Author Archive | Anthony O'Rourke

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 …


Posted By
Categories: Confrontation Clause, DNA

Continue Reading
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 …

Posted by
Categories: fofeiture

Posted By
Categories: fofeiture

Continue Reading
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.…

Posted by
Categories: 924(c), Rule 11

Posted By
Categories: 924(c), Rule 11

Continue Reading
Tuesday, November 14th, 2017

EDNY Holds That ICE Can’t Detain a Defendant for Criminal Prosecution

Chief Judge Irizarry recently issued the first EDNY decision holding that once a defendant has been granted pretrial release under the Bail Reform Act, the defendant may not be detained by ICE while his prosecution is pending. In United States v. Rosario Ventura, 17-cr-418, Judge Irizarry held that “the Government must either release Defendant under the bond conditions set in this case and continue the instant prosecution, or dismiss the indictment without prejudice, forego its illegal reentry prosecution, and proceed with Defendant’s removal.” The decision is available here. (As we’ve reported, Southern District Judge Caproni recently issued a similar decision.)

Mr. Rosario Ventura met the bail conditions set by a magistrate judge pursuant to the Bail Reform Act. Immediately after his release from criminal custody, however, ICE detained Mr. Rosario Ventura and held him in immigration custody. He then filed a motion to compel ICE to release …

Posted by
Categories: bail, ICE detention

Posted By
Categories: bail, ICE detention

Continue Reading
Monday, November 13th, 2017

This Week’s Cert. Grants

The Supreme Court has recently granted certiorari in three First Amendment cases relevant to criminal practice:

Lozman v. City of Riviera Beach, Florida, No. 17-21
Question presented: Does the existence of probable cause defeat a First Amendment retaliatory-arrest claim as a matter of law?

Cert. papers and opinion below available here:

Lozman v. City of Riviera Beach, Florida

Minnesota Voters Alliance v. Mansky, No. 16-1435
Question Presented: Is Minnesota Statute Section 211B.11, which broadly bans all political apparel at the polling place, facially overbroad under the First Amendment?

Cert. papers and opinion below available here:

Minnesota Voters Alliance v. Mansky

National Institute of Family and Life Advocates v. Becerra, No. 16-1140
Question Presented: Whether the Free Speech Clause or the Free Exercise Clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling …


Posted By
Categories: First Amendment, Fourth Amendment

Continue Reading
Friday, November 10th, 2017

Second Circuit Preserves Ban On Compelled Cross-Border Testimony

Yesterday the Second Circuit denied rehearing en banc of a case that places an important constraint on cross-border prosecutions. United States v. Allen, No. 16-898 (Cabranes, Pooler, Lynch), available here. As we previously wrote, the 81-page opinion in Allen holds that the Fifth Amendment prohibits the use of testimony in a U.S. criminal prosecution that was compelled by a foreign sovereign. This post elaborates on the substance and implications of this decision.

Allen involved a cooperative investigation by U.S. law enforcement and the U.K’s Financial Conduct Authority (FCA) into the LIBOR scandal. The FCA required the Allen defendants to be interviewed under oath. Had they refused, they would have risked imprisonment. (The FCA granted the defendants “direct use” immunity, but not “derivative use” immunity as is required if a witness is compelled to testify in the United States). The FCA subsequently brought an enforcement action …


Posted By
Categories: cross-border prosecution, Fifth Amendment

Continue Reading
Wednesday, November 8th, 2017

Inability to Pay Criminal Forfeiture

Today the Second Circuit vacated a criminal forfeiture order so that the district court could evaluate the defendant’s ability to pay in setting the amount. The summary order in United States v. Muzaffar, 16-579 (appeal from EDNY, Cogan, J.) is available here.

