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Wednesday, May 4th, 2016

Circuit affirms denial of 18 U.S.C. 3582 sentence reduction

In United States v. Jimenez, 15-1624, the Circuit affirmed the District Court’s denial of a reduction in sentence pursuant to 18 U.S.C. 3582.  The Circuit held that when the District Court stated that a lower sentence was “foreclose[d]” by the defendant’s participation in four murders, it meant that the original sentence was the minimum sentence necessary in light of Jimenez’s conduct and that the facts of the case did not provide a basis for granting a sentence reduction.…


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Categories: 3582(c)(2), Uncategorized

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Second Circuit: Conviction for Investment Adviser Fraud Requires Only Intent To Deceive, Not Intent To Harm

In United States v. Tagliaferri, No. 15–536, the Second Circuit held that a conviction for investment adviser fraud, under section 206 of the Investment Advisers Act of 1940, 15 U.S.C. § 80b–6 and 80b–17, requires only intent to deceive one’s clients, not intent to harm them as well.

Tagliaferri ran a boutique investment advisory firm where, the government alleged, he engaged in various deceptive practices, including taking kickbacks for investing client funds with particular entities, cross-trading between client accounts, and falsely characterizing investments as loans. The government charged Tagliaferri with, among other offenses, investment adviser fraud under section 206. At trial, Tagliaferri’s defense was that, despite his deceptive practices, he “always believed that he would be able to work things out so that his clients would not be harmed.” Accordingly, he sought a jury instruction that investment adviser fraud requires not only intent to deceive one’s clients, but …

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Categories: fraud, intent, Uncategorized

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Categories: fraud, intent, Uncategorized

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Monday, May 2nd, 2016

Second Circuit rejects claims that District Court erred in limiting cross-examination of prosecution witness and committed various procedural errors at sentencing.

United States v. Rodriguez, No. 14-4267 (2d Cir. Apr. 27, 2016) (Leval, Droney, and Engelmayer).

Rodriguez was convicted by a jury of charges of racketeering conspiracy and conspiracy to distribute narcotics. He argued on appeal that the district court erred by disallowing certain cross-examination of a key prosecution witness, and that the district court committed various procedural errors at sentencing. The Court affirmed.

(a) Cross-examination.

Before trial, the government moved to preclude the defense from cross-examining a key government witness at trial about certain sexual offenses he had committed. Defense counsel argued that the evidence bore upon the witness’s credibility but the district court excluded it under Fed. R. Evid. 403.

The Circuit held that the district court had properly balanced the relevant factors under Rule 403 and had noted that the witness disclosed his sexual misconduct to the government, which undermined the defense’s argument that his sexual …


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Categories: Rule 403, sentencing, Uncategorized

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Thursday, April 14th, 2016

Second Circuit Updates – April 14, 2016

Defendant Cannot Benefit on Direct Appeal from Guideline Amendment that Became Effective after His Sentencing if Amendment Is Substantive rather than Clarifying (unless the Commission Determines that the Amendment Should Have Retroactive Effect under § 1B1.10)

In United States v. Miguel Jesurum, No. 14-4464-cr (2d Cir. April 14, 2016), the Court (op. by Pooler, joined by Kearse and Sack) rejects appellant’s argument that (1) the sentencing court erred in finding that the offense “involved more than 250 victims,” which led to a 6-level enhancement under the 2014 version of U.S.S.G. § 2B1.1(b)(2)(C); and (2) he should receive the benefit of a 2015 amendment to the same Guideline, which became effective after his sentencing and which now calls for the same enhancement only where the offense “resulted in substantial financial hardship to five or more victims.”

The first argument fails under the plain language of Commentary to the Guideline. Application …

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Wednesday, April 13th, 2016

New ICE Form I-247N Does Not Authorize Detention

Lawyers in both districts should be aware of a change in ICE detainer policy.  The old so-called “detainer” form (1-247) is being retired and replaced with three different forms.  The change in policy is summarized here on the ICE website.

One of the new forms, the I-247N, is a request for voluntary notification of the impending release of a “suspected priority alien”, but it does not request or authorize the continued detention of  individuals beyond the point they otherwise would be released.  The form says on its face that it does not request or authorize detention.  It also says on its face that it should not impact decisions about bail, release, or other matters.  Despite these changes, prosecutors and agents may refer to the I-247N as a “detainer” and may argue at a bail hearing that it authorizes your client’s detention.

In light of the change in ICE policy …


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No Reduction in Sentence Where Amendment 782 Does Not Reduce the Guidelines Range

The Second Circuit today issued a summary order affirming the denial of a reduction in sentence under 18 U.S.C. 3582(c)(2) and Amendment 782 to the Sentencing Guidelines.  In United States v. Johnson, 15-2051-cr, the Court held that because Mr. Johnson’s guideline range remained 360-life even after Amendment 782, the District Court correctly concluded he was ineligible for a Section 3582(c)(2) reduction.  Mr. Johnson’s other arguments related to possible procedural errors in the calculation of his base offense level at his original sentencing were not proper on a motion for a sentence reduction.…


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Wednesday, April 6th, 2016

Second Circuit Updates – April 6, 2016

In a summary order, the Court declined to reach as plain error whether Aggravated Identity Theft, under 18 U.S.C. § 1028(c)(5), requires the government to prove that the individuals did not consent to the unlawful use of their identities. The majority of circuits to consider the issue have rejected the argument. It is an open question in the Second Circuit.

-Philip Weinstein

 …

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Friday, April 1st, 2016

No, it’s not an April Fools Joke: Solitary Confinement Settlement Approved

solitaryNo opinions or relevant summary orders from the Second Circuit today.

But, big news from SDNY on solitary confinement: Yesterday, Judge Scheindlin approved a settlement in Peoples v. Annucci that will overhaul solitary confinement in New York state prisons. The settlement is about what is called the “SHU,” which is pronounced like “shoe,” and is an abbreviation for “Special Housing Units.” The agreement should, among other things, end this type of solitary confinement for more than 1,100 people, limit the duration of time people have to stay in solitary, and eliminate the use of solitary as punishment for minor violations. Judge Scheindlin wrote that the settlement is the “best example of the power of impact litigation to redress conditions that affect the most vulnerable members of our society.”

It should, however, be noted that while this is a big change, it does not do everything. Some class members objected that …

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