Federal Defenders of New York Second Circuit Blog


Monday, December 10th, 2018

Misleading Description of Circumstances Under Which Defendant Made Statement Leads to New Trial

In United States v. Vinas, the Second Circuit vacated a conviction and remanded for a new trial based on the government’s Rule 16 discovery violation.

 In Vinas, a courier case, the government’s Rule 16 notice disclosed that Vinas had made a self-incriminating statement during the “initial inspection” of his luggage, i.e., in a public area of the terminal at JFK Airport. Because the Circuit has held that routine questioning in the public area of an international terminal is non-custodial, the defense did not move to suppress, even though the statement was un-Mirandized. At trial, however, it emerged that the Rule 16 notice was not accurate (or, at least, ambiguous). Vinas had in fact made the statement only after four armed CBP officers took his passport and escorted him to a private search room, arguably a custodial setting. Defense counsel objected that the misleading disclosure caused him to forgo


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Categories: discovery, Miranda

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Appeal Waiver in Plea Agreement Invalid Without Consideration from Government

In United States v. Lutchman, the Second Circuit held a waiver of appeal contained in a plea agreement was invalid because it was not supported by consideration from the government.  Mr. Lutchman pled guilty to one count of conspiracy to provide material support to a foreign terrorist organization pursuant to a plea agreement that calculated an advisory guidelines range at the statutory maximum and contained an appeal waiver for any sentence at or below the statutory maximum.  Yet he “received no benefit from his plea beyond what he would have gotten by pleading guilty without an agreement.”  The government’s agreement not to oppose the two-level reduction under the guidelines for acceptance of responsibility and to move for the one-level reduction under U.S.S.G. 3E1.1(b) for Lutchman’s timely notification of his intention to plead guilty did not constitute consideration for the appeal waiver because the combined three-level reduction was available to …


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Categories: material support statute, waiver

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Tuesday, December 4th, 2018

Ninth Circuit Holds Statute Barring “Encouraging and Inducing an Alien” Abridges Constitutionally-Protected Speech

Something to look out for on the immigration front:

The Ninth Circuit held that 8 U.S.C. 1324(a)(1)(A)(iv) which prohibits “encouraging and inducing an alien to remain in the United States” abridges constitutionally-protected speech. Because “[a]t the very least, it is clear that the statute potentially criminalizes the simple words . . . “I encourage you to stay here,” the statute “criminalizes a substantial amount of constitutionally-protected expression” and therefore is unconstitutionally overbroad in violation of the First Amendment.

The case is United States v. Sineneng-Smith, and you can access the opinion here.…

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Categories: immigration

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Categories: immigration

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Friday, November 9th, 2018

Judge Weinstein on Alcohol-Related Supervised Release Violations

Judge Weinstein issued an opinion this week terminating the supervised release of a defendant who violated a standard condition of release by consuming alcohol while in a drug treatment program. See United States v. Thomas, No. 15-cr-382, DE 575 (Nov. 6, 2018), available here. The opinion builds on Judge Weinstein’s more extensive opinion in United States v. Trotter concerning violations of supervised release for marijuana use. As Judge Weinstein urged in Trotter, practitioners should move to modify or terminate supervised release where the defendant’s only violations consist of minor infractions. (Indeed, Judge Weinstein suggests in Trotter that practitioners should move for termination of supervised release in all cases where the defendant has completed one year of supervision.)

As is customary with Judge Weinstein, the opinion’s introduction provides an excellent synopsis of its analysis:

The instant memorandum considers [an] important issue in supervised release: what to do with


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Categories: sentencing, sentencing findings, supervised release

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Friday, November 2nd, 2018

Second Circuit Upholds “Barbaric,” but Somehow Substantively Reasonable, Sentence

In a remarkably fatalistic opinion, the Second Circuit rejected a substantive reasonableness challenge to a 25 year sentence for child pornography sentence charges. The sentence, the panel explained, was “barbaric without being all that unusual.” United States v. Sawyer, No. 15-2276 (2d Cir. Oct. 6, 2018) (Jacobs, Pooler, Crawford (D. Vt.)), available here.

The defendant in Sawyer was initially sentenced to 30 years’ imprisonment on charges of sexual exploitation and receiving child pornography. The defendant’s PSR documented that the defendant suffered a childhood of severe physical and sexual abuse. The district judge described this childhood as “horrific” and “nightmarish,” but admonished the defendant that “I can’t excuse that darkness in your heart and soul that made you prey upon two innocent children.” Slip op. at 3-4. (The defendant was prosecuted for having, but not distributing, graphic cellphone photos of two young girls with whom he had …


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Categories: child pornography, law-of-the-case doctrine, substantive reasonableness

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Thursday, October 25th, 2018

Interesting 9th Circuit Reverse Stash House Opinion

In a recent opinion, the Ninth Circuit held that selective enforcement claims in reverse stash-house sting operations are not subject to the nearly impossible-to-surmount discovery standard set forth in United States v. Armstrong, 517 U.S. 457 (1996).  See United States v. Sellers, 16-50061 (9th Cir. 2018), opinion available here.

