Navigation

Author Archive | Yuanchung Lee

Thursday, September 10th, 2020

Federal law barring false voter registrations applies to town election because New York’s “unitary registration scheme” allows a falsely registered voter to vote in future federal elections. And the Travel Act’s bar on “bribery” is not limited to acts involving public officials (as payees) and encompasses a New York law barring payments to voters.

In United States v. Smilowitz, 2d Cir. No. 19-361 (Sep. 8, 2020), a panel of the Court (Walker, Parker, and Carney) ruled that the defendant’s conduct of falsely registering voters for a town election, and of offering payment to voters for their votes in that election, fell within the reach of the federal election law, 52 U.S.C. § 10307, and qualified as “bribery” under the Travel Act, 18 U.S.C. § 1952(b). Here are the essential facts.

Smilowitz owned part of a real-estate development in Bloomingburg, New York, population 420. It had a mayor and two trustees.

In 2013 those officials voted against a measure that would have benefitted Smilowitz and several other real-estate developers. Hoping to overturn that decision, Smilowitz and his confederates tried to influence the 2014 election and replace the local officials with candidates amenable to them.

The conspirators did several things giving rise to this prosecution. …

Posted by
Categories: bribery

Posted By
Categories: bribery

Continue Reading
Thursday, August 6th, 2020

Rehaif claim cannot be brought in second or successive § 2255 motion because the decision involved statutory interpretation and did not render a “constitutional” rule as required by AEDPA’s gatekeeping provision.

In Mata v. United States, 2d Cir. No. 20-1875, a panel of the Court (Park, Nardini, and Menashi) held in a per curiam opinion that federal prisoners cannot rely on the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct 2191 (2019), to challenge their underlying conviction or sentence in a second or successive § 2255 motion. This is so because while § 2255(h)(2) requires that a successive motion be based on (among other things) “a new rule of constitutional law,” Rehaif’s holding – that 18 U.S.C. § 922(g) requires proof that the defendant knew that s/he fell within a relevant class barred from possessing a gun – was a matter of statutory interpretation and not based on the Constitution.…

Posted by
Categories: 2255, Rehaif

Posted By
Categories: 2255, Rehaif

Continue Reading
Tuesday, August 4th, 2020

District court erred in relying on uncharged conduct to select the applicable Guideline provision, and the error is not harmless despite the court’s claim that it would have imposed the same sentence under the correct Guideline.

In United States v. Huberfeld, 2d Cir. No. 19-436 (L), the Court (opinion by Judge Pooler, joined by Judges Lynch and Menashi) vacated both a 30-month sentence and a $19 million order of restitution for basically the same reason – the district court erred in relying on uncharged criminal conduct, beyond and broader than what the defendant actually pleaded guilty to via a negotiated information and plea agreement, in selecting the applicable Guideline provision and awarding restitution. The Court also found that the Guideline-selection error is not harmless, despite the district court’s claim that it would’ve imposed the same 30-month sentence under the correct Guideline, because under the circumstances here, the Court was not “confident” that the incorrect range did not “clearly” affect the court’s selection of the ultimate sentence.

Here’s the factual gist. Huberfeld solicited investments for Platinum Partners, a hedge fund. He spoke to co-conspirator Jona Rechnitz, …

Posted by
Categories: bribery, guideline, restitution, Uncategorized

Posted By
Categories: bribery, guideline, restitution, Uncategorized

Continue Reading
Tuesday, June 9th, 2020

District Court Erred in Denying 3rd Point for Acceptance of Responsibility, Despite a Government Motion on the Defendant’s Behalf, Based on Its Belief that the Defendant’s Suppression Motion Caused the Government to Do Work that Overlapped with Trial Preparation

Reading a 45-page opinion about the “third point” in the acceptance-of-responsibility Guideline, U.S.S.G. § 3E1.1(b), makes one wonder whether Booker was but a dream. Why, one might ask, do judges in 2020 care so much about a miniscule adjustment to the offense level when they can simply go outside the advisory range and impose whatever sentence they believe just under the circumstances? Perhaps numbers comfort those tasked with punishing their fellow humans without the security blanket of mandatory directives. Who knows.

