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Federal Defenders of New York Second Circuit Blog


Saturday, March 8th, 2025

Continuous pole camera monitoring of business is not a “search”

In United States v. Harry, No. 23-7106, — F.4th –, 2025 WL 732085 (2d Cir. March 7, 2025), the Second Circuit holds, as a matter of first impression in this Circuit, that setting up a pole camera to continuously monitor a building for 50 days is not a “search” for purposes of the Fourth Amendment—meaning that the government does not need a warrant or probable cause to do it.

In Harry, DEA agents “affixed a video surveillance camera to a utility pole on a lot across the street from” the business where the defendant worked. “The camera was connected to the internet and fed footage to DEA investigators, who could remotely tilt, pan, and zoom the camera. The camera recorded 24 hours per day for approximately 50 days,” recording the company’s “exterior, the outdoor parking lot, and, occasionally, a slice of the interior of the business’s garage bay …

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Categories: Fourth Amendment, search warrant

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Categories: Fourth Amendment, search warrant

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Monday, March 3rd, 2025

Supreme Court grants new trial based on prosecutorial misconduct

Richard Glossip, who was sentenced to death in Oklahoma State for a 1997 murder, has been granted a new trial by the Supreme Court, Glossip v. Oklahoma, 604 U.S. –, 2025 WL 594736 (Feb. 25, 2025). The Court’s opinion recounts some of the saga of Mr. Glossip’s case.

Ten years ago, Mr. Glossip’s case first came to the Supreme Court in a failed challenge to Oklahoma’s lethal injection protocol. See Glossip v. Gross, 576 U.S. 863 (2015). In the intervening years, new revelations have cast doubt on his guilt and the reliability of evidence presented against him at trial.

The Supreme Court ultimately orders a new trial based on prosecutorial misconduct, in light of its prior ruling in Napue v. Illinois, 360 U.S. 264 (1959). In Napue, the Court held that a prosecutor’s knowing use of false evidence to obtain a conviction violates due process.…

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Categories: prosecutorial misconduct

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Categories: prosecutorial misconduct

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Supreme Court takes Second Circuit case to decide if defendants can be constitutionally punished under both § 924(c) and § 924(j)

The Supreme Court has granted certiorari in Barrett v. United States, No. 24-5774, to decide if the Double Jeopardy Clause permits a court to impose separate sentences for an act that violates both 18 U.S.C. § 924(c) and § 924(j). The petition is available here.

Section 924(c)(1)(A) is violated if someone, “during and in relation to any crime of violence or drug trafficking crime . . . , uses or carries a firearm, or [], in furtherance of any such crime, possesses a firearm.” Section 924(j) is violated if someone, “in the course of a violation of subsection (c), causes the death of a person through the use of a firearm.”

Most circuits to address the issue have held that § 924(c) is a lesser included offense of § 924(j), meaning that, under the Double Jeopardy Clause, a defendant may not be constitutionally punished for both offenses. The …

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Categories: 924(c), 924(j), double jeopardy

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Categories: 924(c), 924(j), double jeopardy

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Tuesday, February 25th, 2025

Circuit overturns Nassau County Executive’s bribery convictions, but affirms his honest-services fraud convictions

In United States v. Linda Mangano and Edward Mangano, 2d Cir. No. 22-861 (L) (Feb. 13, 2025), the Court upheld the defendants’ convictions for honest-services fraud and obstruction of justice, but vacates Edward Mangano’s bribery-related convictions. We focus on that aspect of Judge Livingston’s thorough opinion.

Edward Mangano was the County Executive of Nassau County on Long Island. Linda is his wife. The Town of Oyster Bay is an “internal municipality” of Nassau County. Mangano is not an employee or official of the Town.

Harendra Singh is a businessman and restauranteur on Long Island. He and Mangano have long been friends, but Singh never gave him any money or benefits before Mangano’s 2009 electoral victory. Thereafter, as the evidence showed, Singh showered Mangano with money and gifts, including a $100,000 per year “no show” job for Linda Mangano at one of his restaurants.

In exchange, Singh asked Mangano to …

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Categories: bribery, fraud, obstruction of justice

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Categories: bribery, fraud, obstruction of justice

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Monday, February 24th, 2025

Panel affirms R. Kelly’s RICO and Mann Act convictions and 30-year prison sentence; Judge Sullivan objects to “windfall” restitution of brand-name medication for herpes-infected victim.

Judge Chin’s opinion in United States v. Robert Sylvester Kelly, 2d Cir. No. 22-1481 (L) (Feb. 12, 2025), joined almost entirely by Judges Carney and Sullivan, affirms the singer R. Kelly’s conviction for RICO and Mann Act offenses, as well as his 30-year prison sentence and a restitution award of $300,668 to “Jane,” a minor whom Kelly infected with herpes after unprotected intercourse. Essentially the Government alleged, and the jury accepted, that over at least two decades, Kelly, with the help of a host of employees, hangers-on, and assistants, induced and coerced several women, including minors, to travel across state lines to engage in sex with him, even though he knew he had herpes, did not disclose this fact, refused to wear a condom, and infected at least two of the women.

The Panel rejects all of Kelly’s challenges – to the sufficiency of the evidence, the constitutionality of …

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Categories: restitution, RICO

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Categories: restitution, RICO

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Thursday, February 20th, 2025

Circuit Holds a Search is Not a “Search”

Per the Second Circuit’s ruling today in United States v. Poller (Parker, Bianco, Nardini), police may use a smartphone’s camera application to search inside a car with tinted windows without getting a warrant.

