Author Archive | Anthony O'Rourke

Thursday, December 21st, 2017

Second Circuit Holds that First-Degree Robbery is a Violent Felony Under the ACCA

In a disappointing but relatively narrow opinion, the Second Circuit held yesterday that first-degree New York robbery is a violent felony for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The opinion in United States v. Stuckey, No. 16-4133 (Chin, Droney, Restani (Ct. Intl. Trade) (appeal from Oetken, J., SDNY), is available here. Significantly, the panel expressly declined to address whether second- or third-degree New York robbery is a violent felony under the ACCA — and its holding does not speak to those questions.

The issue in Stuckey is whether, in order to constitute a violent felony under ACCA, an offense must require that a defendant intend to use violent force. Specifically, the issue is whether an offense can constitute a violent felony under the ACCA if it involves the degree of force required under Johnson v. United States (“Johnson I”), …


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Categories: ACCA, categorical approach, crime of violence, robbery

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Wednesday, December 20th, 2017

Second Circuit Holds that a Request for Cooperation Can Constitute an Interrogation

Today the Second Circuit concluded that a request for cooperation can constitute an interrogation for Miranda purposes. United States v. Familetti, No. 16-2334 (Jacobs, Sack, Parker) (appeal from Preska, J., S.D.N.Y.). The Circuit held, however, that the defendant in Familetti was not under custody when the cooperation request occurred — notwithstanding that he had earlier been handcuffed while suffering a panic attack. The short opinion in Familetti, available here, offers mixed blessings to defendants, but includes excellent language as to when a request for cooperation crosses a line to become a full-blown interrogation.

Investigators executed a search warrant of Mr. Familetti’s apartment after he offered money to an undercover agent in exchange for sexual favors with a minor. As described in the opinion:

Familetti suffered an extreme panic attack as the agents entered, and two agents were needed to restrain him, push him against the

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Categories: Miranda

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Categories: Miranda

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Tuesday, December 19th, 2017

New District Court Opinions Hold That Neither New York Robbery Nor First-Degree Sexual Abuse are Violent Felonies Under the ACCA

In recent weeks both the Eastern and Southern Districts have issued useful opinions on the scope of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). In summary, these opinions conclude that none of the following New York offenses is a “violent felony” within the meaning of the ACCA: (1) second-degree robbery and attempted robbery, N.Y. Penal Law §160.10; (2) attempted third-degree robbery N.Y. Penal Law §160.10; and (3) first-degree sexual abuse, N.Y. Penal Law § 130.65. For those grappling with Johnson issues, the relatively short opinions may be worth reading in their entirety.

In the Southern District, Judge Rakoff issued an opinion holding that neither second- nor third-degree NY robbery offenses are violent felonies under the ACCA. See Austin v. United States, 16-cv-4446, available here. As Judge Rakoff notes, the Second Circuit reached the same result with respect to the Career Offender Guideline, U.S.S.G. § …


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Categories: ACCA, categorical approach, robbery, sex offenses

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Thursday, December 14th, 2017

Second Circuit on the Exclusion Non-Hearsay Evidence Concerning the Advice of Counsel Defense

Yesterday, in a published opinion, the Second Circuit reversed the convictions in an off-label drug importing case because the district court erroneously excluded evidence concerning the advice of counsel defense. The opinion in United States v. Scully, No. 16-3073 (Pooler, Lynch, Cogan (by designation) (appeal from Spatt, J., EDNY) is available here. The opinion touches on hearsay issues that arise beyond the fraud context.

The defendants in Scully were charged with fraud, conspiracy, and drug importation counts resulting from a “parallel importing” scheme: that is, the defendants’ company would import foreign versions of FDA-approved drugs and sell them at a reduced rate. One of the defendants cooperated and, at trial, the other defendant (Scully) advanced an advice-of-counsel defense. The defense sought to introduce evidence of an attorney’s legal advice through Scully’s own testimony, and elicited the following exchange during its direct examination of Scully:

Q. Did Mr.


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Categories: evidence, fraud, hearsay, jury instructions, Uncategorized

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Tuesday, December 12th, 2017

Second Circuit Vacates Above-Guidelines Illegal Reentry Sentence As Procedurally and Substantively Unreasonable

Today the Second Circuit issued an opinion vacating a 60-month illegal reentry sentence as both procedurally and substantively unreasonable. The opinion in United States v. Latchman Singh, No. 16-1111 (Kearse, Hall, Chin) (appeal from Forrest, J., SDNY), is available here. Judge Chin’s opinion touches on a number of recurring sentencing issues, and includes an important analysis of the distinction between presenting mitigating evidence and avoiding responsibility for one’s crimes.

Mr. Singh pleaded guilty to one count of illegal reentry after being removed following an aggravated felony conviction, see 8 U.S.C. § 1326(b). His record includes a number of convictions for non-violent offenses, several of which occurred more than a decade ago. The 15-21 Guidelines range for Mr. Singh’s sentence reflected a 3-level reduction for acceptance of responsibility. Prior to sentencing, he wrote a letter to the district court expressing remorse his actions and explaining the pressures that …


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Categories: acceptance of responsibility, illegal reentry, procedural reasonableness, sentencing, sentencing findings, substantive reasonableness

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Recent Cert. Grants

The Supreme Court recently granted certiorari in three criminal cases, the availability of sentencing reductions pursuant to 18 U.S.C. § 3582(c)(2) when a Guidelines sentencing range is retroactively lowered:

Hughes v. United States, No. 17-155
Question Presented: Whether, as a four-justice plurality in Freeman v. United States concluded, a defendant who enters into a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement is generally eligible for a sentence reduction if there is a later, retroactive amendment to the relevant Sentencing Guidelines range.

