Archive | conspiracy

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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Friday, October 5th, 2018

Inaccurate Barrett Dicta

(This post has been updated to discuss the amended opinion in Fiseku.)

The Second Circuit issued an opinion this week containing some facially incorrect, and substantively troubling, dicta concerning tits recent decision in Barrett. See United States v. Fiskeu, No. 17-1222 (2d Cir. 2018) (Cabranes, Lynch, Carney) (appeal from Engelmayer, J., S.D.N.Y.), opinion available here.

The narrow, fact-specific holding of Fiseku is that under the “unusual circumstances” presented in the case, police officers did not act unreasonably when they briefly restrained the defendant in handcuffs while conducting a investigatory stop. Slip op. at 18. However, the defendant also raised an ineffective assistance claim because his defense attorney failed to argue that his crime of conviction, conspiracy to commit Hobbs Act robbery, was not a crime of violence within the meaning of U.S.S.G. 4B1.2. The Second Circuit declined to address this claim on direct review.

In so …

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

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Monday, September 10th, 2018

Second Circuit decides Barrett

On the heels of its Pereira-Gomez decision on Friday, the Second Circuit issued a new opinion in United States v. Barrett, which is available here.

In Barrett, the Circuit held that 18 U.S.C. 924(c)(3)(B) is not unconstitutionally vague because “factfinding as to the violent nature of the predicate offense and the risk of physical force in its commission can be made by the trial jury in deciding the defendant’s guilt, thus avoiding both the Sixth Amendment and due process vagueness concerns at issue in Dimaya and Johnson.”  The Court held that the fact that Barrett’s jury did not make a finding regarding force was harmless error in light of the specific facts of his case.  The Circuit further held that a Hobbs Act Robbery conspiracy is a crime of violence because the object of the conspiracy, the Hobbs Act Robbery, is a crime of violence.  “[T]his …

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

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Monday, August 27th, 2018

Second Circuit Limits Scope of Conspiracy Liability Under the FCPA

Today the Second Circuit issued an opinion holding that a non-U.S. citizen, employed by a foreign company, could not be prosecuted for conspiracy to violate the Foreign Corrupt Practices Act (FCPA). See United States v. Hoskins, No. 16-1010 (2d Cir. 2018) (Katzmann, Pooler, Lynch). The opinion is a statutory interpretation tour de force. Of course, the case does not necessarily present a factual scenario that attorneys will often encounter while representing indigent defendants. However, Judge Pooler’s analysis and methodology provide an excellent template for for those arguing for limitations on the scope of conspiracy liability in other contexts. The opinion is available here.

The defendant in Hoskins does not fall within any of the categories of persons who are subject to prosecution under the FCPA. This fact did not, in itself, render him immune from prosecution for conspiracy to violate the statute. As a general principle, “[a]  person …

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Categories: conspiracy, FCPA, statutory construction, statutory interpretation

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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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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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Friday, January 26th, 2018

Categorical Approach Updates from First and Ninth Circuits (Including on 2nd-Degree NY Robbery’s Status under the Career Offender Guideline)

Two valuable opinions have been published outside the Second Circuit in recent weeks:

(1) The First Circuit has  held that attempted second-degree robbery in New York is not a “crime of violence” for purposes of the Career Offender Guideline’s force clause, U.S.S.G. § 4B1.(2)(a)(1). The opinion in United States v. Steed, No. 17-1011 (1st Cir. 2018) (Barron, J.) is available here. The court’s reasoning in Steed should be familiar to those following the district court and (vacated) Second Circuit opinions reaching the same conclusion.

As its starting point, the court looked to First Circuit case law holding that purse snatching does not necessarily require the degree of force required under Johnson I. The court then considered whether, as of 2000 (the year of the defendant’s relevant conviction), such purse snatching was a violation of New York’s second degree robbery statute, NY Penal Law  § 160.10. After …

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Categories: career offender, categorical approach, conspiracy, crime of violence, drug distribution, Johnson

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Friday, September 29th, 2017

Abu Ghayth and the Material Support Statute

In a summary order, the Second Circuit upheld the convictions of Sulaiman Abu Ghayth (a son-in-law of Osama Bin Laden) for offenses including conspiracy to murder Americans and providing material support for terrorist activities.  The outcome is unsurprising, but the decision nevertheless offers some hope for differently situated defendants charged under the material support statute, 18 U.S.C. § 2339A.

