Author Archive | Colleen Cassidy

Friday, February 23rd, 2024

Circuit upholds conviction based on a plea to an indictment mistakenly alleging that the crime occurred on a date four months earlier than the actual date.

In United States v. Morgan, No. 22-2798 (2d Cir. February 23, 2024), the Circuit (Parker, Lynch and Khan) affirmed, in a summary order, the defendant’s conviction for being a felon in possession of ammunition based on an indictment that charged and a guilty plea that admitted to that crime occurring on March 8, 2020, although the offense indisputably occurred on August 31, 2020. Morgan was sentenced for the crime occurring on August 31, 2020, which had been charged in the original complaint, but not in the indictment to which he pled guilty. The Circuit concluded that there was no constructive amendment because “the conduct Morgan was charged with, pled guilty to, and ultimately was sentenced for was one and the same,” and he was on notice of the “essence of the crime.”…


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Categories: constructive amendment, indictment

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Wednesday, February 21st, 2024

Where a §2255 petition alleges that counsel failed to file a requested notice of appeal, the district court may not summarily dismiss but must undertake a factual inquiry.

In United States v. Thomas, No. 22-2026 (February 21, 2024), the Circuit (Jacobs, Sack, and Nardini) reversed, in a per curiam opinion, the district court’s summary denial of a §2255 petition alleging that counsel failed to file a notice of appeal as petitioner requested. Thomas swore in his petition that he told his lawyer to file the notice of appeal. The district court held that this allegation was insufficient because Thomas did not include details, such as when and how the request was made, whether there were discussions about it, and whether he was aware of the deadlines for an appeal. The Circuit held that the district court’s summary denial was an abuse of discretion. The Court reaffirmed its precedent in United States v. Campuzano, 442 F.3d 770, 776 (2d Cir. 2006), that a factual inquiry is required “when a defendant claims that his attorney failed to file …


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Categories: ineffective assistance of counsel, Notice of Appeal

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Monday, October 30th, 2023

Five Second Circuit Judges Dissent From Denial Of Rehearing En Banc On Whether RICO Predicate Offenses Must Be Factually Set Forth In The Indictment.

In United States v. Montague, __ F.4th __, 2023 WL 6852846 (2d Cir. Oct. 18, 2023), Judge Perez, joined by Judges Lee, Robinson, Nathan, and Merriam, dissented from the Circuit’s denial of rehearing en banc. The dissent posed the question (and answer) of “exceptional importance”: “does an indictment for a crime with predicated offenses as necessary elements require any factual detail regarding those predicate offenses? The answer, in our view, should be an easy ‘yes.’”

A divided panel of the Second Circuit (Menashi and Bianco; Jacobs dissenting) had upheld a bare bones indictment alleging the predicates – which are elements of RICO – only as “violations of Title 21 United States Code, Sections 841(a)(1) and 846″ with no factual detail. United States v. Montague, 67 F.3d 520 (2d Cir. 2023). See Blog Post, May 12, 2023. Judge Jacobs dissented on the ground that the specific acts constituting the …

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Categories: CCE, grand jury, indictment

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Categories: CCE, grand jury, indictment

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Wednesday, July 19th, 2023

For computer offenses of “causing damage” to a computer, Second Circuit allows venue in the location of any computer that was prevented from accessing files that were unlawfully deleted from the remote server of a software vendor.

In United States v. Calonge, No. 21-3089 (2d Cir. July 14, 2023) (Parker, Lynch, Lohier), the Circuit affirmed convictions under the Computer Fraud and Abuse Act (“CFAA”) in the Southern District of New York for transmitting a program code or command and intentionally “caus[ing] damage” to a computer and accessing a computer without authorization and recklessly “caus[ing] damage,” in violation of 18 U.S.C. §§1030(a)(5)(A) and (B).  The defendant’s conduct of deleting files from a software vendor used by her employer was committed in Florida. Venue in New York had been based on the loss of access to those files by the computers at the New York headquarters of her employer.  Calonge argued that no New York computer was “damaged” and that venue could only lie in Florida, where the conduct was committed, or in Virginia or California, where the deleted data resided on the vendor’s servers. The …

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Categories: venue

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Categories: venue

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Friday, July 14th, 2023

Application of the Maritime Drug Law Enforcement Act (“MDLEA”) to foreign conspirators who were never on the high seas, and where neither the defendants nor the scheme have a nexus to the United States, does not violate Due Process or Article I.

