Federal Defenders of New York Second Circuit Blog


Monday, November 23rd, 2020

Second Circuit affirms conviction of payday-loan lender on RICO and Truth in Lending Act (“TILA”) charges. United States v. Moseley, __F.3d__, No. 18-2003-cr, 2020 WL 6437737 (2d Cir. Nov. 3, 2020) (Circuit Judges: Kearse, Carney, Bianco).

In  United States v. Moseley, No.18-2003, 2020 WL 5523210 (2d Cir. Nov. 3,  2020) , the Second Circuit holds that the choice-of-law provisions in the defendant’s payday-loan agreements — which named  3 jurisdictions that don’t have usury laws — were unenforceable under New York law, so  the usury laws of New York applied in the case of loans to New York residents. And, here, the RICO counts were based on New York domiciled  borrowers . The agreements also didn’t sufficiently disclose the total payments the borrower would have to make on the loans, as required by TILA.

The loans

Richard Moseley operated a payday-loan business, between 2004 and 2014,  in which he “lent money to borrowers in New York and other states at interest rates exceeding —by many multiples—the maximum legal interest rates allowed in those states; in its loan documents, it failed to meet TILA disclosure requirements; and …


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Categories: due process, hearsay, RICO, Sixth Amendment

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Second Circuit affirms the convictions of two N.Y. correction officers for civil rights conspiracy and false records charges, under 18 U.S.C. §§ 241 and 1519, based on an assault of an inmate. United States v. Scott, __F.3d__, No. 18-2882-cr, 2020 WL 6494642 (2d Cir. Nov. 5, 2020) (C.J.J. Kearse, Sullivan, Park).

Defendants-Appellants Kathy Scott and George Santiago, Jr. are former correction officers with the New York State Department of Correction and Community Supervision (“DOCCS”) at the Downstate Correctional Facility in Fishkill, New York.

The evidence at their jury trial was that “Scott and Santiago, along with other officers of DOCCS, assaulted Kevin Moore, an inmate at the Downstate Correctional Facility in Fishkill, New York.” Scott, 2020 WL 6494642 at *1.  In addition, “[t]he evidence –  which included the testimony of [two] fellow DOCCS officers …  – further revealed that Defendants took numerous steps to cover up the assault, including falsifying the initial use-of force incident report.” Id.

Scott and Santiago were convicted of conspiracy to deprive a person of civil rights, in violation of 18 U.S.C. § 241; deprivation of civil rights, in violation of 18 U.S.C. § 242; conspiracy to falsify records, in violation of 18 U.S.C. § 371; …

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Wednesday, November 18th, 2020

Assaulting a federal officer under 18 USC 111(b) is categorically a crime of violence.

Last week, the Circuit closed the door on any Davis issue relating to 18 U.S.C. § 111(b), holding that 18 U.S.C. § 111(b) is a crime of violence. Even though this was a matter of first impression for the Circuit, it issued a per curiam decision without ordering full briefing (or indeed any briefing by the government). Instead, it simply denied a motion for a certificate of appealability to Mr. Gray finding that the “use” of a dangerous weapon and the infliction of bodily injury in the course of a § 111(b) assault or battery necessarily involves the use of physical force as defined in 18 U.S.C. § 924(c)(3)(A).

Only one bit of small good news: the Court did not address whether 18 U.S.C. § 111(a) is a crime of violence, so that remains open.…

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Tuesday, November 17th, 2020

International Parental Kidnapping Crime Act includes refusing to bring your children back to the US

Last week, the Circuit rejected an argument that the International Parental Kidnapping Crime Act was unconstitutionally vague as applied to a father who refused to bring his United States-citizen children to the US from Yemen to visit with their mother, even though the children had been living in Yemen for a number of years and he had not abducted them.

The facts, briefly

Mr. Houtar and his ex-wife have two daughters who were born in the United States. Both parents left their daughters in Yemen for some time, while they returned (separately) to the United States. While here, Mr. Houtar’s ex-wife sought custody of the girls, and the Family Court ordered Mr. Houtar to bring them back to the United States to visit with their mother. Instead, Mr. Houtar returned to Yemen himself. He might have remained there had he not applied for a new United States passport, triggering an …

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Monday, November 16th, 2020

Maximum supervised release sentence upheld. (Also, don’t forget to make your bed).

In a decision on Thursday, the Second Circuit upheld Betsy Ramos’s two-year sentence for a violation of supervised release, finding that a district court may take recidivism enhancements into account in determining whether the maximum potential term of imprisonment for a crime is more than 20 years, qualifying the crime as a Grade A violation, under 7B1.1 (a)(1)(B).

The facts underlying the Circuit opinion in this case are tragic. In 1998, Ms. Ramos was on supervised release following a drug courier conviction when her boyfriend, who physically abused Ms. Ramos, shot and killed a police officer. Her abusive boyfriend was also killed. For reasons the Circuit opinion does not fully explain, Ms. Ramos was convicted of reckless manslaughter and served more than 20 years in state custody. When Ms. Ramos was granted parole, she was charged with a violation of her supervised release based on the manslaughter conviction, and sentenced …

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Monday, October 26th, 2020

Second Circuit reverses the denial of a motion to suppress a firearm found during a frisk, following a traffic stop, because the officers lacked objective reasons to believe the defendant was armed and dangerous. United States v. Weaver, __F.3d__, No. 18-1697-cr, 2020 WL 5523210 (2d Cir. Sept. 15, 2020).

In United States v. Weaver, No.18-1697, 2020 WL 5523210 (2d Cir. Sept. 15, 2020) , the Second Circuit holds that police officers didn’t have reasonable suspicion that Weaver was armed and dangerous when, after ordering him out of the car, they made him place his hands on the car’s trunk, with his legs spread apart. At best, they had reason to believe Weaver had something illicit. And the search began when Weaver was made to “spread-eagle” on the car trunk — before any officer actually put hands on him.

