Federal Defenders of New York Second Circuit Blog


Friday, July 30th, 2021

A district court may consider the defendant’s future earning potential to conclude that the defendant is “non-indigent” and thus subject to the mandatory $5,000 “special assessment” under 18 U.S.C. § 3014(a)

Section 3014(a) of Title 18, enacted as part of the Justice for Victims of Trafficking Act of 2015 (“JVTA”), requires district courts to impose a $5,000 special assessment on “non-indigent” persons convicted of certain sex- and trafficking-related offenses.1 Carlos Rosario is an indigent person represented by this Office. After he pleaded guilty to three qualifying offenses, the district court considered his future earning capacity, concluded that he was “non-indigent” in light of that capacity, and imposed the $5,000 special assessment. Rosario argued on appeal that this was error.

The Circuit affirms Rosario’s sentence. United States v. Rosario, No. 20-2268 (2d Cir. July 29, 2021). Writing for himself and Judge Sack, Judge Park concludes that “the ordinary meaning of ‘indigent’ encompasses not only a lack of present resources, but also includes a forward-looking assessment of the defendant’s ‘means’ or ability to pay.” This reading, moreover, is consistent with “all …

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A substance can be an “analogue” of fentanyl for purposes of 21 U.S.C. § 841(b)(1)(B)(vi) — requiring a 5-year minimum sentence where the offense involved “10 grams or more of a mixture or substance containing a detectable amount of any analogue of” fentanyl — even if it does not qualify as a “controlled substance analogue” under 21 U.S.C. § 802(32).

Torri McCray was charged under 21 U.S.C. § 841(b)(1)(B)(vi) for distributing 10 grams or more of “butyryl fentanyl,” an analogue of fentanyl under the ordinary meaning of the term “analogue.” As Webster’s New Collegiate Dictionary puts it, an “analogue” in the relevant chemistry context is “a chemical compound structurally similar to another but differing often by a single element of the same valence and group of the periodic table as the element it replaces.”

Everyone, including McCray, agrees that butyryl fentanyl is an analogue of fentanyl under this definition. And if this definition governed for purposes of § 841(b)(1)(B)(vi), then McCray would be subject to a 5-year mandatory minimum: Such a sentence is required when the defendant distributes “10 grams or more of a mixture or substance containing a detectable amount of any analogue of” fentanyl.

But McCray disagrees that the ordinary definition of “analogue” applies to § 841(b)(1)(B)(vi). He …

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District court’s egregious flouting of long-established procedures regarding a jury note and a proposed Allen charge does not constitute “plain error” because its mistakes did not prejudice the defendant

In United States v. Catherine Melhuish, No. 19-485 (2d Cir. July 27, 2021) (opinion by Judge Nardini, joined by Judges Walker and Wesley), the Circuit rejects the defendant’s argument that the trial judge erred in responding to a jury note and in proposing an Allen charge during deliberations; concludes that 18 U.S.C. § 111, prohibiting the assault of a federal officer, is a general-intent offense; and remands for further fact-finding on the defendant’s claim that trial counsel rendered ineffective assistance by failing to introduce evidence supporting an insanity defense. The first is worth discussing.

The principal issue is the trial judge’s egregious refusal to follow the Circuit’s long-established procedures for how to deal with jury notes and supplemental instructions during deliberations. These are the steps that a trial judge must follow:

(1) the jury inquiry should be in writing; (2) the note should be marked as the court’s exhibit …

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Thursday, July 29th, 2021

Panel upholds 40-year prison sentence for Hizballah “sleeper agent” who did not injure anyone or engage in violence; Judge Pooler dissents on the ground that the Guidelines’ terrorism enhancements yield inappropriately high ranges that can result in sentences that, like this one, “shock[] the conscience.”

Ali Kournai was a “sleeper agent” working on behalf of Hizballah1 and the Islamic Jihad Organization (IJO) in the United States and Canada for over a decade. In United States v. Kourani, No. 19-4292 (2d Cir. July 27, 2021) (opinion by Judge Cabranes, joined by Judge Kearse), the Circuit affirms the judgment below, rejecting Kourani’s challenges to his conviction following trial as well as to his 480-month sentence.

Judge Pooler agrees that “Kourani received a fair trial and was properly adjudicated guilty by a jury.” But she dissents on the punishment: Although “[h]is crimes were undeniably serious” and “[i]t is not lost on me that Kourani’s actions could have culminated in far more injurious results,” she explains, “[n]evertheless, they did not, and accordingly, the sentence imposed is disproportionately high.”

Here are the relevant facts as recounted by Judge Cabranes; whether 40 years is “unreasonably long” is the principal …

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District court lacks jurisdiction to amend a clerical error in the judgment (under Rule 36) while an appeal is pending from the court’s denial of a prior Rule 36 motion

In an opinion by Judge Kearse, the Circuit ruled in United States v. Jacques, No. 20-1762(L) (2d Cir. July 26, 2021), that a district court lacks authority under Rule 36 (of the Federal Rules of Criminal Procedure) to correct a clerical error in the judgment while an appeal is pending in the Circuit from the court’s denial of the defendant’s prior Rule 36 motion. This simply applies the general rule that “the filing of a notice of appeal confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Op. 14.

Although Rule 36 states that the court “may at any time correct a clerical error in the judgment,” the Circuit reads this as “meant literally in the temporal sense, rather than in a situational sense.” That is, Rule 36 empowers a court to correct …

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Tuesday, July 20th, 2021

But is it one conspiracy? And is it securities fraud?

