In United States v. Percoco, the Second Circuit (Raggi, Chin, Sullivan) the Second Circuit affirmed the convictions of several defendants involved in the so-called “Buffalo Billion” scandal. The charged crimes included three distinct schemes. One involved bid rigging by a lobbyist, his clients, and an individual with sway over awarding contracts under the project. The other two involved a former aide to Governor Andrew Cuomo, Joseph Percoco, who was charged with helping two companies achieve their business goals by using his influence over state officials. While the allegations are redolent of public corruption in New York State government, these schemes do not comfortably sit within the traditional purview of federal wire, mail, and honest services fraud. In two separate, lengthy opinions, the Circuit upheld the convictions in their entirety, stretching the federal fraud statutes to their limits in order to affirm. Although there is nothing more destructive to a democracy than the public’s loss of faith in its elected officials’ willingness to put the public good over private interests, we express some concerns about the approach taken by the Court in these decisions.
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The Second Circuit Criminal Law Blog is your place to follow the criminal law decisions rendered by the U.S. Court of Appeals for the Second Circuit. With a rich 225-year history of legendary judges like Learned Hand and Henry Friendly, the Second Circuit has long been known for writing important and thoughtful opinions on many subjects, including the criminal law. We review every published criminal law opinion handed down by the Second Circuit in order to provide you with a summary of the holding, an assessment of the key legal issues, and practice pointers based on the Court’s ruling. Our focus is on white-collar criminal cases and matters relating to internal investigations. Our blog is written by a team of experienced attorneys, including many former law clerks for the Second Circuit and other federal courts. The blog’s editor in chief is a former Deputy Chief Appellate Attorney in the U.S. Attorney’s Office for the Southern District of New York who has appeared in more than 100 Second Circuit criminal appeals.
Rare En Banc Second Circuit Says “Spread Eagle” Order Not a Search Over Spirited Dissents Decrying State of Fourth Amendment Jurisprudence
The Second Circuit, sitting en banc, reversed a panel decision holding that officers lacked reasonable suspicion to frisk defendant Calvin Weaver after a traffic stop. The en banc majority (Judge Nardini, who authored the opinion, Chief Judge Livingston, and Judges Cabranes, Sullivan, Bianco, Park, and Menashi) concluded that the officers’ order to “spread eagle” did not transform the stop into a search because it did not amount to a physical trespass or invasion of an area to which Weaver had a reasonable expectation of privacy. Moreover, the en banc majority concluded that the circumstances prior to the frisk provided reasonable suspicion that Weaver was armed and dangerous. Two judges (Judge Lohier, along with Judge Carney) concurred in affirming the district court decision while largely rejecting the majority’s rationale, while three judges (Judges Calabresi, Pooler, and Chin) all wrote separate dissents in which each joined, leaving the Court with a 7-2-3 vote split.
In United States v. Kassir, the Second Circuit (Jacobs, Nardini) held that the concurrent sentence doctrine applies to collateral review of criminal convictions. Under the doctrine, a court may decline to consider a challenge where it would have no effect on the defendant’s term of imprisonment. The ruling will deprive some defendants of having their 2255 petitions decided on the merits. However, if the ruling is applied as it is written, only defendants whose sentences would not be reduced in duration will be so impacted.
Recently, the Second Circuit upheld the conviction and 40-year sentence of a Hezbollah operative. In United States v. Kourani, No. 19-cr-4292 (Cabranes, Kearse, Pooler), the Court rejected the defendant’s various arguments that he received ineffective assistance of counsel, that the district court erred by not providing his requested jury instructions, that there was insufficient evidence to sustain his conviction, and over a dissent from Judge Pooler, held that a 40-year sentence was not substantively unreasonable. Significantly, the Court also rejected the defendant’s argument that a confession to FBI agents, made in the presence of his attorney, was coerced.
