Federal Defenders of New York Second Circuit Blog


Friday, April 29th, 2022

Second Circuit: State Court’s Erroneous Denial Of Defendant’s Peremptory Strike Is Not Grounds For Federal Habeas Corpus Relief

In Murray v. Noeth, No. 20-3136 (2d Cir. Apr. 26, 2022), the Circuit (Nardini, joined by Sack and Park), held that a state trial court’s erroneous denial of a defendant’s peremptory strike does not violate the federal Constitution under Rivera v. Illinois, 556 U.S. 148 (2009), and therefore cannot support federal habeas corpus relief.

Murray was tried in New York state court for murder. After he exercised a number of peremptory strikes against male prospective jurors, the People raised a “reverse-Batson” challenge, arguing that Murray’s strikes were discriminating on the basis of sex. The state trial court sustained the People’s challenge and disallowed two strikes, restoring two men to the jury. Murray was convicted and the state appellate courts affirmed.

Murray filed a federal habeas corpus petition, contending that the state trial court had erred in sustaining the People’s reverse-Batson challenge. Specifically, Murray argued that …

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Monday, April 25th, 2022

Circuit affirms denial of Rule 33 motion on Brady grounds, finding lack of prejudice, but expresses “skepticism” that DOJ’s Narcotic and Dangerous Drug Section was not “part of the prosecution team” in “unusual case”

When multiple law enforcement agencies or subdivisions are involved in a case, who is “part of the prosecution team” for Brady purposes? In United States v. Hunter, Nos. 18-3074, 18-3489, & 19-790 (2d Cir. Apr. 20, 2022) (C.J.J. Cabranes, Raggi, and Korman (sitting by designation)), the Circuit affirmed the district court’s denial of Rule 33 motions following belated disclosure of exculpatory information, relying on a different Brady prong. Nevertheless, in dicta, it explored this challenging question.

The case came before the Court with a torturous and troubling procedural history. The co-defendants were convicted in SDNY in April 2018, following a joint jury trial, of various murder-for-hire, conspiracy, § 924(j), and money laundering counts, based on allegations that they were part of a transnational criminal organization. The boss of this organization was cooperating witness Paul LeRoux, who had been nabbed by the DEA in Liberia in 2012. “The scale and …


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Categories: Brady, Rule 33, Uncategorized

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Thursday, March 31st, 2022

“Hybrid” Restitution Order Makes Less Culpable Defendant Liable to Personally Pay the Full Amount Jointly Imposed Until All Restitution Has Been Paid, Including Additional Restitution Assessed Against More Culpable Defendant

After Ayfer and Hakan Yalincik, mother and son, pled guilty to a fraud scheme led by Hakan, the district court imposed $500,000 in restitution for one victim, for which the defendants were jointly and severally liable, and an additional $250,000 for the same victim, for which only Hakan was individually liable. After the victim had received more than $500,000 in payments, but was still owed $139,057 out of the total $750,000, the defendants moved for an order declaring Ayfer’s obligation satisfied because the amount for which she was jointly liable had been paid. Ayfer had personally “made only minimal restitution payments;” most of the payments were made by Hakan or distributed from bankruptcies of his businesses. The district court denied the motion. The Second Circuit affirmed, in an opinion by Judge Lynch, ruling that Ayfer was liable until either the victim was made completely whole or Ayfer had personally paid …


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Thursday, March 17th, 2022

Lack of rationale for denying compassionate release prompts Jacobson remand.

In United States v. Nosov, No. 21-187-cr (2d Cir. March 17, 2022) (summary order), the Second Circuit ordered a limited remand for clarification of a court’s denial of a motion for a sentence reduction under 18 U.S.C, § 3582(c)(1)(A), pursuant to United States v. Jacobson, 15 F.3d 129 (2d Cir. 1994).

In Nosov, the defendant moved for a reduction of his concurrent life terms, citing his youth at the time of the offenses, his rehabilitation, and his health conditions. The government agreed that the defendant’s obesity put him at increased risk from COVID-19, and that this could constitute an extraordinary and compelling reason for a sentence reduction.

