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Federal Defenders of New York Second Circuit Blog


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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Categories: fraud, immigration

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Categories: fraud, immigration

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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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Categories: procedural reasonableness, sentencing, supervised release

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Friday, November 22nd, 2024

Second Circuit affirms above-Guidelines sentence, finding sufficient context and reliability for both ambiguous video and pending state indictment

In United States v. Chatman, No. 23-7895, a panel of the Second Circuit (Kearse, Sullivan, Robinson, JJ.) summarily affirmed an above-Guidelines sentence for Talmage Chatman, finding no error in the district court’s application of a four-level enhancement based on a video of Mr. Chatman firing the gun or in the district court’s consideration of a pending state indictment in pronouncing sentence.

The district court applied a four-level enhancement by determining that Mr. Chatman was committing another felony (attempted assault) while unlawfully possessing ammunition under 18 U.S.C. § 922(g)(1). It based that finding on a video showed Mr. Chatman firing a weapon while walking down a street, though no other individuals or targets were depicted. Thereafter, the district court considered the fact that Mr. Chatman had been arrested and indicted for a state-law narcotics violation while his federal case was pending, though the state case remained open. Although the parties …

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Categories: 922(g), sentencing, sentencing findings

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Categories: 922(g), sentencing, sentencing findings

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Tuesday, November 19th, 2024

Second Circuit affirms wire fraud convictions post-Ciminelli

In United States v. Tamaz Pasternak, No. 23-6316-cr, the Second Circuit (Parker, Robinson, Oliver (D. Conn.)) affirmed the defendant’s wire fraud convictions despite a concededly erroneous jury instruction.

The charges arose from a purported scheme to conceal the “salvage” histories of used cars—histories of purchase by insurance companies after they’ve been damaged. Pasternak, a used-car dealer, often sold these cars at a significant discount—so one of the government’s theories of wire fraud centered on depriving customers of information about the cars, not depriving them of money. After a jury convicted Pasternak of wire fraud and conspiracy to commit the same, Pasternak alleged two instructional errors on appeal.  First, Pasternak challenged a right-to-control instruction that was held invalid in Ciminelli v. United States, 598 U.S. 306 (2023). Second, Pasternak argued that the district court should have required the jury to find that the fraudulent scheme contemplated inflicting tangible economic harm. …

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Categories: guideline, jury charge, jury instructions, wire fraud

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Wednesday, October 9th, 2024

“Time credits,” under the First Step Act (as calculated by the Bureau of Prisons), 18 U.S.C. § 3632. A person serving a prison term for multiple offenses of conviction can’t earn “time credits” — under § 3632(d)(4)(A)-(C) — if any of the offenses appear on the list of ineligible offenses in § 3632(d)(4)(D). Charles Giovinco v. Timethea Pullen, Warden, No. 23-251-pr, __ F.4th ____, 2024 WL 4438759 (2d Cir. Oct. 8, 2024) (Chief Judge Livingston; C.J.J.’s Lohier and Menashi).

1. Background

The Petitioner-Appellant appeals from the district court’s denial of a petition for a writ of habeas corpus, under 28 U.S.C. § 2241, in which he contended that the Bureau of Prisons (“BOP”) improperly denied him “earn[ed] time credits” under the First Step Act of 2018 (“FSA”), Pub. L. No. 115-391, 132 Stat. 5194. See Op. at 4-6.

Under the FSA, “[a] prisoner is not eligible to earn time credits if he ‘is serving a sentence for a conviction’ of certain enumerated offenses” that are listed in 18 U.S.C. § 3632(d)(4)(D).  See Op. at 3 (quoting § 3632(d)(4)(D)).

Here, the Petitioner, back in 2008, pleaded guilty to a 2-count indictment. And he received  concurrent prison sentences of 120 months’ on an ineligible offense, and 235 months’ for an offense not listed in § 3632(d)(4)(D).

Because Petitioner has served the 120-month sentence imposed on the ineligible offense (a child …

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Categories: First Step Act of 2018

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Monday, September 30th, 2024

A divided panel of the Second Circuit affirms a fraud sentence more than twice the top of the Guidelines range as substantively reasonable, where dissent sees “clear signs” that it was punishment for going to trial.

In United States v. John Trasacco, 23-cr-6344, September 26, 2024 (2d Cir.), the Circuit affirmed the conviction and 96-month sentence for substantive and conspiracy to commit wire fraud based on a scheme to defraud the City of West Haven of $400,000 in covid relief funds. (Lohier, Nathan, and Parker, dissenting in part). Trasacco conspired with three others, all of whom pled guilty and received sentences of 27 months, 13 months, and 6 months. Tasacco was the only defendant who went to trial. Trasacco argued that his sentence, more than twice the top of the Guidelines range, was substantively unreasonable because it was punishment for his refusal to plead guilty as the others had done. The panel split on this issue, with the majority accepting the district court’s “express statement” that the defendant would not be punished for exercising his right to trial, even as it referred to Trasacco’s …

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After reversal by the Supreme Court, Circuit vacates fraud convictions based on invalid legal theories, but allows new trial of two defendants on traditional fraud theories

On May 11, 2023, the Supreme Court reversed the Second Circuit in Ciminelli v. United States, 598 U.S. 306 (2023), and Percoco v. United States, 598 U.S. 319 (2023) holding invalid both the Circuit’s “right to control” theory of fraud (Ciminelli) and its theory that a private citizen with a “special relationship” with the government, who “dominated and controlled” government business may be convicted of honest services fraud (Percoco). See Blog May 15, 2023. Given the Supreme Court’s holding, the Circuit had to vacate their convictions, which were based on the invalid theories.

The Circuit did vacate those convictions, just this week, in United States v. Aiello, No 18-2990 (2d Cir. September 23, 2024) (Chin, Raggi, Sullivan) but remanded for retrial of Ciminelli and Percoco on traditional fraud theories, even though traditional fraud theories were not pursued at the first trial. …

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Categories: double jeopardy, fraud, honest services fraud

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Second Circuit holds that search of an SD card inserted in a cell phone was authorized by a warrant to search the cell phone.

In United States v. Tompkins, No. 22-599 (2d Cir. Sept. 23, 2024)(Livingston, Menashi and Kahn), U.S. Marshalls obtained a warrant to search the defendant’s cell phone for evidence of his failure to register as a sex offender. They arrested him and took his cell phone to search it, but could not open it without the pin number. The found an SD card inserted into the back of the phone and searched that, finding child pornography. They obtained another warrant to search for child pornography, searched again, and found more child pornography on the SD card. Tomkins argued that the warrant did not authorize a search of the cell phone because it did not include the SD among the property to be searched. The Circuit disagreed, holding that the SD card was covered by the warrant’s language, in the “information” to be searched section, “including any form of …

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