Second Circuit Affirms Judgment Against S.E.C. Broker, Holds that Statute of Limitations for S.E.C. Actions is Not Jurisdictional
In Securities and Exchange Commission v. Fowler, the Second Circuit (Lohier, Nardini, and Cronan, sitting by designation) affirmed the imposition of civil penalties and disgorgement against a financial broker. In so doing, the Second Circuit addressed whether the statute of limitations for the commencement of S.E.C. proceedings is jurisdictional, an issue of first impression in the Circuit, and concluded that it is not. The Court also rejected Fowler’s other arguments, including that the district court permitted the S.E.C. to improperly recharacterize its theory of Fowler’s liability, that the jury improperly found unauthorized trading in customer accounts, and that the district court erroneously imposed financial penalties as to each victim of Fowler’s conduct.
Second Circuit Affirms Convictions of Defendants Who Traded On Press Releases Hacked From Major Newswires
In United States v. Korchevsky, the Second Circuit (Walker, Parker, Carney) affirmed two defendants’ conspiracy and securities fraud convictions over defendants’ myriad claims of error, which included challenges to the sufficiency of the evidence, including as to venue; and contentions that the government constructively amended the indictment, that the district court improperly instructed the jury on conscious avoidance, and responded to a jury note in impermissible fashion. Despite a number of close calls, the Court rejected all of these arguments, as discussed below.
In United States v. Eldridge, the Second Circuit (Chin, Sullivan, Nardini) affirmed the convictions of a group of co-defendants who were indicted on a litany of charges, many of which related to the attempted robbery of a rival dealer. This appeal concerned two of them, Thamud Eldridge and Kevin Allen, who raised three arguments: (1) that the placement of a waist-high curtain around the defense table during the trial prejudiced the jury; (2) that one of the convictions ought to be vacated in light of recent Supreme Court precedent; and (3) that the First Step Act qualifies the defendants for a sentence reduction.
Circuit Clarifies Precedent, Holds That Sentencing Court Need Not Separately Explain Reasons For Imposition of 20-Year Supervised Release Term
In United States v. Williams, a per curiam decision, the Second Circuit (Pooler, Sullivan, Park) affirmed the imposition of a 20-year term of supervised release on a defendant convicted of child pornography offenses, holding that it is plain from the record that the sentence was based on permissible factors.
Circuit Rejects “Listening Circle” Release Condition For Defendant Who Threatened To Assassinate Member of Congress
In United States v. Carlineo, the Second Circuit (Parker, Lohier, Menashi) vacated a special condition of supervised release requiring the defendant to participate in a restorative justice program, concluding both that the condition was impermissibly vague, and that it improperly delegated excessive authority to the Probation Office.
Second Circuit Joins Majority On Circuit Split, Finding Attempted Hobbs Act Robbery Qualifies As Crime of Violence under Section 924(c)
In United States v. McCoy (Kearse, Parker, Sullivan), the Second Circuit held that attempt to commit Hobbs Act robbery qualifies as a crime of violence, siding with the majority of circuit courts, and parting ways with the Fourth Circuit and numerous district courts within the Second Circuit. The panel decision also drew a fine distinction, holding that aiding and abetting Hobbs Act robbery qualifies as a crime of violence under Section 924(c), while reaffirming that conspiracy to commit Hobbs Act robbery does not qualify as a predicate. The court also remanded for consideration of a First Step Act question, which may permit the defendants to lessen their astronomical punishments, which were imposed prior to the First Step Act’s enactment.
Circuit Vacates Above-Guidelines Sentence Based on Comments Concerning Deterrence and Russian Organized Crime
In United States v. Vinokurov, the Second Circuit (Wesley, Carney, Nardini) issued a summary order directing the district court to resentence Defendant Avtandil Khurtsidze in connection with his conviction on charges of racketeering conspiracy and conspiracy to commit wire fraud. The Court ordered that Khurtsidze be resentenced because of the district court’s comments at sentencing regarding the above-guidelines sentence that was imposed and the deterrent effect it could have in sending a message to “Russian organized crime.”
In United States v. Chow, the Second Circuit (Kearse, Carney, Bianco), affirmed the defendant’s 2018 conviction for insider trading (among other offenses). The case arose out of a failed 2016 merger spearheaded by Defendant Benjamin Chow, who passed along key details regarding merger negotiations to a business associate, who then traded based on this information. The Court reiterated its rule, recently expressed in its 2020 Kosinski decision, that corporate outsiders assume a fiduciary duty to a corporation when they sign a confidentiality agreement.
In United States v. Wedd, the Second Circuit (Cabranes, Park, Nardini), affirmed the defendant’s 2018 convictions for aggravated identity theft (among other offenses), which arose from a scheme to auto-subscribe customers to pricey premium text messaging services. In the process, the Second Circuit—enhancing a circuit split—rejected Wedd’s argument that the scheme involved no “use” of a means of identification of another person, a requisite for conviction under the aggravated identity theft statute. The panel also rejected Wedd’s contentions that the district court erred in giving a conscious avoidance instruction and in failing to recuse itself from his (third) trial.
In Rare En Banc Ruling, Second Circuit Holds that Manslaughter is a Categorically Violent Felony, Including Cases of Omission, Potentially Triggering Mandatory Minimums
On March 2, 2021, in a rare en banc decision, United States v. Scott, 18-163-cr, the Second Circuit held in a divided 9-5 opinion that New York first-degree manslaughter is categorically a “violent felony” under the Armed Career Criminal Act—subjecting qualifying defendants to the statute’s mandatory minimum sentences— and a “crime of violence” under the Career Offender provision of the Sentencing Guidelines, despite the fact that manslaughter can be carried out by omission.
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.
In Rare En Banc Ruling, Second Circuit Holds that Manslaughter is a Categorically Violent Felony, Including Cases of Omission, Potentially Triggering Mandatory Minimums
On March 2, 2021, in a rare en banc decision, United States v. Scott, the Second Circuit held in a divided 9-5 opinion that New York first-degree manslaughter is categorically a “violent felony” under the Armed Career Criminal Act—potentially subjecting defendants to the statute’s mandatory minimum sentences—and a “crime of violence” under the Career Offender provision of the Sentencing Guidelines, regardless of the fact that manslaughter can be carried out by omission.
Recently, the Second Circuit remanded a consolidated appeal of three cases to the district court to consider whether the government violated Brady such that new trials should be granted. In United States v. Stillwell, Nos. 18-3074, 18-3489, and 19-790, the Second Circuit (Cabranes, Raggi, Korman by designation) declined to reach defendants’ Brady claims based on evidence discovered while the cases were on appeal. Nevertheless, the Court all but urged the defendants to file post-trial motions for a new trial on Brady grounds, and directed the district court to “expeditiously” resolve the forthcoming motions.
In McCloud v. United States, the Second Circuit (Walker, Raggi, Nardini) rejected the petitioner’s contention that a development in Circuit law following a defendant’s conviction constitutes a newly-discovered fact extending the deadline for a defendant to file a habeas petition under 28 U.S.C. § 2255. In so holding, the Second Circuit reached the same conclusion as the three other circuits to have addressed the question. It effectively limits the reach of a recent favorable decision to pending and future cases.
In United States v. Gatto, the Second Circuit (Lynch, Chin, and Engelmayer, sitting by designation) issued a decision on January 15, 2021 affirming the wire-fraud convictions of James Gatto, Merl Code, and Christian Dawkins in the high-profile college basketball corruption prosecution that was tried in the Southern District of New York in October 2018. Judge Lynch wrote a separate opinion concurring in part and dissenting in part, which addressed his disagreement with the majority concerning certain evidentiary rulings. These evidentiary rulings were a key issue at trial and were the focus of the Court’s decision and Judge Lynch’s opinion.
In United States v. Gadsden, the Second Circuit (Walker, Katzmann and Wesley, per curiam) affirmed the decision of the Southern District of New York denying Damone Gadsden’s motion for resentencing under the First Step Act. The opinion is consistent with recent decisions in other circuits, and reinforces the principle that the exercise of sentencing discretion is not synonymous with specific procedural requirements.
In United States v. Clarke, the Second Circuit ventured once more into the thicket of internet crime, tangling with statutory interpretation and discovery issues complicated by their technological setting. The panel (Walker, Leval, Carney) gave an expansive read to a child pornography statute, ruling that the defendant “transported” child pornography through an online peer-to-peer network, even though the government moved the files from the defendant’s computer, and the defendant was not aware of the file transfer. In addition, the panel refused the defendant’s discovery request for inspection of law enforcement software based on the facts presented here, and declined to announce a standard for future cases involving similar law enforcement programs. The panel also rejected a bevy of challenges relating to the sufficiency of the evidence and the reasonableness of the sentence, to ultimately affirm the judgment of the district court.
