Author Archive | Anthony O'Rourke

Thursday, March 29th, 2018

Opinion Reversing Alcohol-Related Supervised Release Condition

Yesterday the Second Circuit issued a short opinion reversing a special condition of supervised release requiring the defendant to abstain from any alcohol while on supervision. The opinion in United States v. Betts, No. 17-231 (Leval, Calabresi, Cabranes) (reversal from WDNY) is available here. (The Second Circuit recently issued a summary opinion that reached the same conclusion on plain error review).

The defendant in Betts was originally convicted of conspiracy to commit bank fraud, and pled guilty to a violation of supervised release for failing to notify his probation within 72 hours of an arrest (for driving without a license). As a special condition of supervised release, the district court imposed a total ban on alcohol consumption. The Second Circuit held that this condition was not reasonably related to his underlying conviction or his admitted supervised release violation:

The District Court was not presented with any evidence

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Categories: supervised release

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Categories: supervised release

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Tuesday, March 27th, 2018

Confrontation Clause Error in Summary Opinion

Yesterday the Circuit engaged in a bit of harmless error in describing the relationship between the Confrontation Clause and the business records exception to the hearsay rule, Fed. R. Evid. 803(6). The mistake in United States v. Grecco, No. 16-3112 (2d Cir. 2008) (Jacobs, Wesley, Korman (EDNY)), available here, is worth flagging because it has the potential to create problems in future cases.

The appeal in Grecco raised the question of whether the admission of an autopsy report violated the Confrontation Clause because the report was “testimonial” in nature. The panel held that any error in admitting the report was harmless, and thus declined to address this question. The panel repeatedly framed the question, however, as “whether the autopsy report was testimonial in nature, or a business record that is therefore not subject to Confrontation Clause requirements.” Sum. op. at 3.

This framing misstates the law. At one …


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Categories: Confrontation Clause, Crawford, hearsay

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Three Robberies in an Hour: Separate Offenses Under the ACCA

Today the Second Circuit held that three robberies committed on the same evening–within the same hour–were “committed on occasions different from one another” within the meaning of the ACCA. See United States v. Bordeaux, 17-486 (2d Cir. 2018) (Cabranes, Raggi, Vilardo (WDNY)). The opinion, available here, also holds that a subsection of Connecticut’s first-degree robbery statute, punishing robberies committed with a firearm, defines a violent felony for ACCA purposes.

The relevant facts of Bordeaux are buried toward the bottom of the opinion, in the analysis section. The defendant and accomplices robbed three different victims on the same night in Bridgeport, CT. The robberies occurred at approximately 10pm, 10:15pm, and 10:55pm on November 24, 2009. The district court “took notice that the distances between the first and second and the second and third robberies were, respectively, “a little less and a little more than one‐half mile.” Slip …

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Categories: ACCA, Shepard

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Categories: ACCA, Shepard

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Thursday, March 22nd, 2018

Supreme Court Narrowly Construes IRS Obstruction Provision

This week the Supreme Court held that, to establish a violation of the IRS’s obstruction provision, 26 U.S.C. § 7212(a), the government must prove that the defendant was aware of a pending, “targeted governmental tax-related proceedings, such as a particular investigation or audit.” Sentencing Resource Counsel Sissy Phleger has the details:

In Marinello v. United States, the Supreme Court narrowly construed the obstruction provision in the Internal Revenue Code, 26 U.S.C. § 7212(a), known as the Omnibus Clause. That provision criminalizes “corruptly or by force or threats of force . . . obstruct[ing] or imped[ing], or endeavor[ing] to obstruct or impede, the due administration of [the Internal Revenue Code].” Justice Breyer wrote the opinion, joined by Roberts, Kennedy, Ginsburg, Sotomayor, Kagan, and Gorsuch. Thomas dissented, joined by Alito.

Relying on prior precedents interpreting other obstruction provisions, the Court narrowly construed the provision to require: first, that there be “a …


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Categories: statutory construction, statutory interpretation, tax evasion

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Friday, March 16th, 2018

SDNY: Venue for the World (St. Croix edition)

The Second Circuit held yesterday that venue in the SDNY was proper for defendants charged with a narcotics conspiracy that operated in the U.S. Virgin Islands and Florida. The only meaningful link to the SDNY was that, after arrest, a co-conspirator was transported to Manhattan and, at the behest of government agents, called some of his co-conspirators to inform them that he was “in New York.” See United States v. Tank Yuk et al., No. 15-131 (2d Cir. 2018) (Chin, Carney, Forrest (SDNY)) (appeal from Nathan, J., SDNY). Judge Chin wrote a short dissent that shows not only the peculiarity of this holding, but also how it expands the government’s power to charge defendants in any district they choose. The opinion—which also rejects Brady, sufficiency-of-the-evidence, Napue, and Guidelines claims—is available here.

The defendants in Tang Yuk were charged with a conspiracy involving the shipment of …

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Categories: conspiracy, venue

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Categories: conspiracy, venue

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Monday, March 12th, 2018

De Novo Review of Demeanor?

Last week, the Second Circuit reversed a decision suppressing a defendant’s incriminating, videotaped statements to a DEA agent in a case involving Fentanyl distribution resulting in death. See United States v. Haak, No. 16-3876 (Raggi, Hall, Carney) (appeal from WDNY), opinion available here. The substance of the decision is fact-specific and favors the government.  Interestingly, however, the Court’s approach to reviewing the videotaped interview could be advantageous to defendants in future cases.

