Author Archive | Daniel Habib

In United States v. Hunt, No. 21-3020 (2d Cir. Sept. 20, 2023) (Walker, joined by Parker and Bianco), the Circuit affirmed Hunt’s conviction and sentence for threatening to assault and murder United States officials, in violation of 18 U.S.C. § 115(a)(1)(B), based on Hunt’s online posting of a video entitled “Kill Your Senators.” In the video, which was posted on January 8, 2021, Hunt said, among other things: “We need to go back to the U.S. Capitol when all of the Senators and a lot of the Representatives are back there and this time we have to show up with our guns and we need to slaughter these motherfuckers …. If anybody has a gun, give me it. I will go there myself and shoot them and kill them.”

The Circuit held:

1. The evidence was sufficient. In so holding, the Circuit rejected Hunt’s argument for application of the “constitutional

Earlier this week, on December 6, 2022, the Second Circuit held in United States v. Gibson, No. 20-3049 (2d Cir. Dec. 6, 2022), that a 2002 New York state conviction for attempted third-degree criminal sale of a controlled substance, NYPL 220.39(1) and 110.00, is not a  “controlled substance offense” under the Guidelines.

Gibson was convicted in the WDNY of bank robbery and other offenses. The PSR classified him as a career offender, based in relevant part on a 2002 New York state conviction for attempted third-degree criminal sale of a controlled substance. Gibson objected, arguing that the New York offense did not categorically involve a federally controlled substance, as required under United States v. Townsend, 897 F.3d 66 (2d Cir. 2018). Specifically, Gibson argued, New York’s 2002 drug schedules included the opium derivative naloxegol, but in 2015, the federal government had removed that substance from the federal schedules. …

In Murray v. Noeth, No. 20-3136 (2d Cir. Apr. 26, 2022), the Circuit (Nardini, joined by Sack and Park), held that a state trial court’s erroneous denial of a defendant’s peremptory strike does not violate the federal Constitution under Rivera v. Illinois, 556 U.S. 148 (2009), and therefore cannot support federal habeas corpus relief.

Murray was tried in New York state court for murder. After he exercised a number of peremptory strikes against male prospective jurors, the People raised a “reverse-Batson” challenge, arguing that Murray’s strikes were discriminating on the basis of sex. The state trial court sustained the People’s challenge and disallowed two strikes, restoring two men to the jury. Murray was convicted and the state appellate courts affirmed.

Murray filed a federal habeas corpus petition, contending that the state trial court had erred in sustaining the People’s reverse-Batson challenge. Specifically, Murray argued that …

In United States v. Connolly, No. 19-3806 (2d Cir. Jan. 27, 2022), the Circuit (Kearse, joined by Cabranes and Pooler) reversed convictions for substantive wire fraud and for conspiracy to commit wire fraud and bank fraud for insufficient evidence.

This is a LIBOR-rigging prosecution. LIBOR (the “London Interbank Offered Rate”) was an interest-rate benchmark, published daily by the British Bankers’ Association (“BBA”), meant to reflect the rates at which one bank could borrow money from other banks. LIBOR also provided a reference interest rate for use in transactions between banks. The daily LIBOR for each currency was computed based on submissions from a panel of selected banks active in the interbank market for that currency. For example, to compute the U.S. currency LIBOR at issue here, the BBA instructed each of the 16 banks on the panel to submit “the rate at which it could borrow funds, were it …

In United States v. Beltran Leyva (Guzman Loera), No. 19–2239 (2d Cir. Jan. 25, 2022), the Circuit (Newman, joined by Lynch and Park) affirmed the conviction of Guzman Loera (“El Chapo”), the former leader of the Sinaloa Cartel, for conducting a continuing criminal enterprise, and for drug trafficking, firearms, and money laundering offenses. The Circuit rejected all 10 of Guzman Loera’s appellate claims:

1) Guzman Loera lacked standing to raise the claim that the indictment violated the international law doctrine of specialty (which provides that an extradited defendant can only be tried for offenses described in the extradition treaty and charged in the extradition proceedings). Under United States v. Barinas, 865 F.3d 99 (2d Cir. 2017), the U.S.-Mexico Extradition Treaty does not confer on extradited defendants individual rights to assert violations of the Treaty, and Mexico waived any specialty objection to Guzman Loera’s prosecution in the EDNY.

2) …

In United States v. Gilliam, the Second Circuit (Nardini, joined by Katzmann and Wesley), held that drug-related murder, in violation of 21 U.S.C. § 848(e)(1)(A), is not a “covered offense” for purposes of First Step Act resentencing.

Gilliam killed a rival drug dealer and pleaded guilty to § 848(e)(1)(A), which punishes “any person engaging in an offense punishable under [21 U.S.C. § 841(b)(1)(A)] … who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results.” The district court (Gleeson, EDNY) sentenced him to 528 months.

Gilliam moved for a sentence reduction under § 404(b) of the First Step Act, which provides: “A court that imposed a sentence for a covered offense may … impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act … were in effect at the time the covered offense was committed.” …