In United States v. Archer, the Second Circuit (Walker, Sullivan and Nathan, sitting by designation) reversed the grant of a Rule 33 motion for new trial in the Southern District of New York to Defendant Devon Archer, following his conviction for securities fraud and conspiracy to commit securities fraud. The Circuit reinstated the jury verdict and remanded the case for sentencing. Its decision emphasized that a successful Rule 33 motion based on the weight of the evidence requires a showing that the evidence “preponderates heavily” against the verdict. The decision seems to harmonize prior law in the Circuit that offered somewhat different formulations of the relevant standard. It is a reminder of the limited nature of post-verdict relief that is available to a trial defendant.
In United States v. Razzouk, the Second Circuit (Walker, Carney, Koeltl by designation) considered the meaning of an “offense against property” as used by the Mandatory Victim Restitution Act (“MVRA”). The panel rejected a categorical approach, and instead permitted consideration of the facts and circumstances of the defendant’s crimes. Restitution is one of the areas in sentencing law that has seen major developments over the past few years. This decision appears to continue the Second Circuit’s long tradition of being a generally favorable forum for victims of crime.
In United States v. Villafane-Lozada, No. 19-2098 (2d Cir. Sept. 3, 2020) (Livingston, Sullivan, Park), the Second Circuit rejected a defendant’s challenge to the district court’s delegation to probation the decision of which type of technology to use in order to verify the defendant’s compliance with the conditions of his supervised release.
To protect the integrity of federal elections, Congress has passed a variety of laws directed at the election process, including those criminalizing fraudulent voter registration and voter bribery. Due to the overlapping nature of our election system, those federal laws will often impact state elections, leading some defendants to argue that Congress overstepped its bounds. Such an argument was recently made, and rejected, in United States v. Smilowitz (Walker, Parker, Carney).
In United States v. Purcell, the Second Circuit (Lynch, Pooler, and Park) considered the conviction of defendant Lavellous Purcell on five counts all arising out of his operation of a prostitution business. On appeal, Purcell argued that the warrants obtained in New York state court to retrieve data from Facebook violated the Fourth Amendment, that the convictions were based on insufficient evidence, and that the district court erroneously admitted certain testimony at trial. In a thorough and detailed opinion, the Court denied nearly all of Purcell’s arguments. However, in a reminder that venue is not to be assumed – nor can it involve “guesswork” – the Court reversed and remanded one of Purcell’s five convictions due to insufficient evidence of venue in the Southern District of New York. The U.S. Attorney for the Southern District of New York has at times taken a broad view of venue, and while the Circuit has approved of its long reach in many prior cases, this was a bridge too far for the Circuit.
In United States v. Birkedahl, 19-2304, the Second Circuit (Sullivan, Park, Nardini) rejected Defendant-Appellant Eric Birkedahl’s challenges to the conditions of his supervised release imposed subsequent to his conviction for possession of child pornography. Birkedahl pleaded guilty in the United States District Court for the Western District of New York to one count of possession of child pornography. He was sentenced principally to 24 months’ imprisonment, to be followed by a supervised release period of five years. Among the conditions of supervised released imposed by the district court were: (1) participation in a sex offender treatment program; (2) submission to computerized voice stress analyzer (“CVSA”) testing or, alternatively, polygraph testing, to ensure compliance with the conditions of supervised release, referred to as the “verification testing condition”; and (3) a so-called “risk condition,” standard in the Western District of New York, whereby Birkedahl could be required to notify members of the public that he posed a risk to them. Birkedahl objected to the imposition of each at the time of sentencing, and challenged on appeal the district court’s imposition of each. He did not appeal his term of incarceration, which was a below-the-range sentence.
