designation) today vacated by summary order the convictions of former New York State Senate Majority Leader Dean Skelos and his son Adam Skelos. Dean and Adam Skelos were convicted of Hobbs Act conspiracy and substantive offenses, honest services wire fraud conspiracy, and federal program bribery, after a jury trial in which the government presented evidence that the elder Skelos had taken official actions to benefit certain companies in exchange for payments to his son. Much like the conviction of his fellow senior state legislator, Assembly Speaker Sheldon Silver, the conviction was reversed in light of the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2016), which narrowed the definition of an “official act.” As the Court rejected the defense contention that insufficient evidence supported the convictions, both Skelos and his son will be retried by the U.S. Attorney’s Office for the Southern District of New York. Like the Silver reversal, this ruling reflects the ways in which the McDonnell decision has complicated that office’s investigation and prosecution of public corruption in New York state government.
On September 18, 2017, in United States v. Caltabiano, No. 16-1275-cr, the Second Circuit (Walker, Lynch, and Lohier, Js.) clarified the jurisdictional scope of a Notice of Appeal. The Court confirmed its authority to review a criminal appeal notwithstanding errors on a form notice as to the scope of the defendant’s claims. On the merits, the Court affirmed the conviction and sentence of John W. Caltabiano, Jr.
Circuit Denies Protection to Hallway Conversation Between Co-Defendants, Highlighting Limits of JDAs
A Joint-Defense Agreement (JDA) can be an extremely valuable tool in coordinating defenses against pending or impending prosecution, as it formalizes the creation of a zone of privilege in which co-defendants and their counsel can exchange confidential information without fear of compelled disclosure. But as the Circuit’s recent decision in United States v. Krug, No. 16-4136 (Leval, Pooler, Hall) (Aug. 18, 2017) exemplifies, a JDA protects communications between co-defendants only insofar as they further the provision of legal advice. A JDA cannot transform the joint-defense group’s communications relating to business, personal, or other non-legal issues into privileged discussions. As happened here, such non-privileged statements can become part of the government’s case at trial.
On September 11, 2017, the Second Circuit (Parker, Carney, Stanceu) reversed by summary order the sentence of the defendant in United States v. Soborski (16-cr-3369). The panel remanded the case to the U.S. District Court for the Southern District of New York (Swain, J.) for resentencing so that the district court could consider whether Soborski should receive a minor-role reduction under an amendment to the Sentencing Guidelines.
Second Circuit Affirms Sentence Based on Correct Application of Career Offender Guideline, Yet Majority of Panel Agrees the Result is “Unjust” and “Close to Absurd”
On Monday, September 11, the Second Circuit issued a published opinion in United States v. Jones, No. 15-1518 (Walker, Calabresi, Hall), a case with a complicated procedural history in which the Court affirmed a defendant’s sentence as a career offender under the now-removed residual clause of the Career Offender Sentencing Guideline. The decision was accompanied by a concurrence authored by Judge Calabresi and joined by Judge Hall, which upheld the sentence while calling the result “unjust” and “close to absurd.” We have reported on this case before, when the Circuit reversed and remanded the sentence; subsequent to our earlier blog post the case was re-opened for additional argument, and this week’s decision now affirms.
Golb v. Attorney General, No. 16-0452-pr (Jacobs, Leval, Raggi), arises out of unusual facts—forged emails by a proponent of one side of an academic dispute—and reaches an unusual result. On habeas review, the Second Circuit found that it only owed partial AEDPA deference, and overturned an number of convictions after finding a New York statute unconstitutionally overbroad. In this case, an advocate of one side of the unresolved academic debate about the authorship of the Dead Sea Scrolls went too far and engaged in illegal acts that brought about his own criminal conviction. On its face, the decision applies important aspects of New York and federal constitutional law. However, in a larger sense, the law most relevant to the decision may be Sayre’s Third Law of Politics, which provides that academic politics are the most vicious form of politics because the stakes are so low.