That beef aside, this is a fine opinion by Judge Lynch – thorough, well-written, and well-reasoned as always. In United States v. Marilyn Vargas, No. 19-463, __ F.3d __ (2d Cir. June 9, 2020), the Court held that District Judge Caproni erred in denying the 3rd acceptance point following the defendant’s guilty plea, despite a Government motion on the defendant’s behalf, based on her view that the …

Posted by
Categories: acceptance of responsibility

Posted By
Categories: acceptance of responsibility

Continue Reading
Monday, June 8th, 2020

New York Fifth-Degree Drug Sale Does Not Qualify as “Felony Drug Offense” for Purpose of § 851 Recidivist Enhancement

In United States v. Jeremy Thompson, 2d Cir. No. 18-2545, __ F.3d ___ (2d Cir. June 8, 2020), the Court held (in an opinion by Judge Walker) that a New York conviction for fifth-degree criminal sale of a controlled substance, in violation of N.Y. Penal Law § 220.31, does not qualify as a “prior conviction for a felony drug offense” for purposes of the recidivism enhancement in 21 U.S.C. § 851 under Taylor’s now-familiar categorical approach. This is so because, as the Court previously held in Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017), this New York law (1) is indivisible and (2) regulates a broader range of controlled substances than the analogous federal drug schedule. In particular, while § 220.31 criminalizes the sale of HCG (a pregnancy hormone), federal law does not. And because fifth-degree sale is indivisible, it is irrelevant that court documents show …

Posted by
Categories: First Step Act of 2018

Posted By
Categories: First Step Act of 2018

Continue Reading
Tuesday, November 26th, 2019

Factual basis for § 924(c) plea insufficient where proffer showed only that defendant “possessed the gun while simultaneously engaging in [] drug trafficking” and did not establish “specific nexus” between gun and drug-trafficking offense necessary for “in furtherance” element

In United States v. Luis Rosario, a summary order, the Circuit vacated a guilty plea to a § 924(c) count, charging Mr. Rosario with possessing a firearm in furtherance of a drug-distribution conspiracy, on the ground that the factual basis for his plea was insufficient. The essential facts are that Mr. Rosario participated in a drug conspiracy for about two months; that he occasionally used a white van during this time frame; and that a gun was later found inside the van. After arrest, Mr. Rosario said that he “carries the gun for protection.”

These were the only facts on the record when Mr. Rosario pleaded guilty. But as the Court summarized, “th[is] evidence . . . established only that Rosario possessed the gun while simultaneously engaging in a drug-trafficking conspiracy” and did not show a ‘specific nexus’ between the gun and the drug-trafficking offense . . . [as] …

Posted by
Categories: 924(c), guilty plea, Rule 11, Uncategorized

Posted By
Categories: 924(c), guilty plea, Rule 11, Uncategorized

Continue Reading
Friday, October 11th, 2019

Internally inconsistent verdict on a single count (involving a single defendant) requires dismissal

It is long settled that inconsistency between or among counts of conviction is not a ground for dismissal. See, e.g., Dunn v. United States, 284 U.S. 390, 393 (1932); and United States v. Powell, 469 U.S. 57, 61-69 (1984). The same rule applies to jury verdicts that are inconsistent as to different defendants in a joint trial. See United States v. Dotterweich, 320 U.S. 277, 279 (1943). As the Supreme Court broadly stated in Rivera v. Harris, 454 U.S. 339, 345-46 (1981), the jury possesses “the unreviewable power [] to return a verdict of not guilty for impermissible reasons” and “[i]nconsistency in a verdict is not a sufficient reason for setting it aside.”

None of those cases, however, concerned a verdict that is internally inconsistent as to the same count and the same defendant. The Second Circuit recently encountered that situation in United States v. Janine …

Posted by
Categories: charge, jury, jury charge, jury trial, verdict

Posted By
Categories: charge, jury, jury charge, jury trial, verdict

Continue Reading
Wednesday, July 24th, 2019

Is attempted Hobbs Act robbery a “crime of violence” for purposes of § 924(c) after Davis?

