Navigation

Author Archive | Anthony O'Rourke

Friday, October 27th, 2017

A Bizarre Entrapment-by-Estoppel Case

Today in United States v. Georgescu—a case with truly peculiar facts—the Second Circuit upheld a somewhat unorthodox jury instruction on the entrapment-by-estoppel defense. This defense is available when “a government agent authorizes a defendant to engage in otherwise criminal conduct and the defendant, relying thereon, commits forbidden acts in the mistaken but reasonable, good faith believe that he has in fact been authorized to do so.” United States v. Gil, 297 F.3d 93, 107 (2d Cir. 2002) (internal quotation marks and alterations omitted). In Georgescu, the Circuit decided by summary order that the district court did not err by additionally instructing that “the defendant must prove that affirmative conduct or statements of a government official caused him in good faith to believe that he was authorized to engage in the charged conduct.” Opening Brief at 15. This instruction, though understandable in the context of Georgescu, may …

Posted by
Categories: entrapment by estoppel, jury instructions

Posted By
Categories: entrapment by estoppel, jury instructions

Continue Reading
Monday, October 16th, 2017

Today’s Cert. Grants

Today the Supreme Court granted certiorari in two criminal cases:

Dahda v. United States, No. 17-43
Question Presented: Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.

Cert. papers and opinion below available here:

Dahda v. United States

Currier v. Virginia, No. 16-1348
Question Presented: Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the Double Jeopardy Clause to the issue preclusive effect of an acquittal.

Cert. papers and opinion below available here:

Currier v. Virginia

Based on the cert. petitions — but not verified by independent research — it appears that the Second Circuit has not weighed in on the question presented in either case.…

Posted by
Categories: double jeopardy, wiretaps

Posted By
Categories: double jeopardy, wiretaps

Continue Reading
Friday, October 13th, 2017

What Does a Guilty Plea (Inherently) Waive?

It’s been a slow criminal law week in the Second Circuit. Last week, however, the Supreme Court heard oral argument in Class v. United States on the question of “[w]hether a guilty plea inherently waives a defendant’s right to challenge the constitutionality of his statute of conviction.” The stakes of this decision may be low in the plea bargaining context, where the government can insist on a waiver of the right to challenge the constitutionality of the charged offense. When the defendant takes an open plea, however, the inherent waiver question matters.

Interestingly, the petitioner’s certiorari petition highlights an apparent conflict in the Second Circuit’s case law on this question.

From the petitioner’s brief:

“In United States v. Curcio, 712 F.2d 1532 (2d Cir. 1983), Judge Friendly’s opinion for the court correctly summarized the Blackledge/Menna rule: “[A] defendant who has been convicted ona plea of guilty may challenge his …

Posted by
Categories: waiver

Posted By
Categories: waiver

Continue Reading
Friday, October 6th, 2017

Judge Engelmayer Issues a Significant 404(b) Opinion

Yesterday, Southern District Judge Paul Engelmayer issued a carefully reasoned and highly instructive opinion holding that a defendant’s prior drug offenses were inadmissible under Fed. R. Evid. 404(b) to prove his intent to distribute crack cocaine. The short opinion, available here, is a must-read.

The defendant in United States v. Robinson, 17-cr-249, is charged with one count of possessing crack cocaine with intent to distribute. He concedes that he possessed an 18-gram rock of crack cocaine, but argues that the possession was for personal use. To rebut this argument, the government sought to introduce the defendant’s four prior, crack-related convictions. Judge Engelmayer determined, however, that these convictions were not sufficiently similar to the charged conduct to be admissible.

Rule 404(b)(1) provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the …

Posted by
Categories: drug distribution, intent, rule 404(b)

Posted By
Categories: drug distribution, intent, rule 404(b)

Continue Reading

Recent Cert. Grants

The Supreme Court granted certiorari on a number of criminal cases in orders from its September 25 conference. The details are below, courtesy of Sentencing Resource Counsel:

City of Hays, Kansas v. Vogt, No. 16-1495
Question Presented: Whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.

Cert papers and opinion below available here:
http://www.scotusblog.com/case-files/cases/city-hays-kansas-v-vogt/

Collins v. Virginia, No. 16-1027
Question Presented: Whether the Fourth Amendment’s automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Cert papers and opinion below available here:
http://www.scotusblog.com/case-files/cases/collins-v-virginia/

Byrd v. United States, No. 16-1371
Question Presented: Does a driver have a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is …

Posted by
Categories: certiorari, due process, Fifth Amendment, Fourth Amendment, plain error, probable cause

Posted By
Categories: certiorari, due process, Fifth Amendment, Fourth Amendment, plain error, probable cause

Continue Reading
Friday, September 29th, 2017

Abu Ghayth and the Material Support Statute

In a summary order, the Second Circuit upheld the convictions of Sulaiman Abu Ghayth (a son-in-law of Osama Bin Laden) for offenses including conspiracy to murder Americans and providing material support for terrorist activities.  The outcome is unsurprising, but the decision nevertheless offers some hope for differently situated defendants charged under the material support statute, 18 U.S.C. § 2339A.

The order, available here, serves as a troubling reminder of the potential breadth of the material support statute. Abu Ghayth’s material support conviction was based on his speeches in the wake of September 11 urging Muslims to fight for Al Qaeda and threatening attacks on “new American targets.” Slip op. at 8. The Circuit rejected a sufficiency-of-the-evidence challenge to this conviction, and observed that “speech alone” can serve to establish a material support violation. Id. at 7 (quoting United States v. Rahman, 189 F.3d 88, 116-17 (2d Cir. 1999)). …

Posted by
Categories: aiding and abetting, conspiracy, jury charge, jury instructions, material support statute, plain error, prejudice, sufficiency, summary order, terrorism

Posted By
Categories: aiding and abetting, conspiracy, jury charge, jury instructions, material support statute, plain error, prejudice, sufficiency, summary order, terrorism

Continue Reading
Tuesday, September 26th, 2017

Second Circuit Reverses Skelos Convictions

In a relatively lengthy summary order, the Second Circuit reversed Dean and Adam Skelos’s convictions in light of the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2016). The order is available here.