The order, available here, serves as a troubling reminder of the potential breadth of the material support statute. Abu Ghayth’s material support conviction was based on his speeches in the wake of September 11 urging Muslims to fight for Al Qaeda and threatening attacks on “new American targets.” Slip op. at 8. The Circuit rejected a sufficiency-of-the-evidence challenge to this conviction, and observed that “speech alone” can serve to establish a material support violation. Id. at 7 (quoting United States v. Rahman, 189 F.3d 88, 116-17 (2d Cir. 1999)). …

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Categories: aiding and abetting, conspiracy, jury charge, jury instructions, material support statute, plain error, prejudice, sufficiency, summary order, terrorism

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Monday, June 12th, 2017

Multiple Conspiracies, Reasonable Foreseeability, and Government Misconduct in Closing, Oh My… A Clean Sweep for the Defendant as Judge Oetken Grants Rule 29 and Rule 33 Motions in a Noteworthy Opinion

John Pauling contested two counts at trial in an eight-count indictment relating to various drug and gun charges. First, he challenged a 924c charge (possessing a gun in furtherance of a drug conspiracy) and was acquitted by the jury.  Second, he challenged the weight of the drugs in the drug conspiracy count that would have triggered a five-year mandatory minimum.  The jury convicted him on that count.  Judge Oetken now vacates that conviction, leaving Pauling with no mandatory minimum.  A copy of the opinion is attached here.

In an opinion worth reading for its explanation of the distinction between a single conspiracy and multiple conspiracies, Judge Oetken in referencing the common wheel analogy, found that the government failed to show there was “a ‘rim’ around the ‘spokes,’ such that the spokes became coconspiractors.” At trial, the Court gave a multiple conspiracies instruction over the government’s objection, finding the government’s …

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Categories: conspiracy, Rule 29, Rule 33

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Monday, May 23rd, 2016

Remand for resentencing to consider the difference between substantive conspiracy liability and the scope of relevant conduct for guidelines purposes; Remand for resentencing under § 3582(c)(2)

The Second Circuit issued four summary orders in criminal cases today.

United States v. Rigo, 15-1914, remanded the case for resentencing. The Second Circuit held that the district court committed plain error in calculating the loss amount for the purposes of determining the guideline range. The Circuit explained that “the scope of conduct for which a defendant can be held accountable under the sentencing guidelines is significantly narrower than the conduct embraced by the law of conspiracy.” Order at 2. The “emphasis in substantive conspiracy liability is the scope of the entire conspiracy” but the guidelines are concerned with “the scope of the individual defendant’s undertaking.” Id. (emphasis in original). In other words, even if the acts of co-conspirators were foreseeable to the defendant, they do not constitute relevant conduct for guidelines purposes if they were “not within the scope of the defendant’s agreement.” Id. at 3. …

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Categories: 3582(c)(2), conspiracy, relevant conduct, Rule 11, sentencing findings

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Sunday, October 26th, 2008

The Ecstasy and the Ecstasy

United States v. Ogando, No. 05-0236-cr (2d Cir. October 20, 2008) (Kearse, Calabresi, Sack, CJJ)

Francisco Ogando, a licensed livery cab driver, was convicted of participating in an ecstasy importation and distribution conspiracy. On appeal, the circuit held that the evidence was insufficient.


Angel Gomez, a drug courier, was arrested at Kennedy Airport with ecstasy that he had imported from Belgium, and agreed to cooperate. He told the agents that he was supposed to call “Frank” – defendant Ogando – on arrival. He did so, and Ogando said he was right near the airport. Ogando found Gomez and brought him to his car. They did not discuss drugs, money or where they would be going, and were arrested before they got into Ogando’s car.

Ogando was found to have a cellphone – Gomez had been given that number by his handlers – a business card that mentioned Brussels and …

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Categories: conspiracy, drug distribution, sufficiency, Uncategorized

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