Author Archive | Allegra Glashausser

Yesterday, in Snyder v. United States, the Supreme Court held that 18 USC 666 prohibits bribes to state and local officials, but does not prohibit  gratuities to state and local officials. The difference between a bribe and a gratuity is largely one of timing of the agreement: a bribe is given to a public official to induce them to take future action, while a gratuity is given to a public official to thank them for taking a past action.  (But, note that “rewards” are still covered by Section 666). Applying the statute to gratuities would create “traps for unwary state and local officials.” The court trots out various examples:  “Is a $100 Dunkin’ Donuts gift card for a trash collector wrongful? What about a $200 Nike gift card for a county commissioner who voted to fund new school athletic facilities? Could students take their college professor out to Chipotle …

Today, in Brown v. United States, the Supreme Court held that state drug convictions count as ACCA predicates if they involved a drug that was on the federal drug schedules at the time of the state conviction. In Brown, legislatures had eliminated two substances from the relevant drug schedules – hemp and ioflupane – between the time of the petitioners’ original cases and their ACCA cases. Thus, the state and federal drug schedules did not match at the time of their ACCA cases. The petitioners argued that, under the categorical approach, their prior state cases were not ACCA predicates.

The Supreme Court rejected this argument, finding that the drug schedules at the time of the ACCA conviction are essentially irrelevant. In reaching this decision, Justice Alito highlighted the facts of the petitioners’ prior drug offenses at length, emphasizing that the petitioners had possessed marijuana and cocaine, “not hemp …

Yes, the Second Circuit means it! If the district court doesn’t explain why a special condition of supervised release is required in a particular case, the Circuit will vacate the condition.

Today, yet again, the Second Circuit vacated a condition of supervised release because the district court did not explain the reasons for imposing the condition or make an individualized assessment it was necessary for Mr. Syed. In Mr. Syed’s case the vacated condition was broad electronic and GPS monitoring, without any reasonable suspicion required. In that way Syed is a lot like United States v. Salazar, decided last year.

But, in a broader sense, Syed is just the latest in a string of Second Circuit decisions vacating conditions of supervised release. See also United States v. Alex Oliveras, No. 21-2954 (2d Cir. March 15, 2024), United States v. William Jimenez, No. 21-2954 (2d Cir. March 18, 2024), …

In United States v. Gates, the Second Circuit today affirmed a 45-year sentence for a person with no criminal history, who was convicted of three counts related to sexual exploitation of her child based on five images found on the child’s father’s phone. (Even though the child’s father, unlike Gates, had thousands of additional images of child pornography as well as a criminal history, he received the same sentence as Gates). The Circuit appeared completely unmoved by her argument that her sentence was substantively unreasonable, failing to engage with or even mention any facts about Gates’s personal background.

The Circuit, however, did find that the district court erred in at least two ways. First, the Circuit found that the district court improperly counted a conspiracy count as a separate group. But, the Circuit said, this error was harmless because the offense level was so high that it would still …

This week, in United States v. Daniels, the Fifth Circuit held that a person’s conviction under 922(g)(3) was unconstitutional following Bruen. The facts of Daniels are straightforward: Daniels was found with guns and marijuana in his car and then admitted he was a habitual marijuana user. He was charged and convicted of violating Section 922(g)(3). The Fifth Circuit reversed, holding that history and tradition did not justify disarming a “sober citizen based exclusively on his past drug usage.”

Although 922(g)(3) isn’t a a common charge, there is helpful language in the Daniels opinion for Bruen motions under 922(g)(1). And, the steady drumbeat of 922(g) reversals will hopefully give judges pause in relying on pre-Bruen decisions without a careful analysis.

In Daniels, the government relied on the same language and history that they point to for 922(g)(1) cases. The Fifth Circuit roundly rejected those arguments. The Circuit …

In a big defense win, last week, the Second Circuit reversed Anthony Molina’s conviction of five counts of robbery and brandishing, for two independent reasons. Judge Raggi wrote the decision. First, the Circuit held that the trial court should have conducted a Franks hearing and remanded for the court to hold one. The facts underling this issue are complicated. But, in short, the government conceded that there were errors in the warrant applications – these errors ranged from using the incorrect date of the crime, to attributing phone numbers to the wrong people, to stating there was evidence co-conspirators had communicated close in time to the robberies, when the government did not have evidence of that. The opinion explains in detail how these errors flowed together to give the magistrate the wrong impression about probable cause. Some of the highlights of the decision on this issue:

• The government argued unsuccessfully

Today, in United States v. Lewis, the Second Circuit strongly reaffirmed that the Circuit has no “categorical rule” about Fourth Amendment standing over shared spaces in multi-unit buildings. On the contrary, the Circuit noted that people who live in single-family homes should not have greater Fourth Amendment protections then people in multi-unit buildings. It counseled that courts should use an “individualized approach” to assess a person’s privacy interest over any shared spaces.

Unfortunately for Vashun Lewis, however, the Circuit still found that he hadn’t shown a reasonable expectation of privacy over a back “porch” area that led to a common stairway. (The area described as a porch seems to have been inside the building, although it is not entirely clear from the decision). The Circuit said that Lewis had “neither pointed to any relevant evidence nor made any arguments pertinent to his reasonable expectation of privacy over the porch.”…

In 2004, Lawrence Savoca was convicted for using a gun during an attempt to commit Hobbs Act robbery. Since Johnson was decided in 2016, he has been trying to get this 924(c) conviction vacated in lengthy litigation involving three trips to the Second Circuit. First, the Circuit granted his request to file a successive habeas petition. But then the district court dismissed his motion, holding that it wasn’t based on a new rule of constitutional law. Second, Savoca appealed and the Second Circuit affirmed.

But, Savoca (and Ed Zas of the Federal Defenders) wasn’t done. After the Supreme Court decided Taylor, Savoca filed a rehearing petition. Yesterday, in a third ruling on this case, the Second Circuit vacated their original decision about 924(c) and remanded to the district court.

Unfortunately for Savoca though, he hasn’t fully won, at least not yet. Even though the Supreme Court has made …

Yesterday, in United States v. Cherimond, the Second Circuit remanded a sentence for the defense to make a fuller objection.

Here’s what happened: at sentencing, the district court upwardly departed based on pending and dismissed charges. Defense counsel objected to the departure and added that the defense was “not consenting or conceding to the allegations of fact in any of those cases.” Counsel said this in a few different ways: it was “not conceding any of the factual recitations are accurate,” and later that the defense had “said repeatedly we’re not conceding.” It seems clear, right? The defense objected. But – at one point, counsel said that “certainly the Court can take [the allegations] into account if it wants.” Counsel then again said that it “wouldn’t be appropriate” to do so.

On appeal, the Circuit discussed counsel’s comments at some length, saying counsel “signaled an objection,” but also “appeared …

After a trial, Anael Sainfil was convicted of bank robbery on a theory that he was the lookout, who stayed outside the bank. At sentencing, the court enhanced his guidelines because a co-conspirator, who entered the bank, wore a bulletproof vest. On appeal, two judges upheld the enhancement, saying that even though Mr. Sainfil didn’t know about the bulletproof vest, it was foreseeable that someone would wear a bulletproof vest during an armed robbery.

Judge Jacobs dissented, saying that the majority “sweeps too broadly” by essentially holding that is is always foreseeable that someone else may wear body armor. Jacobs writes: “True, body armor is not (yet) a fashion statement and is rarely (if ever) worn when there is no risk of gunfire. But that does not mean that whenever there is a risk of gunfire the use of body armor follows.” According to Jacobs, the majority “reduces reasonable foreseeability …