The answer to those questions is pretty much always “yes.” In United States v. Khalupsky, Nos. 19-197-cr, 19-780-cr (2d Cir. July 19, 2021), the Second Circuit affirmed the trial convictions of two defendants, rejecting various legal challenges. According to the circuit, the evidence at trial established that the defendants participated in a multi-year scheme to use stolen pre-publication press releases to make securities trades. Specifically, “hackers in Ukraine” “hacked into three newswires” that disseminated press releases for publicly traded companies, and passed those press releases to an intermediary (Dubovoy) before they were published. This intermediary then equipped and funded each defendant for trading, and gave them access to the releases. The defendants traded, kept a percentage of trading profits for themselves, and passed the rest back to Dubovoy.

On appeal, the defendants argued that there was not sufficient evidence to establish the existence of the single charged conspiracy, since …


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Categories: conscious avoidance, conspiracy, constructive amendment, securities law

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Second Circuit rules no double jeopardy violation to admit the same evidence of a cocaine conspiracy that resulted in acquittal in the first trial to prove a RICO conspiracy in a second trial.

In United States v. Hicks, No. 19-590 (2d Cir. July 16, 2021), the defendant was tried for conspiracy to distribute marijuana, conspiracy to distribute cocaine and cocaine base, a 924(c) violation, and a RICO conspiracy. He was convicted of the marijuana conspiracy but acquitted of both the conspiracy to distribute cocaine and cocaine base and the 924(c) count. The jury hung on the RICO conspiracy count, which was retried. At the second trial, the government relied “on substantially the same evidence” as it presented in the first trial, including “the same evidence that it had used unsuccessfully in the first trial to convict Hicks of engaging in a cocaine conspiracy.” The defense objected to this on double jeopardy grounds, but the second jury was allowed to convict on this evidence.

The Second Circuit held there was no double jeopardy violation. First, it held that double jeopardy did not bar …


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Second Circuit holds that the district court is not required to consider the sentencing factors of 18 U.S.C. §3553(a) in deciding whether to reduce a sentence under §404 of the First Step Act.

In United States v. Moyhernandez, No. 20-625 (2d Cir. July 15, 2021), a split panel of the Second Circuit held that a district judge need not consider the sentencing factors of section 3553(a), deepening a Circuit split. (Jacobs, Park in the majority, Pooler dissenting) The district court denied defendant’s motion for a reduction in a 360-month sentence for a conspiracy to distribute crack cocaine, after concluding that he was eligible for relief under the First Step Act.

The original sentence was imposed under the mandatory career offender guideline and the sentencing judge made clear at the time that he would have imposed a lower sentence if not for the mandatory guideline. In the defendant’s  motion for a  reduced sentence, he urged the new judge to consider the §3553(a) factors and exercise her discretion to impose a lower sentence. In denying the motion because of the defendant’s lengthy record …

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Monday, July 19th, 2021

Second Circuit reverses a suppression order, applying “special needs doctrine” to uphold a parole officer’s search of parolee’s house without reasonable suspicion.

In United States v. Braggs, No. 20-892 (2d Cir. July 13, 2021), the Second Circuit reversed the suppression of guns and drugs found in a search of defendant’s house by his New York state parole officer. The search was based on an anonymous tip that “Mr. Braggs may have guns in his house.” The District Court for the Western District of New York suppressed the evidence, as well inculpatory statements made during subsequent police questioning at his house, on the ground that the search was not based on reasonable suspicion. The district court relied on the State Department of Corrections and Community Supervision directive requiring essentially a reasonable suspicion standard for such a search, and Samson v. California, 547 U.S. 843 (2006), which tied the parameters of a search of a state parolee to the consent required of as a condition of parole.

The Second Circuit ruled that …


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Friday, July 16th, 2021

Second Circuit holds there is no right to counsel on an appeal from a compassionate release motion, but an appeal is not frivolous unless it “lacks an arguable basis in law or fact.”

In United States v. Fleming, No.  20-1776 (2d Cir. July 14) an appeal from a denial of compassionate release, the Second Circuit granted a motion to be relieved filed by counsel , but denied the government’s motion for summary affirmance on the ground that the appeal was not frivolous. The motion was an Anders motion filed on the ground that there was no non-frivolous legal argument to be made that the district court abused its discretion under the Brooker standard in denying the motion, where it weighed the factors on the record and concluded that the defendant’s age and health condition (45 years old with asthma) in the context of a Covid-19 outbreak weighed only slightly in favor of release, but was outweighed by the  3553(a) factors, specifically the defendant’s record of violent crime, danger to the community, and protection of the public, and the fact that he had …


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Monday, July 12th, 2021

The Second Circuit holds that the concurrent sentence doctrine applies when a defendant collaterally challenges the legality of a conviction, under 28 U.S.C. § 2255, and declines to review the § 2255 appeal. Kassir v. United States, No. 19-1477, __F.3d__ (2d Cir. July 9, 2021) (C.J.J. Jacobs, Nardini).

The Circuit applies the “discretionary” concurrent sentence doctrine because the petitioner’s 2255 motion attacked only a single count of conviction, that resulted in a 20-year sentence that is concurrent to “two terms of life in prison” on counts unchallenged. The Circuit said it was exercising its discretion “to decline” to review Mr.  Kassir’s 2255 appeal (challenging the validity of a conviction) because “[e]ven  if  his challenge were successful, our decision would  not shorten the time Kassir must remain in custody because he remains subject to two concurrent life sentences[.]” Op. at 2-3.

The Circuit holds, however, that  if, in the future, the petitioner is able to challenge his two life sentences, he may renew his 2255 challenge to the concurrent 20-year sentence. Op at 25-27.

I. The Circuit avoids deciding (i) whether Dimaya and Davis established a new rule of constitutional law, retroactive to cases on collateral review; or


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Categories: 2255, concurrent sentence doctrine, Davis, Dimaya, habeas corpus, harmless error, Johnson

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