Federal Defenders of New York Second Circuit Blog


Thursday, March 4th, 2021

En Banc Second Circuit: New York First-Degree Manslaughter Is An ACCA/Guidelines Crime Of Violence.

In United States v. Scott, the en banc Second Circuit held that New York first-degree manslaughter, in violation of N.Y. Penal Law § 125.20(1) (applicable to one who “with intent to cause serious physical injury to another person, … causes the death of such person or of a third person”), is a categorical crime of violence under the force clauses of ACCA, 18 U.S.C. § 924(e)(2)(B)(i), and the career-offender Guideline, U.S.S.G. § 4B1.2(a)(1).

Scott was sentenced pursuant to ACCA and the career-offender Guideline based, in part, on two prior New York first-degree manslaughter convictions. Following Johnson v. United States, 576 U.S. 591 (2015), the district court (Swain, SDNY) granted Scott’s 28 U.S.C. § 2255 motion and resentenced him. The district court concluded that New York first-degree manslaughter does not categorically involve the “use” of violent physical force, as required by §§ 924(e)(2)(B)(i) and 4B1.2(a)(1), because under New York …

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Categories: ACCA, career offender, Johnson

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Categories: ACCA, career offender, Johnson

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Wednesday, March 3rd, 2021

Second Circuit: Completion of Prison Sentence Moots Appeal from Denial of Compassionate Release Motion

In United States v. Chestnut, the Second Circuit (Sullivan, joined by Cabranes and Raggi) dismissed as moot a defendant’s appeal from the denial of his compassionate release motion, where the defendant had completed his sentence, and had “neither requested that the district court reduce his term of [supervised release] nor advanced any arguments to suggest that such a reduction is warranted.”

Chestnut sought compassionate release based on (i) his need to care for his children after their removal from their mother’s custody; and (ii) his medical conditions, which placed him at risk of severe illness from COVID-19. The district court (Daniels, SDNY) denied the motion. While Chestnut’s appeal was pending, he was released from BOP custody.

The Circuit concluded that the appeal was moot because Chestnut only sought a reduced prison sentence, and his prison sentence was now complete. In some cases, the Circuit said, “an appeal challenging a …

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Monday, March 1st, 2021

Attempted Bank Robbery: Good News and Bad News

Do you have a client challenging a charge or conviction for attempted bank robbery in violation of 18 U.S.C. § 2113(a) and/or gun possession in relation to that crime in violation of § 924(c)?  Well, there’s good news and bad news.

First, the bad news: a two-judge panel of the Second Circuit has ruled attempted bank robbery — specifically, attempted robbery “by force and violence, or by intimidation,” § 2113(a) — is a “crime of violence” under § 924(c).  See Collier v. United States, No. 17-2402, ___ F.3d ___ (2d Cir. Mar. 1, 2021) (available here).

But now the good news: the panel based its ruling on “the text of the attempt crime that is set forth in § 2113(a), which expressly requires that the attempted taking — like the completed crime — be perpetrated ‘by force and violence, or by intimidation.'”  Slip Op. at 4.  Again: § …

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Categories: crime of violence

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Categories: crime of violence

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Thursday, February 25th, 2021

Court issues opinion detailing SDNY prosecutorial misconduct

On February 22, 2021, the district court issued its full opinion regarding prosecutorial misconduct issues in United States v. Ali Sadr Hashemi Nejad, 18 Cr. 224 (AJN), and made public affidavits filed by United States Attorneys involved in the case. The full opinion is here.

In this opinion, the district court restates that it did not find proof of intentional misconduct, but nonetheless finds “pervasive” “errors and ethical lapses.”

With respect to these lapses, the publicly filed exhibits include, inter alia, these exchanges between the U.S. Attorney supervisors involved in the case:

Crowley, Shawn (USANYS) 5:26 PM:
i think i’m going to stop with the closing and devote the rest of the night to cleaning out my
office
Emil J. . Bove 5:26 PM:
seriously
i was just going to write to you – like the window was on my screen and yours popped in – are


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Categories: Brady, prosecutorial misconduct

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Wednesday, February 24th, 2021

SCOTUS will review the ACCA’s “committed on occasions different from one another” requirement – so object, object, object

Earlier this week the Supreme Court granted cert. in Wooden v. United States, SCOTUS No. 20-5279, which concerns the interpretation of the ACCA’s requirement that each of the three required prior convictions arise from offenses “committed on occasions different from one another . . . .” 18 U.S.C. § 924(e)(1). The Court will likely resolve a Circuit split on whether mere temporal distinctness between two offenses suffices to satisfy the requirement of separateness, or whether a broader inquiry is necessary.1

In Mr. Wooden’s case, the Sixth Circuit ruled that his burgling of 10 different units at the same Georgia mini-storage facility, one after another, which resulted in a guilty plea to 10 counts of burglary more than twenty years ago, constituted 10 separate burglaries for purposes of the ACCA, even though everything occurred at the same location over a short period of time. Several Circuits agree with the …

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Categories: ACCA

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Tuesday, February 23rd, 2021

Circuit affirms convictions of Dean and Adam Skelos, concluding than a McDonnell error in the court’s charge to the jury was harmless beyond a reasonable doubt.

