Last week the Second Circuit issued an opinion holding that, under the residual clause of the pre-2016 Career Offender Guideline (COG), U.S.S.G. § 4B1.2(a)(2), offenses under a subsection of New York’s first-degree manslaughter statute are crimes of violence. In so holding, the Circuit defined the generic definition of manslaughter to include “the unlawful killing of another human being recklessly.” United States v. Castillo, No. 16-4129 (2d Cir. 2018) (Cabranes, Raggi, Vilardo (WDNY)) (appeal from Woods, J., SDNY), slip op. at 24. The Court further held, in conclusory fashion, that the government did not waive this argument when it conceded, pre-Beckles, that the residual clause of the pre-2016 COG was unconstitutionally vague. The opinion in Castillo, available here, may be of interest to practitioners dealing with the pre-2016 Guidelines, and is more generally worth noting for its loose language concerning appellate waiver — language that …
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 …
Categories: forfeiture, Fourth Amendment, good faith, traffic stop, waiver
It’s been a slow criminal law week in the Second Circuit. Last week, however, the Supreme Court heard oral argument in Class v. United States on the question of “[w]hether a guilty plea inherently waives a defendant’s right to challenge the constitutionality of his statute of conviction.” The stakes of this decision may be low in the plea bargaining context, where the government can insist on a waiver of the right to challenge the constitutionality of the charged offense. When the defendant takes an open plea, however, the inherent waiver question matters.
Interestingly, the petitioner’s certiorari petition highlights an apparent conflict in the Second Circuit’s case law on this question.
From the petitioner’s brief:
“In United States v. Curcio, 712 F.2d 1532 (2d Cir. 1983), Judge Friendly’s opinion for the court correctly summarized the Blackledge/Menna rule: “[A] defendant who has been convicted ona plea of guilty may challenge his …
United States v. Polouizzi, No. 08-1830-cr (2d Cir. April 24, 2009)(Leval, Katzmann, Raggi, CJJ)
Defendant – referred to in the opinion as Peter Polizzi – was convicted by a jury of eleven counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and twelve counts of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), after the jury rejected his insanity defense. Post-trial, he made a Rule 33 motion, arguing that the district court erred by refusing to inform the jury that the receipt counts carried a five-year mandatory minimum. Based in part on a post-verdict colloquy with the jurors that revealed that at least some of them would have accepted the insanity defense had they known of the mandatory minimum, the court granted the motion on the receipt counts only. Both sides appealed.
The Defendant’s Appeal
A. Double Jeopardy
1. Multiple Counts of Possession…
Categories: child pornography, double counting, mandatory minimum, Rule 33, Uncategorized, waiver
United States v. Abad, No. 06-0338-cr (2d Cir. January 30, 2008) (Jacobs, Parker, Wesley, CJJ) (per curiam)
Here, the court holds that a failure to make a claim under the Speedy Trial Act in the district court results in a waiver of the issue on appeal. Thus, an unpreserved statutory speedy trial claim cannot be reviewed at all, even for plain error.
Comment: This one’s kind of a no-brainer, since the statute expressly so provides. 18 U.S.C. § 3162(a)(2). The only complication is United States v. Sorrentino, 72 F.3d 294, 297 (2d Cir. 1995), in which the court actually reviewed an unpreserved Speedy Trial Act claim for plain error, even though no motion had been made below. The Abad panel devised a double-barreled solution to the conundrum: first, it blamed the lawyers, noting that no party mentioned § 3162(a)(2) in its briefing in Sorrentino, and then, just to make sure, …
United States v. Quinones, No. 04-5554 (2d Cir. December 28, 2007) (Winter, Cabranes, Raggi, CJJ)
This case has lengthy discussions of two important issues. It turns out that the one that has received the less press is actually the more interesting of the two, so we’ll begin with that.
1. Sentencing Error Waived
Facts: In this capital case, the defendants initially faced three counts that exposed them to the death penalty. Two related to murder in aid of racketeering under 18 U.S.C. § 1959; for these, a life sentence was mandatory if death was not imposed. The defendants were acquitted of these counts.
They were convicted only of murder in relation to a continuing drug enterprise (“CCE”) under 21 U.S.C. § 848(e). At the time, that section provided for a mandatory minimum sentence of 20 years’ imprisonment and a maximum of life if death was not imposed. Nevertheless, the defendants …