Federal Defenders of New York Second Circuit Blog


Friday, October 6th, 2017

Recent Cert. Grants

The Supreme Court granted certiorari on a number of criminal cases in orders from its September 25 conference. The details are below, courtesy of Sentencing Resource Counsel:

City of Hays, Kansas v. Vogt, No. 16-1495
Question Presented: Whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.

Cert papers and opinion below available here:
http://www.scotusblog.com/case-files/cases/city-hays-kansas-v-vogt/

Collins v. Virginia, No. 16-1027
Question Presented: Whether the Fourth Amendment’s automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Cert papers and opinion below available here:
http://www.scotusblog.com/case-files/cases/collins-v-virginia/

Byrd v. United States, No. 16-1371
Question Presented: Does a driver have a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is …


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Categories: certiorari, due process, Fifth Amendment, Fourth Amendment, plain error, probable cause

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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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Tuesday, September 26th, 2017

Second Circuit Reverses Skelos Convictions

In a relatively lengthy summary order, the Second Circuit reversed Dean and Adam Skelos’s convictions in light of the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2016). The order is available here.

Dean Skelos and his son were convicted under the Hobbs Act and the honest services and federal bribery statutes. Each of their charged offenses included the performance of an “official act” as an element. The district court’s jury instructions provided that an “official act” does “not need to be specifically described in any law, rule, or job description, but may also include acts customarily performed by a public official with a particular position.” Sum. Order at 3. Consistent with this definition, a government witness testified that the “official duties” of a state senator included “assist[ing] individuals or companies in getting meetings with state agencies.” Id. at 11. Subsequent to trial, the …


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Categories: bribery, harmless error, Hobbs Act, honest services fraud

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Thursday, September 21st, 2017

Anthony Weiner’s Sentencing Memo

The Second Circuit’s most recent criminal opinions involve rather boutique issues. The Circuit has addressed, for example, whether a bail bond forfeiture must be vacated if a defendant dies while his appeal his pending (no), and whether the Circuit has jurisdiction to review a conviction when the defendant writes in the administrative section of the appeal form that he only seeking review of his sentence (yes).

Meanwhile, in the Southern District, Anthony Weiner’s attorneys have filed an interesting and detailed sentencing memorandum. The memo is instructive to attorneys representing defendants in child pornography cases. Of particular interest is the memo’s exhaustively researched argument section. Part I argues that the Guidelines provide an unreliable benchmark for determining the appropriate sentence in child pornography cases. Part II.A identifies aggravating factors that are often present in child pornography cases but which are absent from this case. The case discussion in …


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Categories: child pornography, forfeiture, sentencing, sentencing findings, sex offenses

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Tuesday, September 12th, 2017

New Circuit Opinion on Old Career Offender Residual Clause

Yesterday the Circuit re-decided United States v. Jones. The panel held that in light of the Supreme Court’s recent decision in United States v. Beckles, armed New York first-degree robbery is categorically a crime of violence under the residual clause of the pre-2016 Career Offender Guideline. See U.S.S.G. § 4B1.2 (2015). (The Guidelines have since been amended to remove the residual clause.) The opinion is available here.

In a concurring opinion, two of the panel’s three judges confirmed that New York robbery is not a violent felony under ACCA’s elements clause. Specifically, the concurrence observed that the Circuit’s decision in United States v. Spencer, 955 F.2d 814, 820 (2d Cir. 1992), which had held that New York attempted third-degree robbery was a crime of violence under the Career Offender Guideline’s elements clause, had been “abrogated” by Johnson v. United States, 559 U.S. 133 (2010) (“2010 Johnson


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

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Monday, September 11th, 2017

Nuanced Second Circuit Opinion on Dissipated Probable Cause & McLaughlin Violations

The Second Circuit issued two criminal opinions today, both of which we will cover this week. In one, United States v. Pabon, the Circuit rejected a set of Fourth Amendment challenges where police obtained a CT scan which revealed that the defendant was body-packing narcotics. The opinion, available here, is as notable for what it does not hold as for what it does.

In Pabon, police obtained a search warrant authorizing an x-ray of the defendant’s lower abdomen to determine whether he was body-packing narcotics. Based on the x-ray, an emergency room physician reported that body-packing was “unlikely.” A detective nevertheless obtained a search warrant for a CT scan based on his testimony that the x-ray results were consistent with those he had observed in other body-packing cases. The CT scan suggested body-packing, and the defendant was given laxatives that led him to pass eight packages of …


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Categories: car stop, Exclusionary Rule, Fourth Amendment, probable cause, search warrant

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Friday, September 8th, 2017

Selective Enforcement and Fictitious Stash Houses: Important Third Circuit Case

Last week, in United States v. Washington, the Third Circuit held that selective enforcement claims against law enforcement officers are not subject to the insurmountable discovery standard that has long thwarted selective prosecution claims. This opinion is the product of a nationwide effort to challenge the racially selective use of fictitious stash house stings.

