Federal Defenders of New York Second Circuit Blog


Friday, February 16th, 2018

Second Circuit Holds that A Criminally Culpable Corporation Is Not Entitled to Restitution for Its Employees’ Criminal Conduct

The Second Circuit issued two opinions this week on third parties’ claims for restitution and shares of criminally forfeited property from defendants. See Federal Insurance Co. v. United States & United States v. Mazer (related cases), Nos. 16-2967 & 16-3402 (2d Cir. 2017) (Parker, Lynch, Carney) (appeal from Daniels, J., SDNY), opinion available here; United States v. Ohle, No. 16-601 (2d Cir. 2017) (Leval, Calabresi, Cabranes) (appeal from Rakoff, J., SDNY), opinion available here.

The lengthier of these opinions, in Federal Insurance, brings welcome news (or at least a sigh of relief) to the sort of low-level employees to whom corporate defendants are incentivized to shift blame in white collar prosecutions. Federal Insurance concerns a corporation’s entitlement to restitution and forfeiture payments from employees who were convicted for participating in a fraud for which the corporation is criminally culpable. In part, the opinion affirms …


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Categories: CVRA, forfeiture, fraud, MVRA, restitution, victims

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Friday, February 9th, 2018

VOSR Sentence Declared Procedurally Unreasonable on Plain Error Review

It’s been a slow week for the Second Circuit, but today it issued a summary order reversing a sentence for violations of supervised release as procedurally unreasonable. This holding is unremarkable in light of the district court’s failure to articulate any specific reasons for the defendant’s above-Guidelines sentence. Somewhat notable, however, is the panel’s discussion of why the sentence is reversible under plain error review. The summary order in United States v. Kalaba, No. 17-328 (Katzmann, Pooler, Droney) (appeal from Preska, J., SDNY), is available here.

While on supervised release, Mr. Kalaba was arrested and indicted for several counts relating to a narcotics distribution conspiracy. He was sentenced to 84 months’ imprisonment after pleading guilty to one count and being convicted of the others at trial. While awaiting trial, the Probation Office submitted a report charging four violations of supervised release. Two violations were established by the narcotics …


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Categories: 3553(c), plain error, procedural reasonableness, supervised release

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Thursday, February 1st, 2018

Plain Error Reversal of Supervised Release Condition re. Alcohol

Today the Second Circuit reversed a district court’s sentence imposing as a special condition of supervised release that the defendant refrain from using any alcohol whatsoever while on supervision. The summary order in United States v. Betts, No. 17-231-cr (Leval, Calabresi, Cabranes) (appeal from W.D.N.Y.) is available here.

The defendant in Betts was originally convicted of conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349. After release from prison, he pled guilty to a supervised release violation (pursuant to a plea agreement) for failing to notify his probation officer within 72 hours of arrest. The district court sentenced the defendant to ten months’ imprisonment and four months of supervised release. As a special condition of the supervised release, the court required that the defendant refrain from consuming any alcohol.

On plain error review, the Second Circuit held that the district court abused its discretion by …


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Categories: plain error, supervised release

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Friday, January 26th, 2018

Categorical Approach Updates from First and Ninth Circuits (Including on 2nd-Degree NY Robbery’s Status under the Career Offender Guideline)

Two valuable opinions have been published outside the Second Circuit in recent weeks:

(1) The First Circuit has  held that attempted second-degree robbery in New York is not a “crime of violence” for purposes of the Career Offender Guideline’s force clause, U.S.S.G. § 4B1.(2)(a)(1). The opinion in United States v. Steed, No. 17-1011 (1st Cir. 2018) (Barron, J.) is available here. The court’s reasoning in Steed should be familiar to those following the district court and (vacated) Second Circuit opinions reaching the same conclusion.

As its starting point, the court looked to First Circuit case law holding that purse snatching does not necessarily require the degree of force required under Johnson I. The court then considered whether, as of 2000 (the year of the defendant’s relevant conviction), such purse snatching was a violation of New York’s second degree robbery statute, NY Penal Law  § 160.10. After …


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Categories: career offender, categorical approach, conspiracy, crime of violence, drug distribution, Johnson

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Tuesday, January 23rd, 2018

6th Amendment Speedy Trial Right Violated In Case Raising Interesting Attorney-Client Issues

Today the Second Circuit ordered that a defendant’s indictment be dismissed with prejudice because his 6th Amendment speedy trial right was violated. The opinion in United States v. Tigano, 15-3073 (2d Cir. 2018) (Winter, Walker, Pooler), available here, is a case study in “poor trial management,” slip op at 5, and the improper use of competency hearings. (Like the Circuit’s other recent speedy trial decision, Tigano arises out of the Western District of New York.) The opinion also raises fascinating questions about the tensions that can arise between the imperatives to respect a defendant’s autonomy and act in what a lawyer believes to be the defendant’s strategic interest. In doing so, the opinion offers cautionary lessons for the government and defense counsel alike.

Mr. Tigano and his father were indicted in July 2008 as co-defendants on drug and weapons charges. He was then subjected to nearly seven …

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Categories: speedy trial

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Friday, January 19th, 2018

Recent “Trujillo” Decisions and Resources

Today Judge Vitaliano (EDNY) dismissed an indictment with prejudice after ruling that the government must choose between (1) complying with the Bail Reform Act or (2) continuing to hold the defendant in immigration detention notwithstanding that she had been released on bond.  See United States v. Lopez, 17-cr-683 (1/19/18 electronic order).

This decision is the most recent contribution to a string of “Trujillo” decisions, see United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012).  For practitioners’ convenience, this blog will maintain an updated list of all Trujillo decisions in the EDNY and SDNY. If you are aware of any decided cases that are not on this list, please contact our office.

Practitioners should also note this recent New York Times article, which confirms that Customs and Border Patrol (CBP) has only recently started placing people in immigration detention after they have been …

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Categories: bail, ICE detention

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Categories: bail, ICE detention

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Wednesday, January 10th, 2018

Supreme Court GVR (and Government Confession of Error) in Speedy Trial Act Case

Sentencing Resource Counsel Ada (“Sissy”) Phleger has the details, including as to the practical relevance of the case:

On Monday, the Supreme Court granted-vacated-and-remanded a case involving the Speedy Trial Act, White v. United States (17-270), in light of the Solicitor General’s confession of error. While the Government’s confession blocked merits review in Mr. White’s particular case, its arguments can be useful to others who encounter the issue (particularly in the Fourth, Sixth, Seventh, and Eighth Circuits).

The Sixth Circuit had rejected Petitioner Jimmie White’s Speedy Trial Act claim which turned on how to treat the time spent in ultimately unsuccessful plea negotiations. Mr. White sought cert, presenting the following question:

Whether, under the Speedy Trial Act, time engaged in a plea negotiation that does not result in a finalized plea agreement is automatically excludable as “other proceedings concerning the defendant” under 18 U.S.C. § 3161(h)(1), as four circuits hold;

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Burdens of Proof & Restitution Under The MVRA

Yesterday the Second Circuit issued a short opinion concerning the burdens of proof for modifying restitution orders under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. §§ 3663A & 3664. Specifically, the panel held that the district court acted within its discretion in requiring the defendant to prove that a victim recovered money in civil litigation “for the same loss” caused by the defendant. Id. § 3664(j)(2) (requiring that a restitution order be reduced by the amount of such recoveries). The opinion in United States v. Smathers, No. 16-2394 (Kearse, Cabranes, Wesley) (per curiam) (appeal from Hellerstein, J., SDNY), is available here.

Mr. Smathers, a former AOL employee, was ordered to pay $84,000 in restitution to AOL in connection with his conviction for selling the company’s customer list to be used for spam. Through his attorney, Mr. Smathers requested that the district court determine whether this restitution order …


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Categories: burden of proof, MVRA, restitution

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Tuesday, January 9th, 2018

Federal Defender Fact Sheet Challenging Link Between Judicial Discretion and Racial Sentencing Disparities

The Federal Defenders Guidelines and Legislative Committees have released a fact sheet, available here, critiquing a recent Sentencing Commission report which concludes that racial disparities in sentencing have increased in the wake of Booker. 

In November 2017, the Sentencing Commission released a report concluding that “the gap between the sentence lengths for Black and White male offenders [has] increas[ed]”post-Booker. Opponents of discretionary sentencing have cited (and misused) this finding to argue for mandatory sentencing regimes. The Federal Defenders’ fact sheet takes issue with the Commission’s failure to address some recurrent criticisms of the statistical model it uses to reach its conclusions. These include the Commission’s failure to account for the racially disparate impacts of (1) mandatory minimums, (2) prosecutors’ charging and bargaining decision, and (3) certain sentencing guideline provisions. As the fact sheet explains:

Racial disparity is a serious problem in the federal criminal justice system.

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Categories: Booker, sentencing

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Categories: Booker, sentencing

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Tuesday, January 2nd, 2018

Second Circuit Reverses Denial of USSG §3E.1.1(b) Sentencing Reduction

Today the Second Circuit vacated a sentence as procedurally unreasonable because the sentencing judge withheld the third point of a Guideline reduction for acceptance of responsibility. The summary order in United States v. Reyes, No. 16-2936 (Winter, Lynch, Droney) (appeal from Townes, J., EDNY), is available here.

Mr. Reyes was sentenced to life imprisonment after pleading guilty to conspiracy to commit bank fraud and second-degree obstruction of justice murder. The government consistently stated that he deserved a full three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The district court granted a two-level reduction under § 3E1.1(a), but denied an additional one-level reduction under § 3E1.1(b) on the ground that Mr. Reyes lied during his sentencing testimony about whether he was present when the murder was committed. (The defendant maintained at sentencing that he hired someone to kill a witness to a bank fraud scheme, but told …


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Categories: acceptance of responsibility, procedural reasonableness

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Friday, December 29th, 2017

EDNY Requires Government to Choose Between Complying With Bail Reform Act and Detaining for Immigration Removal

In an otherwise slow holiday week, Eastern District Chief Judge Irizarry has reaffirmed that ICE cannot detain noncitizens who are being federally prosecuted and have met their bond conditions. The opinion in United States v. Benzadon Boutin, No. 17-cr-590 (DLI), is available here. The decision is the latest in the “Trujillo” line of cases, see United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012). This case law now include two opinions by Chief Judge Irizarry and one by Southern District Judge Carproni. (Our discussion of Judge Caproni’s opinion includes suggestions for attorneys considering whether to file a “Trujillo” motion.)

Mr. Benzadon Boutin was indicted for theft of public property and money laundering. He satisfied his bond conditions, but was nevertheless kept in custody pursuant to an ICE detainer. Chief Judge Irrizarry held that “once a criminal prosecution is initiated and …

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Categories: bail, ICE detention

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Categories: bail, ICE detention

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