Federal Defenders of New York Second Circuit Blog


Thursday, December 8th, 2016

60-year Sentence in Child Pornography Case Is Found Substantively Reasonable

On Tuesday, the Second Circuit issued a decision in United States v. Brown. The opinion presents an interesting debate about how the federal system punishes defendants accused of child pornography charges. I encourage defense attorneys to check out both the concurrence and dissent, for some powerful arguments about the risks of unreasonable sentences in child pornography cases.

The opinion examines defendant Nathan Brown’s 60-year sentence for procedural and substantive reasonableness. The defendant pleaded guilty to 3 counts of production of child pornography in violation of 18 U.S.C. § 2251(a) and 2 counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

The majority (J. Droney) begins with a recitation of some of the more egregious facts, which you can find on pp. 3-11. The basics: The defendant took sexually-explicit photos of girls, ranging in ages from 8 -12, who were in his care and then uploaded …


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Categories: child pornography, sentencing

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Tuesday, December 6th, 2016

“Exigent Circumstances” Includes Potential Sexual Exploitation of a Minor; Allows for GPS Cellphone Tracking

On 12/1/16, the Second Circuit (Newman, Winter & Cabranes) handed down a decision finding that exigent circumstances justified the warrantless GPS tracking of a suspected sex trafficker. In United States v. Gilliam, the defendant, who was suspected of prostituting an underage girl, was located thanks to GPS coordinates on his cellphone provided to the police by Sprint. The girl had been reported missing and her involvement in prostitution was confirmed through credible sources.  During the course of the investigation, the police obtained the GPS location for the defendant’s cellphone from Sprint by informing them that there were “exigent circumstances” and a “missing child.”  GPS tracking led police to the defendant and the girl on a street in the Bronx.

The defendant challenged the use of the GPS information that lead to his location and arrest. The Second Circuit affirmed the district court’s decision that the Stored Communications Act (18 …


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Categories: Fourth Amendment, sex offenses

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Supreme Court Upholds “Friends and Family” Insider-Trading Conviction

From SCOTUSblog:

“Bassam Salman, a Chicago grocery wholesaler, received stock tips from a friend, who had in turn received inside information from Salman’s brother-in-law, an investment banker at Citigroup. Salman made hundreds of thousands of dollars from the tips, but he was also charged with insider trading and sentenced to three years in prison. Today the Supreme Court upheld Salman’s conviction, rejecting his argument that he could not be held liable because his brother-in-law had not received any financial benefits in exchange for the inside information that he disclosed. The unanimous ruling – which came just over two months after the oral argument – was a big victory for the federal government, which had warned the justices that a ruling for Salman would lead to even more disclosures of confidential information by corporate insiders.”…

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Categories: insider trading

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Categories: insider trading

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Thursday, December 1st, 2016

The Unusual Nature of the Guidelines’ Fraud Loss Enhancements Is a Ground for Downward Variance

In an opinion written by Judge Newman, the Second Circuit today vacated the defendants’ sentences of 30 and 21 months, respectively, for food stamp fraud for the district court to consider imposing non-guideline sentences on the ground that the defendants’ Guidelines ranges were significantly increased by the loss enhancements, an unusual feature of the Guideline scheme. United States v. Algahaim, No. 15-2024(L)(2d Cir. Dec. 1 2016). The sentences here were “driven by the loss amount,” which increased the offense level from a 6-month base to levels 18 and 16 respectively. Slip op. at 9. The Court held: “Where the Commission has assigned a rather low base offense level to a crime and then increased it significantly by a loss enhancement, that combination of circumstances entitles a sentencing judge to consider a non-Guidelines sentence.” Id. at 11.

The Court acknowledged that the Commission had the authority to use loss amount …


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Categories: guideline, loss calculation, Uncategorized

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Supreme Court Rejects Double Jeopardy Claim

On Tuesday, in Bravo-Fernandez v. United States, the Court decided that, when a jury has returned inconsistent verdicts in a multi-count criminal case—acquittals on some counts but a conviction on another—and the conviction is subsequently vacated on appeal because of erroneous jury instructions, the double jeopardy clause does not preclude the government from retrying the defendant on the count that produced the conviction. Because “inconsistent verdicts shroud in mystery what the jury necessarily decided,” the Court ruled, the issue preclusion doctrine of Ashe v. Swenson cannot be applied.

The defendants were indicted in separate counts for federal bribery, conspiracy to commit that bribery, and traveling in furtherance of the bribery. Because the defendants conceded that they had both agreed and travelled, “the only contested issue at trial” was whether the offense of bribery had in fact been committed. At trial, the jury acquitted on the conspiracy and travel counts …

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Categories: bribery, double jeopardy

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Categories: bribery, double jeopardy

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Wednesday, November 23rd, 2016

Engelmayer (SDNY) Finds Juvenile Should Not be Prosecuted as an Adult

No Second Circuit decisions today.

But yesterday there was a decision out of the SDNY on the issue of whether a juvenile should be transferred for prosecution as an adult.