United States v. Gill, No. 15-4444-cr(L) (Livingston, Chin, Carney), a decision in a drug trafficking and murder conspiracy appeal, offers several interesting rulings on evidentiary and trial practice issues that arose out of a 4-week trial. As we often see, these decisions may originate in the world of violence crime and narcotics, but the legal rules established in these cases will also apply in the world of business crimes.
In United States v. Genao, No. 16-924 (Katzmann, Lynch, Chin), the Second Circuit examined the application of the categorical approach to a prior burglary conviction that indisputably involved threats of physical harm but whose minimal elements arguably did not meet the Guidelines’ definition of a “crime of violence.” The Second Circuit reaffirmed that the categorical approach requires evaluation of the elements of conviction, not the facts of conviction, making it reversible error for the district judge to have “short circuited” the analysis by starting with the facts. But the Second Circuit emphasized that in an advisory-Guidelines world, the district court is free to take those facts of conviction into account in exercising its discretion to set the final sentence. So long as the sentencing correctly applies and calculates the appropriate Guidelines sentence, the court is then liberated—indeed required—to pick the sentence that it believe best fits the crime.
A divided Second Circuit panel (Katzmann, Pooler (dissenting), Chin) on Wednesday upheld the insider trading conviction of former SAC Capital portfolio manager Mathew Martoma. Confronting its precedent in United States v. Newman, 773 F.3d 438 (2d Cir. 2014), for the first time since the Supreme Court struck down part of the Newman tippee liability standard this past December, see Salman v. United States, 137 S. Ct. 420 (2016), the Court ruled that the “meaningfully close personal relationship” requirement of Newman is no longer good law. See United States v. Martoma, 14-3599 (2d Cir. Aug. 23, 2017).
Divided Second Circuit Panel Upholds Martoma Conviction, Ruling that Newman’s “Meaningfully Close Personal Relationship” Requirement Is No Longer Good Law After Salman
In a highly anticipated decision, a divided Second Circuit panel (Katzmann, Pooler (dissenting), Chin) today upheld the insider trading conviction of former SAC Capital portfolio manager Mathew Martoma, ruling that the “meaningfully close personal relationship” requirement set out by the Court in United States v. Newman, 773 F.3d 438 (2d Cir. 2014), does not survive the Supreme Court’s decision in Salman v. United States, 137 S. Ct. 420 (2016). See United States v. Martoma, 14-3599 (2d Cir. Aug. 23, 2017).
In United States v. Browder, the Second Circuit (Cabranes, Lohier, Forrest, sitting by designation) has vacated in part an order finding that the defendant violated two conditions of supervised release. The Court’s decision sheds light on the respective roles of the district court and the Probation Office in entering and executing an order of supervised release, and it suggests that the Court may look with increased scrutiny at generalized conditions that defer to the Probation Office without sufficient judicial scrutiny, and may reject violation specifications based on those infirm conditions.
Last week, in Barinas v. United States, the Second Circuit held that a defendant who is extradited to the United States to face charges, pursuant to agreement with the asylum nation, may not raise the objection that the prosecution exceeds the scope of the extradition agreement or that he is to be tried on charges other than those for which he is extradited. That objection, known as a “rule of specialty” objection, may be raised only by the asylum nation itself. The panel also held that when a defendant on supervised release becomes a fugitive, his supervised-release term is tolled during the period of fugitivity. The impact of this ruling is that a defendant who commits another crime while a fugitive from supervised release can be charged with a violation specification even if, at the time he committed the second crime, his term of supervised release otherwise would have ended.
Last week, in Weingarten v. United States, the Second Circuit denied the Section 2255 petition of a convicted child sex offender, who claimed that his counsel had rendered ineffective assistance by failing to challenge the timeliness of the Government’s indictment. The panel—consisting of Judge Wesley, who authored the opinion, as well as Judge Parker and Judge Droney—unanimously concluded that the timeliness issue was too complex, and too uncertain, to support a finding that trial counsel made a “significant and obvious” error by declining to raise it.
