Stephanie Teplin, Associate

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.

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.

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 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 the room of a suspect’s home where he was interviewed immediately after an arrest.  The majority opinion, written by Judge Kearse, relied on the “exigent circumstances” doctrine to hold that it was reasonable under the circumstances to hold an interview in the suspect’s home, which allowed the officers to seize incriminating evidence that was in plain view without obtaining a search warrant.  Although the majority opinion is careful to recognize that the exigent circumstances exception requires a case-by-case analysis, the decision extends the infrequently applied exigent circumstances doctrine to a new set of facts.  The decision drew a dissent from Judge Jacobs, who objected to the majority’s reliance on the exigent circumstances doctrine when the government had not raised it in the trial or appellate court, thus denying the defendant any chance to respond to this somewhat novel analysis offered by the Court.

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 unreasonable, yet was made by unpublished summary order.  This is the third time in the past several months that a child pornography sentence has been vacated and remanded (see our posts on United States v. Bennett and United States v. Brown), but while the prior two decisions rested on procedural grounds as a means of sending the case back to the district court for a second look, Sawyer relies solely on substantive unreasonableness.  It is very rare for the Second Circuit to reverse a within-the-range sentence for substantive unreasonableness.

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.  The Court, in an opinion by Judge Newman, held that the outsize effect of the loss amount enhancement on the defendant’s base offense level—a sentencing scheme for fraud that is “unknown to other sentencing systems”—required the district court to reconsider whether a non-Guidelines sentence was warranted.

On August 15, 2016, the Second Circuit issued a rare opinion on the subject of the sufficiency of evidence to establish venue in United States v. Lange, No. 14-2442-cr (Jacobs, Chin, Droney).  In this securities fraud and conspiracy case, the Court found there was sufficient evidence that the defendants committed a crime in the Eastern District of New York (“EDNY”) when they were aware of “cold call” lists including EDNY residents and where emails soliciting investment were sent to a Postal Inspector in Brooklyn.  This connection was sufficient even though the participants in the scheme operated out of Washington State and had little contact with EDNY.