Federal Defenders of New York Second Circuit Blog


Friday, October 11th, 2019

Internally inconsistent verdict on a single count (involving a single defendant) requires dismissal

It is long settled that inconsistency between or among counts of conviction is not a ground for dismissal. See, e.g., Dunn v. United States, 284 U.S. 390, 393 (1932); and United States v. Powell, 469 U.S. 57, 61-69 (1984). The same rule applies to jury verdicts that are inconsistent as to different defendants in a joint trial. See United States v. Dotterweich, 320 U.S. 277, 279 (1943). As the Supreme Court broadly stated in Rivera v. Harris, 454 U.S. 339, 345-46 (1981), the jury possesses “the unreviewable power [] to return a verdict of not guilty for impermissible reasons” and “[i]nconsistency in a verdict is not a sufficient reason for setting it aside.”

None of those cases, however, concerned a verdict that is internally inconsistent as to the same count and the same defendant. The Second Circuit recently encountered that situation in United States v. Janine


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Categories: charge, jury, jury charge, jury trial, verdict

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Monday, October 7th, 2019

Second Circuit reverses district court’s grant of a new trial in securities fraud case: United States v. Gramins, No. 18-2007-cr, __ F. 3d__, 2019 WL 4554521 (Sept. 20, 2019).

This was a government appeal from the district court’s grant of a new trial motion, under Fed.R.Crim.P. 33, on a count of conspiracy to commit security fraud,  in violation of 18 U.S.C. § 371. See 15 U.S.C. § 78j(b) (securities fraud).  The Circuit, however, reversed the district court and remanded “with instructions to reinstate the conviction and proceed to sentencing.” 2019 WL 4554521 at *1.

The case concerned the distinctive market of Residential Mortgage Backed Securities (“RMBS”). The district court granted the defendant’s Rule 33 motion on the only count on which the jury convicted (out of 9 total counts), on evidentiary grounds relying on  United States v. Litvak, 889 F.3d 56 (2d Cir. 2018) (“Litvak II”), which concerned the same RMBS market. The district court found that —  similar to what occurred in Litvak II  — a government witness misstated relevant agency law in a way …


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Categories: fraud, Rule 403, securities law

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Friday, October 4th, 2019

Second Circuit Panel holds residual clause definition of “crime of violence” in the Bail Reform Act is not void for vagueness

In today’s United States v. Watkins, No. 18-3076, a panel of the Second Circuit held the residual clause definition of “crime of violence” in the Bail Reform Act is not void for vagueness.

This may surprise some observers, as the Bail Reform Act’s residual clause is identical to – and subject to the same categorical approach as – the residual clauses the Supreme Court struck down for vagueness in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and United States v. Davis, 139 S. Ct. 2319 (2019).

Moreover, the Second Circuit’s ruling is plainly moot: after being denied bail, Mr. Watkins pleaded guilty and was sentenced to prison.  See United States v. Watkins, W.D.N.Y. No. 18-cr-131.  Only now, months later, has the panel weighed in on whether the residual clause of the “crime of violence” definition in the Bail Reform Act is void for vagueness.  But …


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Categories: crime of violence, Davis, Johnson, Uncategorized

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Tuesday, October 1st, 2019

Circuit Affirms Conviction and Sentence for Felon in Possession of a Firearm

In United States v. Wiggins, No. 18-1337-cr, __ F. App’x __ (2d Cir. Sept. 30, 2019), the Court summarily affirmed the defendant’s conviction and 78-month prison sentence for possessing a firearm as a convicted felon. First, the Court rejected the defendant’s argument that suppression was required because the district court improperly authorized a second search warrant of his cellphone despite the absence of probable cause. Even if probable cause was lacking, the Court ruled, the police officers executed the warrant in good faith, such that suppression was not required.

Second, the Court upheld evidentiary rulings: (1) admitting certain text messages; and (2) excluding sweatpants that the defendant allegedly wore at the time of his arrest, police recordings of his arrest, and a summary of those recordings.

The text messages tended to show that the defendant had access to a firearm as recently as a “few weeks” before his arrest …


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Categories: crime of violence, evidence, good faith, search warrant

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Friday, September 27th, 2019

Inspector General Releases Report on 2019 MDC Power Outage

The Justice Department’s Office of the Inspector General released a report on the electrical fire and ensuing power outage at the MDC Brooklyn last winter.  You can access the report here.

There were significant heating issues at the MDC, but these were unrelated to the fire.  Turns out, there are “long-standing temperature regulation issues,” which caused temperatures to drop as low as 59 degrees one week before the fire, and to rise over 80 degrees.  The MDC’s management did not effectively address heating during the power outage.  It also failed to address certain medical issues, namely, inmates who used CPAP machines, or provide an alternative means of making medical requests once the standard electronic request method was unavailable during the power outage.

If you have a client who was at the MDC during the outage, this report may be useful at sentencing.  If you have clients who were at …

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Thursday, September 19th, 2019

Second Circuit vacates and remands for fact-finding on claim the government breached a plea agreement by its oral representations during plea negotiations, despite the agreement’s “merger clause” (saying the written agreement is “the total agreement” between the parties). United States v. Feldman, Nos. 17-2868-cr, 17-2869-cr,  __F.3d__, 2019 WL 4419378  (Sept. 17,  2019). 

In United States v. Feldman, an opinion authored by Judge Pierre Leval, the Circuit addresses the government’s obligations under a plea agreement based on oral representations “made by the government to the defendant in the course of plea negotiations[.]” 2019 WL 4419378 at *1.

