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Author Archive | Barry Leiwant

Thursday, May 27th, 2021

Supreme Court overrules the “watershed rule of criminal procedure” portion of Teague v. Lane.

The issue in Edwards v. Vannoy, decided May 17, 2021, was whether the Supreme Court’s decision in Ramos v. Louisiana, 140 S. Ct. 1390 (2020), will apply retroactively to cases on federal collateral review.  Ramos is the case which decided that unanimous jury verdicts are required in state felony cases, thus outlawing the non-unanimous jury practices that existed in only two states – Louisiana and Oregon.  In a 6-to-3 vote, the Supreme Court decided against retroactive application, which means, as Justice Kagan tells us in dissent, that Mr. Edwards, unlike Mr. Ramos, “will serve the rest of is life in prison based on a 10-to-2 jury verdict.”

As many of us recall, when the Supreme Court promulgates a new rule of criminal procedure, it applies not just to future cases but also to cases that are already on direct appeal.  See Griffith v. Kentucky, 479 U.S. 314 …

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Supreme Court holds that there is no “community caretaking” exception to the Fourth Amendment’s warrant requirement.

In Caniglia v. Strom, decided May 17, 2021, the Supreme Court ruled that there is no such thing as a “community caretaking” exception to the warrant requirement of the Fourth Amendment.

This case began when Mr. Caniglia had an argument with his wife at their Rhode Island home.  He then retrieved a pistol from the bedroom and asked his wife to “shoot [him] now and get it over with.”  Instead, she left the house and spent the night at a hotel.  In the morning, when Mr. Caniglia did not answer his phone, she called the police and asked them to check on him.  The police found him on his porch.  Mr. Caniglia confirmed his wife’s account of the events of the previous evening, but denied that he was suicidal.  The police called an ambulance and eventually convinced him to go to the hospital for a psychiatric evaluation.  Later, his …

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Categories: Fourth 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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Tuesday, May 26th, 2020

Judge Menashi’s First Criminal Opinion Goes Against the Defendant

In US v. Richardson, #19-412, Judge Menashi, joined by Judges Walker and Chin, affirmed the district court’s ruling that the defendant qualified as a career offender. The defendant’s prior offenses were (1) federal conspiracy to distribute and possess with intent to distribute cocaine (21 USC §§ 841 (a) (1) & 846) and (2) New York attempted possession of a controlled substance in the third degree (N.Y. Penal Law §§ 110.00/220.16(1)).

The issue on appeal was whether each of these offenses is a “controlled substance offense” under USSG § 4B1.2. A “controlled substance offense” is defined as “an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance … or the possession of a controlled substance … with intent to manufacture, import, export, distribute, or dispense.” USSG § 4B1.2(b). Application note 1 …

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Second Circuit Rules that Conviction Stands for Defendant Who Died While His Appeal Was Pending

In the Anglo-American legal tradition, if the accused dies before a conviction becomes final, the conviction is vacated and the indictment is dismissed. This is called “abatement” of the conviction, and hopefully most of you have not encountered it. The idea is that the defendant will now face the Lord’s justice, not the King’s, and that the family should not have to live with the stigma of a conviction that was not final.

The defendant in US v. Mladen, 18-0616, died during the pendency of his appeal, but the Second Circuit decided that abatement was too generous a remedy for him. The opinion is by Judge Kearse, joined by Judges Walker and Livingston. Perhaps the problem was that, although convicted only of one count of 18 USC § 1001, he also admitted to making anonymous threats against a federal judge. Then, while in jail awaiting sentence in this case, …

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Second Circuit Holds that Only One JVTA Assessment is Permitted even where there are Multiple Counts of Conviction

The defendant in US v. Haverkamp, 18-3735, pleaded guilty to one count of distribution and receipt of child pornography and one count of possession of child pornography. He was sentenced to 121 months in prison. In addition, the district court imposed the $100 mandatory special assessment under 18 USC § 3013 on each count. The court also imposed the $5000 assessment under 18 USC § 3014 on each count. The latter assessment, applicable only to certain offenses, was added to the law in 2015 by the Justice for Victims of Trafficking Act, and is commonly known as the JVTA assessment.

On appeal, in an opinion by Judge Parker, joined by Judges Sack and Chin, the Second Circuit held that only one JVTA assessment is permitted for any defendant even if there are multiple eligible counts of conviction. The Court relied principally on the language of § 3014, which instructs …

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Monday, May 11th, 2020

Supreme Court Reverses Ninth Circuit for Bypassing the Adversary System

A Supreme Court term is not complete without a few slap downs of the Ninth Circuit such as this one.

The defendant in United States v. Sineneng-Smith operated an immigration consulting business in California.  Between 2001 and 2008, she charged unwitting clients for help in applying to a path-to-citizenship program even though she knew the program had expired.  The clients paid over $6000 each, for a total of more than $3.3 million.  The defendant was convicted of violating, inter alia, 8 USC § 1324(a)(1)(A)(iv).  Defense counsel argued that the statute did not cover her conduct and that, if it did, the statute violated her First Amendment rights to free speech and to petition the government.

On appeal, a panel of the Ninth Circuit appointed amici to raise additional issues framed by the panel.  It then reversed the conviction on one of those issues, holding that the statute is unconstitutionally overbroad.  …

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Unanimous Supreme Court Tosses Bridgegate Conviction

Kelly v. United States concerns New Jersey’s well-known Bridgegate scandal, where officials with ties to Gov. Chris Christie decided to punish the residents of Ft. Lee because their mayor would not endorse Christie for reelection in 2013.  So, beginning on the first day of school, and under the guise of a traffic study, the defendants arranged for the three toll lanes of the George Washington Bridge usually reserved for Ft. Lee traffic to be reduced to one.  This created a traffic armageddon in Ft. Lee, jeopardizing community safety.

The defendants were fired, federally indicted, and convicted of crimes involving wire fraud and federal program fraud.  The convictions were affirmed by the Third Circuit.

On May 8, the Supreme Court unanimously reversed the convictions in an opinion by Justice Kagan.  The Court agreed that corruption and abuse of power occurred in this case, but “not every corrupt act by state or …

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Categories: fraud, wire fraud

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Friday, June 14th, 2019

Second Circuit defines when it is illegal for an immigrant to possess a firearm

On June 13, 2019, the Second Circuit affirmed the gun possession conviction in US v. Balde.

The story of this case began in 2006, when Mr. Balde’s temporary permission to be in the United States legally was revoked while he was visiting his mother in Guinea during her final illness. He returned by way of JFK airport, where he was informed for the first time that his legal status had been cancelled. He was detained, and the government, alleging that he was inadmissible, initiated removal proceedings. Eventually he was ordered removed, but was then released while he challenged his removal.

To make a long story short, in 2015, over seven years after he received a final order of removal, Mr. Balde was involved in a fight in a Bronx delicatessen and allegedly pulled out a gun. He pleaded guilty to one count of unlawful possession of a firearm by …

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