The Second Circuit did not issue any criminal decisions today.…
Wednesday, May 18th, 2016
No Second Circuit decisions today.
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Author Archive | Daniel Habib
Wednesday, May 4th, 2016
Second Circuit: Conviction for Investment Adviser Fraud Requires Only Intent To Deceive, Not Intent To Harm
In United States v. Tagliaferri, No. 15–536, the Second Circuit held that a conviction for investment adviser fraud, under section 206 of the Investment Advisers Act of 1940, 15 U.S.C. § 80b–6 and 80b–17, requires only intent to deceive one’s clients, not intent to harm them as well.
Tagliaferri ran a boutique investment advisory firm where, the government alleged, he engaged in various deceptive practices, including taking kickbacks for investing client funds with particular entities, cross-trading between client accounts, and falsely characterizing investments as loans. The government charged Tagliaferri with, among other offenses, investment adviser fraud under section 206. At trial, Tagliaferri’s defense was that, despite his deceptive practices, he “always believed that he would be able to work things out so that his clients would not be harmed.” Accordingly, he sought a jury instruction that investment adviser fraud requires not only intent to deceive one’s clients, but …
Monday, April 11th, 2016
EDNY: Dearie Reduces JLWOP Sentence to 35 Years
In 1989, when he was 16 years old, Alex Wong, a teen runaway who had been recruited by a violent street gang, committed a murder during an extortion gone awry. He was convicted of RICO conspiracy and sentenced to life under the mandatory Guidelines. On Friday, in light of the Supreme Court’s decisions in Miller v. Alabama, 132 S. Ct. 2455 (2012) (holding that the Eighth Amendment prohibits a mandatory LWOP sentence for a juvenile), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (holding that Miller applies retroactively), Judge Dearie vacated the life sentence and resentenced Wong to 35 years. Citing developments in neuroscience regarding juvenile brain development, Judge Dearie told Wong: “It does give us hope that perhaps you did not fully understand and assess the full range of consequences.”
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No published opinions from the Circuit.
In a summary order (United States v. …
Monday, April 4th, 2016
Supreme Court: Sex Offender Who Leaves U.S. For Foreign Country Not Required To Update His Registration In U.S. (UPDATE)
If you move from Kansas to the Philippines, do you still “reside” in Kansas? Seems simple, right? The Supreme Court thought so, too.
In Nichols v. United States, No. 15–5238, the Court said no, in a unanimous, eight-page opinion issued just a month after oral argument.
Lester Nichols was convicted of a sex offense and required to register under SORNA. He lived (and registered) in Kansas for about a year, before he “disconnected all of his telephone lines, deposited his apartment keys in his landlord’s drop-box, and boarded a flight to Manila.” Slip op., at 3. Nicholas was arrested in the Philippines a month later and charged with failing to update his registration in Kansas, in violation of 18 U.S.C. § 2250(a).
Nichols moved to dismiss the indictment, arguing that he was not required to update his registration in Kansas because he no longer “resided” there. The district …
Supreme Court: Sex Offender Who Leaves U.S. For Foreign Country Not Required To Update His Registration In U.S.
There were no Circuit opinions or summary orders today.
The Supreme Court decided Nichols v. United States, No. 15–5238. A unanimous Court, per Justice Alito, held that a sex offender residing in Kansas who moved to the Philippines could not be prosecuted under SORNA for failing to update his registration in Kansas after the move.
In Woods v. Etherton, No. 15–723, the Court summarily reversed the Sixth Circuit’s grant of habeas relief on an ineffective assistance of counsel claim.
And the Court granted certiorari in Pena-Rodriguez v. Colorado, No. 15–606, where the question presented is: “Whether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.”
I’ll be back with a more detailed recap later today.…
Wednesday, March 2nd, 2016
A Rare Sufficiency Win, On Transaction Structuring Counts
United States v. Taylor, No. 14-360-cr (March 2, 2016) (Droney, with by Pooler and Lohier)
The Circuit affirmed a cocaine conspiracy conviction over a constructive amendment claim, but vacated a conviction for transaction structuring on sufficiency grounds, holding that no rational juror could have found the requisite intent to evade currency reporting requirements just from the handful of suspicious transactions introduced at trial.
