Navigation

Author Archive | Yuanchung Lee

Monday, February 24th, 2025

Panel affirms R. Kelly’s RICO and Mann Act convictions and 30-year prison sentence; Judge Sullivan objects to “windfall” restitution of brand-name medication for herpes-infected victim.

Judge Chin’s opinion in United States v. Robert Sylvester Kelly, 2d Cir. No. 22-1481 (L) (Feb. 12, 2025), joined almost entirely by Judges Carney and Sullivan, affirms the singer R. Kelly’s conviction for RICO and Mann Act offenses, as well as his 30-year prison sentence and a restitution award of $300,668 to “Jane,” a minor whom Kelly infected with herpes after unprotected intercourse. Essentially the Government alleged, and the jury accepted, that over at least two decades, Kelly, with the help of a host of employees, hangers-on, and assistants, induced and coerced several women, including minors, to travel across state lines to engage in sex with him, even though he knew he had herpes, did not disclose this fact, refused to wear a condom, and infected at least two of the women.

The Panel rejects all of Kelly’s challenges – to the sufficiency of the evidence, the constitutionality of …

Posted by
Categories: restitution, RICO

Posted By
Categories: restitution, RICO

Continue Reading
Friday, September 6th, 2024

District court erred in allowing eleven-person jury to convict the defendant, but the error is (1) not structural and (2) harmless under harmless-error analysis.

Judge Menashi’s opinion for the majority in United States v. Ricky Johnson, 2d Cir. No. 22-1289 (Sep. 6, 2024) (Menashi, joined by Englemayer, D.J.) affirms Johnson’s conviction for making threats, but creates a circuit split –and provokes a strong dissent from Judge Chin – in the process. Johnson (represented by this Office) challenged his conviction on several grounds, but the focus is his Rule 23 argument.

Specifically, Johnson argued that the district court erred when, before the jury retired to deliberate, it (1) dismissed a juror for cause over defense objection; and then (2) allowed the remaining eleven-person jury to proceed and then to deliberate (and convict) without a written stipulation from the parties. Johnson contends that his conviction by the eleven-person jury is structural error, warranting a new trial without consideration of harmlessness.

Everyone agrees with Johnson that the district court erred: Under Rule 23, a district court …

Posted by
Categories: jury

Posted By
Categories: jury

Continue Reading
Wednesday, May 1st, 2024

IAC claim rejected on direct appeal because lack of prejudice to defendant is “beyond doubt” and district court sufficiently explained its sentence given “the lesser specificity required for a [revocation] sentence”

Not sure why United States v. Antonio Ortiz, 2d Cir. No. 22-1775-cr (April 30, 2024), is a published opinion rather than a summary order. Judge Menashi’s opinion for the panel (Calabresi, Menashi, Perez) rejects Ortiz’s challenge to his five-year sentence, imposed upon revocation of supervised release after the district court found that he raped his teenage daughter on several occasions.

The issues are fact-specific. Two are worth noting.

First, although the Circuit generally declines to address an IAC claim raised for the first time on direct appeal, it will decide the issue when “the record is developed and the resolution of the claim is beyond doubt.” Op. 7 (citing cases). Here, the record shows that any alleged ineffectiveness by Ortiz’s counsel (in failing to offer certain evidence) would have made no difference to the district judge (the fact-finder),

Second, although a sentencing court is required to state in open …

Posted by
Categories: ineffective assistance of counsel, supervised release

Posted By
Categories: ineffective assistance of counsel, supervised release

Continue Reading
Monday, April 29th, 2024

Defendant’s complaint concerning scope of prior appellate mandate is barred by appellate waiver in new plea agreement, and the district court did not err in considering his sectarian motivation at sentencing

In United States v. Maalik Alim Jones, 2d Cir. No. 22-2958-cr (April 29, 2024), the panel (Walker, Park, Perez) in a per curiam opinion rejects Jones’s challenge to his 25-year sentence, imposed on remand after a prior appeal and following Jones’s guilty plea under a new plea agreement in which he waived the right to appeal “any sentence” of 300 months or lower. Jones is an American citizen who moved to Somalia and joined al-Shabaab, “an Islamic terrorist organization.” Op. 3. He pleaded guilty to various offenses based on the group’s murderous attacks in Kenya and Somalia.

