Author Archive | Colleen Cassidy

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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Second Circuit holds that the district court is not required to consider the sentencing factors of 18 U.S.C. §3553(a) in deciding whether to reduce a sentence under §404 of the First Step Act.

In United States v. Moyhernandez, No. 20-625 (2d Cir. July 15, 2021), a split panel of the Second Circuit held that a district judge need not consider the sentencing factors of section 3553(a), deepening a Circuit split. (Jacobs, Park in the majority, Pooler dissenting) The district court denied defendant’s motion for a reduction in a 360-month sentence for a conspiracy to distribute crack cocaine, after concluding that he was eligible for relief under the First Step Act.

The original sentence was imposed under the mandatory career offender guideline and the sentencing judge made clear at the time that he would have imposed a lower sentence if not for the mandatory guideline. In the defendant’s  motion for a  reduced sentence, he urged the new judge to consider the §3553(a) factors and exercise her discretion to impose a lower sentence. In denying the motion because of the defendant’s lengthy record …

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Categories: 3553(a), First Step Act

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Categories: 3553(a), First Step Act

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Monday, July 19th, 2021

Second Circuit reverses a suppression order, applying “special needs doctrine” to uphold a parole officer’s search of parolee’s house without reasonable suspicion.

In United States v. Braggs, No. 20-892 (2d Cir. July 13, 2021), the Second Circuit reversed the suppression of guns and drugs found in a search of defendant’s house by his New York state parole officer. The search was based on an anonymous tip that “Mr. Braggs may have guns in his house.” The District Court for the Western District of New York suppressed the evidence, as well inculpatory statements made during subsequent police questioning at his house, on the ground that the search was not based on reasonable suspicion. The district court relied on the State Department of Corrections and Community Supervision directive requiring essentially a reasonable suspicion standard for such a search, and Samson v. California, 547 U.S. 843 (2006), which tied the parameters of a search of a state parolee to the consent required of as a condition of parole.

The Second Circuit ruled that …


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Categories: Fourth Amendment, parole search, special needs

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Monday, December 21st, 2020

Second Circuit Rejects Rule 11 Challenge Based on District Court’s Confusing Explanation of the Mandatory Minimum on the Ground that the Circumstances Made it Unlikely that a More Precise Explanation Would Have Changed Defendant’s Decision to Plead Guilty.

In Pedro Garcia-Hernandez, No. 19-2504 (2d Cir. Dec. 18, 2020)(summary order), the Second Circuit rejected a Rule 11 claim that the guilty plea was not knowingly and voluntarily entered because the district court’s explanation of the sentence the defendant faced was confusing. The district explained at the plea colloquy that the defendant was subject to a 10-year mandatory minimum sentence and that his Guidelines range was 70 to 87 months. Applying plain error review, the Court of Appeals concluded that the district court effectively conveyed to the defendant that 10 years “was the actual and inevitable sentence,” citing United States v. Johnson, 850 F.3d 515, 524 (2d Cir. 2017). The Court relied on the following facts to conclude that there was no basis to believe that a “more precise explanation” of the sentence he faced would have affected the defendant’s decision to plead guilty: when told …


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Categories: knowing and voluntary plea, Rule 11

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Second Circuit Affirms Guideline Sentence For Illegal Re-entry Based the Guideline Enhancement for A Felony Conviction After Reentry.

In United States v. Daniel Antonio Salas-Miranda, No. 20-734 (2d Cir. Dec. 18, 2020)(summary order), the Court of Appeals rejected an argument that the 24-month guideline sentence, imposed for illegal reentry in violation of 8 U.S.C. § 1326(a), was substantively unreasonable. The sentence was imposed to run consecutively to a 10-year state sentence imposed for a state crime committed after the defendant re-entered. The 24-month guideline sentence was based on a 10-level enhancement under U.S.S.G.  2L1.2(b)(3)(A) that applies where the defendant has been convicted of a felony committed after the illegal reentry and sentenced to five years or more. Salas-Miranda argued that this enhancement was arbitrary because it only applied where the defendant was convicted of the state offense before his sentencing for the re-entry and would not have applied if he been sentenced in federal court first. The Court rejected that argument on the ground that …


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Categories: illegal reentry, substantive unreasonableness

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Friday, August 28th, 2020

Government operation of child pornography website to catch visitors is not outrageous government misconduct and the good faith exception applied to evidence found through a warrant based on the site.

United States v. Caraher, No. 18-511 (2d Cir. August 25, 2020)(Hall, joined by Lynch and Menashi), involved the government’s takeover and operation of the child pornography website “Playpen” for two weeks so that it could track visitors to the site, identify their identities and locations, and search their computers. The FBI obtained a warrant allowing them to search “activating computers” of “any user or administrator who logs into the Playpen website by entering a username and password.” Caraher was such a visitor and agents located him and searched his computer. The district court held that the warrant violated Fed. Rule Crim P. 41(b) and 28 U.S.C. 636(a) but applied the good faith exception to the exclusionary rule.

The Court followed its prior decision in United States v. Eldred, 933 F.3d 110, 111 (2d Cir. 2019), addressing the same warrant and holding that, even if the search and the …


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Categories: child pornography, good faith

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Wednesday, August 26th, 2020

Reliability challenge to a new testing technique, “computerized voice stress analyzer,” to verify compliance with supervised release, is not ripe for review until supervision begins.

