Federal Defenders of New York Second Circuit Blog


Monday, July 24th, 2017

Circuit Upholds Conviction Where Defendant “Never Submitted to Police Authority”

The Circuit affirmed the denial of a suppression motion today in United States v. Huertas.  You can access the opinion here.

A woman drove up to a patrol car and told the officer that “a man named Branden was nearby with a gun.”  The officer drove in the direction the woman pointed and saw Huertas, who was standing on a street corner holding a black bag.  The officer asked Huertas questions through his car window.  The questioning lasted about thirty-sixty seconds.  Huertas “stayed in a fixed position” and “answer[ed] the questions.”  When the officer got out of his car, Huertas ran away.  He was later found and arrested by other officers.

Relying on United States v. Baldwin, 496 F.3d 215, 219 (2d Cir 2007), the Circuit held that Huertas did not actually submit to police authority when he answered the officer’s questions because his actions were “evasive, …


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Categories: Fourth Amendment

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Friday, July 21st, 2017

Second Circuit Tosses Indictments Following Fifth Amendment Violation, Denies Rehearing in Jenkins

Earlier this week, in United States v. Allen, the Second Circuit reversed the defendants’ convictions and dismissed the indictments against them.  You can access the Circuit’s 81-page opinion here.  The Circuit considered whether a witness’s involuntary testimony that was compelled by a foreign government can be used against in a U.S. prosecution.  In its introduction, the Circuit outlined its four-step conclusion:

First, the Fifth Amendment’s prohibition on the use of compelled testimony in American criminal proceedings applies even when a foreign sovereign has compelled the testimony.

Second, when the government makes use of a witness who had substantial exposure to a defendant’s compelled testimony, it is required under Kastigar v. United States, 406 U.S. 441 (1972), to prove, at a minimum, that the witness’s review of the compelled testimony did not shape, alter, or affect the evidence used by the government.

Third, a bare, generalized denial of …


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Categories: child pornography, Fifth Amendment

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Limitations on In-Court Identifications

This article by the Marshall Project looks at recent efforts to limit in-court identifications. Led by the work of the Innocence Project, efforts to reduce wrongful convictions caused by in-court identifications are making progress.  Connecticut, for example, has prohibited in-court identifications unless the witness knew the defendant prior to witnessing the events at issue or previously picked the defendant out of a photo array or lineup.  Massachusetts has similarly revised its procedures for allowing in-court identification.  If you have a case in which the government is seeking to offer a first-time, in-court identification, the litigation and decisions related to the changes in Massachusetts and Connecticut can guide your efforts to preclude or limit such testimony.

 …


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Categories: identification procedures, Uncategorized

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Friday, July 14th, 2017

Second Circuit Vacates Silver Conviction, Denies Second or Successive Habeas Petition

The Second Circuit vacated former New York Speaker of the House Sheldon Silver’s convictions for honest services fraud, Hobbs Act extortion, and money laundering based on an erroneous jury instruction.  You can access the opinion here.  At trial, the District Court instructed the jury that an “official act” within the meaning of the charges was “any action taken or to be taken under color of official authority.”  After Silver’s conviction, the Supreme Court decided McDonnell v. United States, 136 S.Ct. 2355 (2016).  In McDonnell, the Supreme Court defined “official act” within the meaning of honest services fraud and extortion charges as “a decision or action on a ‘question, matter, cause, suit, proceeding or controversy” involving “a formal exercise of governmental power.”  In light of the McDonnell decision, the Second Circuit vacated Silver’s conviction, finding that the error in instructing the jury was not harmless, even though the …


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Categories: honest services fraud

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Wednesday, July 5th, 2017

Circuit overturns decision to withhold acceptance of responsibility despite guilty plea

In an opinion issued today, the Circuit vacated and remanded a decision by SDNY Judge Katherine B. Forrest to deny the defendant a reduction in offense level based on acceptance of responsibility despite his guilty plea.  You can access the decision in United States v. Delacruz, No. 15-4174, here.

The Circuit held that “[I]n light of a defendant’s due process right to contest alleged factual errors in his PSR, his good-faith objections to material PSR statements that he disputes does not provide a proper foundation for denial of the acceptance-of-responsibility credit.”  Op. at 22.  If the defendant objects to, and denies, facts that are neither part of the count(s) of conviction nor “relevant conduct” within the meaning of U.S.S.G. Section 1B1.3, the District Court may not deny an acceptance-of-responsibility reduction based on the defendant’s objections or denials.  Op. at 28. It may, however, consider in its analysis pursuant …


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Categories: acceptance of responsibility

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Useful Link Regarding Collateral Consequences of Convictions and the Restoration of Rights

The Restoration of Rights project has a useful website that can help you determine the collateral consequences of conviction your client may face.  The project offers executive and judicial mechanisms for avoiding or mitigating those consequences and advice regarding non-discrimination in employment following a conviction.  The project tracks this information for each state and for federal rights and benefits.  The information can be found at http://restoration.ccresourcecenter.org/.…


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Categories: collateral consequences

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Wednesday, June 21st, 2017

Circuit Holds that NYPL 220.31 – Criminal Sale 5th – Is Not A Controlled Substance Offense (for Immigration Purposes)

Today, the Circuit held in Harbin v. Sessions, No. 14-1433-ag, that the New York offense of criminal sale of a controlled substance in the 5th degree, NYPL 220.31, is not a controlled substance offense for immigration purposes.

