Federal Defenders of New York Second Circuit Blog


Friday, August 16th, 2019

Second Circuit Affirms 4-level Enhancement For Using Or Possessing A Firearm “In Connection With Another Felony Offense.”

In United States v. Ryan, No. 17-3919 (2d Cir. Aug. 16), the Circuit affirmed the application of this enhancement under Guideline 2K2.1(b)(6)(B) based on the defendant’s sale of a firearm and drugs in the same transaction to a person to whom he had sold drugs in the past (an informant). The Court held that the firearm sale was “in connection with” the drug sale because it facilitated that sale and future sales. The Court went on to hold that the enhancement would also have been justified under the alternative clause of the Guideline for possessing or transferring a firearm having “knowledge or reason to believe that it would be used or possessed in connection with another felony offense.” The prior sales of drugs to the same buyer gave the defendant “reason to believe” that he was drug dealer and wanted the gun for his business.…

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Second Circuit Remands For Resentencing Because of Uncertainty About Whether the Judge Understood That he Could Consider the Severity of Mandatory Consecutive Minimum Sentences In Sentencing for the Predicate Offenses.

In United States v. Brown, No. 18-834 (2d Cir. Aug. 16, 2019), the Court of Appeals reversed a 39-year sentence and remanded for resentencing because it was uncertain whether the judge understood his discretion, after the Supreme Court’s decision Dean v. United States, 137 S.Ct. 1170 (2017), to consider the severity of the mandatory consecutive minimum sentences required by §924© in determining the sentence for the predicate offenses. The case involved two robberies and two §924(c)brandishing counts, which, before the First Step Act, required 7 years for the first and 25 years for the second §924(c)count. Defense counsel had asked for one day on the predicate robberies because the mandatory consecutive sentences were so severe. Before Dean, the Second Circuit’s decision in United States v. Chavez, 549 F.3d 119 (2d Cir. 2017)had precluded such consideration. Neither case was mentioned below but the court imposed 84 months …


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Categories: 924(c), First Step Act, sentencing

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Thursday, August 15th, 2019

Circuit Upholds, On Good Faith Grounds, A Search Warrant Issued By An Out-of-District Magistrate In Violation of Former Rule 41(b)and 28 U.S.C. §636(a).

United States v. Eldred, No. 17-3367-cr (August 9, 2019) involved a Network Investigative Technique warrant, essentially a government hacking tool that penetrates an anonymous “dark” web site to gain identifying data from computers communicating with the site. The warrant was issued by a magistrate judge in Virginia, but was used to obtain the IP address of a computer in Vermont, which agents subsequently seized. Eldred argued that the warrant was void because it violated the since-amended Federal Rule of Criminal Procedure 41(b) (limiting the authority of a magistrate-judge to issue warrants to persons and property within her district) and 28 U.S.C. 636(a)(limiting the jurisdiction of magistrates to the district in which they sit).

Rule 41 (b) was amended in 2016 to specifically allow this type of warrant. However, the Court acknowledged that the old Rule applied here and that Section 636(a) arguably provided independent statutory ground for suppression in …


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Categories: Fourth Amendment, good faith, Warrants

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Monday, August 5th, 2019

Second Circuit Throws Out § 924(c) Conviction Linked to Conspiracy . . . And Does Other Good Things, Including as to Rehaif

In today’s United States v. Watkins, the Second Circuit (Jacobs, Pooler, Wesley) vacated a conviction for violating 18 U.S.C. § 924(c) in relation to a conspiracy to commit Hobbs Act robbery.  Because § 924(c)’s residual clause is “unconstitutionally vague,” United States v. Davis, 139 S. Ct. 2319, 2336 (2019), a “crime of violence” under § 924(c) is limited to an offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”  Because a conspiracy never fits that bill, “Watkins’s section 924(c)(1)(A) conviction” — and all others based on conspiracy — “must be vacated.”

And in United States v. Prado, the court (Leval, Pooler, Hall) threw out more convictions, this time under the Maritime Drug Law Enforcement Act.  The Coast Guard had intercepted a speed boat in international waters, found three men aboard with …


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Categories: Davis, guilty plea, jurisdiction, Rehaif

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Friday, August 2nd, 2019

Wealthy Defendants Cannot Buy Their Way Out of Jail by Hiring Private Security Guards

In United States v. Boustani, No. 19-1018-cr (2d Cir. Aug. 1, 2019), the Second Circuit held that “the Bail Reform Act does not permit a two-tiered bail system in which defendants of lesser means are detained pending trial while wealthy defendants are released to self-funded private jails.”

Boustani was charged with conspiring to commit wire fraud, securities fraud, and money laundering. He sought bail, proposing conditions that included home confinement under the supervision of private armed security guards, to be paid for by him. The district court denied bail, finding Boustani to pose a risk of flight based on the seriousness of the charges, the lengthy potential sentence, the strength of the evidence, and the defendant’s personal characteristics, which included his “substantial financial resources.” The court also found that no set of conditions would reasonably assure the defendant’s appearances in court. Judge Kuntz specifically noted that releasing Boustani to …

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Thursday, August 1st, 2019

Mandatory Life Sentences for Murders Committed by 18-Year-Olds and Over Do Not Violate the Eighth Amendment

In Miller v. Alabama, 567 U.S. 460, 465 (2012), the Supreme Court held “that mandatory life imprisonment without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishments.” Today, the Second Circuit declined to extend Miller to cover three defendants who were between 18 and 22 when they committed murders and conspiracy-to-murder in aid of racketeering. The Court noted that “the Supreme Court has repeatedly chosen in the Eighth Amendment context to draw th[e] line at the age of 18,” which “is the point where society draws the line for many purposes between childhood and adulthood.”