Chief Federal Public Defender Jon Sands, who posts on the excellent Ninth Circuit Blog, has this summary:

In US v. Sellers, No. 16-50061 (10-15-18) (Nguyen w/Simon; Nguyen concurring; Graber dissenting), the panel majority held that in stash house reverse-sting cases, claims of selective enforcement are governed by a less rigorous standard than that applied to claims of selective prosecution under US v. Armstrong, 517 US 456 (1996). The 9th emphasizes the difference between selective prosecution and selective enforcement (9). The 9th stresses that the police do not enjoy the enforcement presumption of prosecutors and …


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Categories: equal protection, selective enforcement, stash house, sting

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Barrett Petition for Rehearing and the Growing 924(c)(3)(B) Circuit Split

A petition for rehearing, available here, has been filed in United States v. Barrett, No. 14-2641 (2d Cir. 2018), which held that § 924(c)(3)’s residual clause is not unconstitutionally vague and that conspiracy to commit Hobbs Act robbery is not a crime of violence.  Practitioners with Johnson petitions pending in district courts should, in appropriate cases, consider requesting stays pending the resolution of this petition.

In addition, the First Circuit has recently held that 924(c)’s residual clause is not void for vagueness.  See United States v. Douglas, No. 18-1129 (1st Cir. Oct. 12, 2018), opinion available here. There is now a 3-3 circuit split on this question:

Three Circuits have held that § 924(c)(3)(B) is unconstitutional in light of Dimaya. See United States v. Davis, 903 F.3d 483 (5th Cir. 2018); United States v. Eshetu, 898 F.3d 36 (D.C. Cir. 2018); United States


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Categories: 924(c), categorical approach, crime of violence, Johnson

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Friday, October 12th, 2018

The Second Circuit on Inadmissible Background Testimony

This week the Second Circuit issued an opinion, available here, in United States v. Demott, No. 13-3410 (2d Cir. 2018) (Leval, Pooler, Wesley) (appeal from N.D.N.Y). The opinion has three holdings. First, it rejects an as-applied vagueness challenge to the Controlled Substance Analogue Enforcement Act, 21 U.S.C. §§ 802(32)(A), 813. Second, with respect to mens rea, it holds the Analogue Act requires only that the defendant knew he was dealing with a controlled substance — not that the defendant knew he was dealing with a substance that is controlled under the Analogue Act itself.

Third, and of particular interest, the Circuit reversed the defendant’s conviction because the district court erroneously admitted impermissible hearsay evidence as “background testimony.” Slip op. at 35-50. Specifically, a detective testified for the government as to how he got involved in the criminal investigation that led to the defendant’s arrest. The detective …

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Categories: hearsay

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Categories: hearsay

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ACCA Oral Arguments in Stokeling & Stitt (and FDNY nondelegation argument in Gundy!)

This week the Supreme Court heard oral arguments in two cases addressing whether specific state offenses are violent felonies within the meaning of the Armed Career Criminal Act (ACCA): Stokeling v. United States (Florida robbery statute that punishes takings by slight force), and United States v. Stitt (state burglary statutes that punish vehicle break-ins). The statutes at issue are similar to the New York robbery and burglary statutes in their scope.

For a detailed analysis of the arguments in these cases, see Rory Little’s analysis at SCOTUSBlog.

The transcript in Stokeling is available here.

The transcript in Stitt, which featured a masterful oral argument by Jeffrey Fisher, is available here.

Speaking of masterful, the FDNY’s Sarah Baumgartel recently argued before the Supreme Court in United States v. Gundy on the question of whether SORNA’s delegation of authority to the Attorney General under 42 U.S.C. § 16913 …


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Categories: ACCA, burglary, categorical approach, robbery, Sex offender registration

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Friday, October 5th, 2018

§ 924(c)’s Residual Clause: The Circuit Split Deepens

Making Supreme Court review a virtual certainty, today the Eleventh Circuit joined the Second in holding that § 924(c)’s residual clause, 18 U.S.C. § 924(c)(3)(B), is not unconstitutionally vague. See United States v. Ovalles (11th Cir. Oct. 4, 2018) (en banc), opinion available here.

There is now a 3-2 circuit split. Three Circuits have held that § 924(c)(3)(B) is unconstitutional in light of Dimaya. See United States v. Davis, __ F.3d __, 2018 WL 4268432 (5th Cir. Sept. 7, 2018); United States v. Eshetu, 898 F.3d 36 (D.C. Cir. 2018); United States v. Salas, 889 F.3d 681 (10th Cir. 2018). Two Circuits have now upheld the residual clause. See Ovales, ___ F.3d ___, 2018 WL 4830079; United States v. Barrett, ___ F.3d ___, 2018 WL 4288566 (2d Cir. Sept. 10, 2018).…


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Categories: 924(c), crime of violence, Johnson

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Inaccurate Barrett Dicta

The Second Circuit issued an opinion this week containing some facially incorrect, and substantively troubling, dicta concerning tits recent decision in Barrett. See United States v. Fiskeu, No. 17-1222 (2d Cir. 2018) (Cabranes, Lynch, Carney) (appeal from Engelmayer, J., S.D.N.Y.), opinion available here.

The narrow, fact-specific holding of Fiseku is that under the “unusual circumstances” presented in the case, police officers did not act unreasonably when they briefly restrained the defendant in handcuffs while conducting a investigatory stop. Slip op. at 18. However, the defendant also raised an ineffective assistance claim because his defense attorney failed to argue that his crime of conviction, conspiracy to commit Hobbs Act robbery, was not a crime of violence within the meaning of U.S.S.G. 4B1.2. The Second Circuit declined to address this claim on direct review.

In so declining, the panel offered this footnote:

In a recent decision, we determined that


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Categories: 924(c), conspiracy, crime of violence, Johnson

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