Federal Defenders of New York Second Circuit Blog


Wednesday, July 8th, 2020

Supreme Court REALLY Keeps the Faith

Monday’s post, titled Supreme Court Keeps the Faith, discussed the Court’s distaste for “faithless electors.”

In two 7-2 rulings today, the Court took its distaste for the faithless to a new level, ruling labor and health laws largely do not apply to religious organizations.

In Our Lady of Guadalupe School v. Morrissey-Berru, two teachers sued the Catholic schools that fired them.  One teacher said she was fired because she’d asked for a leave of absence to treat her breast cancer (she later died); the other said she was fired for being too old.  In neither case did the school cite a religious reason for the firings (the reasons were, respectively, an unspecified failure to follow the curriculum and keep classroom order, and difficulty administering a reading and writing program).  Though the teachers were not nuns or religious instructors (or, for one teacher, even Catholic), their duties included conveying …

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Monday, July 6th, 2020

Supreme Court Keeps the Faith

Writing for a unanimous Supreme Court in today’s Chiafalo v. Washington, Justice Kagan upheld a state’s power to not just replace — but also to punish — “faithless electors.”  Such electors refuse to cast their Electoral College ballots for the presidential candidate the voters of their state selected.

The Electoral College is, of course, an anti-majoritarian abomination designed over 200 years ago to, among other things, placate white men who owned other human beings.  Seee.g., Juan F. Perea, Echoes of Slavery II: How Slavery’s Legacy Distorts Democracy, 51 U.C. Davis L. Rev. 1081 (2018).  Justice Kagan’s opinion notes some framers’ argument that the Electoral College would “entrust[] the Presidency to ‘men most capable of analyzing the qualities’ needed for the office,” and “would ‘be composed of the most enlightened and respectable citizens,’ whose choices would reflect ‘discretion and discernment.'”  Chiafalo, Slip. Op. at 12.  …

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Thursday, June 25th, 2020

Remedy for a violation of the prompt-presentment rules of Fed.R.Crim.P. 5(c)(2) (concerning the “initial appearance” of someone arrested in a district “other than where the offense was allegedly committed”) isn’t “dismissal of the criminal case,” but an evidentiary sanction. In addition, a magistrate judge’s failure to sign the jurat on the last page of the supporting affidavit of the criminal complaint doesn’t render the complaint invalid, under Fed.R.Crim.P. 3, because the magistrate signed the criminal complaint, thereby attesting that the affiant’s assertions had been sworn before the magistrate. United States v. Peeples, No. 18-2309-cr, __F.3d__, 2020 WL 3406445 (June 22, 2020).

I.  Remedy for a violation of Fed.R.Crim.P. 5(c)(2)

Fed.R.Crim.P. 5(c)(2) governs the place for the “initial appearance” of someone “arrested in a district other than where the offense was allegedly committed” and the circumstances permitting the person’s transfer to a district outside the place of arrest. See Fed.R.Crim.P. 5(c)(2).

In United States v. Peeples, No. 18-2309-cr,  __F.3d__, 2020 WL 3406445  (June 22,  2020),  the government violated Fed.R.Crim.P. 5(c)(2) by removing Peeples from the district where he was arrested (the N.D.N.Y.) to the district of the crime  (the W.D.N.Y.) ,  without arranging for his “initial appearance” before a magistrate in the district of arrest (the N.D.N.Y.). The Circuit holds, however, that the remedy for this violation isn’t dismissal of the indictment, but the exclusion of prejudicial post-arrest evidence. And here, the government didn’t introduce Peeples’ post-arrests statements at the trial.

Peeples robbed a bank in Rochester, N.Y., located in the …


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Categories: Fed.R.Crim.P. 3, Fed.R.Crim.P. 5(c)(2), identification procedures

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Wednesday, June 10th, 2020

In a felon-in-possession case (18 U.S.C. § 922(g)), a person charged in a single count with possessing a firearm on two separate dates, during a six-day period, isn’t entitled to an instruction that the jury “must agree unanimously on a particular date or dates on which he possessed a firearm.” Rather, possession of a firearm “is a continuing offense,” so the jury only needs to find “unanimously that the defendant possessed the firearm at any point” during period of the alleged possession.  United States v. Estevez, No. 17-4159-cr, 2020 WL 3022983 (June 5, 2020).