Dean Skelos and his son were convicted under the Hobbs Act and the honest services and federal bribery statutes. Each of their charged offenses included the performance of an “official act” as an element. The district court’s jury instructions provided that an “official act” does “not need to be specifically described in any law, rule, or job description, but may also include acts customarily performed by a public official with a particular position.” Sum. Order at 3. Consistent with this definition, a government witness testified that the “official duties” of a state senator included “assist[ing] individuals or companies in getting meetings with state agencies.” Id. at 11. Subsequent to trial, the …

Posted by
Categories: bribery, harmless error, Hobbs Act, honest services fraud

Posted By
Categories: bribery, harmless error, Hobbs Act, honest services fraud

Continue Reading
Thursday, September 21st, 2017

Anthony Weiner’s Sentencing Memo

The Second Circuit’s most recent criminal opinions involve rather boutique issues. The Circuit has addressed, for example, whether a bail bond forfeiture must be vacated if a defendant dies while his appeal his pending (no), and whether the Circuit has jurisdiction to review a conviction when the defendant writes in the administrative section of the appeal form that he only seeking review of his sentence (yes).

Meanwhile, in the Southern District, Anthony Weiner’s attorneys have filed an interesting and detailed sentencing memorandum. The memo is instructive to attorneys representing defendants in child pornography cases. Of particular interest is the memo’s exhaustively researched argument section. Part I argues that the Guidelines provide an unreliable benchmark for determining the appropriate sentence in child pornography cases. Part II.A identifies aggravating factors that are often present in child pornography cases but which are absent from this case. The case discussion in …

Posted by
Categories: child pornography, forfeiture, sentencing, sentencing findings, sex offenses

Posted By
Categories: child pornography, forfeiture, sentencing, sentencing findings, sex offenses

Continue Reading
Tuesday, September 12th, 2017

New Circuit Opinion on Old Career Offender Residual Clause

Yesterday the Circuit re-decided United States v. Jones. The panel held that in light of the Supreme Court’s recent decision in United States v. Beckles, armed New York first-degree robbery is categorically a crime of violence under the residual clause of the pre-2016 Career Offender Guideline. See U.S.S.G. § 4B1.2 (2015). (The Guidelines have since been amended to remove the residual clause.) The opinion is available here.

In a concurring opinion, two of the panel’s three judges confirmed that New York robbery is not a violent felony under ACCA’s elements clause. Specifically, the concurrence observed that the Circuit’s decision in United States v. Spencer, 955 F.2d 814, 820 (2d Cir. 1992), which had held that New York attempted third-degree robbery was a crime of violence under the Career Offender Guideline’s elements clause, had been “abrogated” by Johnson v. United States, 559 U.S. 133 (2010) (“2010 Johnson…

Posted by
Categories: career offender, categorical approach, crime of violence, Johnson, robbery, sentencing

Posted By
Categories: career offender, categorical approach, crime of violence, Johnson, robbery, sentencing

Continue Reading
Monday, September 11th, 2017

Nuanced Second Circuit Opinion on Dissipated Probable Cause & McLaughlin Violations

The Second Circuit issued two criminal opinions today, both of which we will cover this week. In one, United States v. Pabon, the Circuit rejected a set of Fourth Amendment challenges where police obtained a CT scan which revealed that the defendant was body-packing narcotics. The opinion, available here, is as notable for what it does not hold as for what it does.

In Pabon, police obtained a search warrant authorizing an x-ray of the defendant’s lower abdomen to determine whether he was body-packing narcotics. Based on the x-ray, an emergency room physician reported that body-packing was “unlikely.” A detective nevertheless obtained a search warrant for a CT scan based on his testimony that the x-ray results were consistent with those he had observed in other body-packing cases. The CT scan suggested body-packing, and the defendant was given laxatives that led him to pass eight packages of …

Posted by
Categories: car stop, Exclusionary Rule, Fourth Amendment, probable cause, search warrant

Posted By
Categories: car stop, Exclusionary Rule, Fourth Amendment, probable cause, search warrant

Continue Reading
Friday, September 8th, 2017

Selective Enforcement and Fictitious Stash Houses: Important Third Circuit Case

Last week, in United States v. Washington, the Third Circuit held that selective enforcement claims against law enforcement officers are not subject to the insurmountable discovery standard that has long thwarted selective prosecution claims. This opinion is the product of a nationwide effort to challenge the racially selective use of fictitious stash house stings.

These stings permit the government to script its enforcement practices to trigger harsh mandatory minimums.  Troublingly, Columbia Law School professor Jeffrey Fagan has found powerful evidence that the government selectively targets people of color for these sting operations. As we have previously written, the University of Chicago Law School’s Federal Criminal Justice Clinic (FCJC) is working with attorneys nationwide to challenge this discriminatory practice.

With Washington, these attorneys scored an important victory.  Professor Alison Siegler, Director of FCJC, offers this writeup:

—

I’m writing to note a truly groundbreaking aspect of United States …

Posted by
Categories: equal protection, selective enforcement, stash house

Posted By
Categories: equal protection, selective enforcement, stash house

Continue Reading