Judge Pooler wrote the majority opinion; Judge Calabresi concurs in a separate opinion; and Chief Judge Livingston dissents.

I. Facts

At about 5 p.m. in February 2016, when it was still “‘daylight,’” police officers in Syracuse, New York, driving an unmarked car with tinted windows, stopped the car in which Weaver was a passenger, ostensibly for a traffic violation. See


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Thursday, October 15th, 2020

Fourth Circuit: Attempted Hobbs Act Robbery Is Not A 924(c) Crime Of Violence

In United States v. Taylor, the Fourth Circuit became the first court of appeals to hold that attempted Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c)(3)(A)’s elements clause.

Taylor granted a successive 28 U.S.C. § 2255 motion and vacated the movant’s § 924(c) conviction, which had been predicated on both conspiracy to commit Hobbs Act robbery (not a crime of violence under Fourth Circuit precedent, nor under the Second Circuit’s decision in United States v. Barrett, 937 F.3d 126 (2d Cir. 2019)); and (attempted Hobbs Act robbery.

Taylor reasons that one may attempt Hobbs Act robbery by (i) intending to commit a robbery through a threat of force, and (ii) taking a nonviolent substantial step toward that objective, such as planning the robbery or reconnoitering the target. “Where a defendant takes a nonviolent substantial step toward threatening to use physical force—conduct that …

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Categories: 924(c), Hobbs Act, robbery

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Thursday, October 8th, 2020

Did the Second Circuit Just Read Rule 33 Out of Existence?

Federal Rule of Criminal Procedure 33(a) authorizes a judge to “grant a new trial if the interest of justice so requires.”  This rule has traditionally been understood to “confer[] broad discretion upon a trial court to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.”  United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992).

But in a ruling yesterday, a panel of the Second Circuit held “a district court may not grant a Rule 33 motion based on the weight of the evidence alone unless the evidence preponderates heavily against the verdict.”  United States v. Archer, ___ F.3d ___, 2020 WL 5924196, at *4 (2d Cir. Oct. 7, 2020).  And in reviewing the evidence, the “district court must ‘defer to the jury’s resolution of conflicting evidence'” and consider the “trial evidence as a whole.”  Id. at *5.…

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Tuesday, October 6th, 2020

Keep Fighting Those Mandatory Guideline Sentences

Do you have a client who was deemed a career offender pursuant to the residual clause of the mandatory (pre-Booker) Career Offender Guideline?  If so, keep fighting that sentence!  There are at least a couple ways:

1) If the client has a petition pending under 28 U.S.C. § 2255, make sure to argue the sentence is unconstitutional given Johnson v. United States, 576 U.S. 591 (2015).  That argument is currently foreclosed by Nunez v. United States, 954 F.3d 465 (2d Cir. 2020), but there’s a circuit split on the issue that just deepened: the First Circuit has joined the Seventh in holding Johnson effectively invalidated the residual clause of the mandatory Guideline.  See Shea v. United States, ___ F.3d ___, 2020 WL 5755462 (1st Cir. Sept. 28, 2020).  The Supreme Court refused to resolve this split when the Seventh Circuit was the sole outlier, but …


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Categories: 3582(c)(1)(A), Johnson, mandatory guidelines

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Wednesday, September 30th, 2020

Second Circuit holds that district courts may grant compassionate release on expansive grounds and are not limited to the Sentencing Commission’s criteria.

In United States v. Brooker (Zullo), No. 19-3218, 2020 WL 5739712 (2d Cir. Sept. 25, 2020), the Second Circuit, in an opinion by Judge Calabresi (joined by Judges Winter and Chin), held that the First Step Act of 2018 (“FSA”) empowers district courts evaluating motions for compassionate release to consider any “extraordinary and compelling reasons” for granting release or a sentence reduction, not just those criteria set forth by the Sentencing Commission in guidelines that have been unmodified since the FSA’s passage. The Circuit emphasized that the FSA was intended to expand and expedite compassionate release by allowing defendants to make motions directly to the district courts—thus ending the BOP’s role as the “sole arbiter” of such claims—and by permitting those courts greater discretion in granting release. Accordingly, the Circuit held that the constraints imposed by previously-enacted Sentencing Guideline § 1B1.13 do not apply to compassionate release motions brought …


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Wednesday, September 16th, 2020

Second Circuit: On a motion under the First Step Act, a court isn’t obligated to “recalculate” the Sentencing Guidelines range to account for new Guidelines provisions “or new judicial interpretations of existing Guidelines.” Only Guideline-changes “that flow from the Fair Sentencing Act of 2010” have to be considered. But there’s an acknowledged circuit split. United States v. Moore, __F.3d__, No. 19-1390-cr, 2020 WL 5523205 (2d Cir. Sept. 15, 2020).

In United States v. Moore, No. 19-1390-cr (available here), the Circuit (Nardini, joined by Chin and Sullivan), holds that, on a motion for a sentence reduction under Section 404 of the First Step Act, a court isn’t required to “recalculate” the Guidelines range under the current law, unless (and only to the extent) the Fair Sentencing Act of 2010 changed the Guidelines range.

Here, the district court found Moore eligible for relief under the First Step Act, as indeed he was: he was sentenced in 2009 for  “possessing with intent to distribute more than 5 grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).” Op. at 4.  The district court  nevertheless declined to exercise it’s discretionary authority, under the Act, to reduce the (188-month) sentence. The Circuit affirmed that decision. Op. at 2, 26-27.

Moore’s argument was that the district court miscalculated the Guidelines …


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