In United States v. Birkedahl, No. 19-2304 (2d Cir. Aug. 25, 2020), the Second Circuit (Sullivan, joined by Park and Nardini)) rejected a challenge to a special condition of supervised release requiring testing by “computerized voice stress analyzer (CVSA)” to verify the defendant’s compliance with conditions in a child pornography possession case. Birkedahl had contested the scientific reliability of this technique and asked for a hearing, which was denied. The Court of Appeals held that the challenge was not “ripe” for review because the technology was rapidly evolving and could advance in the year before it would be used in Birkedahl’s supervision. Since Birkedahl will not be harmed by the test until it is used to monitor his supervised release, the Court held that he may challenge it when his supervision begins and will not be disadvantaged by the Court’s foregoing review until that time.

The court also rejected …


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Categories: ripeness, supervised release

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Friday, January 17th, 2020

Circuit Holds That New York Offense of Possession of a Sexual Performance By a Child (N.Y. Penal Law §263.16) Categorically Matches 18 U.S.C §2252(a)(4)(B) and Is an Aggravated Felony Under the INA.

In Quito v. Barr, __ F.3d __ 2020 WL 218590 (2d Cir. Jan. 15, 2020) (Wesley, Livingston, Bianco),  the Second Circuit held that attempted possession of a sexual performance by a child under N.Y. Penal Law §263.16 is an aggravated felony under the INA because it categorically fits the definition of the federal offense of possessing child pornography under 18 U.S.C. § 2252(a)(4)(B), an enumerated aggravated felony. The Court rejected petitioner’s arguments that the New York statute sweeps more broadly because it does not require knowledge of the minor’s specific age and does not include the affirmative defense to §2252(a)(4)(B) for someone who possessed fewer than three images and promptly destroyed them or turned them over.

The Court ruled, as a threshold matter, that it was not bound by its previous holding in Weiland v. Lynch, 835 F.3d 207 (2d Cir. 2016),  that  a “nearly identical” New York …


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Categories: aggravated felony, categorical approach, child pornography

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Friday, November 15th, 2019

Second Circuit Holds that a Foreign National in a Stateless Vessel Can Be Convicted Under the Maritime Drug Law Enforcement Act Where the Offense Has No Nexus to the United States.

In United States v. Van Der End, No. 17-2926 (Nov. 14, 2019) the Court of Appeals affirmed the drug trafficking conviction of a Netherlands national intercepted at sea with cocaine bound for Canada. The defendant challenged the court’s subject matter jurisdiction and the constitutionality of the Maritime Drug Law Enforcement Act (“MDLEA”), and the government moved to preclude the defense from arguing at trial that the vessel was not subject to U.S. jurisdiction. The district court ruled for the government on all three issues, holding that there was subject matter jurisdiction, that the MDLEA was constitutional, and that the jurisdiction issue could not be presented to the jury. With no defense, the defendant entered an unconditional guilty plea, but raised these claims on appeal.

The Court of Appeals held that the defendant’s guilty plea waived his right to challenge the government’s proof that the vessel was subject to U.S. …

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Categories: jurisdiction, MDLEA

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Categories: jurisdiction, MDLEA

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Thursday, November 14th, 2019

Judge Rakoff Orders Discovery On Defense Claim of Racially Selective Enforcement By “Reverse Stings”

In an Opinion and Order in United States v. Lopez, 19-cr-323 (S.D.N.Y. November 13, 2019), Judge Rakoff ordered initial discovery on the defense claim that DEA agents targeted racial minorities in their reverse sting drug robbery operations. In this reverse sting, confidential informants working with the DEA recruited the defendants, all men of color, to rob fictitious drug shipments. The defense filed a motion with evidence showing that “not a single one of the 179 individuals targeted in DEA reverse sting operations in the SDNY in the past ten years was white, and that all but two were African-American or Hispanic.” This contrasted significantly with the racial makeup of the population and the racial proportions of those arrested  for felony drug arrests and robberies, the two offenses arranged by the reverse sting. A “compelling expert analysis” demonstrated that the racially disparate impact was statistically significant and not random.

Judge …


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Categories: discovery, reverse stings, selective enforcement

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Second Circuit Vacates A Firearm Possession Plea Under Rehaif

The Court of Appeals issued its first opinion vacating a conviction under Rehaif v. United States, 19 S.Ct. 2191, 2194(2019), which held that a conviction under 18 U.S.C. 922(g) requires proof that the defendant not only knowingly possessed a firearm, but that he knew at the time that he was a prohibited person. In this case, United States v. Balde, No. 17-3337-cr(November 13, 2019), the defendant pled guilty to possessing a firearm while an alien illegally or unlawfully in the United States. The knowledge element established in Rehaif –- that he knew he was an alien unlawfully in the United States — was neither charged in the indictment nor admitted at his guilty plea. The government contended that he waived his right to appeal both in his plea agreement and in his plea. The Second Circuit rejected that argument, holding that Balde could not have waived his Rehaif


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Categories: Rehaif, Rule 11, waiver of appeal

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