Federal Defenders of New York Second Circuit Blog


Friday, May 7th, 2021

Second Circuit: 21 U.S.C. § 848(e)(1)(A) Is Not A “Covered Offense” For Purposes Of First Step Act Resentencing.

In United States v. Gilliam, the Second Circuit (Nardini, joined by Katzmann and Wesley), held that drug-related murder, in violation of 21 U.S.C. § 848(e)(1)(A), is not a “covered offense” for purposes of First Step Act resentencing.

Gilliam killed a rival drug dealer and pleaded guilty to § 848(e)(1)(A), which punishes “any person engaging in an offense punishable under [21 U.S.C. § 841(b)(1)(A)] … who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results.” The district court (Gleeson, EDNY) sentenced him to 528 months.

Gilliam moved for a sentence reduction under § 404(b) of the First Step Act, which provides: “A court that imposed a sentence for a covered offense may … impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act … were in effect at the time the covered offense was committed.” …

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Thursday, April 22nd, 2021

Second Circuit Holds that Attempted Hobbs Act Robbery Is a § 924(c) “Crime of Violence.”

The Circuit ruled today in United States v. McCoy, No. 17‑1315(L) (Kearse, Parker, and Sullivan, JJ.), that the crime of attempting to commit a Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), remains a “crime of violence” under 18 U.S.C. § 924(c), even after United States v. Davis, 139 S. Ct. 2319 (2019). The Circuit had previously held that a completed Hobbs Act robbery is a “crime of violence,” United States v. Hill, 890 F.3d 51 (2d Cir. 2018), but that a conspiracy to commit Hobbs Act robbery is not, United States v. Barrett, 927 F.3d 126 (2d Cir. 2019).

In McCoy, the Circuit rejected the defendants’ argument that attempted Hobbs Act robbery, like conspiracy to commit Hobbs Act robbery, does not qualify as a “crime of violence” because it does not necessarily have “as an element the use, attempted use, or threatened …


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Categories: crime of violence, Davis, Hobbs Act

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Tuesday, April 20th, 2021

Second Circuit upholds conviction for insider trading. United States v.  Chow, No. 19-0325, __F.3d__, 2021 WL 1256649 (2d Cir. Apr. 6, 2021) (C.J.J. Kearse, Carney, Bianco).

Benjamin Chow was a high ranking corporate officer at a couple of Chinese State-owned firms that, in 2016, tried to acquire Lattice Semiconductor Corporation, a manufacturer of a type of semi-conductor used in smart-phones. Op. 4, 5. Mr. Chow was alleged to have tipped off someone he knew, named Michael Yin, about the progress of the negotiations to acquire Lattice. Op. at 4-9 . During a 4-month period from July to November 2016, Yin traded on Lattice stock, purportedly based on this information, and made $5 million. Id. at 15.

A jury convicted Benjamin Chow of one count of conspiracy to commit securities fraud, in violation of 18 U.S.C. § 371; one count of securities fraud, in violation of 18 U.S.C. §§ 1348 and 2; and six counts of insider trading, in violation of 15 U.S.C. §§ 78j(b) and 78ff, 17 C.F.R. §§ 240.10b-5 and 10b5-2, and 18 U.S.C. § …


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Categories: insider trading, jury instructions, sufficiency, venue

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Monday, April 19th, 2021

Supreme Court Grants Review to Clarify Rules Governing Forfeiture or Waiver of Constitutional Right to Confront Witnesses

The Supreme Court granted certiorari today in Hemphill v. New York (No. 20-637), to resolve the following question: “Whether, or under what circumstances, a criminal defendant who opens the door to responsive evidence also forfeits his right to exclude evidence otherwise barred by the Confrontation Clause.”

The facts are straightforward. In 2006, someone fired a 9- millimeter handgun during a melee in the Bronx, killing a child in a passing car. When Hemphill was tried for the crime, he contended that the shooter was another man at the scene, Nicholas Morris. As part of that defense, Hemphill elicited testimony that the police had recovered a 9-millimeter cartridge on Morris’s nightstand hours after the shooting. The State then successfully moved to introduce a guilty plea from Morris in which he said he possessed a different gun—a .357 revolver—at the scene of the shooting. The New York courts rejected Hemphill’s claim that …


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Categories: Confrontation Clause, Sixth Amendment

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Friday, April 16th, 2021

Second Circuit holds that the First Step Act provision limiting the sentencing enhancement based on a prior drug offense does not apply retroactively at a First Step Act resentencing.

In 2007, Charles Bryant was convicted of conspiracy to distribute 50 grams or more of crack. Since he had a prior conviction for a felony drug offense, he faced a mandatory minimum term of 240 years. The district court sentenced him to 300 months.

In 2018, § 404(b) of the First Step Act (“FSA”) made Mr. Bryant eligible for a reduced sentence. A separate section of the FSA, § 401(a) limited the application of the sentence enhancement provision to cases where the defendant has a prior conviction for a “serious drug offense.” However, § 401(c) states that § 401(a) applies retroactively only “if a sentence for the offense has not been imposed as of [the] date of enactment.” Therefore, the district court ruled, the new § 401(a) did not apply to Mr. Bryant because he had already been sentenced in 2007. Nevertheless, because his current conviction would be a lesser …


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Categories: First Step Act of 2018

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The Supreme Court holds that when the police shoot the driver of a car, that is a “seizure” even if the wounded motorist manages to drive away.

