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...

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...

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...

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,...

We are attaching an article about a major Supreme Court decision that imposes a five-year statute of limitations on disgorgement actions brought by the SEC.  Justice Sotomayor, writing for a unanimous court, held that disgorgement is a financial penalty, not...

For a brief case summary, click here. On May 31, 2017, the Second Circuit issued its long-awaited decision in the “Silk Road” case, United States v. Ulbricht, (15-1815-cr) (2nd Cir. May 31, 2017) (Newman, Lynch, Droney).  The panel affirmed Ulbricht’s conviction...

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...

In United States v. Khalil, No. 15-3819 (2d Cir. May 16, 2017) (Calabresi, Wesley, Lohier), the Second Circuit reversed the defendant’s conviction for transporting an alien within the United States for profit in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and...

In a split decision in United States v. Delva, No. 15-cr-683 (Kearse, Winter, Jacobs), the Second Circuit held that the Fourth Amendment allowed law enforcement officers to seize cell phones and a number of letters that were in plain view...

In United States v. Brown, 16-3468-cr (Leval, Hall, Chin) the Second Circuit affirmed in part and vacated in part via summary order a ruling excluding evidence related to a firearm that had not been identified in the indictment.  The ruling...

United States v. Lyle In United States v. Lyle, 15-958-cr (Raggi, Chin, Lohier), the Second Circuit covered an array of criminal procedure issues—including the Fourth Amendment concerns associated with rental car searches, proffer agreement waivers, and the admissibility of a co-defendant’s...

In United States v. Libous, 15-3979 (2nd Cir. May 30, 2017) (Katzmann, Winter, Stein), the Second Circuit vacated the jury conviction of former New York State Senator Thomas W. Libous’ and remanded the case to the district court for dismissal...

On May 31, 2017, the Second Circuit issued its long-awaited decision in the “Silk Road” case, United States v. Ulbricht, (15-1815-cr) (2nd Cir. May 31, 2017) (Newman, Lynch, Droney).  The panel affirmed Ulbricht’s conviction and sentence of life imprisonment, identifying...

In United States v. Serrano, 16-432-cr; 17-461-cr (Kearse, Calabresi, Cabranes), the Second Circuit denied the defendant’s interlocutory appeal for lack of jurisdiction, holding that the collateral order doctrine is inapplicable to “non-colorable” double jeopardy claims and reaffirming its prior rulings...

A Second Circuit panel has ruled that infamous mob boss Carmine “The Snake” Persico will continue serving his 100-year sentence in federal prison.  In United States v. Persico, 16-2361, the Second Circuit (Walker, Jacobs, Parker) affirmed by summary order the...

In Reese v. United States, 16-516, the Second Circuit (Pooler, Wesley, Carney) vacated by summary order the order of the U.S. District Court for the Southern District of New York (Marrero, J.) denying Reese’s petition to vacate his conviction and...

The murder-for-hire statute makes it a crime to agree to commit murder in exchange for “anything of pecuniary value.” 18 U.S.C. § 1958. The Second Circuit has understood this language to require that, at the time of the agreement, there...

In United States v. Yalincak, No. 11-5446 (2nd Cir. Apr. 10, 2017) (Calabresi, Raggi, Lynch), the Second Circuit addressed a complicated issue of appellate procedure in the course of a decision on the law of restitution.  Specifically, the Court weighed...

For the third time in the past year[1], the Second Circuit in United States v. Jenkins, No. 14-4295 (Kearse, Jacobs, Parker), has vacated as substantively unreasonable a sentence imposed under the sentencing guideline for child pornography offenses, U.S.S.G. § 2G2.2. Jenkins...

Yesterday the Second Circuit issued a decision in United States v. Diaz, No. 15-3776 (Walker, Sack, Chin).  In an opinion by Judge Sack, the Court addressed two questions under the Fourth Amendment:  when does a police officer have probable cause...

In United States v. Shaday, 16-529, the Second Circuit (Jacobs, Livingston, and Kaplan (sitting by designation)) vacated and remanded the supervised release portion of defendant Yova Kana Shaday’s sentence after finding that the district court had applied the wrong Guidelines...

In United States v. Bodouva, 16-3937 (March 22, 2017) (Katzmann, C.J., Pooler and Lynch, J.), the Court held in a per curiam order that a defendant convicted of embezzlement must forfeit the full amount of her illicit gains to the...

In a summary order issued March 7, 2017, United States v. Marmilev, 14-4738 (Leval, Calabresi, and Carney), the Circuit vacated and remanded the portion of the defendant’s sentence imposing a $250,000 fine after the defendant pled guilty for charges including...

In a summary order on March 8, 2017, the Second Circuit (Katzmann, C.J. and Pooler and Lynch, J.) affirmed the conviction and sentence for wire fraud in United States v. Frenkel. The case attracted some public attention because Frenkel’s co-conspirator,...

In United States v. Monsalvatge (Nos. 14-1113, 14-1139, and 14-1206), a divided panel of the Second Circuit explored the contentious topic of introducing blockbuster films as evidence in a criminal prosecution.  Defendants Akeem Monsalvatge, Edward Byam, and Derrick Dunkley were...