Cert. papers and opinion below available here:

Hughes v. United States

Koons v. United States, No. 17-1756
Question Presented: Whether a defendant who is subject to a statutory mandatory minimum sentence, but who substantially assisted the government and received a sentence below the mandatory minimum pursuant to 18 U.S.C. § 3553(e), is eligible for a further sentence reduction under 18 U.S.C. § 3582(c)(2), when the Sentencing …


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Categories: 3582(c)(2), interlocutory

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Friday, December 8th, 2017

Judge Weinstein on Incapicitory Sentencing

Today Eastern District Judge Weinstein issued a carefully researched opinion explaining the relatively lengthy—and in one case statutorily mandated—sentences of three adolescent defendants who each pled guilty to one count of brandishing a firearm. The opinion, available here, includes a balanced and detailed critique of the current methods to punish and rehabilitate young offenders who commit violent crimes, but for whom lengthy prison sentences are not necessarily appropriate.

From Judge Weinstein’s opinion:

Defendants—all adolescents—were gang-members, typically from impoverished and broken families.

They present the court with a number of troubling sentencing issues: (1) the need to prevent future acts of violence by gang members who, because of their home environment, and past affiliations, may be unable to escape the strictures of gang control; (2) the requirement that a sentencing court consider a defendant’s age, potential for rehabilitation, and culpability when crafting a sentence; (3) the limited ability of the


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Categories: mandatory minimum, sentencing, sentencing findings, youthful offender adjudication

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Tuesday, December 5th, 2017

“Unrelated inquiries that prolong or add time to a traffic stop violate the Fourth Amendment absent reasonable suspicion of a separate crime.”

The title is the holding of today’s Second Circuit opinion in United States v. Gomez (Parker, Wesley, Droney) (on appeal from D. Conn.). Specifically, the Circuit held that (1) the Fourth Amendment was violated when officers prolonged a minutes-long traffic stop to investigate matters unrelated to the pretextual basis for the stop, but that (2) suppression was not warranted because the good-faith exception to the exclusionary rule applied. The opinion is available here.

A DEA task force had been investigating Mr. Gomez in connection with a heroin trafficking operation. One of the task force members, a Hartford police officer, testified that he observed the defendant commit three traffic violations. The officer used these violations as grounds to conduct a traffic stop. “From the moment” the officer first approached the car, “his questioning detoured from the mission of the stop (Gomez’s traffic violations) to the DEA’s heroin-trafficking investigation.” Slip …


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Categories: forfeiture, Fourth Amendment, good faith, traffic stop, waiver

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Wednesday, November 29th, 2017

Second Circuit Opinion on Post-Arrest DNA Testing and the Confrontation Clause

Kenneth Washington was convicted based on DNA records created after his arrest. He did not have the opportunity to cross-examine the analysts who tested the DNA. Yesterday the Second Circuit rejected Washington’s habeas petition, which argued that the admission of these records violated clearly established law governing the Confrontation Clause. The holding of Washington v. Griffin (Katzmann, Kearse, Livingston) (affirming Block, J., EDNY), available here, is narrow. The opinion, however, includes inaccurate dicta concerning the test for whether hearsay evidence is testimonial and thus within the purview of the Confrontation Clause.

Washington was charged with multiple felony counts in connection with three separate home invasions. At each crime scene, investigators collected DNA matching that of Washington’s profile in the New York State DNA Index. He was arrested, and a detective collected a DNA sample from him using a buccal swab. At trial, an analyst from the New York City …


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Categories: Confrontation Clause, DNA

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Tuesday, November 28th, 2017

Recent Criminal Forfeiture GVRs

The Supreme Court has recently reversed two drug forfeiture decisions in light of its decision in Honeycutt v. United States. Sentencing Resource Counsel Ada (“Sissy”) Phleger has the details:

“In the last two weeks the Supreme Court has granted, vacated, and remanded (GVR’ed) two cases in light of last summer’s Honeycutt v. United States, 581 U.S. ___ (2017), dealing with joint-and-several liability for forfeiture in drug conspiracies. Chittenden v. United States (No. 17-5100) and Brown v. United States (No. 16-9747).

“The Court in Honeycutt considered the language of 21 U.S.C. § 853(a)(1), mandating forfeiture of “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” certain drug crimes. At the Government’s urging, the Sixth Circuit had interpreted this language to hold the defendant jointly-and-severally liable for all proceeds of the conspiracy, even though the Government conceded that the defendant himself …

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Categories: fofeiture

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Categories: fofeiture

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Wednesday, November 22nd, 2017

Second Circuit Enforces Rule 11

Yesterday the Second Circuit vacated a conviction because a Northern District court violated the requirements of Rule 11 concerning the acceptance of a guilty plea. The summary order in United States v. Coffin (Walker, Raggi, Hall) is available here.

Mr. Coffin agreed to plead guilty to one count of possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) . “Rule 11 requires that the district court, before accepting a plea of guilty, ‘determine that the defendant understands . . . the nature of each charge to which the defendant is pleading.'” Slip op. at 3-4 (quoting Fed. R. Crim. P. 11(b)(1)(G)). The district court, however, did not adduce any facts that would establish such an understanding. Instead, it simply said that the plea agreement contained facts that would support his guilty plea, and asked Mr. Coffin whether those facts were true.…

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Categories: 924(c), Rule 11

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Categories: 924(c), Rule 11

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