Author Archive | Daniel Habib

Friday, April 29th, 2022

Second Circuit: State Court’s Erroneous Denial Of Defendant’s Peremptory Strike Is Not Grounds For Federal Habeas Corpus Relief

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 …

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Friday, January 28th, 2022

Circuit Vacates LIBOR-Rigging Convictions For Insufficient Evidence

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 …

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Thursday, January 27th, 2022

Second Circuit Affirms El Chapo’s Conviction

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) …

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Monday, June 28th, 2021

Second Circuit Vacates 18 U.S.C. § 924(c) Conviction Based On Both Valid And Invalid Predicate Offenses.

In United States v. Heyward, the Circuit (Wesley, joined by Pooler and Carney), the Second Circuit vacated an 18 U.S.C. § 924(c) conviction that was based on both valid and invalid predicate offenses.

Heyward was convicted following a jury trial of three counts: (1) racketeering conspiracy, 18 U.S.C. § 1962(d); (2) drug conspiracy, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; and (3) possessing/aiding and abetting the possession of a firearm during and in relation to either the Count One racketeering conspiracy or the Count Two drug conspiracy. By special verdict, the jury found that the pattern of racketeering activity supporting the Count One conviction encompassed both murder conspiracy and drug conspiracy. In addition, the jury found that the firearm possessed in Count Three was discharged in furtherance of the Count One racketeering conspiracy, but not the Count Two drug conspiracy. The district court (Englemayer, SDNY) sentenced Heyward to 120 …

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Friday, May 7th, 2021

Second Circuit: 21 U.S.C. § 848(e)(1)(A) Is Not A “Covered Offense” For Purposes Of First Step Act Resentencing.

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.” …

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Thursday, March 4th, 2021

En Banc Second Circuit: New York First-Degree Manslaughter Is An ACCA/Guidelines Crime Of Violence.

In United States v. Scott, the en banc Second Circuit held that New York first-degree manslaughter, in violation of N.Y. Penal Law § 125.20(1) (applicable to one who “with intent to cause serious physical injury to another person, … causes the death of such person or of a third person”), is a categorical crime of violence under the force clauses of ACCA, 18 U.S.C. § 924(e)(2)(B)(i), and the career-offender Guideline, U.S.S.G. § 4B1.2(a)(1).

Scott was sentenced pursuant to ACCA and the career-offender Guideline based, in part, on two prior New York first-degree manslaughter convictions. Following Johnson v. United States, 576 U.S. 591 (2015), the district court (Swain, SDNY) granted Scott’s 28 U.S.C. § 2255 motion and resentenced him. The district court concluded that New York first-degree manslaughter does not categorically involve the “use” of violent physical force, as required by §§ 924(e)(2)(B)(i) and 4B1.2(a)(1), because under New York …

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Categories: ACCA, career offender, Johnson

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Wednesday, March 3rd, 2021

Second Circuit: Completion of Prison Sentence Moots Appeal from Denial of Compassionate Release Motion

In United States v. Chestnut, the Second Circuit (Sullivan, joined by Cabranes and Raggi) dismissed as moot a defendant’s appeal from the denial of his compassionate release motion, where the defendant had completed his sentence, and had “neither requested that the district court reduce his term of [supervised release] nor advanced any arguments to suggest that such a reduction is warranted.”

Chestnut sought compassionate release based on (i) his need to care for his children after their removal from their mother’s custody; and (ii) his medical conditions, which placed him at risk of severe illness from COVID-19. The district court (Daniels, SDNY) denied the motion. While Chestnut’s appeal was pending, he was released from BOP custody.

The Circuit concluded that the appeal was moot because Chestnut only sought a reduced prison sentence, and his prison sentence was now complete. In some cases, the Circuit said, “an appeal challenging a …

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Thursday, October 15th, 2020

Fourth Circuit: Attempted Hobbs Act Robbery Is Not A 924(c) Crime Of Violence

In United States v. Taylor, the Fourth Circuit became the first court of appeals to hold that attempted Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c)(3)(A)’s elements clause.

Taylor granted a successive 28 U.S.C. § 2255 motion and vacated the movant’s § 924(c) conviction, which had been predicated on both conspiracy to commit Hobbs Act robbery (not a crime of violence under Fourth Circuit precedent, nor under the Second Circuit’s decision in United States v. Barrett, 937 F.3d 126 (2d Cir. 2019)); and (attempted Hobbs Act robbery.

Taylor reasons that one may attempt Hobbs Act robbery by (i) intending to commit a robbery through a threat of force, and (ii) taking a nonviolent substantial step toward that objective, such as planning the robbery or reconnoitering the target. “Where a defendant takes a nonviolent substantial step toward threatening to use physical force—conduct that …

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Wednesday, August 19th, 2020

Circuit Reverses Convictions For Aiding And Abetting VICAR Murder For Insufficient Evidence

In United States v. Anastasio, the Circuit (Carney, joined by Jacobs and Pooler), reversed two convictions for aiding and abetting VICAR murder, 18 U.S.C. § 1959(a)(1), for insufficient evidence. Specifically, the Circuit held that Anastasio undertook no affirmative act that facilitated the murders; he had merely been in the company of the murderers, without offering any assistance, before and after (but not during) the shootings.

Anastasio was a member of the 10th Street Gang in Buffalo. Members of a rival gang shot and injured the brother of a 10th Street member, Delgado. Later that day, 10th Streeters, including Anastasio, beat someone they believed belonged to the rival gang. Still later that day, 10th Streeters, again including Anastasio, met at an apartment to discuss further retaliation. Delgado told those present of his plan to shoot at members of the rival gang and instructed everyone present to find guns. Several did …


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Circuit Vacates LWOP Sentence Based On Inadequate Consideration Of Juvenile Offender’s Age

In United States v. Delgado, the Circuit (Pooler, joined by Jacobs and Carney) vacated a life sentence imposed on a 17-year-old convicted of two murders, on the ground that the district court had failed to give the requisite consideration to the defendant’s age, as required by Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

Delgado was a gang member in Buffalo. A rival gang shot and injured Delgado’s brother. In retaliation, Delgado attacked members of the rival gang, but wound up shooting and killing two bystanders instead. He was 17 at the time. After a jury trial, Delgado was convicted of multiple offenses arising from his long-term gang membership, including RICO conspiracy (predicated in part on the murders), drug conspiracy, and § 924(c). The district court (Arcara, WDNY) sentenced him to life.

The Circuit vacated the life sentence. The …

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Categories: 3553(a), 924(c), Batson, bruton, RICO

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Wednesday, July 29th, 2020

Second Circuit: 31-Day Delay In Seeking Warrant To Search Seized Tablet Computer Violates Fourth Amendment, But Suppression Not Warranted Because Delay Resulted From Mere “Isolated Negligence.”

In United States v. Smith, the Circuit (Meyer, D. Conn., joined by Katzmann and Kearse), the Circuit held that police violated the Fourth Amendment by waiting 31 days before seeking a warrant to search a seized tablet computer, but declined to apply the exclusionary rule because the error was due to “isolated negligence,” and because existing precedent would not have told an objectively reasonable police officer that the delay was unreasonable.

Police encountered Smith, drunk to the point of unconsciousness, in his car on the side of the road in a rural area of upstate New York. After removing Smith from the car, and while searching the car for identification, an officer observed a tablet computer on the front passenger seat displaying what appeared to be child pornography. The officer arrested Smith for DUI and seized the tablet. Smith was released and refused consent to search the tablet. However, …


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