These stings permit the government to script its enforcement practices to trigger harsh mandatory minimums.  Troublingly, Columbia Law School professor Jeffrey Fagan has found powerful evidence that the government selectively targets people of color for these sting operations. As we have previously written, the University of Chicago Law School’s Federal Criminal Justice Clinic (FCJC) is working with attorneys nationwide to challenge this discriminatory practice.

With Washington, these attorneys scored an important victory.  Professor Alison Siegler, Director of FCJC, offers this writeup:

I’m writing to note a truly groundbreaking aspect of United States


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Categories: equal protection, selective enforcement, stash house

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Thursday, August 31st, 2017

Judge Caproni Dismisses § 922(g) Charge for Lack of Venue

Yesterday, Southern District Judge Valerie Caproni dismissed an indictment for lack of venue. The indictment charged a defendant with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Judge Caproni’s opinion, however, is valuable beyond the § 922(g) context as a concise primer on a difficult-to-parse set of venue cases.

The opinion and order are available here.

Section 922(g) makes it unlawful for a person convicted of a felony  to “possess in or affecting commerce, any firearm or ammunition.” In this case, United States v. DeJesus, Port Authority police stopped the defendant at the New Jersey entrance to the George Washington Bridge and found a handgun while searching his car. The government conceded that Mr. DeJesus did not possess a firearm in New York, but contended that venue was proper in the Southern District because “he was about to use an instrumentality …


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Categories: 922(g), interstate commerce, venue

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Monday, August 28th, 2017

Second Circuit Vacates Sentence Based on Erroneous PSR

Today, in United States v. Genao, the Second Circuit vacated an illegal reentry sentence as procedurally unreasonable where the sentencing court relied on a factually erroneous presentence investigation report (PSR) to calculate the defendant’s Guidelines range. The opinion is notable both for its analysis of whether an offense under the New York burglary statute is a “crime of violence” and its determination that the district court failed to satisfy § 3553(c)’s requirement that it provide reasons for its sentence in open court.

You can access the opinion here.

Roman Bartolo Genao was convicted of illegal reentry, and had previously been convicted in New York state of first-degree robbery and first-degree burglary. At the time of Genao’s sentencing, the Guidelines imposed a 16-level enhancement for illegal reentry sentences where the defendant had previously been convicted of a “crime of violence.” (This Guideline has since been revised to impose enhancements based …


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Categories: 3553(c), Johnson, plain error, procedural reasonableness, sentencing

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Friday, August 25th, 2017

Second Circuit Relaxes “Personal Benefit” Requirement for Insider Trading Offenses

This week, in United States v. Martoma, the Circuit held that a “meaningfully close personal relationship” does not need to exist between an insider and a tippee in order to establish an insider trading violation under a “gift theory” of liability. The Circuit reached this conclusion on the ground that the Supreme Court abrogated the holding of United States v. Newman, 773 F.3d 438 (2d Cir. 2014), and thereby relaxed the “personal benefit” requirement necessary to support an insider trading conviction. You can access the Martoma opinion here.

Martoma was convicted of insider trading in violation of 15 U.S.C. §§ 78(b) & 78ff for trading on material, nonpublic information that he received from a neurologist concerning the results of a clinical drug trial. To establish an insider trading violation in this context, the government must prove that the insider stood to personally benefit, “directly or indirectly, from his …


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Categories: insider trading, jury instructions, securities law

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Monday, July 31st, 2017

Bail Reform Act Controls Whether Defendant Released Pretrial; ICE Cannot Detain A Defendant Held For Prosecution

In the first decision of its kind within the Second Circuit, Judge Caproni in the SDNY held that once a defendant has met the conditions of release imposed under the Bail Reform Act, ICE cannot detain that defendant unless it is actually taking steps to remove him.  You can read the opinion in United States v. Galitsa, 17 Cr. 324 (VEC), here.

Mr. Galitsa met the bail conditions set by Magistrate Judge Fox at presentment.  Because ICE had filed a detainer, he was transferred to ICE custody rather than released after meeting his bail conditions.  Six days later, the government had Mr. Galitsa transferred back to the MDC Brooklyn pursuant to a writ of habeas corpus ad prosequendum.  He moved to dismiss the indictment or, in the alternative, to compel his release from custody.  The government conceded that, since detaining Mr. Galitsa, ICE had taken no steps to …


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Categories: bail, ICE detention

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