Taylor, a leader of the Buffalo chapter of the Afro Dogs Motorcycle Club, was charged with a conspiracy involving 5+ kilograms of cocaine — 21 U.S.C. § 841(b)(1)(A) quantity — and several counts of transaction structuring. The jury found him guilty of conspiracy, but indicated on the special verdict form that the conspiracy involved only 500+ grams of cocaine — 21 U.S.C. § 841(b)(1)(B) quantity. On appeal, Taylor argued that “this conviction, based on an amount of cocaine less than that charged in the indictment, constituted …
Monday, December 8th, 2014
Miscalculation Of Mandatory Minimum That “Has An Impact” On Sentence Is Plain Error
United States v. Sanchez, No. 11-2429-CR (2d Cir. Dec. 4, 2013) (Cabranes, Straub, and Livingston), available here
Defendant pleaded guilty to possession with intent to distribute more than 1 kilogram of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), an offense that carries a 10-year mandatory minimum. The government filed a prior felony information pursuant to 21 U.S.C. § 851, arguing that defendant’s prior Connecticut narcotics conviction increased his mandatory minimum to 20 years. Defendant did not object. Without making any reference to the mandatory minimum, the district court (D. Conn.; Nevas, J.) sentenced defendant to 288 months, a downward variance from the Guidelines range of 360-life.
On appeal, the Circuit accepted the government’s concession that it was clear error to treat defendant’s prior as a qualifying predicate because the Connecticut and federal narcotics laws are not coterminous. However, the Circuit rejected the government’s argument that the …
Tuesday, November 25th, 2014
Defendant Not Entitled To Suppression Of Evidence Obtained In Violation Of Wife’s Substantive Due Process Rights
United States v. Anderson, No. 13-4152-CR (2d Cir. Nov. 24, 2013) (Parker, Lynch, and Carney), available here
Following a traffic stop of defendant’s car, Vermont state troopers arrested defendant’s wife Crystal, a passenger, believing that she had drugs hidden on her person. The troopers brought Crystal to the state police barracks, handcuffed her to a chair, and told her that they were applying for a warrant for a body cavity search. A state judge denied the application, but the troopers concealed this fact from Crystal.
Instead, over several hours of detention and interrogation, the troopers falsely told Crystal that she would be taken to a hospital where the body search would be performed, falsely told her that her husband had incriminated her in drug trafficking, and refused her repeated requests to see a signed warrant. Ultimately, Crystal signed a Miranda waiver, admitted that there were drugs hidden in her
Sunday, November 23rd, 2014
Plain Error For District Court To Consider Non-Shepard Documents In Determining Whether Prior Offenses Were Committed On “Different Occasions” Under ACCA
United States v. Dantzler, No. 13-2930-cr (2d Cir. Nov. 14, 2014) (Cabranes, Carney and Droney), available here
The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), mandates a 15-year minimum sentence for certain firearms offenses if a defendant “has three previous convictions … for violent felony or a serious drug offense, or both, committed on occasions different from one another.” In this case, the Circuit held that in determining whether prior offenses were committed on occasions different from one another,” a district court is limited to consulting documents approved in Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2005).
That is, a district court may consider the fact of the prior conviction, the statutory definition of the offense, the charging document, the jury instructions, the written plea agreement, the transcript of plea colloquy, and any explicit factual finding
… Thursday, October 30th, 2014
Admission Of Defendant’s Social Media Profile Was Error Absent Sufficient Authentication
United States v. Zhyltsou, No. 13-803-cr (Wesley,Livingston, and Lohier), available here
At defendant’s trial for unlawful transfer of a false identification document, the government introduced a printed copy of a webpage that it claimed was defendant’s profile page from the Russian social network VK.com. The printout contained defendant’s photograph, as well as information (defendant’s Skype ID, places of employment,and birthplace) that corroborated testimony of the cooperating witness on whom the government’s case depended.
In particular, the profile listed defendant’s Skype ID as “Azmadeuz,” which was significant because the false identification document at issue had been emailed to the cooperating witness from the address “azmadeuz@gmail.com.” A State Department special agent testified that he had printed the profile page off the Internet, but acknowledged that he did not know who had created the page. Defendant objected, contending that the page had not been authenticated as his, so the printout was inadmissible
… Friday, September 19th, 2014
Car Parked Outside Victim’s House Is Within Victim’s “Presence” For Purposes of Federal Carjacking Statute
United States v. Soler, No. 12-2077-CR (2d. Cir. July 22, 2014) (Katzmann, Walker, and Droney), available
here
The federal carjacking statute, 18 U.S.C. § 2119, criminalizes the forcible taking of an automobile “from the person or presence of another.” Following decisions by all the other Courts of Appeals to have addressed the question, the Circuit here held that an automobile is in the “presence” of a victim “if it is so within his or her reach, inspection, observation, or control that he or she could, if not overcome by violence or prevented by fear, retain possession of it.”
Defendants robbed a house and, on the way out, demanded that one of the occupants give them the keys to a car parked in front of the house. The car was parked on a curb 10-15 feet, or a 5-second walk, from the front door to the house. The victim testified
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