Most of the issues are fact-specific, but two are worth noting.

First, despite the appellate waiver, Jones contended to the Circuit that the district court (and the Government) exceeded the scope of its prior mandate on remand (for various reasons). And he claimed that his “challenge to this Court’s mandate overrides the …

Posted by
Categories: jurisdiction, terrorism

Posted By
Categories: jurisdiction, terrorism

Continue Reading
Thursday, February 29th, 2024

A post-sentencing examination of previously seized electronic data does not violate the Fourth Amendment. And the subsequent prosecution of the defendant for producing child pornography – based on evidence discovered in that examination – is not barred by the prior plea agreement concerning his conviction for possessing child pornography.

In United States v. Cory Johnson, 2d Cir. No. 22-1086-cr (February 27, 2024), the panel (Livingston, Carney, Bianco) rejects Johnson’s claims and affirms his conviction and 20-year sentence for producing child pornography (CP) in violation of 18 U.S.C. § 2251(a). The opinion, by Chief Judge Livingston, concludes that the instant prosecution for CP production – which follows Johnson’s 2019 conviction for CP possession, after a guilty plea pursuant to a plea agreement– is not barred by the prior agreement. The opinion also rules that the evidence leading to the production charge, discovered during an examination of electronic data seized in the possession case that occurred after Johnson’s sentencing, was not obtained in violation of the Fourth Amendment.

***

Here’s the gist.

After “Johnson was first identified by federal authorities as trading child sexual abuse material (CSAM) within an Internet chat group in 2018, the execution of a search warrant …

Posted by
Categories: child pornography, Fourth Amendment

Posted By
Categories: child pornography, Fourth Amendment

Continue Reading
Friday, August 4th, 2023

De novo resentencing required after district court imposed a supervised-release term, following revocation, that exceeded the statutory maximum

In United States v. Sire Gaye, 2d Cir. No. 22-251-cr (August 4, 2023), the panel (Judges Park, Nardini, and Nathan) issued a per curiam opinion vacating the district court’s revocation sentence and remanded for de novo resentencing. Although only the supervised-release portion of the revocation sentence was unlawful – the five-year term exceeded the statutory maximum – the Court decided that, instead of simply lowering that term to the true maximum (18 months) and leaving alone the imprisonment portion of the sentence (three years’ imprisonment) – as the Government wanted — the district court should decide in the first instance how to apportion the imprisonment and supervised release portions of its revocation sentence on remand (as Gaye desired).

Here’s the gist. Gaye pleaded guilty to bank fraud in 2018 and was sentenced to two months’ imprisonment followed by five years of supervised release – the statutory maximum. The court …

Posted by
Categories: plain error, supervised release

Posted By
Categories: plain error, supervised release

Continue Reading
Monday, May 22nd, 2023

Circuit construes supervised-release conditions (restricting or monitoring computer and Internet use) in the defendant’s favor in order to avoid constitutional, statutory, or delegation problems

In United States v. Victor Kunz, 2d Cir. No. 21-2577-cr (May 23, 2023), Judge Lynch (joined by Judges Livingston and Calabresi) upheld (with one exception) several potentially problematic conditions of supervised release restricting or monitoring Kunz’s computer and Internet usage. Kunz was convicted of CP possession in 2005 and has been on supervised release since 2009 (with several violations (and terms of imprisonment) between then and his current 33-year term of supervision). The Circuit acknowledged that he “raise[d] a number of legitimate concerns” on appeal, but ultimately concluded that “a sensible reading of the restrictions neutralizes the most troubling of those concerns” and thus affirmed the “judgment of the district court as construed in the manner set forth below.” Op. 3.

The relevant conditions / restrictions fall into three categories. Here’s how the Court dealt with them.

