Federal Defenders of New York Second Circuit Blog


Wednesday, September 16th, 2020

Second Circuit: On a motion under the First Step Act, a court isn’t obligated to “recalculate” the Sentencing Guidelines range to account for new Guidelines provisions “or new judicial interpretations of existing Guidelines.” Only Guideline-changes “that flow from the Fair Sentencing Act of 2010” have to be considered. But there’s an acknowledged circuit split. United States v. Moore, __F.3d__, No. 19-1390-cr, 2020 WL 5523205 (2d Cir. Sept. 15, 2020).

In United States v. Moore, No. 19-1390-cr (available here), the Circuit (Nardini, joined by Chin and Sullivan), holds that, on a motion for a sentence reduction under Section 404 of the First Step Act, a court isn’t required to “recalculate” the Guidelines range under the current law, unless (and only to the extent) the Fair Sentencing Act of 2010 changed the Guidelines range.

Here, the district court found Moore eligible for relief under the First Step Act, as indeed he was: he was sentenced in 2009 for  “possessing with intent to distribute more than 5 grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).” Op. at 4.  The district court  nevertheless declined to exercise it’s discretionary authority, under the Act, to reduce the (188-month) sentence. The Circuit affirmed that decision. Op. at 2, 26-27.

Moore’s argument was that the district court miscalculated the Guidelines …


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Categories: career offender, First Step Act, guideline

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Thursday, September 10th, 2020

Federal law barring false voter registrations applies to town election because New York’s “unitary registration scheme” allows a falsely registered voter to vote in future federal elections. And the Travel Act’s bar on “bribery” is not limited to acts involving public officials (as payees) and encompasses a New York law barring payments to voters.

In United States v. Smilowitz, 2d Cir. No. 19-361 (Sep. 8, 2020), a panel of the Court (Walker, Parker, and Carney) ruled that the defendant’s conduct of falsely registering voters for a town election, and of offering payment to voters for their votes in that election, fell within the reach of the federal election law, 52 U.S.C. § 10307, and qualified as “bribery” under the Travel Act, 18 U.S.C. § 1952(b). Here are the essential facts.

Smilowitz owned part of a real-estate development in Bloomingburg, New York, population 420. It had a mayor and two trustees.

In 2013 those officials voted against a measure that would have benefitted Smilowitz and several other real-estate developers. Hoping to overturn that decision, Smilowitz and his confederates tried to influence the 2014 election and replace the local officials with candidates amenable to them.

The conspirators did several things giving rise to this prosecution. …

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Categories: bribery

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Friday, August 28th, 2020

Government operation of child pornography website to catch visitors is not outrageous government misconduct and the good faith exception applied to evidence found through a warrant based on the site.

United States v. Caraher, No. 18-511 (2d Cir. August 25, 2020)(Hall, joined by Lynch and Menashi), involved the government’s takeover and operation of the child pornography website “Playpen” for two weeks so that it could track visitors to the site, identify their identities and locations, and search their computers. The FBI obtained a warrant allowing them to search “activating computers” of “any user or administrator who logs into the Playpen website by entering a username and password.” Caraher was such a visitor and agents located him and searched his computer. The district court held that the warrant violated Fed. Rule Crim P. 41(b) and 28 U.S.C. 636(a) but applied the good faith exception to the exclusionary rule.

The Court followed its prior decision in United States v. Eldred, 933 F.3d 110, 111 (2d Cir. 2019), addressing the same warrant and holding that, even if the search and the …


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Categories: child pornography, good faith

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Wednesday, August 26th, 2020

Reliability challenge to a new testing technique, “computerized voice stress analyzer,” to verify compliance with supervised release, is not ripe for review until supervision begins.

In United States v. Birkedahl, No. 19-2304 (2d Cir. Aug. 25, 2020), the Second Circuit (Sullivan, joined by Park and Nardini)) rejected a challenge to a special condition of supervised release requiring testing by “computerized voice stress analyzer (CVSA)” to verify the defendant’s compliance with conditions in a child pornography possession case. Birkedahl had contested the scientific reliability of this technique and asked for a hearing, which was denied. The Court of Appeals held that the challenge was not “ripe” for review because the technology was rapidly evolving and could advance in the year before it would be used in Birkedahl’s supervision. Since Birkedahl will not be harmed by the test until it is used to monitor his supervised release, the Court held that he may challenge it when his supervision begins and will not be disadvantaged by the Court’s foregoing review until that time.

The court also rejected …


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Categories: ripeness, supervised release

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Wednesday, August 19th, 2020

Circuit Reverses Convictions For Aiding And Abetting VICAR Murder For Insufficient Evidence

In United States v. Anastasio, the Circuit (Carney, joined by Jacobs and Pooler), reversed two convictions for aiding and abetting VICAR murder, 18 U.S.C. § 1959(a)(1), for insufficient evidence. Specifically, the Circuit held that Anastasio undertook no affirmative act that facilitated the murders; he had merely been in the company of the murderers, without offering any assistance, before and after (but not during) the shootings.