Fourth Amendment Rights Without Remedies: Split Panel Holds That Delayed Warrant Was Unreasonable, But Exclusionary Rule Does Not Attach
In United States v. Smith, the Second Circuit (Katzmann, Kearse, Meyer, by designation) issued a split opinion weighing whether a month-long delay between authorities’ seizure of a tablet computer and their application for a search warrant violated the Fourth Amendment. The full panel upheld the conviction, but by different routes. The majority opinion found a Fourth Amendment violation, but held that evidence from the tablet should not be suppressed because the delay was due to “isolated negligence,” and thus the exclusionary rule did not attach. Judge Kearse wrote separately, explaining her view that the month-long delay did not violate the Fourth Amendment, largely because the investigating officer had other demands on his time. Speaking with one voice, the panel also rejected substantive and procedural reasonableness challenges to the 212-month child pornography sentence. The opinion highlights the extreme difficulty in mounting suppression challenges—both in persuading jurists that law enforcement officers have acted improperly, and in ultimately winning suppression under the vanishing exclusionary rule. The panel applies controlling law in its Fourth Amendment analysis, making it fair to ask whether the legal system provides optimal deterrence of constitutional violations.
In Mata v. United States, the Second Circuit (Park, Nardini, Menashi) issued a per curiam opinion denying the petitioner’s motion for leave to file a second motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255(h). Proceeding pro se, Mata argued that his conviction under 18 U.S.C. § 922(g) should be vacated in light of the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), which clarified what the government must prove in order to meet the “knowingly” mens rea requirement of § 922(g). Consistent with prior decisions issued by the Third and Eleventh Circuits, the Second Circuit held that Rehaif concerned an issue of statutory interpretation and did not announce a new rule of constitutional law. Accordingly, Mata’s motion did not meet the requirements of 28 U.S.C. § 2255(h).
In United States v. Huberfeld, the Second Circuit (Pooler, Lynch, Menashi) vacated the sentence imposed on Murray Huberfeld, a co-founder of the now-defunct Platinum Partners hedge fund (“Platinum”), and reversed the district court’s order requiring Huberfeld to pay $19 million in restitution to the Corrections Officers Benevolent Association (“COBA”), which is New York City’s largest union for corrections officers. The Circuit’s decision took issue with several aspects of the district court’s Guidelines calculation, as well as its determination that COBA was a “victim” of the wire-fraud crime to which Huberfeld pleaded guilty.
Second Circuit Again Finds Plain Error in Use of “Motive to Lie” Jury Instruction When Criminal Defendants Take the Stand
In United States v. Solano, the Second Circuit (Kearse, Calabresi, and Carney) vacated and remanded a conviction for attempted possession of cocaine with intent to distribute on the grounds that the district court had committed plain error when it instructed the jury that “any witness who . . . has[s] an interest in the outcome of this trial” has “a motive . . to testify falsely” – including, here, the defendant. In so holding, the Circuit reiterated that it will not permit a district court to instruct a jury in a way that presupposes the guilt of the defendant, even if the parties fail to object. Future parties should pay careful attention to the procedural aspects of jury instructions, which can impact a defendant’s constitutional rights, even though the Circuit stands ready to correct these errors on appeal.
As Second Circuit Affirms Conviction for Failure to Register as a Sex Offender, Judge Calabresi Questions “Non-Punitive” Nature of Registration Statutes
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. Walker, the Second Circuit (Calabresi, Pooler, Carney) considered a challenge to the conviction of Jaquan Walker on drug charges. Police officers found drugs on Walker after they stopped and questioned him. The justification for the stop was that Walker resembles an image of a black man believed to have been involved in a shooting, and because Walker happened to be walking about five blocks from the site of that shooting. In a remarkably pointed decision, the Circuit threw out the conviction.
In United States v. Jones, the Second Circuit (Kearse, Cabranes, Sack) considered the admissibility of DNA evidence based on the “Forensic Statistical Tool” method (“FST”), which was previously utilized exclusively by New York City’s Office of the Chief Medical Examiner (“OCME”), but has since been abandoned because it does not meet the requirements of the FBI’s national DNA database. One presumes that the mode of analysis used by the Circuit will be used by district courts to analyze the new methods of DNA analysis, meaning that the case will outlive the specific facts presented.
