Author Archive | Allegra Glashausser

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, …

Posted by Allegra Glashausser
Categories: illegal reentry

Posted By Allegra Glashausser
Categories: illegal reentry

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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 …

Posted by Allegra Glashausser
Categories: 3553(c), child pornography

Posted By Allegra Glashausser
Categories: 3553(c), child pornography

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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

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 …

Posted by Allegra Glashausser
Categories: criminal history

Posted By Allegra Glashausser
Categories: criminal history

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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 …

Posted by Allegra Glashausser
Categories: double counting

Posted By Allegra Glashausser
Categories: double counting

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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 …

Posted by Allegra Glashausser
Categories: bail, recusal, rehabilitation

Posted By Allegra Glashausser
Categories: bail, recusal, rehabilitation

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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 …

Posted by Allegra Glashausser
Categories: Johnson

Posted By Allegra Glashausser
Categories: Johnson

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Friday, April 1st, 2016

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

No 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 …

Posted by Allegra Glashausser
Categories: Uncategorized

Posted By Allegra Glashausser
Categories: Uncategorized

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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 …

Posted by Allegra Glashausser
Categories: Uncategorized

Posted By Allegra Glashausser
Categories: Uncategorized

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Wednesday, March 16th, 2016

Second Circuit Updates – March 16, 2016 – Home Confinement as Condition of Supervised Release, Sentencing Enhancement for Using Gun in a Robbery, Scope of Cross Examination

Three short summary orders today:

First up, United States v. Fiume: In this case, the sentencing court imposed “GPS tracking” as a condition of Mr. Fiume’s supervised release, but never stated that it was also imposing home detention, a “separate and additionally burdensome condition.” Nonetheless, a condition of home detention appeared in Mr. Fiume’s written judgment. The circuit vacated the home detention condition and remanded for the written judgment to be corrected. The circuit otherwise upheld Mr. Fiume’s 10-month prison sentence as reasonable.

Next up, another sentencing case, United States v. Crum. Here, Mr. Crum argued that the sentencing court should not have enhanced his weapon possession sentence on the basis that the weapon had been used in a robbery. The circuit disagreed, finding the enhancement was not clearly erroneous based on a witness’s 911 calls about a gunpoint robbery by two men, one wearing black and one …

Posted by Allegra Glashausser
Categories: cross-examination, sentencing, supervised release

Posted By Allegra Glashausser
Categories: cross-examination, sentencing, supervised release

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