Judge Paul Engelmayer decided that a juvenile who was almost 18 years old at the time he was indicted for committing a number of violent offenses should not be prosecuted as an adult. The decision, United States v. C.F., Male Juvenile (15 Cr 445), can be found here. In it, Engelmayer gives a thorough break-down of the six factors that courts consider in the balancing test laid out under The Juvenile Justice and Delinquency Prevention Act (JJDPA), 18 U.S.C. §§ 5031-504.

Under JJDPA, the court must find that the transfer of a juvenile to adult status is in the “interest of justice.” This “interest of justice” standard is determined by balancing six factors : 1.) “the age and social …


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Categories: evidence, juvenile facility, Y.O.

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Tuesday, November 15th, 2016

Despite the Jones Delay, EDNY Rules New York Robbery is Not a “Crime of Violence”

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As blogged about here, the Second Circuit held in United States v. Jones that New York robbery is not a “crime of violence” for federal sentencing purposes.  And as blogged about here, the Circuit then vacated that ruling pending the Supreme Court’s decision in Beckles v. United States.

Notwithstanding Jones being put on hold, Judge Cogan of the Eastern District of New York has ruled — like the Jones court and Judges Ross and Weinstein in pre-Jones rulings — that New York robbery is not a “crime of violence.”  The decision, available here, explains that New York robbery can be committed with less than the “violent” force required by the force clause of the Career Offender Guideline (which controls in felon-in-possession cases), and that the Guideline’s residual clause was effectively invalidated by Johnson v. United States, 135 S. Ct. 2551 (2015).  Because the Guideline’s …

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Categories: crime of violence, robbery

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Categories: crime of violence, robbery

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Tuesday, October 25th, 2016

SCOTUS sets argument in Beckles v. United States for November 28, 2016

The Supreme Court has scheduled the oral argument in Beckles v. United States for Monday, November 28.

The issues in Beckles are whether the Court’s decision in Johnson v. United States applies retroactively on collateral review to cases challenging sentences imposed under the Career Offender Guideline, USSG 4B1.2(a)(2), whether Johnson renders that section of the Guidelines void for vagueness, and whether possession of a sawed-off shotgun remains a “crime of violence” for purposes of the Career Offender Guideline following Johnson.

Earlier this month, as discussed here, the Second Circuit vacated its decision in Jones v. United pending the outcome of Beckles.  Many Johnson-based 2255 petitions have been stayed pending the outcome as well.…

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Restitution Isn’t A Windfall

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In today’s United States v. Stevens, the Second Circuit (Winter, Chin, Droney) remanded a case for further proceedings because it was unclear whether the district court made the findings needed to support its restitution order.

Stevens fraudulently obtained a loan, ultimately acquired by Capital One Bank, for his business partnership.  The partnership later repaid Capital One in full and Stevens pleaded guilty to fraud in federal court.  The judge, in addition to ordering Stevens’s imprisonment, ordered him to pay restitution to the partnership.  The Second Circuit remanded, however, because “the district court did not make sufficient factual findings, which are necessary to our review of the restitution award.”

“Because restitution is intended to make the victim whole, it must be based only on the actual loss caused by the scheme.  Restitution is not intended to provide a victim with a windfall.”  And where a victim is reimbursed by a …

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Thursday, October 20th, 2016

Bribery Convictions Affirmed Notwithstanding McDonnell Error

In United States v. Vincent Tabone and Malcolm Smith, Docket Nos. 15-2351 (L) & 15-2433 (Con), the Court (Newman, Lynch & Droney) in a summary order affirmed the convictions of both defendants, thus concluding (at least at the Circuit level) the saga of Democrat Malcolm Smith’s attempt to run for Mayor of New York City as the Republican Party nominee by way of a “Wilson-Pakula Certificate,” which can be issued upon the approval of at least three of the five Republican Party chairs representing the five NYC boroughs (co-appellant Tabone was the de facto head of the Queens Republican Party). Earlier this year, the Court affirmed the conviction of another member of this scheme. See United States v. Daniel Halloran, 821 F.3d 321, 337 (2d Cir. 2016). As discussed below, the Panel here relies on Halloran to dispose of many of the appellants’ claims. The only issues worth …

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Wednesday, October 19th, 2016

Sooner or Later, the Career Offender Guideline Will Get You

In United States v. Anthony Lewis, Docket Nos. 15-3245-cr (L) & 15-3307-cr (CON), an unpublished summary order, the Court (Calabresi, Livingston & Rakoff (by designation)) rejected two appeals by Mr. Lewis from two denials of two § 3582(c)(2) motions for a reduced sentence based on two retroactively applicable Guideline amendments, one in 2010 and the other in 2014. The case is of interest principally for demonstrating the see-saw application of the Career Offender Guideline vis-a-via the Drug Guideline (§ 2D1.1) in the context of § 3582(c)(2) motions.

Mr. Lewis was originally sentenced in 2004. Under the drug table in § 2D1.1, his total offense level (based on distributing 1.5 KG or more of cocaine base) was 37, and at Criminal History Category VI, the range was 360 months to life. He also qualified as a Career Offender under § 4B1.1, but that determination resulted in a total offense …


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Categories: 3582(c)(2), career offender

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