The Chiclets and Runts vending machine at your local car repair shop last decade may have been one piece of a fraudulent enterprise that ensnarled roughly 7,000 victims. As CEO of Vendstar, Defendant Edward (“Ned”) Weaver directed a scheme that enticed victims to make substantial up-front investments in quarter-slot candy dispensers with false promises of significant returns—even hundreds of a dollars a day. Despite assurances that this “home-based vending business” had “little risk,” many customers lost their entire investment.
In United States v. Weaver, 16-3861 (June 21, 2017) (Newman, Cabranes, Lynch), the Court held in a per curiam order that contractual disclaimers signed by victims of Weaver’s fraud did not render the fraudulent statements “immaterial” as a matter of law and negate criminal liability.
Yesterday the Second Circuit, in United States v. Huertas (15-4014) weighed in on the question of when a suspect’s brief encounter with police can support a finding that the suspect was “seized” within the meaning of the Fourth Amendment. Judge Jacobs, joined by Judge Winter, concluded that a suspect who briefly pauses to answer a police officer’s questions, but then proceeds to flee, has not been “seized.” Judge Pooler dissented, pointing to out-of-Circuit precedent and arguing that a suspect’s encounter with police generally constitutes a seizure if it extends beyond a “momentary halt.”
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.
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.
In a decision that will provide reassurance both to prosecutors and to the institutions with whom they enter into deferred prosecution agreements (“DPAs”), the Second Circuit (Katzmann, Lynch, Pooler (concurring)) held in United States v. HSBC Bank USA, N.A., No. 16-308(L), that the periodic reports submitted by an independent monitor responsible for evaluating compliance with a DPA are not “judicial documents” to which the public enjoys a First Amendment right of access. To reach its holding, the Court was required to address foundational separation-of-powers questions regarding a court’s role in approving and supervising the implementation of a DPA. The decision, written by Chief Judge Katzmann, will discourage courts from second-guessing decisions made by the executive branch in the legitimate exercise of its prosecutorial discretion. Along with the Second Circuit’s decision in SEC v. Citigroup Global Markets, Inc., 752 F.3d 285 (2d Cir. 2014), which held that a district court reviewing a proposed SEC consent decree may only reject it under limited circumstances, last week’s decision makes clear that the Second Circuit envisions that district courts will not play a significant role in assessing the fairness of the government’s settlements with financial and other institutions.
This morning the Second Circuit (Cabranes, Wesley, Sessions, D.J.) released an opinion vacating the conviction of Sheldon Silver and remanding the case to the district court for further proceedings including a retrial. The Second Circuit concluded that the evidence of guilt was sufficient to permit a retrial, but found that the jury instructions did not comport with the Supreme Court’s McDonnell decision and that the error was not harmless. The panel took no joy in rendering its decision, observing that “many would view the facts adduced at Silver’s trial with distaste.” Nor did the panel blame either the district court or the government for today’s reversal, recognizing that the McDonnell decision—which changed the law of the Circuit—was issued after the Silver trial had concluded. Nevertheless, the panel felt itself compelled by McDonnell and the facts of the case to decide the matter as it did.
Court Remands Guidelines Sentence for Child Pornography Offenses Without Finding Procedural or Substantive Unreasonableness
In a summary order issued on July 11, 2017, United States v. Burghardt, No. 16-949(L) (Katzmann, Pooler, Lynch), the Second Circuit remanded a 322-month Guidelines sentence for distribution and receipt of child pornography for “further consideration” by the district court. The Court found the sentence to be procedurally reasonable and also found it was not substantively unreasonable, but nonetheless remanded the case for further consideration, continuing the recent trend of reversals in the sentencing of child pornography cases.