In the Second Circuit, a substantive Hobbs Act robbery qualifies as a “crime of violence” for purposes of § 924(c) under its elements (or force) clause, § 924(c)(3)(A). See United States v. Hill, 890 F.3d 51 (2d Cir. 2018). But a conspiracy to commit Hobbs Act robbery does not qualify as a crime of violence for purposes of § 924(c), because United States v. Davis, 139 S. Ct. 2319 (June 24, 2019), invalidated the residual clause of § 924(c)(3)(B) as unconstitutionally vague (and a conspiracy does not qualify under the elements clause).

That leaves the question of whether attempted Hobbs Act robbery qualifies as a § 924(c) crime of violence after Davis. The Second Circuit has not answered this question — i.e., whether attempted Hobbs Act robbery “has as an element the use, attempted use, or threatened use of physical force against the person or property …

Posted by
Categories: 924(c), crime of violence, Hobbs Act

Posted By
Categories: 924(c), crime of violence, Hobbs Act

Continue Reading
Friday, June 7th, 2019

Let’s wait a bit on the non-delegation argument …

The Circuit today affirmed the defendant’s conviction in United States v. Michael O’Brien, which principally rejects, on fact-specific credibility grounds, his 4th and 5th Amendment arguments concerning Miranda and an alleged consent to search. Judge Kearse’s typically thorough opinion lays out the details; no legal ground is broken.

The only issue of note is the Court’s rejection of O’Brien’s additional claim that the substance he was accused of distributing — methylone (a.k.a. Molly) — was improperly placed on the federal list of controlled substances. O’Brien argues that Congress unconstitutionally delegated its legislative power by authorizing the Attorney General (who in turn re- or sub-delegated that authority to the D.E.A.) to determine whether a substance belongs on the federal schedule of controlled substances.

Judge Kearse rejected this argument on procedural and substantive grounds. First, it was untimely because he did not make this argument until after he was convicted. …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Monday, June 3rd, 2019

Pretrial detention later credited against a term of imprisonment imposed upon conviction tolls period of supervised release under § 3624(e)

Section 3624(e) of Title 18 of the U.S.C. provides that “[a] term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.” The question sometimes arises as to whether pretrial detention similarly tolls the term of supervised release. Although pretrial detention is not, on first look, a “period in which the person is imprisoned in connection with a conviction” for a crime, things look murkier when considered retrospectively. This is because courts often, upon the defendant’s subsequent conviction for the offense for which he was detained pretrial, credit that period of detention against the term of imprisonment ultimately imposed. Indeed, § 3585(b) requires such credit in federal cases.

Today the Supreme Court ruled in Mont v. United States, Sup. Ct. …

Posted by
Categories: supervised release

Posted By
Categories: supervised release

Continue Reading

Supreme Court to decide whether plain-error review applies when defendant does not object to sentence as substantively unreasonable at sentencing

Today the Supreme Court granted cert. in Holguin-Hernandez v. United States, S. Ct. No. 18-7739, to resolve the earth-shattering question of whether plain-error review applies to an appellate claim of substantive unreasonableness (i.e., “The sentence is too damn long!”) when defense counsel did not object to the sentence’s unreasonableness at sentencing. The case comes out of the 5th Circuit, the only Circuit to apply plain-error review in this situation. Eight Circuits have held that a post-sentence objection is not required to invoke regular ol’ “substantive reasonableness” review (i.e., abuse of discretion review) on appeal. The Second Circuit has dodged this question, concluding every time that it need not resolve the issue because the challenged sentence is proper even under ordinary reasonableness review. See, e.g., United States v. Nesbitt, 757 F. App’x 13, 14 (2d Cir. Nov. 26, 2018).

 

As we breathlessly await The Nine’s …

Posted by
Categories: plain error, Rule 52, substantive reasonableness

Posted By
Categories: plain error, Rule 52, substantive reasonableness

Continue Reading