Nonetheless, without further explanation, the district court opined that the defendant had not shown “extenuating and compelling” reasons warranting a reduction and denied the motion. This finding was in tension with the government’s concession and the Circuit noted that the …

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Tuesday, March 15th, 2022

District court can’t delegate inpatient treatment decision, but Hobbs Act restitution order stands.

In a March 14, 2022 summary order, the Second Circuit reiterated the limits of a district court’s authority to delegate decisions about supervised release to the Probation Department. In United States v. Ely, No. 17-3081-cr, the court imposed a special condition of release requiring the defendant to complete “outpatient and/or inpatient drug treatment.” This wording left it to the Probation Department to decide which. But because inpatient treatment “entails a significantly greater restriction on a defendant’s liberty than outpatient treatment,” the district court was not permitted to delegate this decision to Probation. The Circuit accordingly vacated this portion of the defendant’s sentence.

In the same order, the Circuit declined to find that the district court plainly erred by imposing restitution under the Mandatory Victims Restitution Act (MVRA) for a Hobbs Act robbery conspiracy. As relevant here, the MVRA mandates restitution for any “crime of violence,” as defined in 18 …


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Thursday, February 24th, 2022

Evidentiary Errors Prompt Second Circuit to Vacate Forced-Labor Convictions.

Our friend Alexandra Shapiro of Shapiro Arato Bach, LLP, earned an important victory this week in United States v. Dan Zhong, No. 19-4110 (2d Cir. Feb. 23, 2022), persuading the Court to vacate her client’s conviction on three forced-labor charges. (While the Court affirmed the defendant’s convictions on two other counts, those convictions carry far shorter sentences.)

The ruling represents a rare defense victory based on multiple evidentiary errors. The Circuit, in an opinion by Judge Menashi, granted a new trial as to three forced-labor counts. The decision provides ammunition for defendants in future trials trying to rein in the Government’s efforts to introduce evidence of uncharged conduct, to curtail defense cross-examination of Government witnesses, and to use experts in improper ways.

First, the District Court had permitted the Government to introduce evidence of uncharged criminal conduct that pre-dated the charged conduct by nearly a decade and involved violence …

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Friday, January 28th, 2022

Circuit Vacates LIBOR-Rigging Convictions For Insufficient Evidence

In United States v. Connolly, No. 19-3806 (2d Cir. Jan. 27, 2022), the Circuit (Kearse, joined by Cabranes and Pooler) reversed convictions for substantive wire fraud and for conspiracy to commit wire fraud and bank fraud for insufficient evidence.

This is a LIBOR-rigging prosecution. LIBOR (the “London Interbank Offered Rate”) was an interest-rate benchmark, published daily by the British Bankers’ Association (“BBA”), meant to reflect the rates at which one bank could borrow money from other banks. LIBOR also provided a reference interest rate for use in transactions between banks. The daily LIBOR for each currency was computed based on submissions from a panel of selected banks active in the interbank market for that currency. For example, to compute the U.S. currency LIBOR at issue here, the BBA instructed each of the 16 banks on the panel to submit “the rate at which it could borrow funds, were it …

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Thursday, January 27th, 2022

Second Circuit Affirms El Chapo’s Conviction

In United States v. Beltran Leyva (Guzman Loera), No. 19–2239 (2d Cir. Jan. 25, 2022), the Circuit (Newman, joined by Lynch and Park) affirmed the conviction of Guzman Loera (“El Chapo”), the former leader of the Sinaloa Cartel, for conducting a continuing criminal enterprise, and for drug trafficking, firearms, and money laundering offenses. The Circuit rejected all 10 of Guzman Loera’s appellate claims:

1) Guzman Loera lacked standing to raise the claim that the indictment violated the international law doctrine of specialty (which provides that an extradited defendant can only be tried for offenses described in the extradition treaty and charged in the extradition proceedings). Under United States v. Barinas, 865 F.3d 99 (2d Cir. 2017), the U.S.-Mexico Extradition Treaty does not confer on extradited defendants individual rights to assert violations of the Treaty, and Mexico waived any specialty objection to Guzman Loera’s prosecution in the EDNY.