In United States v. Dean Skelos and Adam Skelos, 2d Cir. Nos. 18-3421 & 18-3442 (Feb. 23, 2021), a panel of the Court (Walker, Sack, and Carney) affirms the Skeloses’ convictions, following a 2018 retrial, for various public-corruption and bribery related offenses (Dean Skelos was the Majority Leader of the New York State Senate and Adam Skelos is his adult son). Their earlier convictions, following a 2015 trial, had been vacated in light of the Supreme Court’s decision in “McDonnell v. United States, 136 S. Ct. 2355 (2016), which narrowed the definition of the ‘official act’ that a public official must exchange for benefits in order to be convicted of Hobbs Act extortion or honest services fraud, where those crimes have been defined by reference to the term ‘official act’ in the federal bribery statute, 18 U.S.C. § 201. Because the McDonnell definition conflicted with the broader …

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Categories: bribery, corruption, Hobbs Act

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Categories: bribery, corruption, Hobbs Act

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District court must make clear, specific finding that defendant committed perjury before imposing the 2-level obstruction enhancement based on trial testimony.

In United States v. Ivan Rosario, 2d Cir. No. 18-1994 (L) (Feb. 23, 2021) (per curiam), the Court (Sack, Chin, and Lohier) reaffirmed the longstanding rule that a district court may impose a 2-level obstruction enhancement under U.S.S.G. § 3C1.1, based on the defendant’s allegedly false trial testimony, only if it “make[s] findings to support all the elements of a perjury violation in the specific case,” namely, “that the defendant (1) willfully and (2) materially (3) committed perjury, which is (a) the intentional (b) giving of false testimony (c) as to a material matter.” Op. 6 (quoting United States v. Dunnigan, 507 U.S. 87 (1993) and United States v. Thompson, 808 F.3d 190 (2d Cir. 2015)). This “rigid requirement of fact-finding” ensures “that courts will not automatically enhance sentences whenever the accused takes the stand and is thereafter found guilty.” Op. 5-6. Because “[a]ny sentence …


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Categories: obstruction of justice, perjury

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Friday, February 19th, 2021

District Court urges the DOJ to investigate misconduct by SDNY prosecutors

On February 17, 2021, the district court issued a new order in the continuing saga of United States v. Ali Sadr Hashemi Nejad, 18 Cr. 224 (AJN). A previous opinion detailing the relevant facts was issued on September 16, 2020.

This is a prosecution that began to unravel back in early 2020. In 2018, Mr. Sadr was indicted on charges of conspiracy to defraud the United States, conspiracy to violate the International Emergency Economic Powers Act, bank fraud, and money laundering offenses. The prosecution was handled by AUSAs Andrew J. DeFilippis, Matthew Laroche, David W. Denton, Jr., Emil J. Bove, III, Jane Kim, Michael Krouse, Rebekah Donaleski, Shawn Crowley, and Stephanie Lake.

In March 2020, after a two-week jury trial, Mr. Sadr was found guilty of five counts.

After trial, Mr. Sadr moved for acquittal as a matter of law or, alternatively, a new trial. While that motion was …


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Categories: Brady, prosecutorial misconduct

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Monday, January 11th, 2021

Rehaif Heads Back to the Supreme Court

In a prosecution under 18 U.S.C. § 922(g), “the Government must prove [] that the defendant . . . knew he belonged to the relevant category of persons barred from possessing a firearm.”  Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019).  Usually, this means proving the defendant knew he’d previously been convicted of “a crime punishable by imprisonment for a term exceeding one year.”  § 922(g)(1).  Prior to Rehaif, no such knowledge was believed necessary– and scores of convictions were thus obtained without any allegation, evidence or finding of the Rehaif element.

What happens now in such cases (at least, the ones still on direct appeal)?  The Supreme Court will tell us in two cases granted review this past Friday, United States v. Gary, Sup. Ct. 20-444 (guilty pleas) and Greer v. United States, Sup. Ct. 19-8709 (trial convictions).

As for pre-Rehaif guilty …

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Categories: 922(g), Rehaif

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Friday, January 8th, 2021

Second Circuit rejects application of the categorical approach for determining an “offense against property” under the MVRA.

In United States v. Razzouk, No. 18-1395 (2d Cir. Jan. 4, 2021), the Second Circuit, in an opinion by Judge Carney, joined by Judge Walker and District Judge Koeltl, held that in determining whether a conviction is for an “offense against property,” such that restitution is required under the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A(c)(1)(A)(ii), a court may consider the facts and circumstances of the specific crime committed—not just the generic elements of the offense. The appellant had argued that his bribery conviction, which was based on a statute that does not refer to “property” or necessarily implicate its involvement, should not be subject to mandatory restitution. The Circuit rejected this, finding that an analysis based on the categorical approach was unwarranted and concluding that the facts of his case supported that it was an “offense against property.”

Defendant-appellant Sassine Razzouk pleaded guilty to one count …


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Categories: bribery, categorical approach, MVRA, restitution

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Monday, December 21st, 2020

Second Circuit Rejects Rule 11 Challenge Based on District Court’s Confusing Explanation of the Mandatory Minimum on the Ground that the Circumstances Made it Unlikely that a More Precise Explanation Would Have Changed Defendant’s Decision to Plead Guilty.

In Pedro Garcia-Hernandez, No. 19-2504 (2d Cir. Dec. 18, 2020)(summary order), the Second Circuit rejected a Rule 11 claim that the guilty plea was not knowingly and voluntarily entered because the district court’s explanation of the sentence the defendant faced was confusing. The district explained at the plea colloquy that the defendant was subject to a 10-year mandatory minimum sentence and that his Guidelines range was 70 to 87 months. Applying plain error review, the Court of Appeals concluded that the district court effectively conveyed to the defendant that 10 years “was the actual and inevitable sentence,” citing United States v. Johnson, 850 F.3d 515, 524 (2d Cir. 2017). The Court relied on the following facts to conclude that there was no basis to believe that a “more precise explanation” of the sentence he faced would have affected the defendant’s decision to plead guilty: when told …


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