In Estevez, the sole count of the indictment alleged that Estevez possessed a firearm on two different dates: on February 21, 2016 and February 26, 2016. The charge was based on two separate shooting incidents, on those days. But a puzzling aspect of the Opinion is that it makes no reference to last years’ Supreme Court decision in Rehaif in discussing the elements of a § 922(g) offense. That hole in the Opinion is discussed at the end of this blog entry.

The unanimity instruction

At trial, Estevez requested “a particularized, rather than a general, unanimity instruction.” He  insisted that “all [12] jurors needed to agree either that he possessed the Firearm on February 21 or that he possessed it on February 26 (or that he possessed it on both dates)[.]”  2020 WL 3022983 at *4. The district court denied the request and gave a “general unanimity instruction[.]” Id.

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Categories: 922(g), Rehaif

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Tuesday, June 9th, 2020

District Court Erred in Denying 3rd Point for Acceptance of Responsibility, Despite a Government Motion on the Defendant’s Behalf, Based on Its Belief that the Defendant’s Suppression Motion Caused the Government to Do Work that Overlapped with Trial Preparation

Reading a 45-page opinion about the “third point” in the acceptance-of-responsibility Guideline, U.S.S.G. § 3E1.1(b), makes one wonder whether Booker was but a dream. Why, one might ask, do judges in 2020 care so much about a miniscule adjustment to the offense level when they can simply go outside the advisory range and impose whatever sentence they believe just under the circumstances? Perhaps numbers comfort those tasked with punishing their fellow humans without the security blanket of mandatory directives. Who knows.

That beef aside, this is a fine opinion by Judge Lynch – thorough, well-written, and well-reasoned as always. In United States v. Marilyn Vargas, No. 19-463, __ F.3d __ (2d Cir. June 9, 2020), the Court held that District Judge Caproni erred in denying the 3rd acceptance point following the defendant’s guilty plea, despite a Government motion on the defendant’s behalf, based on her view that the …


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Monday, June 8th, 2020

New York Fifth-Degree Drug Sale Does Not Qualify as “Felony Drug Offense” for Purpose of § 851 Recidivist Enhancement

In United States v. Jeremy Thompson, 2d Cir. No. 18-2545, __ F.3d ___ (2d Cir. June 8, 2020), the Court held (in an opinion by Judge Walker) that a New York conviction for fifth-degree criminal sale of a controlled substance, in violation of N.Y. Penal Law § 220.31, does not qualify as a “prior conviction for a felony drug offense” for purposes of the recidivism enhancement in 21 U.S.C. § 851 under Taylor’s now-familiar categorical approach. This is so because, as the Court previously held in Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017), this New York law (1) is indivisible and (2) regulates a broader range of controlled substances than the analogous federal drug schedule. In particular, while § 220.31 criminalizes the sale of HCG (a pregnancy hormone), federal law does not. And because fifth-degree sale is indivisible, it is irrelevant that court documents show …


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Categories: First Step Act of 2018

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Saturday, June 6th, 2020

Eligibility for First Step Act relief depends on the statutory offense for which a defendant was sentenced, not the “actual conduct.”

The First Step Act of 2018 authorizes district courts to make a discretionary decision about whether and how to reduce a defendant’s sentence, but only if the defendant was sentenced for a “covered offense.” The Act defines a “covered offense” as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 . . ., that was committed before August 3, 2010.”

The question in United States v. Davis, No. 19-874 (2d Cir. June 5, 2020) (Katzmann, Wesley, and Bianco), was whether Davis was originally sentenced for a “covered offense,” in which case he was eligible for a sentencing reduction. The defendant said he was sentenced for a “covered offense” because he had been convicted and sentenced for conspiring to distribute at least 50 grams of crack cocaine, in a violation of 21 U.S.C. …


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Friday, June 5th, 2020

The “realistic probability” test has no role to play in the “categorical approach” when a state statute on its face is broader than the federal definition.

