Federal Defenders of New York Second Circuit Blog


Friday, August 17th, 2018

Judge Carter Issues Lengthy Opinion Justifying Bail Grant

If you’re looking for some inspiring beach reading this weekend, look no further than this opinion in United States v. Paulino. On appeal by the government, S.D.N.Y. Judge Andrew Carter upheld the Magistrate’s decision to set bail in Mr. Paulino’s case. The government appealed to the Second Circuit, which remanded with instructions for Judge Carter to elaborate his rationale for granting bail. Today, he issued this memorandum opinion discussing the history of bail in American courts; the presumptions, burdens and standards of proof that apply to bail decisions; and how imposing conditions of release can mitigate the risk of flight and danger to the community.

NB: The Federal Defenders represents Mr. Paulino.…


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Categories: bail, Uncategorized

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Wednesday, August 1st, 2018

Second Circuit Holds That NYPL § 220.31 (5th Degree Criminal Sale of a Controlled Substance) Is Not A “Controlled Substance Offense” Under USSG 4B1.2(b)

Last week the Second Circuit held that NY Penal Law § 220.31 (fifth-degree criminal sale of a controlled substance) is not a “controlled substance offense” under USSG 4B1.2(b). See United States v. Townsend, No. 17-757 (2d Cir. 2018) (Cabranes, Carney, Vilardo (W.D.N.Y.)) (appeal from Irizarry, C.J., E.D.N.Y.). The opinion is available here.

The upshot of Townsend is that any New York state statute that just uses the term “controlled substance” is not a controlled substance offense for purposes of the Career Offender Guideline. As our office’s Daniel Habib explains, the analysis in Townsend is straightforward:

(1) The term “controlled substance” in USSG 4B1.2(b) refers exclusively to those substances in the federal Controlled Substance Act (CSA), 21 USC § 802.

(2) NY Penal Law § 220.31 criminalizes the sale of a drug, human chorionic gonadotropin (HCG), that is not included in the CSA.

(3) NY Penal Law § 220.31 …


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Categories: categorical approach

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Tuesday, July 31st, 2018

Second Circuit Narrowly Construes Appellate Waiver and Holds That Embezzlement Is Not a Continuing Offense

In a short and interesting opinion, available here, the Second Circuit held today that (1) a defendant did not waive her right to appeal a restitution order on the ground that it covered conduct outside the statute of limitations period, and (2) that violations of 18 U.S.C. § 641 (embezzlement of government property) are not continuing offenses, rendering the defendant liable for funds embezzled outside the limitations period. See United States v. Green, No. 16-3044 (2d Cir. 2018) (Cabranes, Carney, Goldberg (Ct. Intl. Trade )) (appeal from W.D.N.Y.). The second of these holdings, concerning the scope of  § 641, creates a circuit split.

The defendant in Green was charged under § 641 for drawing money out of a joint bank account between 2009 and 2011 in amounts similar to those of VA payments to her deceased mother that went into the account. She pled guilty, and …


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Categories: appeal waiver, forfeiture, property, statute of limitations, statutory construction, statutory interpretation

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Wednesday, July 11th, 2018

Judge Kavanaugh on Criminal Law: Bad News Except…

Bloomberg News has an article (behind a paywall) that surveys Judge (and presumptive Justice) Kavanaugh’s criminal law jurisprudence.  The short story is that Judge Kavanaugh has been very bad for criminal defendants; one former SDNY prosecutor predicts that “he will be a reliable vote for the government in criminal cases, along the lines of Justice Alito.”

There are, however, a few glimmers of hope:

  • Concurring in an opinion reversing a murder conviction for faulty jury instructions, Judge Kavanaugh explained that, notwithstanding the defendant’s “heinous crime,” he was “unwilling to sweep under the rug” that the instructions left the jury with an incorrect understanding of the mens rea requirements governing second-degree murder and manslaughter. United States v. Williams, 836 F.3d 1, 20 (D.C. Cir. 2016).
  • In a concurring opinion affirming false statements conviction under 18 U.S.C. § 1001, Judge Kavanaugh cautioned that “§ 1001 prosecutions can pose a risk of

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Categories: 924(c), acquitted conduct, false statements, jury instructions

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NACDL Report on the Trial Penalty

The National Association of Criminal Defense Lawyers (NACDL) recently released a report that is somewhat provocatively, but fairly, titled: The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It.  The report, available here, offers a succinct assessment of the legal and institutional pressures that coerce 97% of state and federal defendants into plea bargains.

From the Executive Summary:

[O]ver the last fifty years, trial by jury has declined at an ever-increasing rate to the point that this institution now occurs in less than 3% of state and federal criminal cases. Trial by jury has been replaced by a “system of [guilty] pleas”3 which diminishes, to the point of obscurity, the role that the Framers envisioned for jury trials as the primary protection for individual liberties and the principal mechanism for public participation in the criminal justice system.

Guilty pleas


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Categories: guilty plea, Sixth Amendment

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Tuesday, July 10th, 2018

Judge Weinstein Urges More Frequent Termination of Supervised Release (Including for Marijuana Users)

Last week Judge Weinstein issued a remarkable opinion, available here, terminating supervised release for a defendant who, apart from habitual marijuana use, has committed no crimes since his release from prison. See United States v. Trotter, No. 15-cr-382, DE 543 (E.D.N.Y. July 5, 2018). The lengthy-but-readable opinion is worth reading in its entirety, particularly for those not intimately familiar with the law governing supervised release.