Anastasio was a member of the 10th Street Gang in Buffalo. Members of a rival gang shot and injured the brother of a 10th Street member, Delgado. Later that day, 10th Streeters, including Anastasio, beat someone they believed belonged to the rival gang. Still later that day, 10th Streeters, again including Anastasio, met at an apartment to discuss further retaliation. Delgado told those present of his plan to shoot at members of the rival gang and instructed everyone present to find guns. Several did …


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Categories: aiding and abetting, Batson, RICO

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Circuit Vacates LWOP Sentence Based On Inadequate Consideration Of Juvenile Offender’s Age

In United States v. Delgado, the Circuit (Pooler, joined by Jacobs and Carney) vacated a life sentence imposed on a 17-year-old convicted of two murders, on the ground that the district court had failed to give the requisite consideration to the defendant’s age, as required by Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

Delgado was a gang member in Buffalo. A rival gang shot and injured Delgado’s brother. In retaliation, Delgado attacked members of the rival gang, but wound up shooting and killing two bystanders instead. He was 17 at the time. After a jury trial, Delgado was convicted of multiple offenses arising from his long-term gang membership, including RICO conspiracy (predicated in part on the murders), drug conspiracy, and § 924(c). The district court (Arcara, WDNY) sentenced him to life.

The Circuit vacated the life sentence. The …

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Categories: 3553(a), 924(c), Batson, bruton, RICO

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Categories: 3553(a), 924(c), Batson, bruton, RICO

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Thursday, August 6th, 2020

Rehaif claim cannot be brought in second or successive § 2255 motion because the decision involved statutory interpretation and did not render a “constitutional” rule as required by AEDPA’s gatekeeping provision.

In Mata v. United States, 2d Cir. No. 20-1875, a panel of the Court (Park, Nardini, and Menashi) held in a per curiam opinion that federal prisoners cannot rely on the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct 2191 (2019), to challenge their underlying conviction or sentence in a second or successive § 2255 motion. This is so because while § 2255(h)(2) requires that a successive motion be based on (among other things) “a new rule of constitutional law,” Rehaif’s holding – that 18 U.S.C. § 922(g) requires proof that the defendant knew that s/he fell within a relevant class barred from possessing a gun – was a matter of statutory interpretation and not based on the Constitution.…

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Categories: 2255, Rehaif

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Tuesday, August 4th, 2020

District court erred in relying on uncharged conduct to select the applicable Guideline provision, and the error is not harmless despite the court’s claim that it would have imposed the same sentence under the correct Guideline.

In United States v. Huberfeld, 2d Cir. No. 19-436 (L), the Court (opinion by Judge Pooler, joined by Judges Lynch and Menashi) vacated both a 30-month sentence and a $19 million order of restitution for basically the same reason – the district court erred in relying on uncharged criminal conduct, beyond and broader than what the defendant actually pleaded guilty to via a negotiated information and plea agreement, in selecting the applicable Guideline provision and awarding restitution. The Court also found that the Guideline-selection error is not harmless, despite the district court’s claim that it would’ve imposed the same 30-month sentence under the correct Guideline, because under the circumstances here, the Court was not “confident” that the incorrect range did not “clearly” affect the court’s selection of the ultimate sentence.

Here’s the factual gist. Huberfeld solicited investments for Platinum Partners, a hedge fund. He spoke to co-conspirator Jona Rechnitz, …


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Categories: bribery, guideline, restitution, Uncategorized

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Wednesday, July 29th, 2020

Second Circuit: 31-Day Delay In Seeking Warrant To Search Seized Tablet Computer Violates Fourth Amendment, But Suppression Not Warranted Because Delay Resulted From Mere “Isolated Negligence.”

In United States v. Smith, the Circuit (Meyer, D. Conn., joined by Katzmann and Kearse), the Circuit held that police violated the Fourth Amendment by waiting 31 days before seeking a warrant to search a seized tablet computer, but declined to apply the exclusionary rule because the error was due to “isolated negligence,” and because existing precedent would not have told an objectively reasonable police officer that the delay was unreasonable.

Police encountered Smith, drunk to the point of unconsciousness, in his car on the side of the road in a rural area of upstate New York. After removing Smith from the car, and while searching the car for identification, an officer observed a tablet computer on the front passenger seat displaying what appeared to be child pornography. The officer arrested Smith for DUI and seized the tablet. Smith was released and refused consent to search the tablet. However, …


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Categories: child pornography, Exclusionary Rule, Fourth Amendment

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Wednesday, July 22nd, 2020

Flawed “Interested Witness” Instruction Requires New Trial

In United States v. Solano, the Circuit (Kearse, joined by Calabresi and Carney) held that the district court’s interested witness instruction—namely, that “any” witness with “an interest in the outcome” of the trial had “a motive to testify falsely”—was plain error requiring vacatur of the conviction, because the defendant had testified and the instruction violated the presumption of innocence. Mr. Solano was represented on appeal by our own Daniel Habib.

Solano, a commercial truck driver, was arrested after picking up and delivering a sealed shipping container that had held cocaine and was now under surveillance. He was charged with attempting to distribute a controlled substance. At trial, the sole disputed issue was knowledge. The government’s principal proof came from three law enforcement officers who testified that, in a post-arrest interview, Solano had confessed knowledge. Solano, for his part, testified that he did not know that the container had held …

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Categories: jury instructions

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Tuesday, July 21st, 2020

Circuit Will Decide En Banc Whether New York First-Degree Manslaughter Is a “Violent Felony” and “Crime of Violence.”

In United States v. Scott, 954 F.3d 74 (2d Cir. Mar. 31, 2020), a divided panel held that New York first-degree manslaughter is neither a predicate “violent felony” under the Armed Career Criminal Act nor a “crime of violence” under the Career Offender Guideline because it can be committed by complete inaction and therefore without the use of force, as defined in Curtis Johnson v. United States, 559 U.S. 133 (2010). The panel also held that New York first-degree manslaughter does not match any of the generic offenses enumerated in the Career Offender Guideline.

On July 10, 2020, the Circuit granted the government’s petition for rehearing en banc. No briefing schedule has yet been issued. Stay tuned.…


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Categories: career offender, crime of violence, violent felony

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