Aéropostale is known by many as a staple of adolescent wardrobes and shopping-mall standard.  But as a patsy for kickback schemes?  In United States v. Finazzo, 14-3213-cr, 14-3330-cr (Droney, J., joined by Judges Sack and Chin), issued March 7, 2017, the...

In a decision dated March 10, 2017, the Circuit issued a blistering decision vacating the district court’s denial of the defendant’s motion to withdraw his guilty plea in United States v. Johnson, No. 15-3498-cr (Jacobs, J., joined by Judges Cabranes...

On February 23, 2017, the Second Circuit (Chief Judge Katzmann, Judge Winter, and District Judge Sidney Stein, by designation) issued a per curiam decision in United States v. Natal, et al., that led to a partial reversal and remand for...

On February 16, 2017, the Second Circuit (Leval, Calabresi, Carney) issued a summary order in United States v. Lopez, No. 16-1019, vacating and remanding for reconsideration the district court’s denial of the appellant’s motion for a sentence reduction under 18...

On Wednesday, February 15, the Second Circuit issued a published opinion in United States v. Barret, No. 12-4663(L) (Pooler, Hall, Carney), addressing an issue of first impression in the Circuit—whether testimony of a former co-defendant who pleads guilty during trial...

On January 31, 2017, the Court (Katzmann, Kearse, Livingston) issued a nonprecedential summary order vacating and remanding an order denying a motion for resentencing in United States v. Majors, No. 15-4022. The remand was required in part due to substantial...

Franco Lupoi was sentenced to 156 months on money laundering conspiracy and heroin trafficking conspiracy charges, in excess of the applicable Guidelines range and the 135 month sentence requested by the government. In its written statement of reasons, the district...

Yesterday the Second Circuit issued an order denying rehearing en banc in United States v. Marinello, No. 15-224, after an active judge of the Court had requested a poll as to whether the case should be reheard by the full...

In a summary order issued yesterday in United States v. Munteanu, No. 16-1254, the Second Circuit (Winter, Cabranes, Lynch) reiterated that a district court must make findings of fact before imposing an obstruction of justice enhancement over a defendant’s objection....

Yesterday the Second Circuit affirmed, in United States v. Ramirez (No.15-2570), the so-called “one-book rule”:  if sentenced criminals want to seek a reduction in sentence based on changes in the Sentencing Guidelines, they have to accept the new Guidelines wholesale. ...

In July 2016, the Second Circuit ruled that the Government could not employ a domestic search warrant, issued pursuant to the Stored Communications Act, 18 U.S.C. § 2703 (the “SCA”), to compel disclosure of an email account that Microsoft stored...

The Supreme Court’s decision in Salman v. United States, 137 S.Ct. 420 (2016) is already having an effect on the appeals arising out of the insider trading convictions in the Southern District of New York.  Shortly after Salman, the Second...

In Moss v. Colvin, 15-2272, the Second Circuit (Katzmann, Wesley, Carney) issued a per curiam decision affirming the denial by the U.S. District Court for the Southern District of New York (Crotty, J.) of the petitioner’s writ of habeas corpus...

In a short summary order in United States v. Breton, the Court (Winter, Jacobs, Cabranes) vacated a term of supervised release because the district court had improperly calculated the advisory Guidelines range.  Defendant Raddy Breton pleaded guilty to attempted possession...

In United States v. Strong, No. 15-2992, the Court (Kearse, Lohier, and Droney) affirmed Strong’s conviction in a brief, per curiam opinion.  Strong was charged with conspiracy to possess with intent to distribute and to distribute cocaine base and heroin. ...

In United States v. Huggins,15-1676, the Second Circuit (Winter, Cabranes, and Restani, sitting by designation) limited the scope of two Guidelines enhancements often applicable to white-collar crimes:  (1) U.S.S.G. §2B1.1(b)(16)(A), which provides for a two-level enhancement when the conduct derived...

In United States v. Leonard, No. 15-22-32-cr (December 14, 2016) (Raggi, Chin, Droney), the Second Circuit vacated and remanded an order finding a defendant ineligible for a sentence reduction based on a retroactive amendment to the Sentencing Guidelines under 18...

In United States v. Brown, No. 13-1706, the Second Circuit (Pooler, Sack, and Droney), withdrew the Court’s June 14, 2016 opinion, vacating Nathan Brown’s sixty year prison sentence on three counts of production of child pornography, in violation of 18...

The Supreme Court today decided a major insider trading case, Salman v. United States, 15-628. In Salman, the Supreme Court reaffirmed its prior ruling in Dirks v. SEC and held that a jury could infer that a tipper personally benefited from...

In United States v. Sawyer, No. 15-2276, the Second Circuit (Jacobs, Pooler, Crawford) vacated and remanded for resentencing a case involving a conviction for possession of child pornography.  The decision rested on a finding that the 30-year sentence was substantively...

In United States v. Gilliam, 15-387, the Second Circuit (Newman, Winter, Cabranes) held that, under the exigent circumstances present in that case, law enforcement could use cell phone GPS data to locate a suspect without obtaining a warrant consistent with...

In United States v. Algahaim, No. 15-2024(L), the Second Circuit (Newman, Winters, Cabranes) upheld the conviction of two defendants for misconduct involving the Supplemental Nutrition Assistance Program (“SNAP”), but remanded to the district court for consideration of a below-Guidelines sentence. ...