Here’s an important decision you may have missed because it arises in the context of an immigration proceeding rather than a criminal case. In Williams v. Barr, No. 18-2535 (2d Cir. May 27, 2020) (Jacobs, Carney, and Bianco), the Circuit clarified that, under the “categorical approach” for determining whether a state statute criminalizes more conduct than the relevant federal counterpart, the “realistic probability” test has limited application. Specifically, the test does not apply when the text of the statute itself gives it a broader reach than the generic federal definition. And, because the “categorical approach” applies in both immigration cases and criminal cases, this holding should be helpful to many criminal defendants.

Williams fought removal from the United States based on his Connecticut state conviction for unlawful carrying of a pistol or revolver. The Second Circuit agreed with him that, under the “categorical approach,” the state statute criminalized more …


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Thursday, June 4th, 2020

Under 18 U.S.C. § 3582(c)(2), district courts may not reduce a sentence below the bottom of the amended Guidelines range based on a § 5G1.3(b) adjustment at the original sentencing.

In United States v. Zapatero, No. 18-3829 (2d Cir. June 3, 2020) (Hall, Sullivan, and Bianco), the Circuit held that the plain language of 18 U.S.C. § 3582(c)(2), and its incorporated Guidelines provisions, preclude a district court from reducing a sentence below the amended Guidelines range based on a § 5G1.3(b) adjustment at the original sentencing.

Zapatero was originally sentenced in the District of Vermont to 168 month of imprisonment, below the then-applicable Guidelines range of 210-262 months. The court directed that the sentence should run concurrently with an undischarged 51-month prison term previously imposed in the Southern District of New York. And the court also directed that Zapatero receive “credit” toward his Vermont sentence from the time his detention began in Vermont, even though the credit would also include time spent in custody on the New York case. Zapatero characterized this purported granting of “credit” as a sentence …

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Wednesday, June 3rd, 2020

The Second Circuit vacates and remands for resentencing because of the erroneous application of the Sentencing Guidelines enhancements for possessing a “dangerous weapon” (§ 2B3.1, cmt. n.2) and “physical restraint” (§ 2B3.1(b)(4)(B)) – – which increase the offense level for robbery offenses. United States v. Taylor, No. 18-1710,  __F.3d__, 2020 WL 2745536  (May 27,  2020). 

In United States v. Taylor, the Circuit interprets two provisions of the Sentencing Guidelines that increase the offense level for robbery. It concludes that the sparse facts “set forth in the Presentence Report (PSR), upon which the district court relied at sentencing, are insufficient to support the application of either enhancement.” 2020 WL 2745536 at *1.

First, the Circuit holds that a defendant’s “hand” doesn’t become an “object” qualifying for the “dangerous weapon” enhancement when he gestures (with his hand) that he has a gun in his belt, but he’s actually unarmed and doesn’t have an object that “resembles” a gun. See U.S.S.G.§ 2B3.1(b)(2)(E).

Second, on the physical restraint enhancement, the Circuit holds that a robber’s act of ordering  a person to move from one room into another room — without actually retraining the person or locking the person in a room — doesn’t qualify as “physical[] restrain[t]” under …

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Circuit affirms convictions arising from usurious and fraudulent lending scheme.

In United States v. Tucker, No. 18-181(L) (2d Cir. June 2, 2020) (Leval, Pooler, and Parker), the Second Circuit unanimously affirmed Muir’s and Tucker’s convictions arising from their operation of an illegal payday lending scheme.

The central issue on appeal concerned the jury instructions regarding “willfulness.” The trial judge instructed the jury with respect to several counts that the defendants acted willfully if they knew of the high interest rates being charged to borrowers, even if the defendants believed the lending was lawful. The defendants, however, failed to object to the jury instructions after they were given, as generally required by Fed. R. Crim. P. 30. Thus, the Circuit held, the defendants’ had to satisfy the demanding “plain error” standard to prevail on appeal.

The Circuit ruled that, even if the challenged “willfulness” instruction was erroneous—an issue it did not resolve—any error was not reversible plain error. The Court …


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