The Circuit also rejected a separate argument raised by one of the defendants: that his mandatory life sentence was cruel and unusual punishment because his murder convictions were premised on Pinkerton liability, rather than personal commission of the murders.…

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Categories: Eighth Amendment, life

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Wednesday, July 31st, 2019

Circuit Affirms Convictions for Producing and Distributing Child Pornography

United States v. DiTomasso, No. 17-1699 (2d Cir. July 30, 2019), involves a defendant who was convicted after a jury trial of producing and distributing child pornography. On appeal, he argued that the district court should have granted his motion to suppress certain electronic communications found through searches conducted by two Internet service providers (AOL and Omegle), and reported to the National Center for Missing and Exploited Children. He also argued that he should have been granted a hearing on whether his trial attorney was ineffective for not calling a witness (the defendant’s uncle) who supposedly would have confessed that he, not the defendant, was guilty of the charged crimes. The Circuit rejected all the defendant’s contentions and affirmed his convictions.

First, the Court held, the AOL searches did not afford a basis for relief. The district court found that the AOL searches constituted government searches for Fourth Amendment …


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Categories: Fourth Amendment, ineffective assistance of counsel

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Tuesday, July 30th, 2019

Acquit First, Sentence Later?

The Second Circuit, like other federal circuits, has long held that the Due Process Clause permits a sentencing court to take into account conduct for which the defendant was acquitted (so-called “acquitted conduct”). See, e.g., United States v. Vaughn, 430 F.3d 518, 521 (2d Cir. 2005). But the Michigan Supreme Court just held otherwise: “Once acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime.” People v. Beck, No. 152934 (Mich. July 29, 2019).

The Court’s holding was based on the United States Constitution (rather than the Michigan Constitution). Thus, the state of Michigan could reasonably decide to petition for certiorari in the Supreme Court of the United States.

Given this possibility, and the chance that the Supreme Court of the United States will grant review and ultimately agree with Beck, you may wish to …

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Monday, July 29th, 2019

Circuit Affirms Convictions and Sentences for Bitcoin-Related Fraud

In United States v. Lebedev, No. 17-3691(L) (2d Cir. July 26, 2019), defendants Lebedev and Gross challenged their convictions, after a jury trial, of multiple counts arising from their roles in the operation of a Bitcoin exchange and a scheme to use a federal credit union for illegal purposes. Gross also challenged the application of several Sentence Guidelines provisions in imposing his sentence and his order of restitution. The Circuit affirmed.

First, the Court rejected Lebedev’s challenge to the sufficiency of the evidence. The evidence was sufficient to establish wire fraud, the Court held, because a reasonable jury could conclude, inter alia, that Lebedev deprived the victims (certain financial institutions) of “the right to control their assets by mispresenting potentially valuable economic information.” Similarly, the evidence was sufficient to establish bank fraud because a reasonable jury could conclude that Lebedev (1) caused false information to be sent to …

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Wednesday, July 24th, 2019

Is attempted Hobbs Act robbery a “crime of violence” for purposes of § 924(c) after Davis?

In the Second Circuit, a substantive Hobbs Act robbery qualifies as a “crime of violence” for purposes of § 924(c) under its elements (or force) clause, § 924(c)(3)(A). See United States v. Hill, 890 F.3d 51 (2d Cir. 2018). But a conspiracy to commit Hobbs Act robbery does not qualify as a crime of violence for purposes of § 924(c), because United States v. Davis, 139 S. Ct. 2319 (June 24, 2019), invalidated the residual clause of § 924(c)(3)(B) as unconstitutionally vague (and a conspiracy does not qualify under the elements clause).

That leaves the question of whether attempted Hobbs Act robbery qualifies as a § 924(c) crime of violence after Davis. The Second Circuit has not answered this question — i.e., whether attempted Hobbs Act robbery “has as an element the use, attempted use, or threatened use of physical force against the person or property …


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Categories: 924(c), crime of violence, Hobbs Act

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Monday, July 8th, 2019

The Supreme Court Vacates Barrett

The Second Circuit’s decision in United States v. Barrett, 903 F.3d 166 ( 2d Cir. 2018), was vacated by the Supreme Court in a GVR order on June 28, 2019, in light of United States v. Davis, 588 U.S. __, 2019 WL 2649797. Davis held, contrary to Barrett, that the residual clause of 924(c)(3)(B) is void for vagueness. See Blog Post dated June 26, 2019.

In light of the Supreme Court’s order in Barrett, the government has acknowledged that Hobbs Act conspiracy no longer qualifies as a crime of violence under §924(c) because it does not qualify under the “force” or “elements” clause. So §924(c) convictions based on a Hobbs Act conspiracy as the predicate “crime of violence” are invalid. Unfortunately, the Second Circuit held that substantive Hobbs Act robbery  qualifies under the force clause, in United States v. Hill, 890 F.3d 51(2018)


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Categories: 924(c), crime of violence, Hobbs Act

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