In United States v. Peeples, the Second Circuit (Walker, Cabranes and Sack) affirmed the conviction of Joseph W. Peeples, III in the Western District of New York on bank robbery charges. Peeples argued that the district court should have dismissed his charges based on violations of Federal Rules of Criminal Procedure 3 and 5(c)(2), and that it erroneously admitted bank employee testimony and certain physical evidence at trial. The Circuit rejected the challenge on all fronts.
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 United States v. Davis, the Second Circuit (Katzmann, Wesley, Bianco) affirmed the district court’s order granting the defendant’s motion for a reduced sentence under Section 404 of the First Step Act of 2018. The government had appealed the order, arguing that eligibility for Section 404 relief turns on a defendant’s actual conduct as opposed to the statutory offense for which a defendant was sentenced. The Court disagreed and issued a decision that brings the Second Circuit in line with at least six other circuit courts that have issued precedential opinions in the last year with similar holdings. It is reassuring to see the Circuit rule in a way that reinforces the protections offered by the First Step Act, over the government’s objections in this case.
Second Circuit Vacates Sentence, Citing Failure to Apply Categorical Approach and Finding No Predicate Felony Drug Offense
The Second Circuit (Walker, Carney, and Koeltl) issued a decision vacating a 10-year sentence of imprisonment for conspiracy to distribute and possess with intent to distribute marihuana. The Court held that, contrary to the district court’s finding, a prior conviction for the attempted sale of a controlled substance in the fifth degree, in violation of N.Y. Penal Law (NYPL) § 220.31, was not a conviction for a “felony drug offense,” as defined by 21 U.S.C. § 802(44). The case, United States of America v. Jeremy L. Thompson, 18-2545-cr, clarifies that courts must use the “categorical approach” when identifying predicate felony drug offenses, and that the Second Circuit will not expand § 802(44)’s reach beyond its enumerated classes of drugs. Although this case arises in the context of the government’s use of a prior felony information, the Court has employed the same type of categorical analysis we see in cases brought under the Armed Career Criminal Act.
Circuit Rules Court Lacked Authority to Compel Compliance with Subpoena Issued by Expired Grand Jury
On June 3, 2020, the Circuit (Winter, Pooler, Sullivan) issued a noteworthy decision in In re: Grand Jury Proceeding regarding the authority of a district court to enforce a grand jury subpoena. Relying in part on a nearly 100-year-old decision and exposing a circuit split on an issue central to the enforcement of grand jury subpoenas, the decision reaffirms the importance of the grand jury as an independent investigative entity and serves as a reminder to defense counsel to diligently monitor the authority underlying government demands for documents and testimony in connection with an investigation.
In United States v. Zapatero, the Second Circuit (Hall, Sullivan, Bianco) issued a published opinion concerning a narrow sentencing issue, ruling that a district court may not rely on a Sentencing Guidelines § 5G1.3(b) adjustment made at a defendant’s original sentencing to subsequently reduce the defendant’s sentence, pursuant to 18 U.S.C. § 3582(c)(2), to one that falls below the defendant’s amended Guidelines range. The decision is based on strict interpretation of the Guidelines, which only permit reductions under Section 3582(c)(2) in fairly narrow circumstances.
Plea Agreement Not Violated, But Sentence Vacated and Remanded for Reconsideration of Hobbs Act Robbery Enhancements
In United States v. Oneal, 18-1710 (May 27, 2020) (Katzmann, Kearse, Bianco), the Second Circuit limited the scope of the Hobbs Act robbery Sentencing Guidelines enhancements for possessing a dangerous weapon and for physical restraint, vacating and remanding for consideration of whether the enhancements applied under the strict standards announced by the court. However, the court rejected Defendant-Appellant Xavier Oneal’s argument that the government had violated the terms of his plea agreement by siding with the Probation Office’s recommendation that the enhancements applied, even after not including the enhancements in its pre-plea Guidelines stipulation with the defendant. On remand, given the law and the facts in the panel’s opinion, it would appear that the defendant may receive a reduced sentence.
In United States v. Alexander, the Second Circuit (Sack, Wesley, Livingston) issued a summary order that, among other things, vacated the district court’s restitution order as to two defendants, Marc and Rachael Alexander. The order is notable primarily because it shows the Circuit’s willingness to scrutinize restitution orders.