On July 10, 2017, in United States v. Boyland, No. 15-3118 (Kearse, Walker, Hall), the Second Circuit affirmed the conviction of former New York State Assembly member William F. Boyland, Jr. on twenty-one counts of public corruption offenses, including eleven counts of honest services fraud. Many of these counts involved determining that the benefits Boyland offered in exchange for bribes amounted to “official acts” under 18 U.S.C. § 201, the federal bribery statute prohibiting public officials from “being influenced in the performance of any official act.” Id. § 201(b)(2)(A). The U.S. Supreme Court recently narrowed the definition of this term in McDonnell v. United States, 136 S. Ct. 2355 (2016), which led the government to concede in Boyland’s appeal that the trial court’s jury instructions on the meaning of “official act” were in part erroneous. The Second Circuit, however, determined on plain error review that the error did not affect Boyland’s “substantial rights” and thus affirmed his convictions. This decision may prove problematic for other high-profile former elected officials whose appeals are currently pending before the Second Circuit.
On July 7, 2017, the Second Circuit (Jacobs, Leval, Raggi) issued a short summary order in United States v. Stegemann. Most of the order is dedicated to affirming the defendant’s conviction at trial on several drug and firearm-related offenses, but at the end the Court reverses the order of forfeiture imposed as part of the defendant’s sentence, in part with the government’s consent.
In United States v. Martinez, Nos. 14-2759, 15-511, 15-836, 15-1001, 15-3699 (Kearse, Jacobs, Pooler), issued on July 7, the Second Circuit affirmed the convictions of several co-conspirators in a decade-long scheme where at least two dozen individuals allegedly committed over 200 drug robberies by impersonating police officers who “arrested” drug traffickers and “seized” cash and drugs.
In United States v. Delacruz, No. 15-4174, the Second Circuit (Kearse, Lohier, Droney) vacated a defendant’s sentence, holding that the district court’s findings supporting the defendant’s failure to accept responsibility were clearly erroneous. In an opinion by Judge Kearse, the Second Circuit emphasized its precedent that a Sentencing Guidelines reduction for acceptance of responsibility is appropriate where the defendant truthfully admits the conduct comprising the offense of conviction. It would violate the Fifth Amendment’s Due Process Clause to withhold an acceptance of responsibility adjustment because the defendant denied other conduct that was not proved beyond a reasonable doubt. Thus, a “good-faith objection to material [presentence report] statements . . does not provide a proper foundation for denial of the acceptance-of-responsibility credit.”
On June 19, 2017, the Second Circuit (Katzmann, Kearse, Livingston) issued a per curiam decision in United States v. Burden, et al., vacating the term of supervised release imposed on the defendants and remanding the case for resentencing as to supervised release. Judge Kearse concurred in a separate opinion.
On June 5, 2017, in an opinion with facts that even the Court seemed to recognize read like the script for a straight-to-video movie, the Second Circuit (Jacobs, Sack, Carney) declined to overturn a defendant’s conviction and 35-year sentence despite the fact that the defendant’s counsel had engaged in an alleged sexual relationship with the defendant’s mother contemporaneously with his representation of the defendant, arguably creating an impermissible conflict of interest in violation of the Sixth Amendment. The Second Circuit deferred the issue of whether the relationship in fact infringed on the defendant’s right to conflict-free representation, reasoning that post-conviction collateral review provided a better avenue to develop a factual record as to the nature and extent of the alleged affair and its impact, if any, on the defendant’s decision to plead guilty.
In a rare move, the Second Circuit (Jacobs, Pooler, Hall) overturned Armani Cummings’s convictions for murder, conspiracy, and multiple drugs and firearms offenses. The Court reversed based on violation of the hearsay rules—not a common basis for reversal, but on the facts here, the Court recognized the powerful nature of the evidence that was admitted in violation of the rules of evidence. Any reversal of a criminal conviction based on an evidence error—particularly one involving crimes as serious as those alleged here—merits close consideration.
In a summary order issued on May 24, 2017, Pollard v. United States, 16-2918 (Raggi, Carney, and Kaplan by designation), the Circuit affirmed the decision of the United States District Court for the Southern District of New York ( Forrest, J.), denying Pollard’s habeas corpus petition pursuant to 18 U.S.C. § 2241 to challenge conditions of his parole. Pollard, arguably one of the most notorious spies in American history, was arrested in 1985 after passing top secret documents to Israel while working as a research analyst for the U.S. Navy.
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