Author Archive | Allegra Glashausser

Thursday, September 12th, 2019

EDNY: Officers’ good intentions can’t save unconstitutional general warrant

When agents came to search his business, Mr. Drago asked, why and what crime was being investigated? The agents said, look at the warrant. But…the warrant didn’t say what crime they were investigating. Instead, it completely failed to state any crimes at all. Even the government admitted the warrant was invalid. But, it argued that they didn’t mean to draft an unconstitutional warrant and that they were protected by their good faith intentions.

In a lengthy report and recommendation issued this week, an EDNY magistrate judge rejected that argument. The judge wrote: the “lack of intent to create a bad warrant (or to cover-up that error) does not automatically translate into a finding of objective good faith belief that the conduct was lawful.”  Instead, the conduct of the search was “sufficiently reckless such that no objective officer could have believed that they were acting in good faith.”

A rare defense …

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Wednesday, September 11th, 2019

SCOTUS watch: Is a car stop legal even when the police officer doesn’t see a traffic infraction?

Unfortunately, the Supreme Court might decide that the answer is yes. The Supreme Court has granted cert in a case out of Kansas, in which a police officer ran the license plate of a passing car (for reasons unexplained in the Kansas decision given that there was no traffic infraction) and saw that the registered owner had a suspended driver’s license. Based only on that – and with no information about whether the owner was actually driving – the police pulled over the car. Mr. Glover, who was the owner and did not have a valid driver’s license, was charged with “driving as a habitual violator.”

The Kansas Supreme Court held that the officer did not have reasonable suspicion to pull over the car and suppressed the evidence (which in this case, seems to only be the fact that Mr. Glover was, indeed, driving). That sounds right! But Kansas sought …

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Thursday, May 16th, 2019

Second Circuit: general statute not enough to prove acquired citizenship

Finding valid defenses to illegal reentry charges tends to be challenging. Today, the Second Circuit issued a lengthy summary order in United States v. Lewis that, unfortunately, won’t make it any easier.

Here’s what happened: Mr. Lewis was charged with illegally reentering the United States. The defense planned to argue that Mr. Lewis, who was born in Guyana, was actually a United States citizen because he had acquired citizenship from his father automatically at birth. His father and mother were unmarried, but a Guyanese law “legitimated” all children in Guyana born out of wedlock.

The question was: did this Guyanese law establish “legitimate paternity” for Mr. Lewis? The trial judge said no, prohibited the defense, and instructed the jury that, as a matter of law, Mr. Lewis had not established that he acquired United States citizenship. Unsurprisingly, Mr. Lewis was convicted. He was sentenced to 63 months of imprisonment.

Today, …

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Tuesday, May 14th, 2019

Jenkins II: Circuit Vacates and Remands Child Pornography Sentence, Again

You may remember that, back in April 2017, the Second Circuit vacated a 225-month sentence for a person convicted of the possession and transportation of child pornography as “shockingly high.” In Jenkins I, the Circuit wrote an extensive opinion, chock-full of quotable portions for sentencing memos and appeals, about why the child pornography guidelines can produce “unreasonable results.”

On remand, however, the district court resentenced Mr. Jenkins to 200 months of imprisonment – still an exceedingly long sentence for a first conviction.

On Friday, the Circuit reversed again, this time sending the case to a new district judge. Although Jenkins II is a summary order, it still has potentially useful language about why it is error for a district court to rely on studies or statistics about people convicted of child pornography offenses as a reason to believe that a particular person committed a prior “undetected” offense. As the …


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Friday, September 30th, 2016

Undercover officer liable for denying defendant’s right to a fair trial by fabricating evidence

Anyone trying to convince a judge or a jury that a police officer is lying, have hope! Kwame Garnett always asserted that an undercover officer was lying about his involvement in a drug buy and bust. Unlike many defendants, however, Mr. Garnett was able to convince the judge and jury that he proved that the undercover made up evidence. Not only did a jury acquit Mr. Garnett of state drug charges, but he also successfully sued the undercover officer under 42 U.S.C. §1983, arguing that the officer had denied him a fair trial by fabricating evidence. The jury awarded Mr. Garnett $1 in nominal damages and $20,000 in punitive damages. The undercover officer appealed. Today, in a unanimous opinion written by Judge Pooler, the Second Circuit affirmed the jury verdict.

Supreme Court Alert Reminder

In case you missed the news yesterday:

For everyone litigating Johnson claims based on 18 USC …

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Wednesday, September 28th, 2016

SUNY Trustees Vote to Remove Question about Felony Convictions from Their Applications

Today SUNY voted to remove questions from applications about the applicant’s criminal record. This is an important step towards making access to education easier for people who have been convicted of crimes.

