Federal Defenders of New York Second Circuit Blog

Federal Defenders

Second Circuit: Conviction for Investment Adviser Fraud Requires Only Intent To Deceive, Not Intent To Harm

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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 … Read more

Supreme Court: Sex Offender Who Leaves U.S. For Foreign Country Not Required To Update His Registration In U.S. (UPDATE)

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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 … Read more

Supreme Court: Sex Offender Who Leaves U.S. For Foreign Country Not Required To Update His Registration In U.S.

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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. … Read more

A Rare Sufficiency Win, On Transaction Structuring Counts

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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 … Read more

Miscalculation Of Mandatory Minimum That “Has An Impact” On Sentence Is Plain Error

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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 … Read more

Defendant Not Entitled To Suppression Of Evidence Obtained In Violation Of Wife’s Substantive Due Process Rights

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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, … Read more

Plain Error For District Court To Consider Non-Shepard Documents In Determining Whether Prior Offenses Were Committed On “Different Occasions” Under ACCA

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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 … Read more

Admission Of Defendant’s Social Media Profile Was Error Absent Sufficient Authentication

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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 … Read more