Second Circuit Affirms Sentencing Enhancement for Altered Serial Number on a Gun, Despite Legible Serial Numbers On Other Parts of the Firearm
In United States v. St. Hilaire, 19-640 (May 21, 2020), the Second Circuit (Jacobs, Calabresi, Chin) affirmed a sentencing enhancement for possessing a firearm with an altered serial number, even though at least one of the serial numbers on the weapon was legible. The appeal raises an interesting question about the purpose behind this enhancement (and the underlying statute, 18 U.S.C. § 922(k)), which is meant to punish those who possess untraceable firearms.
Second Circuit Concludes that Restitution Includes Losses from Wire Fraud Scheme that Occurred Outside the Limitations Period
In United States v. Parnell, 19-649-cr (May 19, 2020), the Second Circuit (Hall, Lohier, Park) affirmed a judgment ordering the defendant-appellant to pay restitution for the total amount of losses resulting from her crime of wire fraud, including losses that occurred outside the limitations period.
“The evil that men do lives after them; The good is oft interred with their bones.” William Shakespeare, Julius Caesar, Act III, scene ii. In United States v. Mladen, the Second Circuit (Kearse, Walker, Livingston) grappled with whether Dusan Mladen’s convictions would live on after he passed away during the pendency of his appeal.
In United States v. Richardson, the Second Circuit (Walker, Chin, Menashi) concluded that the defendant’s sentence was both procedurally and substantively reasonable and, therefore, affirmed. Richardson pleaded guilty to distribution and possession with intent to distribute a controlled substance, under 21 U.S.C. § 841(a)(1), and was sentenced, as a career offender under U.S.S.G. § 4B1.1, to a prison term of 210 months.
In United States v. Haverkamp, the Second Circuit (Sack, Parker, Chin) wrote a short decision that answered a single question: in a case in which a defendant is sentenced to pay an additional special assessment pursuant to 18 U.S.C. § 3014, is this amount imposed on a per-count or per-offender basis. Ordinarily, under 18 U.S.C. § 3013, a special assessment is imposed on a per-count basis (plead guilty to 10 counts, pay 10 special assessments).
Hating The Game: Counsel’s Strategic Concessions in Rapper-Related Shooting Case Cannot Support IAC Claim
In United States v. Rosemond, 18-3561-cr (May 1, 2020) (Sack, Chin, Bianco), the Second Circuit held principally that Defendant-Appellant James R. Rosemond’s Sixth Amendment “Right to Autonomy” was not violated when his defense attorney, over his objection, conceded an element of the charged murder-for-hire offense—that he had hired individuals to shoot the victim—and instead argued that the government had failed to prove Rosemond’s intent to kill the victim. The court also rejected Rosemond’s ineffective assistance of counsel claim under Strickland and an evidentiary challenge. The case is a notable decision for the criminal defense bar, as it lays out the circumstances in which the Circuit believes that a defense lawyer must follow his client’s wishes in planning his defense strategy.
On April 15, 2020, the Second Circuit (Rakoff, by designation, Sack, Hall) vacated the conviction of Ralph Nolan, who was convicted of conspiracy and attempt to commit a Hobbs Act robbery, on ineffective assistance of counsel grounds. The panel ruled that Nolan’s trial counsel’s failure to challenge the introduction of eyewitness identification evidence against him or to call an expert witness to guide the jury on evaluating that evidence departed from the standard of reasonable professional care. The case, United States of America v. Ralph Nolan, No. 16-3423, represents a significant endorsement by the Circuit of research showing that in certain circumstances, such as those present here, eyewitness identification evidence will often be unreliable. Nolan will be cited frequently by defendants pressing forward to seek post-conviction relief and it will also serve as a wake-up call for defense counsel who might have been unfamiliar with this research or on the fence about whether to call an expert witness to testify on the subject of eyewitness identification.
On March 5, 2020, the Second Circuit (Katzmann, Kearse, Bianco) issued a brief per curiam opinion in United States v. Alcius, et al., affirming the defendant’s 20-year sentence on sex trafficking related charges. Defendant-Appellant Almonte challenged the sufficiency of the evidence supporting her conviction and also appealed the procedural and substantive reasonableness of her sentence. The court affirmed both the conviction and sentence.
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