As explained in a detailed report from the New York City Bar Association*, over the past decade, colleges and universities have increasingly included criminal history screenings and exclusionary policies in their admissions processes, even though there is no empirical evidence that students with criminal records pose a greater risk to campus safety than students without criminal records. Often, this process imposes a great burden on applicants with criminal records. Applicants must answer numerous supplemental questions and produce extensive documentation. The process can be daunting and frustrating, and the practical impact is that many of these applicants are either unable to provide the required documentation and simply abandon the application process altogether.

Until now, SUNY which consists of 64 …


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Wednesday, August 17th, 2016

Bronx Assemblyman’s Conviction and Sentence Upheld

In 2014, a jury convicted Eric Stevenson, a former member of the New York state assembly for the Bronx, of accepting bribes to promote a proposal in the state legislature about adult daycare centers. The district court sentenced him to 36 months of imprisonment and a forfeiture of $22,000. Today the Second Circuit affirmed the conviction and sentence.

The circuit court disposed of all of Mr. Stevenson’s substantive arguments in a summary order. It found it wasn’t arbitrary for the district court to deny the attorney’s two-week adjournment request because 26 days was enough time to prepare for trial. It rejected the argument that Mr. Stevenson’s cross-examination was limited for a witness who had used a racial epithet. And it found the evidence of guilt sufficient.

The court also completely rejected Mr. Stevenson’s sentencing arguments in a separate published decision. Mr. Stevenson argued that increasing his offense level by two …

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Wednesday, July 20th, 2016

Second Circuit Updates – July 20, 2016

There were three summary orders from the circuit today.

Remanded again: In United States v. White, the circuit reaffirmed that the district court must consider material post-sentencing conduct when resentencing a defendant. Ms. White’s case had already been remanded by the circuit once before because the district judge did not make factual findings to support a sentence enhancement. At the resentencing, the district court made ambiguous comments suggesting that it was ignoring her post-sentencing rehabilitation. The circuit, therefore, sent Ms. White’s case back to the district judge again. This time, the judge must consider whether the evidence of Ms. White’s rehabilitation merited a reduced term of supervised release.

Two affirmances: In United States v. Galanis, the circuit upheld the district court’s revocation of bail pending trial because there was probable cause that the defendant had continued his criminal activity; and, in United States v. Sturgis, the circuit …


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Thursday, July 14th, 2016

Your emails are a bit safer from the government’s eyes…so long as they are stored outside of the United States

In a big privacy and technology ruling, the Second Circuit vacated an order holding Microsoft in civil contempt for failing to comply with a warrant demanding user content that was stored in Ireland. The circuit concluded that US courts are not authorized to enforce “Stored Communications Act” warrants requesting electronic communications stored abroad. As Judge Lynch pointed out in his concurrence, if Microsoft stores your electronic communications abroad your privacy is now “absolute as against the government,” but, of course, your “privacy is protected against Microsoft only to the extent defined by the terms of their contract.”

And, in other news today, Johnson litigation continues…

Last year, in Johnson v. United States, the Supreme Court held the residual clause of the Armed Career Criminal Act was void for vagueness. Last month, the Supreme Court granted cert in United States v. Beckles to decide whether Johnson applies retroactively to …

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Friday, April 1st, 2016

No, it’s not an April Fools Joke: Solitary Confinement Settlement Approved

solitaryNo opinions or relevant summary orders from the Second Circuit today.

But, big news from SDNY on solitary confinement: Yesterday, Judge Scheindlin approved a settlement in Peoples v. Annucci that will overhaul solitary confinement in New York state prisons. The settlement is about what is called the “SHU,” which is pronounced like “shoe,” and is an abbreviation for “Special Housing Units.” The agreement should, among other things, end this type of solitary confinement for more than 1,100 people, limit the duration of time people have to stay in solitary, and eliminate the use of solitary as punishment for minor violations. Judge Scheindlin wrote that the settlement is the “best example of the power of impact litigation to redress conditions that affect the most vulnerable members of our society.”

It should, however, be noted that while this is a big change, it does not do everything. Some class members objected that …

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Wednesday, March 23rd, 2016

Circuit Affirms Higher Sentences Imposed After Remand and Below-Guidelines Sentence Imposed on Cooperator

Two summary orders today.

First, United States v. Tanaka: To understand this one, a short backstory is needed: In 2010, Mr. Tanaka and Mr. Vilar were sentenced to 60 months and 108 months of prison time, respectively. Both were fined $25,000. Fast forward to 2014, when both men were resentenced after a successful appeal. But, things weren’t better this time around: Mr. Tanaka got 72 months and Mr. Vilar, 120 months. The fine was increased by 400% to $ 10 million. What changed in between? Mr. Tanaka and Mr. Vilar argued nothing…except that they were successful on appeal and had defended themselves against a government civil suit. They argued their increased sentences were vindictive.

However, the Second Circuit disagreed. The court found that their increased sentences were not based on the exercise of their legal rights, but on their “anti-social conduct following their initial sentence.” The court affirmed the …

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