In United States v. Antonius, No. 21-1083 (2d Cir. July 10, 2023) (Calabresi, Lynch, and Robinson), the Second Circuit affirmed the convictions of three land-based foreign nationals for conspiracy to traffic drugs on the high seas using a stateless vessel where neither the defendants nor the conspiracy had any connection to the United States. The defendants had never been on the high seas but conspired from land to send drugs from Guyana to the Netherlands on the high seas in a stateless vessel. The Circuit had previously held that MDLEA reached foreign land-based conspirators whose plan involved no travel through United States waters but who had minor contact with the United States in furtherance of the conspiracy. United States v. Alarcon-Sanchez, 972 F.3d 156 (2d Cir. 2022).The Antonius defendants argued that their prosecution under the MDLEA statute violated due process because their conduct had no nexus …


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Categories: due process, extraterritorial jurisdiction, MDLEA

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Monday, May 15th, 2023

Supreme Court Reverses Two Second Circuit Fraud Decisions

On May 11, 2023, the Supreme Court decided Ciminelli v. United States, 21-1158 and Percoco v. United States, No. 21-1158, reversing the Second Circuit in two fraud decisions  resulting from the multi-defendant trial of alleged corruption surrounding the Cuomo administration. The Supreme Court continues its curtailment of amorphous theories of federal fraud to prosecute government corruption cases.

In Ciminelli, the Supreme Court rejected the Second Circuit’s “right to control” theory of  federal fraud, in which “property” under the fraud statutes “includes intangible interests such as the right to control the use of one’s assets.” Under this theory, Ciminelli was convicted of wire fraud for a bid-rigging scheme on the theory that he deprived the victim of “potentially valuable economic information” “necessary to make discretionary economic decisions.” Op. at 1-4. The Court reversed his conviction.

The Supreme Court reiterated the rule of Cleveland v. United States, 531 U.S. …


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Categories: honest services fraud, property, wire fraud

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Friday, May 12th, 2023

A Divided Panel Of The Second Circuit Upholds A Barebones CCE Indictment That Identifies No Predicate Acts

In United States v. Colin Montague, 19-2975 (2d Cir. May 9, 2023), a divided panel of the Second Circuit affirmed a CCE conviction and life sentence based on an indictment that identified no predicate offenses but alleged only that the defendant “did knowingly, willfully and unlawfully engage in a Continuing Criminal Enterprise in that he did violate Title 21 United States Code, Sections 841(a)(1) and 846, which violations were part of a continuing series of violations of said statutes.” Judge Menashi wrote the opinion, joined by Judge Bianco. Judge Jacobs dissented.

The majority acknowledged that “the violations composing a continuing criminal enterprise are elements of the CCE offense and must appear in the indictment.” It posed the question as “the level of detail with which the violations must appear.”  Op. 11. It relied on United States v. Flaherty, 295 F.3d 182 (2d Cir. 2002), which it read to …


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Categories: CCE, grand jury, indictment, plain error

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Thursday, August 4th, 2022

Second Circuit: Application of an Extradition Treaty’s “Lapse of Time” Provision is a Discretionary Decision for the Secretary of State, and Not for the Court.

In Yoo v. United States, 21-2755(2d Cir. Aug. 1, 2022), the Circuit (Lynch, joined by Calabresi and Lohier) affirmed the denial of a petition for habeas corpus alleging that petitioner’s extradition to South Korea was time-barred, holding that the extradition treaty’s “Lapse of Time” provision was a discretionary provision for the executive authority and not a legal question for the court.