Officers in Waterbury, CT, observed Christopher Poller possibly dealing drugs from his car.  After he left the car, they approached and tried to open a door but it was locked.  And the windows were tinted.  But one officer then took out his iPhone and told the others: “Hell yeah.  Watch this.”  Poller Br. at 4.  Turning on the camera app and pointing the phone’s lens at the car, he was able to see through the tinted windows, discovering what looked like two guns inside.  A second officer did the same.  A third officer then cupped his hands around his eyes and looked through the windshield, saying he saw a bag of heroin.  Op. at 5.  The …

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Categories: Fourth Amendment

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Wednesday, February 5th, 2025

Second Circuit: 18 U.S.C. § 1546(a) Prohibits the Possession of Authentic Immigration Documents Obtained by Fraud, Not Just the Possession of Counterfeit Documents.

In United States v. Greenberg, Nos. 23-7168 and 23-7249 (2d Cir. Feb. 3, 2025) (per curiam), the Second Circuit (Walker, Robinson, Merriam, JJ.) held that 18 U.S.C. § 1546(a) (“Fraud and misuse of visa, permits and other documents”) prohibits the possession of authentic immigration documents that have been obtained by fraud, not just the possession of counterfeit documents.

Greenberg, an immigration attorney, assisted clients in pursuing asylum based on applications that she knew to contain fabricated accounts of past persecution. She was charged with conspiracy to commit immigration fraud. One of the objects of the conspiracy was obtaining I‑94 forms (i.e., forms documenting grants of asylum) “knowing them … to have been procured by means of [a] false claim or statement, or to have been otherwise procured by fraud.” § 1546(a). Following a jury trial (Nathan, SDNY), she was convicted.

On appeal, Greenberg argued that …

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Wednesday, January 22nd, 2025

Gun suppressed: A heavy pocket could be a “paperback book” “critical of the government,” not a gun

Last week, Judge Morrison granted a motion to suppress a gun, holding that police didn’t have reasonable suspicion to seize or subsequently frisk a person stopped on the street in Brooklyn. United States v. Burvick, No. 23-CR-450 (NRM), 2025 WL 240976 (E.D.N.Y. Jan. 17, 2025). The lengthy opinion discusses and rejects some common police reasons for a stop and frisk, including, supposedly nervous behavior and “evasive” answers, “blading” the body (read the decision for the court’s dubious explanation of what the word “blading” means), and a heavy pocket.

The facts, in brief, are this: an anonymous* 911 caller said that someone had “threatened” people outside a building, saying he had a gun. Police arrived and saw a person matching the 911 caller’s (detailed) description around the corner from the building, calmly walking up to the front door of his house. When told to stop, he did; when asked if police …

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Tuesday, January 21st, 2025

Second Circuit remands for clarification in “close” case involving denial of motion for compassionate release

In United States v. Castillo, No. 23-6229 (2d Cir. Jan. 15, 2025), a Second Circuit panel (Livingston, Calabresi, Merriam, JJ.) remanded for the district court to clarify its reasons for denying a compassionate release motion—or, in the alternative, to grant the motion.

The defendant, 65-year-old Frank Smith Castillo, moved for compassionate release after serving more than 19 years in prison for three armed bank robberies in which no one was seriously injured. Castillo was sentenced in 2005 to a then-mandatory life sentence, but in 2018, the First Step Act opened the door for him and others to seek release if they demonstrate “extraordinary and compelling” circumstances.

In his motion, Castillo cited, among other things, his exemplary record in prison, his “low risk of recidivism” per the Bureau of Prisons, and even a letter from the former prosecutor in his case urging the court to grant relief. Castillo further cited …

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Categories: compassionate release, First Step Act, jacobson remand, mandatory minimum

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Thursday, December 5th, 2024

En Banc Second Circuit: A Naturalized U.S. Citizen Has A Sixth Amendment Right To Be Advised By Defense Counsel That He May Be Denaturalized And Deported As A Result Of His Guilty Plea.

In United States v. Farhane, No. 20-1666 (2d Cir. Oct. 31, 2024), the en banc Second Circuit (Carney, joined by Wesley, Lee, Robinson, Perez, Nathan, Merriam, and Kahn) held that “a naturalized U.S. citizen” charged with a crime “has a Sixth Amendment right to be advised by counsel that he may be denaturalized and deported as a result of his entry of a guilty plea.” Slip op. 13. Consequently, “criminal defense attorneys have a Sixth Amendment obligation to inquire into and advise a naturalized citizen client of any risk of deportation following denaturalization proceedings that accompany the client’s guilty plea, just as they do for a deportation risk facing a noncitizen client.” Slip op. 6.

As discussed in the practice points below, just as with noncitizen clients, Farhane requires defense counsel representing naturalized U.S. citizen clients to inquire into the client’s status and advise about risks to that status …

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Categories: denaturalization, immigration, Padilla

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Tuesday, December 3rd, 2024

Circuit vacates supervised release revocation sentence.

In United States v. Jose Ramos, No. 23-6723 (2d Cir. Dec. 3, 2024), the Circuit vacates a significantly above Guidelines sentence imposed for the defendant’s violations of supervised release.

There is a lot going on in Ramos, including apparent factual and legal errors related to the defendant’s original underlying sentence. And numerous alleged supervised release violations.

As relevant here, the defendant admitted some low-level violations (petit larceny and failing to inform his probation officer of an address change). The Sentencing Guidelines recommended between 8 to 14 months for these violations. But the district court sentenced Ramos to 5 years in prison.

The Circuit held this sentence procedurally unreasonable: The district court failed to adequately explain its basis for imposing this above-Guidelines sentence. In addition, the record left open the possibility that the district court had improperly relied on unproven conduct in imposing this sentence. As a result, the …

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Categories: procedural reasonableness, sentencing, supervised release

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