The Supreme Court, in United States v. Bajakaijan, 524 U.S. 321 (1998), identified four factors that a court must  consider to determine whether a punitive forfeiture is unconstitionally excessive: “(1) the essence of the crime and its relation to other criminal activity; (2) whether the defendant fits into the class of persons for whom the statute was principally designed; (3) the maximum sentence and fine that could have been imposed; and (4) the nature of the harm caused by the defendant’s conduct.” United States v. Viloski, 814 F.3d 104, 108 (2d Cir. 2016) (internal quotation marks omitted). In Viloski, the Second Circuit held …


Posted By
Categories: forfeiture, Uncategorized

Continue Reading
Thursday, November 2nd, 2017

A Promising Speedy Trial Decision

Today the Second Circuit upheld the dismissal with prejudice of two drug-related counts on constitutional speedy trial grounds. In U.S. v. Pennick, the government appealed a Western District judge’s order dismissing these counts after a six-and-a-half year delay between when the defendant was charged and when his trial began. Reviewing for abuse of discretion, the Circuit rejected the government’s challenge. The summary order, available here, is particularly valuable to practitioners seeking to raise speedy trial claims that are messy, but nonetheless meritorious.

The Circuit held that the district court appropriately balanced the four factors established in Barker v. Wingo, 407 U.S. 514 (1972), to assess whether a constitutional speedy trial violation has occurred. These factors are: (1) the length of the delay before the defendant was brought to trial, (2) the reason for the delay, (3) whether the defendant asserted his speedy trial right in advance of …

Posted by
Categories: speedy trial

Posted By
Categories: speedy trial

Continue Reading
Wednesday, November 1st, 2017

Letter in Support of Mandatory Minimum Sentencing Reform

Yesterday the Federal Defenders Legislative Reform Committee sent a letter in support of legislation to reform federal mandatory sentencing laws. The letter, available here, urges the Senate Judiciary Committee to support two modest attempts to reduce mandatory minimums and constrain unchecked prosecutorial charging power: (1) The Sentencing Reform and Corrections Act of 2017 (S. 1917) and (2) The Smarter Sentencing Act of 2017 (S. 1933). In detail, the letter describes how mandatory minimums are used to coerce low-level offenders into forgoing their trial rights, while enabling more serious offenders to avoid the punishments that Congress.

The letter’s subject headings offer a helpful synopsis of the Legislative Reform Committee’s position:

I.  The Human and Financial Costs of the Current Mandatory Minimum Laws Are  Unjustified.

II. Real Reform Is Necessary to Prevent the Use of Mandatory Minimums for Purposes for Which They Were Not Intended.

A. Sentences Intended for Kingpins and


Posted By
Categories: mandatory minimum, sentencing

Continue Reading
Tuesday, October 31st, 2017

Circuits Rule that Hobbs Act and 924(c) Convictions Are Not Predicates Under the ACCA and COG.

This month two circuits held, respectively, that offenses cannot serve as predicates under the Career Offender Guideline or the Armed Career Criminal Act (ACCA) because they can involve force against property as well as against persons.

The Tenth Circuit held that robbery under the Hobbs Act, 18 U.S.C. § 1951, is not a crime of violence under the Career Offender Guideline (COG), U.S.S.G. § 4B1.2. See United States v. O’Connor. The enumerated clause of the COG identifies “robbery” as a crime of violence. The Tenth Circuit held that the elements of this generic offense include the use or threatened use of force against a person, but not against property. Hobbs Act robbery, by contrast, can involve “actual or threatened force, or violence, or fear of injury, immediate or future, to . . . [a] person or property.” 18 U.S.C. § 1951(b)(1) (emphasis added). The COG’s definition of robbery …


Posted By
Categories: 924(c), career offender, categorical approach, crime of violence, Johnson, robbery, sentencing

Continue Reading
Friday, October 27th, 2017

A Bizarre Entrapment-by-Estoppel Case

Today in United States v. Georgescu—a case with truly peculiar facts—the Second Circuit upheld a somewhat unorthodox jury instruction on the entrapment-by-estoppel defense. This defense is available when “a government agent authorizes a defendant to engage in otherwise criminal conduct and the defendant, relying thereon, commits forbidden acts in the mistaken but reasonable, good faith believe that he has in fact been authorized to do so.” United States v. Gil, 297 F.3d 93, 107 (2d Cir. 2002) (internal quotation marks and alterations omitted). In Georgescu, the Circuit decided by summary order that the district court did not err by additionally instructing that “the defendant must prove that affirmative conduct or statements of a government official caused him in good faith to believe that he was authorized to engage in the charged conduct.” Opening Brief at 15. This instruction, though understandable in the context of Georgescu, may …


Posted By
Categories: entrapment by estoppel, jury instructions

Continue Reading