Conditions that are “technically vague or unworkable”

Kunz challenged several conditions requiring …

Posted by
Categories: supervised release

Posted By
Categories: supervised release

Continue Reading
Thursday, January 19th, 2023

Davis (2019), voiding the residual clause at § 924(c)(3)(B) for vagueness, is retroactively applicable to cases on collateral review

Benjamin Hall v. United States, 2d Cir. No. 17-1513 (Jan. 19, 2023), decides a question most of us thought had been answered already – that United States v. Davis, 139 S. Ct. 2319 (2019), striking the residual clause of § 924(c) as unconstitutionally vague, rendered a substantive rule retroactive to cases on collateral review. As Judge Carney’s opinion notes, the Supreme Court held in Welch v. United States, 578 U.S. 120 (2016), that Johnson v. United States, 576 U.S. 591 (2015), striking the residual clause of the ACCA as unconstitutionally vague, is retroactively applicable as a substantive rule. Op. 9. Johnson “changed the substantive reach” of the ACCA by voiding its residual clause, thus “altering the range of conduct or the class of persons that the [Act] punishes.” 578 U.S. at 129.

Johnson qualifies easily as a substantive rule, defined as one that “narrow[s] the scope …

Posted by
Categories: 924(c), Davis, Hobbs Act, Johnson

Posted By
Categories: 924(c), Davis, Hobbs Act, Johnson

Continue Reading
Wednesday, September 21st, 2022

Court must provide habeas petitioner with notice and an opportunity to respond before sua sponte dismissing the petition on procedural grounds

In Ethridge v. Bell, 2d Cir. No. 20-1685-pr (Sep. 20, 2022), a Panel of the Court (Lynch, Bianco, and Nardini), in an opinion by Judge Bianco, ruled that the district court erred when it sua sponte dismissed Ethridge’s § 2254 petition, challenging his New York drug and weapons conviction on the ground that state courts erroneously denied his motion to suppress a gun seized during an allegedly unlawful search, without giving him any notice or an opportunity to be heard. Before sua sponte dismissing a petition on procedural grounds, the Circuit ruled, a district court must give the petitioner notice of its contemplated decision as well as a genuine opportunity to respond.

The district court erred in dismissing Ethridge’s petition sua sponte by invoking Stone v. Powell, 428 U.S. 465 (1976), which “held that a petitioner may not obtain [federal] habeas relief under the Fourth Amendment on the …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading

A sealed sentencing conducted by videoconference, which was not accessible to the public, does not implicate Rule 53’s ban on broadcasting judicial proceedings

In United States v. Sealed Defendant One, 2d Cir. No. 21-118 (Sep. 21, 2022), a Panel of the Court (Newman, Chin, and Sullivan), in an opinion by Judge Sullivan, principally ruled that a sealed sentencing proceeding, which occurred via Skype videoconferencing during the COVID-19 pandemic, did not violate Rule 53’s bar on the “broadcasting” of judicial proceedings. See Fed. R. Crim. P. 53 (“Except as otherwise provided by statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”). This is so because the term “broadcasting” “clearly entails ‘public’ distribution to make something ‘widely’ known.” Op. 16-17 (emphases in original) (quoting Merriam-Webster’s online entry for “broadcast”). Because the sealed sentencing here occurred through a “closed” Skype call, which “no one other than Sealed Defendant, his wife, and …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Friday, July 30th, 2021

A district court may consider the defendant’s future earning potential to conclude that the defendant is “non-indigent” and thus subject to the mandatory $5,000 “special assessment” under 18 U.S.C. § 3014(a)

Section 3014(a) of Title 18, enacted as part of the Justice for Victims of Trafficking Act of 2015 (“JVTA”), requires district courts to impose a $5,000 special assessment on “non-indigent” persons convicted of certain sex- and trafficking-related offenses.1 Carlos Rosario is an indigent person represented by this Office. After he pleaded guilty to three qualifying offenses, the district court considered his future earning capacity, concluded that he was “non-indigent” in light of that capacity, and imposed the $5,000 special assessment. Rosario argued on appeal that this was error.

The Circuit affirms Rosario’s sentence. United States v. Rosario, No. 20-2268 (2d Cir. July 29, 2021). Writing for himself and Judge Sack, Judge Park concludes that “the ordinary meaning of ‘indigent’ encompasses not only a lack of present resources, but also includes a forward-looking assessment of the defendant’s ‘means’ or ability to pay.” This reading, moreover, is consistent with “all …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading