Federal Defenders of New York Second Circuit Blog


Wednesday, April 17th, 2019

Judge Rakoff Limits Government’s Description of Stock Market as “Level Playing Field”

Prior to opening statements in United States v. Pinto-Thomaz, 18 Cr. 579 (JSR), Southern District Judge Jed S. Rakoff precluded the government from giving a jury the standard line that the stock market should be a “level playing field.” According to this report from Law360.com, Judge Rakoff said, “Anyone who thinks the stock market is a level playing field obviously has no contact with reality.” He permitted the government to argue that the defendant “conferred an ‘illegal advantage'” through tips. …


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Categories: insider trading, Uncategorized

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Thursday, April 11th, 2019

Credit Union Robbery is a Crime of Violence for the Purposes of 18 U.S.C. 924(c)

Today, in United States v. Hendricks, the Second Circuit held that robbery of a credit union, in violation of 18 U.S.C. 2113(a), is a “crime of violence” for the purposes of 18 U.S.C. 924(c). The Circuit said it had “little difficulty in holding that bank robbery committed ‘by intimidation’ categorically constitutes a crime of violence for the purposes of [Section] 924(c)(1)(A).” Opinion at 15.

Stay tuned for a more detailed discussion of Henricks.…


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

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Enhancement under U.S.S.G. 2A6.2(b)(1)(A) for “violation of a court order of protection” does not apply if the defendant was not served as required by law

In United States v. Thompson, the Second Circuit remanded for resentencing. At sentencing, the District Court determined that the two-level enhancement under U.S.S.G. 2A6.2(b)(1)(A) for “violation of a court order of protection” applied because Mr. Thompson had been “on notice of the issuance” of an order of protection. But Mr. Thompson had not been served with the order in compliance with state law. A state court ex parte order of protection may provide the basis for the application of the enhancement where that order was issued: (1) by a court with personal jurisdiction over both the petitioner and the respondent; (2) by a court with jurisdiction over the subject matter; (3) in compliance with federal procedural due process protections; and (4) in compliance with state time limits regarding notice and opportunity to be heard. Opinion at 8. Here, the court that issued the order of protection did not have …

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Categories: sentencing

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Categories: sentencing

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Tuesday, March 5th, 2019

New York Penal Law 130.45 Not a “Prior Sex Offense” Under the Categorical Approach

Today the Second Circuit applied the categorical approach and vacated a life sentence. In United States v. Kroll, the Circuit held that under the categorical approach, the defendant’s 1993 conviction under New York Penal Law 130.45 did not constitute a “prior sex offense” as defined by 18 U.S.C. 3559(e)(1), and thus did not trigger a mandatory life sentence, because the state statue sweeps more broadly than its federal equivalent.

For a prior state conviction to count as a “prior sex offense,” it must “‘consist[] of conduct that would be a Federal sex offense’ if there were a basis for Federal jurisdiction.'” Opinion at 10. The Circuit held that a district court must employ the categorical approach when determining whether the state statute consists of conduct that would be a Federal sex offense. Under the categorical approach, courts “ask[] whether the least of conduct made criminal by the state statute …


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Categories: categorical approach, sex offenses

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Friday, January 25th, 2019

The 924(c)(3)(B) Circuit Split Grows (in a Good Way)

This week, the Fourth Circuit held in United States v. Simms, No. 15-4640 (4th Cir. 2019) (en banc) that § 924(c)(3)’s residual clause is unconstitutionally vague and therefore that conspiracy to commit Hobbs Act robbery is not a crime of violence. The decision deepens the Circuit split on this issue, which the Supreme Court will soon address in Davis.

Notably, the en banc majority in Simms declined to apply the constitutional avoidance canon to adopt a conduct-specific reading of § 924(c)(3)(B). The avoidance canon has “no application,” the Court stated, where “there is an absence of more than one plausible construction” of the statute. Slip op. at 41 (quotation marks omitted). As the Court explained elsewhere, the government’s favored reading of § 924(c)(3)(B) is implausible because its text and structure “unambiguously require courts to analyze the attributes of an ‘offense that is a felony . . . by …


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

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Wednesday, January 16th, 2019

Loss in Stokeling

Yesterday, in Stokeling v. United States, the Supreme Court held that Florida robbery is a violent felony under the Armed Career Criminal Act (ACCA). In doing so, the Court modified Johnson‘s understanding of the degree of “force” necessary for to satisfy the ACCA’s force clause. The excellent summary below is courtesy of Aamra Ahmad, of the Sentencing Resource Counsel Project, and Paresh Patel, Appellate Chief for the District of Maryland Federal Defenders:

Today, in Stokeling v. United States (17-5554), the Court revisited the meaning of the term “physical force” as it is used in the elements clause of the ACCA statute. In Johnson v. United States, 559 U.S. 133, 140 (2010), the Court defined “physical force” as a quantity of “force capable of causing physical pain or injury.” But in Johnson, the Court also used words such as “severe,” “extreme,” “furious,” or “vehement” to define “physical …


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Categories: ACCA, categorical approach, robbery

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Friday, January 11th, 2019

Cert. Grant in Davis

The Supreme Court recently granted a certiorari petition in Davis v. United States that presents the following questions:

(1) Whether 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague;

(2) whether Hobbs Act robbery is a “crime of violence” as defined by 18 U.S.C. § 924(c)(3); and

(3) whether a prior Texas conviction for burglary is a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

Practitioners should take care to preserve challenges to § 924(c)(3)’s residual clause notwithstanding the Second Circuit’s holding in Barrett, and to preserve arguments that offenses such as Hobbs Act robbery (and conspiracy to commit that offense) are not crimes of violence under  § 924(c)(3). (Note that, as of the date of this post, the mandate has not issued in Barrett.)…


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Categories: 924(c), ACCA, categorical approach, certiorari, conspiracy, crime of violence, Hobbs Act, Johnson

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Tuesday, December 18th, 2018

Supreme Court Decides Stitt

Last week, the Supreme Court held in United States v.  Stitt, Nos. 17-765 & 17-766, that the Armed Career Criminal Act’s (ACCA’s) definition of “violent felony” covers burglary statutes that criminalize unlawful entry into vehicles adapted or customarily used for overnight accommodation. As explained below, the decision does not appear to have any bearing on whether the ACCA covers New York’s third-degree burglary statute, N.Y. Penal Code § 140.20.

The enumerated clause of the ACCA identifies “burglary” as a violent felony. 18 U.S.C. § 924(e)(1)(ii). In Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court adopted the categorical approach to analyzing the ACCA and, in doing so, held that Congress “intended a uniform definition of burglary [to] be applied” to cases involving that predicate offense. Id. at  580. This uniform definition of burglary, the Court held in Taylor, covers unlawful entry into “a building or other …


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Categories: ACCA, burglary, career offender, crime of violence

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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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