2) …

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Monday, January 10th, 2022

“We can do that. We don’t even have to have a reason.”

Today’s Second Circuit summary order in United States v. Foskey, No. 21-149-cr, brings to mind a Caddyshack line that I think of often (quoted above). In Foskey, the Circuit upheld the district court’s denial of a motion for a reduced sentence pursuant to 18 U.S.C. § 3582(c)(1)(A). Before the Circuit, the defendant argued that the district court had abused its discretion in denying his motion, failing to follow United States v. Brooker, 976 F.3d 228 (2d Cir. 2020), and failing to sufficiently explain its denial of release. Before the district court, the government had argued that Brooker was wrongly decided and that the district court should not follow it. The district court denied the defendant’s release motion in docket entry orders that did not make clear what legal standard it applied or whether it followed Brooker.

But, per the Circuit, “the district court made no mention …


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Monday, November 15th, 2021

On appeal, a preserved challenge to a Rule 11 error at the guilty plea is reviewed for harmless error, and it’s the government’s burden to prove that the Rule 11 error was harmless. United States v. Freeman, No. 19-2432, __F.4th__ , 2021 WL 5114918 (2d Cir. Nov. 4, 2021) (C.J.J. Sullivan, Park, and Nardini).

During a guilty plea allocution to a drug conspiracy, the district court erroneously stated that the mandatory minimum term of supervised release term was 5 years, when it actually was 10 years, thereby violating Fed.R.Crim.P. 11(b)(1)(I)’s requirement the defendant be accurately informed about punishment, including “any mandatory minimum penalty.” Freeman preserved his challenge to the Rule 11 error by moving to withdraw his guilty plea before sentencing. The district court denied the motion. And the Circuit affirmed, saying the error was harmless (under Fed.R.Crim.P. 11(h)). But the Opinion’s stated purpose is to “clarify” that “a preserved challenge to a Rule 11 error is subject to harmless error review on appeal and that the government bears the burden of showing that the error had no effect on the defendant’s substantial rights.” Op at 3.

BACKGROUND

The grand jury returned a one-count  indictment charging Freeman with a drug conspiracy in violation of …

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Monday, September 13th, 2021

Second Circuit reverses and remands an order of restitution, imposed under the Mandatory Victim’s Restitution Act of 1996 (“MVRA”) — 18 U.S.C. § 3663A(a)(2), (c) — because the Government failed to prove, by a preponderance, the proximate cause element: i.e., that the losses to the victims were foreseeable to the defendant in the course of committing the “offense of conviction.” United States v. Goodrich, No. 19-208, __F.4th__ , 2021 WL 3889801 (2d Cir. Sept. 1, 2021) (C.J.J. Calabresi, Pooler, Carney).

The Circuit reversed, in part, an Amended Judgment that imposed restitution under the MVRA, because, although the defendant was responsible for the $479,000 losses to purchasers of stocks traded on the public market, the government didn’t establish that the $1.85 million of losses from the “private placement” trades were foreseeable to Goodrich.

Defendant Goodrich, a broker-dealer in the over-the-counter securities market,  pleaded guilty to a conspiracy to commit securities fraud, in violation of 18 U.S.C. § 371. Goodrich executed fraudulent trades with co-defendants to artificially inflate the share price of a sham company named, Cubed, Inc.  Op at 3-4 (They allegedly engaged in a “pump and dump” market manipulation scheme, through “wash” and “matched” trades); see Op at 4, 6, footnotes 1 & 4 defining a pump & dump scheme and wash and matched trades).

Goodrich executed trades in the public market, while “his co-defendants, who are not appellants here, …

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