Of course, when assessing whether a defendant’s statements to a law enforcement agent were voluntary, appellate courts typically defer to the district court’s assessment of the agent’s demeanor. Here, the panel accorded no such deference. Instead, without citing legal authority for the proposition, the panel categorically asserted that: “Because the . . . interview was video-recorded, this case presents no disputes of fact as to the actions taken, words spoken, or demeanor.”  Slip op. …


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Categories: custody, Fifth Amendment, findings

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Thursday, March 8th, 2018

Second-Degree NY Robbery Is A Crime of Violence Under the Pre-2016 Career Offender Residual Clause

Today, in a short opinion, the Second Circuit confirmed that second-degree robbery in New York is categorically a crime of violence under the residual clause of the pre-2016 Career Offender Guideline (COG). See U.S.S.G. § 4B1.2 (2015). The opinion in United States v. Smith, No. 15-3313 (2d Cir. 2018) (Winter, Cabranes, Restani) (appeal from Failla, J., SDNY), is available here.* (A separate panel reached the same conclusion, with less analysis, earlier this week in United States v. Dove.)

Its decision, the Smith panel held, was compelled by Jones II, where the Second Circuit held that under Beckles first-degree robbery is a crime of violence under the pre-2016 COG’s residual clause. See Smith, slip op. at 9-10 (“The rationale of Jones is directly applicable to this case. In New York law, the first element of second-degree robbery is the same as the first element of …


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Categories: career offender, categorical approach, crime of violence, Johnson, robbery, sentencing

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Wednesday, March 7th, 2018

Second Circuit Rejects Constructive Amendment Challenge In Conspiracy Case

Yesterday, over a dissent by Judge Chin, the Second Circuit rejected what seemed to be a promising claim that the district court constructively amended the indictment in a drug conspiracy case. See United States v. Dove, No. 14-1150 (2d Cir. 2018) (Walker, Pooler, Chin) (appeal from Cogan, J., EDNY). The opinion in Dove, available here, is alarming in terms of the latitude it provides the government to effectively change its theory of the case at the close of trial in order to undermine a well-presented defense. It should be possible, however, for practitioners to argue that Dove’s holding is limited to its specific facts.

The superseding indictment in Dove charged the appellant and five other named defendants with engaging in a months-long conspiracy to distribute heroin and cocaine. This indictment separately charged Mr. Dove with one count of distributing cocaine on the last day …


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Categories: conspiracy, constructive amendment

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Monday, March 5th, 2018

Significant FDNY Cert. Grant Concerning SORNA

Today the Supreme Court granted certiorari in Gundy v. United States, No. 17-6086, to decide whether the Sex Offender Registration and Notification Act (SORNA) violates the nondelegation doctrine by delegating authority to the Attorney General to issue regulations under 42 U.S.C. § 16913(d). The grant is particularly significant because, as Sentencing Resource Counsel Ada Phleger observed, there is no clear circuit split on this issue. The petition in Gundy is available here. (The Court granted cert on Issue # 4, at pages 17-19 of the petition.)

SORNA delegates authority to the Attorney General to decide whether the Act’s registration requirements apply to sex offenders who were convicted before SORNA was enacted.  This delegation, Mr. Gundy argues, unconstitutionally grants the Attorney General “unfettered discretion to determine who is subject to criminal legislation without an ‘intelligible principle.'”  Cert. Petition at 19.  Notably, Justice Gorsuch raised a similar concern in a …


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Categories: Sex offender registration, sex offenses

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Friday, February 23rd, 2018

New Opinion on When a § 3582(c) Guidelines Recalculation Leaves a Defendant’s Sentencing Range Unchanged

Yesterday, the Second Circuit held that a Guidelines recalculation pursuant to a motion to reduce a sentence must account for Guidelines’ grouping rules that, when applied, leave the defendant’s amended Guidelines range unchanged. See United States v. Carosella, No. 17-896 (2d Cir. 2018) (per curiam) (Walker, Lynch, Chin), opinion available here. Unfortunately, this holding  may affect a number of cases where a defendant seeks a sentencing reduction under 18 U.S.C. § 3582(c) in light of the 2014 changes to the Guidelines’ sentencing levels for drug offenses.

Mr. Carosella was convicted and sentenced in 2011 to three concurrent, 120-month terms of imprisonment for (1) conspiracy to distribute cocaine base and heroin, (2) conspiracy to commit armed robbery, and (3) conspiracy to burglarize pharmacies. In 2016, he moved to reduce his sentence pursuant to 18 U.S.C. § 3582(c), because Amendment 782 to the Guidelines lowered the base offense level for …

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Categories: 3582(c)(2), sentencing

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Categories: 3582(c)(2), sentencing

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Guilty Pleas Do Not Bar Appeals Challenging the Constitutionality of the Statute of Conviction

The Supreme Court held this week, in Class v. United States, that a guilty plea does not inherently bar a defendant from arguing on appeal that the statute of conviction violates the Constitution.  Amy Baron-Evans of the Sentencing Resource Counsel has the details:

The Supreme Court held in Class v. United States that a guilty plea does not inherently waive a constitutional challenge to the statute of conviction. Justice Breyer wrote for the majority of six (joined by Ginsburg, Sotomayor, Kagan, Roberts, Gorsuch), and Justice Alito wrote the dissent (joined by Kennedy and Thomas).

Class was indicted by a federal grand jury in the District of Columbia for possessing firearms in his locked jeep in a parking lot on the grounds of the U.S. Capitol, in violation of 40 USC 5104(e)(1). He moved to dismiss the indictment, claiming that “the statute violates [1] the Second Amendment and [2] the …

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Categories: guilty plea

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