The opinion in Trotter made headlines for Judge Weinstein’s commitments to avoid punishing supervisees for marijuana use, and to terminate supervised release for marijuana users who are otherwise rehabilitated.  Equally relevant to practitioners, however, is Judge Weinstein’s more general critique of excessive supervision. Particularly important is Judge Weinstein’s suggestion that the defense bar move more frequently for termination of supervised release in the interest of justice pursuant to 18 U.S.C. § 3583. Indeed, Judge Weinstein urges practitioners to move for termination of supervised release …


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Categories: marijuana, sentencing, sentencing findings, supervised release

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Thursday, June 28th, 2018

Second Circuit Reversal of Vulnerable Victim Sentencing Enhancement

Today, in a summary order, the Second Circuit remanded a case for resentencing based on the district court’s erroneous application of the vulnerable victim enhancement. The decision may be useful to practitioners whose clients who were not necessarily aware of a victim’s vulnerable status during the commission of their charged offenses. The summary order in United States v. Nicholson, No. 17-197 (2d Cir. 2018) (Newman, Cabranes, Carney) (appeal from WDNY), is available here.

The defendant in Nicholson was himself a victim of a “Jamaica lottery scam,” wherein he was advised that he won $15 million in a lottery, which he could collect after paying $860 in local taxes. The scam-runner told Nicholson he could bay off these taxes by collecting money from third parties who were also victims of the scam. As it happened, one of those third parties was an elderly man in California, who …

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Categories: Uncategorized

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Recap of Supreme Court Decisions in Carpenter and Currier

As we mourn Justice Kennedy’s retirement, Sentencing Resource Counsel Sissy Phleger has graciously allowed us to post her summaries of the Supreme Court’s recent decisions in Carpenter v. United States (opinion available here) and Currier v. Virginia (opinion available here):

First, in the eagerly-anticipated Carpenter v. United States, the Court held that the government’s acquisition of Mr. Carpenter’s cellphone location records was a Fourth Amendment search. Roberts wrote for the majority, joined by Kagan, Breyer, Sotomayor, and Ginsburg. All the dissenters filed separate opinions (and variously join in each other’s). While the majority opinion is at pains to confine its impact, this is a great win with potential implications far beyond its specific circumstances.

Mr. Carpenter had challenged the use of warantlessly-obtained historical cell-site location records used to convict him of a string of armed robberies. He argued that the records constituted a search, and thus required …


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Categories: cell phone location information, double jeopardy, Fourth Amendment

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Tuesday, June 26th, 2018

Plain Error Under Rosales-Mireles

Though it disgraced itself today, the Supreme Court issued a hopeful opinion last week in Rosales-Mireles v. United States concerning the scope of plain error review for unobjected-to Guidelines miscalculations at sentencing. One of the most significant parts of this opinion is a footnote where the Court confirms that “proof of a plain Guidelines error” will ordinarily be sufficient for a defendant to meet the burden of showing that the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Slip op. at 11 n.3. The opinion, worth reading in its entirety, is available here.

The defendant in Rosales-Mirales was sentenced (for illegal reentry) based on an incorrect Guidelines range resulting from an incorrect calculation of his criminal history score. He was sentenced at the low end of the incorrectly calculated Guidelines range, but squarely in the middle of the correct Guidelines range. The defendant did not …

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Categories: plain error, sentencing

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Categories: plain error, sentencing

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Friday, June 22nd, 2018

Circuit Upholds Warrantless Search of Car, Remands for Resentencings to Consider Downward Departures and Concurrent Sentences

In United States v. Jones, the Circuit affirmed the district court’s refusal to suppress evidence seized during a warrantless search of a car parked in the common parking lot of a multi-family building.  The Circuit held Jones had no legitimate expectation of privacy in his car because it was parked in a driveway shared by tenants of two multi-family homes, not within the curtilage of his private home, and he did not have exclusive control over the driveway.  Op. at 13-15.

In United States v. Sawyer, the Circuit remanded the case for the second time, this time for resentencing in front of a new district judge.  The Circuit previously had vacated as substantively unreasonable a 360-month sentence for the offenses of producing and receiving child pornography.  In that opinion, the Circuit held that the “30-year sentence would have been appropriate for ‘extreme and heinous criminal behavior’ and the …


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Categories: automobile exception, child pornography, concurrent, curtilage

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Supreme Court: Police Generally Need Warrant for Historical Cell-Site Information

In Carpenter v. United States, the Supreme Court today held that the government’s acquisition of historical cell-site location information constitutes a Fourth Amendment search and the government generally will be required to obtain a warrant to acquire that information.  The so-called third-party doctrine does not permit the government to obtain cell-site location information as “business records” because “[t]here is a world of difference between the limited types of personal information [permissibly obtained under the third-party doctrine] and the exhaustive chronicle of location information casually collected by wireless carriers.”

 

You can read SCOTUSblog’s analysis of the case here.

 …


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Categories: cell phone location information

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