In Torres v. Madrid, decided on March 25, 2021, the Supreme Court determined that a seizure takes place for Fourth Amendment purposes when the police shoot someone who is escaping from the scene, even if her escape is successful.

The context for this decision was a § 1983 lawsuit by Roxanne Torres alleging that the police used excessive force when they seized her. The police approached her suv, and she started to drive away. The two officers fired 13 shots, wounding her twice, but she continued to drive. The district court and the 10th Circuit ruled that because the police had not touched Ms. Torres or succeeded in getting her to stop, there had not been a seizure. Therefore, she could not bring a claim that the police used excessive force during a seizure.

The Supreme Court reversed by a 5 to 3 vote. In an opinion by Chief …

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Second Circuit examines the elements of aggravated identity theft – was this case overcharged?

In US v. Dumitru, decided March 22, 2021, an immigration attorney was convicted after trial of asylum fraud, making false statements, and aggravated identity theft. She was sentenced to 60 months. The attorney’s alleged conduct was that she falsely filled out asylum applications on behalf of her clients and also signed and notarized those applications with her clients’ names without showing them the applications or obtaining consent.

The principal issue on appeal was whether the evidence was sufficient to prove identity theft, i.e., did the defendant use a means of identification (here a signature) without lawful authority to aid in the commission of the fraud offense. The Circuit held that the evidence was sufficient.

Signing her clients’ names without permission, and using those forged signatures to represent to the immigration authorities that her clients were requesting government action based on the false information in the applications, sufficed to prove …

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Thursday, April 15th, 2021

A Reminder to Request Complaints Against Police Officers

As Judge McMahon recently reminded in Fraser v. City of New York, 2021 WL 1338795 (S.D.N.Y. Apr. 9, 2021), defendants in criminal cases should always ask the government to comply with its multiple obligations under Brady v. Maryland, 373 U.S. 83 (1963), by turning over all complaints against police officers involved in the case.

Jawaun Fraser wrongfully served two years in New York state prison after being convicted of robbery on the testimony of police officers sued numerous times for testifying falsely.  Both the prosecutor and officers had withheld information about several of those suits, and upon learning this Fraser succeeded in getting his conviction thrown out.  The state did not appeal that ruling or re-prosecute Fraser for robbery (he instead pleaded guilty to disorderly conduct, which is not even a misdemeanor).  Fraser then sued for damages in federal court, where the officers moved to dismiss the complaint …

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Thursday, March 4th, 2021

En Banc Second Circuit: New York First-Degree Manslaughter Is An ACCA/Guidelines Crime Of Violence.

In United States v. Scott, the en banc Second Circuit held that New York first-degree manslaughter, in violation of N.Y. Penal Law § 125.20(1) (applicable to one who “with intent to cause serious physical injury to another person, … causes the death of such person or of a third person”), is a categorical crime of violence under the force clauses of ACCA, 18 U.S.C. § 924(e)(2)(B)(i), and the career-offender Guideline, U.S.S.G. § 4B1.2(a)(1).

Scott was sentenced pursuant to ACCA and the career-offender Guideline based, in part, on two prior New York first-degree manslaughter convictions. Following Johnson v. United States, 576 U.S. 591 (2015), the district court (Swain, SDNY) granted Scott’s 28 U.S.C. § 2255 motion and resentenced him. The district court concluded that New York first-degree manslaughter does not categorically involve the “use” of violent physical force, as required by §§ 924(e)(2)(B)(i) and 4B1.2(a)(1), because under New York …

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Categories: ACCA, career offender, Johnson

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Wednesday, March 3rd, 2021

Second Circuit: Completion of Prison Sentence Moots Appeal from Denial of Compassionate Release Motion

In United States v. Chestnut, the Second Circuit (Sullivan, joined by Cabranes and Raggi) dismissed as moot a defendant’s appeal from the denial of his compassionate release motion, where the defendant had completed his sentence, and had “neither requested that the district court reduce his term of [supervised release] nor advanced any arguments to suggest that such a reduction is warranted.”

Chestnut sought compassionate release based on (i) his need to care for his children after their removal from their mother’s custody; and (ii) his medical conditions, which placed him at risk of severe illness from COVID-19. The district court (Daniels, SDNY) denied the motion. While Chestnut’s appeal was pending, he was released from BOP custody.

The Circuit concluded that the appeal was moot because Chestnut only sought a reduced prison sentence, and his prison sentence was now complete. In some cases, the Circuit said, “an appeal challenging a …

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Monday, March 1st, 2021

Attempted Bank Robbery: Good News and Bad News

Do you have a client challenging a charge or conviction for attempted bank robbery in violation of 18 U.S.C. § 2113(a) and/or gun possession in relation to that crime in violation of § 924(c)?  Well, there’s good news and bad news.

First, the bad news: a two-judge panel of the Second Circuit has ruled attempted bank robbery — specifically, attempted robbery “by force and violence, or by intimidation,” § 2113(a) — is a “crime of violence” under § 924(c).  See Collier v. United States, No. 17-2402, ___ F.3d ___ (2d Cir. Mar. 1, 2021) (available here).

But now the good news: the panel based its ruling on “the text of the attempt crime that is set forth in § 2113(a), which expressly requires that the attempted taking — like the completed crime — be perpetrated ‘by force and violence, or by intimidation.'”  Slip Op. at 4.  Again: § …

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