The defendant in this case wasn’t seeking vacatur of his guilty plea. He sought rather to vacate and stay a writ of execution that the government obtained to seize his retirement account and use for restitution. But the government had made representations during plea negotiations indicating the retirement account would be safe. The district court denied the defendant’s motion to vacate and stay the writ of execution on the account. The Circuit, however, vacated the district court’s order denying the defendant’s motion, and remanded for “factfinding and reconsideration of Feldman’s motions.” The Opinion provides an important discussion of the government’s obligations concerning plea agreements.

Facts

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Categories: breach, plea agreement

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Categories: breach, plea agreement

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Thursday, September 12th, 2019

EDNY: Officers’ good intentions can’t save unconstitutional general warrant

When agents came to search his business, Mr. Drago asked, why and what crime was being investigated? The agents said, look at the warrant. But…the warrant didn’t say what crime they were investigating. Instead, it completely failed to state any crimes at all. Even the government admitted the warrant was invalid. But, it argued that they didn’t mean to draft an unconstitutional warrant and that they were protected by their good faith intentions.

In a lengthy report and recommendation issued this week, an EDNY magistrate judge rejected that argument. The judge wrote: the “lack of intent to create a bad warrant (or to cover-up that error) does not automatically translate into a finding of objective good faith belief that the conduct was lawful.”  Instead, the conduct of the search was “sufficiently reckless such that no objective officer could have believed that they were acting in good faith.”

A rare defense …

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Categories: Uncategorized

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Wednesday, September 11th, 2019

SCOTUS watch: Is a car stop legal even when the police officer doesn’t see a traffic infraction?

Unfortunately, the Supreme Court might decide that the answer is yes. The Supreme Court has granted cert in a case out of Kansas, in which a police officer ran the license plate of a passing car (for reasons unexplained in the Kansas decision given that there was no traffic infraction) and saw that the registered owner had a suspended driver’s license. Based only on that – and with no information about whether the owner was actually driving – the police pulled over the car. Mr. Glover, who was the owner and did not have a valid driver’s license, was charged with “driving as a habitual violator.”

The Kansas Supreme Court held that the officer did not have reasonable suspicion to pull over the car and suppressed the evidence (which in this case, seems to only be the fact that Mr. Glover was, indeed, driving). That sounds right! But Kansas sought …

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Friday, September 6th, 2019

Second Circuit holds that Fourth Amendment not violated by Suffolk County program that permits nonprofit organization to conduct home visits with individuals on the sex offender registry in order to confirm the accuracy of their registration address.

On September 4, 2019, the Second Circuit, in an opinion by Judge Droney (joined by Judge Cabranes and Judge Raggi), affirmed a grant of summary judgment in favor of Suffolk County in a case where an individual who was required to register as a sex offender argued, in a claim for damages under 42 U.S.C. § 1983, that home visits conducted by an organization the county had contracted with to verify his address for the registry constituted unreasonable seizures. The Court, which assumed without deciding that there was state action and that the plaintiff was “seized” within the meaning of the Fourth Amendment, held that the visits were constitutional under the “special needs” doctrine.

In Jones v. County of Suffolk and Parents for Megan’s Law, No. 18-1602-cv (2d Cir. Sept. 4, 2019), the County of Suffolk had contracted with a private nonprofit organization, Parents for Megan’s Law (“PFML”), to visit …


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Categories: Fourth Amendment, Sex offender registration, special needs

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Second Circuit upholds prolonged traffic stop based on suspicion that car was stolen, despite database check confirming that it was not stolen.

In United States v. Wallace, No. 17-0472 (2d. Cir. Sept. 3, 2019), the Second Circuit, in an opinion by District Judge Abrams (joined by Judge Winter), upheld the district court’s denial of the defendant’s motion seeking suppression of a firearm recovered following a prolonged traffic stop. Judge Pooler dissented.

After being pulled over for a defective brake light at 7:20 pm, defendant Wallace produced a valid driver’s license but not his registration card. The officers noticed that the registration and inspection stickers on the car were damaged and faded and that there were marks on the car’s door suggesting that it had been pried open. Wallace explained that the stickers had been damaged by a defogging spray and that the door damage was from a prior occasion when he had locked himself out of the car. Although the Vehicle Identification Number (“VIN”) on the registration sticker was only partially …


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Categories: car stop, Fourth Amendment, reasonable suspicion, traffic stop

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Tuesday, September 3rd, 2019

Second Circuit affirms convictions arising from a person’s alleged attempt to join ISIS in Syria. But it vacates consecutive prison sentences (of 420 months) as procedurally unreasonable because of the judge’s deficient statement of the reasons for the sentence.

Second Circuit affirms convictions arising from a person’s alleged attempt to join ISIS in Syria.  But it vacates consecutive prison sentences (of 420 months) as procedurally unreasonable because of the judge’s deficient statement of the reasons for the sentence: United States v. Pugh, No. 17-1889-cr, __F.3d__, 2019 WL 4062635  (Aug. 29, 2019). 

In United States v. Pugh, the Second Circuit rules (against the defendant) on the marital communications privilege. And it finds there was sufficient evidence of an “attempt” to provide material support to a foreign terrorist organization (18 U.S.C. § 2339B(a)(1)), and of obstruction and attempted obstruction of an official proceeding (18 U.S.C. § 1512(c)(1) and (c)(2)).

The Circuit does, however, vacate the (consecutive) sentence because of the inadequacy of the Judge’s explanation. In addition, a separate concurring opinion explicates concern about the overuse of obstruction of justice charges. Pugh, 2019 WL 2019 WL 4062635 at …


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Categories: 3553(c), evidence, marital communications privilege, Material Support, material support statute, obstruction of justice, official proceeding, sentencing, terrorism

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