South Korea requested Yoo’s extradition pursuant to a treaty that provided, in relevant part, that “[e]xtradition may be denied” when prosecution of the offense “for which extradition is requested would have been barred because of the statute of limitations of the Requested State had the same offense been committed in the Requested State.” Yoo was found extraditable under the treaty and he filed a petition for habeas corpus, arguing that his extradition was time-barred under that provision. The court denied the petition, ruling that the determination whether the …


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Categories: extradition, statute of limitations

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Wednesday, August 3rd, 2022

Second Circuit Holds That a Fourth Amendment Challenge to Evidence Seized Under a State Warrant Is Not Precluded by a Prior Guilty Plea in State Court.

In United States v. Jones, No. 20-3009 (2d Cir. Aug.1, 2022), the Circuit (Livingston, joined by Chin and Nardini) held that the defendant’s state guilty plea did not preclude him from challenging the evidence seized pursuant the state warrant in his federal case because the Fourth Amendment claim was not raised in state court. On the merits, the Court upheld admission of the evidence under the good faith exception to the exclusionary rule.

Jones had pled guilty to sexual exploitation of a minor in Tennessee based on evidence seized under several warrants and was subsequently charged in federal court with production of child pornography with respect to another minor. The defendant moved to suppress that evidence seized under the Tennessee warrants, and the federal warrants as fruit of the poisonous tree. The district court held that Jones’s state guilty plea collaterally estopped him from challenging the Tennessee warrants and, …


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Categories: collateral estoppel, Exclusionary Rule, Fourth Amendment, good faith

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Thursday, March 31st, 2022

“Hybrid” Restitution Order Makes Less Culpable Defendant Liable to Personally Pay the Full Amount Jointly Imposed Until All Restitution Has Been Paid, Including Additional Restitution Assessed Against More Culpable Defendant

After Ayfer and Hakan Yalincik, mother and son, pled guilty to a fraud scheme led by Hakan, the district court imposed $500,000 in restitution for one victim, for which the defendants were jointly and severally liable, and an additional $250,000 for the same victim, for which only Hakan was individually liable. After the victim had received more than $500,000 in payments, but was still owed $139,057 out of the total $750,000, the defendants moved for an order declaring Ayfer’s obligation satisfied because the amount for which she was jointly liable had been paid. Ayfer had personally “made only minimal restitution payments;” most of the payments were made by Hakan or distributed from bankruptcies of his businesses. The district court denied the motion. The Second Circuit affirmed, in an opinion by Judge Lynch, ruling that Ayfer was liable until either the victim was made completely whole or Ayfer had personally paid …


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Categories: joint and several liability, restitution

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Tuesday, July 20th, 2021

Second Circuit rules no double jeopardy violation to admit the same evidence of a cocaine conspiracy that resulted in acquittal in the first trial to prove a RICO conspiracy in a second trial.

In United States v. Hicks, No. 19-590 (2d Cir. July 16, 2021), the defendant was tried for conspiracy to distribute marijuana, conspiracy to distribute cocaine and cocaine base, a 924(c) violation, and a RICO conspiracy. He was convicted of the marijuana conspiracy but acquitted of both the conspiracy to distribute cocaine and cocaine base and the 924(c) count. The jury hung on the RICO conspiracy count, which was retried. At the second trial, the government relied “on substantially the same evidence” as it presented in the first trial, including “the same evidence that it had used unsuccessfully in the first trial to convict Hicks of engaging in a cocaine conspiracy.” The defense objected to this on double jeopardy grounds, but the second jury was allowed to convict on this evidence.

The Second Circuit held there was no double jeopardy violation. First, it held that double jeopardy did not bar …


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Categories: conspiracy, double jeopardy, issue preclusion

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