You can access the opinion here.

The analysis is straightforward: (1) The NY statute prohibits the sale of a “controlled substance.” That element is indivisible under Mathis v. United States, 136 S. Ct. 2243 (2016). (2) The NY controlled substance schedule is categorically broader than the federal schedule because the former includes at least one substance (human chorionic gonadotropin, HCG) that the latter does not.

If your client has a prior conviction under 220.31, you should be arguing that 220.31 is not a controlled substance offense under the Guidelines (for example, under the felon-in-possession or career-offender guidelines), or any other enhancement provision. Although not controlling, Harbin is extremely helpful on …


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Categories: categorical approach

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Thursday, June 15th, 2017

Judge Nathan Grants Suppression in Fraud Case

Southern District Judge Alison Nathan suppressed evidence obtained as a result of “essentially limitless” warrants that were “insufficiently particularized.”  The 92-page opinion in United States v. Wey,  15-cr-611 (AJN), can be accessed here.  Agents executing the searches collected, among other things, personal documents and materials from Wey’s home and office.  The Court found that the “catch-all” gathering of all of this material had no “linkage to the suspected criminal activity, or indeed any meaningful content-based parameter or other limiting principle” and that the Agents’ actions ran afoul of “well-established constitutional principles that provide a bulwark against the execution of general warrants.”  Recognizing that it was and “extraordinary remedy,” the Court ordered suppression of all evidence gathered from both search locations.…


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Categories: Fourth Amendment, search warrant

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Monday, June 12th, 2017

Multiple Conspiracies, Reasonable Foreseeability, and Government Misconduct in Closing, Oh My… A Clean Sweep for the Defendant as Judge Oetken Grants Rule 29 and Rule 33 Motions in a Noteworthy Opinion

John Pauling contested two counts at trial in an eight-count indictment relating to various drug and gun charges. First, he challenged a 924c charge (possessing a gun in furtherance of a drug conspiracy) and was acquitted by the jury.  Second, he challenged the weight of the drugs in the drug conspiracy count that would have triggered a five-year mandatory minimum.  The jury convicted him on that count.  Judge Oetken now vacates that conviction, leaving Pauling with no mandatory minimum.  A copy of the opinion is attached here.

In an opinion worth reading for its explanation of the distinction between a single conspiracy and multiple conspiracies, Judge Oetken in referencing the common wheel analogy, found that the government failed to show there was “a ‘rim’ around the ‘spokes,’ such that the spokes became coconspiractors.” At trial, the Court gave a multiple conspiracies instruction over the government’s objection, finding the government’s …


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Categories: conspiracy, Rule 29, Rule 33

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Wednesday, June 7th, 2017

“Toxic” Hearsay Warrants New Trial

In an opinion yesterday, the Second Circuit (Jacobs, Pooler, Hall) ordered a retrial of Armani Cummings based on the admission of non-harmless hearsay.

Cummings was charged with killing two people in the course of committing drug crimes.  A government witness testified, in essence: “Someone told me Cummings threatened to kill me.”  The Court explained that this was not an admissible statement by Cummings (the party opponent) but, rather, was double hearsay from a third party “someone” and thus inadmissible.

The error of admitting the statement, the Court further held, was not harmless: “The hearsay was especially toxic because it created a grave risk that the jury would use it as evidence of Cummings’s murderous propensity” and thus convict him for being a “bad man” rather than for committing the two alleged murders.

Of particular note, the Court ordered a retrial even though (1) the jury heard evidence that Cummings …

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Categories: harmless error, hearsay

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Categories: harmless error, hearsay

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Friday, May 12th, 2017

Johnson Win in WD Va – Court Holds New York First Degree Robbery is Divisible and Does not Satisfy the Force Clause; Sessions Memo Replaces Holder Memo on Charging Decisions

In U.S. v Batista, a Western District of Virginia  judge hold that New York first degree robbery is divisible, that defendant does not have the burden to produce Shepard documents, and the offense does not satisfy the force clause.
In less uplifting news, say goodbye to the Holder Memo.  Attorney General Jeff Sessions sent this memo on charging and sentencing policy to AUSAs this week, instructing them to charge and pursue the most serious charges.
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Categories: charge, Johnson

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Categories: charge, Johnson

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