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Author Archive | Darrell Fields

Tuesday, January 17th, 2023

After a Supreme Court remand, a Circuit Panel concludes that the defendants’ fraud and conversion convictions should be reversed because the confidential information misappropriated from a federal regulatory agency didn’t constitute “property” or a “thing of value” (to the agency) for purposes of wire fraud, Title 18 securities fraud, and conversion (in violation of 18 U.S.C. §§ 1343, 1348, and 641). United States v. Blaszczak, Nos. 18-2811, 18-2825, 18-2867, 18-2878, __F.4th__, 2022 WL 17926047 (2d Cir. Dec. 27, 2022) (C.J.J. Kearse and Walker; Judge Sullivan dissents).

After the Circuit’s original decision (in 2019) affirmed the fraud and conversion convictions of the four defendants (over a dissent by Judge Kearse), the Supreme Court granted cert., vacated the judgment, and “remanded for further consideration, in light of Kelly v. United States, ––– U.S. ––––, 140 S. Ct. 1565 (2020).”  See United States v. Blaszczak, 947 F.3d 19 (2d Cir. 2019), vacated and remanded, 141 S. Ct. 1040 (2021).

In light of Kelly, the Department of Justice “‘determined that the confidential information at issue in [Blaszczak] does not constitute ‘property’ or a ‘thing of value’ under the relevant statutes’” — 18 U.S.C. §§ 1343, 1348, and 641 — so, the convictions on the substantive counts of fraud and conversion should be dismissed. See Blaszczak, 2022 WL 17926047 at *4 (quoting the Government’s brief on remand). However, the government argued that two conspiracy …

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The government’s use of a former cellmate’s testimony to introduce a defendant’s statements about his planned trial strategy didn’t violate the Sixth Amendment right to the effective assistance of counsel where the witness wasn’t a government informant when the defendant confided in him. Also, a federal probation officer’s warrantless search of the home and car of a person “serving a term of supervised release” didn’t violate the Fourth Amendment because the probation officer needed only a “reasonable suspicion” to search, not a warrant or probable cause. United States v. Chandler, No. 18-1841, 56 F.4th 27 (2d Cir. [Dec. 27,] 2022) (C.J.J.’s Lynch, Carney, and Sullivan).

This appeal addresses a Fourth Amendment claim raised in the context of a Probation Officer’s search of the home and car of  “an individual serving a term of supervised release.” The Circuit concludes that the searches were valid because the Probation Officer had a “reasonable suspicion” that the defendant was committing crimes.

The case also addresses the scope of a defendant’s Sixth Amendment right to the effective assistance of counsel “when the government presents a witness to whom the defendant has volunteered his thoughts about defense strategy and who, after learning the defendant’s thoughts, agrees to testify for the government.” Here, the government witness was a person who shared a jail cell with the defendant, during a two-week period of pretrial detention, and later became a government informant. Because the witness “was not a government informant when Chandler spoke to him about Chandler’s expected trial strategy, the government did not …

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Categories: Fourth Amendment, reasonable suspicion, Sixth Amendment, supervised release

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Wednesday, December 14th, 2022

Under 18 U.S.C. § 1591, the term “commercial sex act” — defined as “any sex act, on account of which anything of value is given to or received by any person,” id. § 1591(e)(3) — doesn’t require that the “[]thing of value” have a monetary value; it can be something “intangible” that has a subjective value to the person receiving it. United States v. Raniere, Nos. 20-3520-cr(L), 20-3789-cr(Con), __ F.4th ____, 2022 WL 17543156 (2d Cir. Dec. 9, 2022) (C.J.J.’s Calabresi, Cabranes, and Sullivan).

This case concerns the meaning of “commercial sex act,” in subdivision (e)(3) of 18 U.S.C. § 1591, titled “Sex trafficking of children or by force, fraud, or coercion.”  A “commercial sex act” is defined as “any sex act, on account of which anything of value is given to or received by any person.” 18 U.S.C. § 1591(e)(3).

The Appellant argued that the phrase “anything of value” must mean “‘economic benefit[ ].’” The Circuit holds, however, that the phrase isn’t restricted to monetary or financial benefits but can include “intangibles,” such as maintaining or improving a person’s position within the hierarchy of a group. Raniere, 2022 WL 17543156 at *4-*8. The focus is on the value that the recipient “subjectively attaches to what is sought to be received.” Id. at *5.

Background

Appellant Keith Raniere was the leader of an executive coaching and self-help organization called NXIVM that he started …

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Categories: jury instructions, sex trafficking, statutory interpretation, sufficiency

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Friday, December 9th, 2022

In this summary order, the Circuit vacates a district court judgment that summarily denied a 28 U.S.C. § 2255 motion, alleging that ineffective assistance counsel caused the petitioner to forego a direct appeal. Kenya Brown v. United States, No. 20-3404-pr (2d Cir. Dec. 6, 2022) (C.J.J.’s Livingston, Nardini, and Menashi) (“Summary Order”).

Petitioner-Appellant Kenya Brown was sentenced on December 28, 2016. But no notice of appeal was filed.

Brown had pleaded guilty, under a plea agreement, to conspiring to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846; and possessing a firearm in furtherance of that conspiracy, in violation of 18 U.S.C. § 924(c). At the December 2016 sentencing, he received a sentence of 248 months’ imprisonment and five years’ supervised release — “a sentence on the low-end of the  Guidelines range.” See Summary Order at 2.

But about a year after the sentencing — on January 8, 2018 — Brown filed a pro se petition, under 28 U.S.C. § 2255, alleging that he was “denied effective assistance of counsel with regard to post-sentencing proceedings due to his counsel’s failure to ‘consult with Mr. Brown on the consequences of not filing a direct appeal.’” See Summary Order 2-3. Brown …

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Thursday, December 8th, 2022

In an appeal from a district court’s decision declining to “reopen [a] detention hearing under 18 U.S.C. § 3142(f),” the Second Circuit concludes that the district court declining to reopen the detention hearing wasn’t an abuse of discretion. And the district court’s consideration of the strength of the evidence against the defendant, in weighing the bail factors listed in § 3142(g), didn’t impinge on the presumption of innocence because that’s a trial right that “has no application to a determination of the rights of a pretrial detainee.” United States v. Zhang, No. 22-1761-cr, __ F.4th ____, 2022 WL 17419594 (2d Cir. Dec. 6, 2022) (C.J.J.’s Raggi, Wesley, and Nardini).

Defendant-Appellant Zhe Zhang was indicted for participating in a successful murder-for-hire scheme. And the district court ordered him detained pending trial noting, among other things. “[t]hat the charged crime was ‘extremely serious’ and the evidence against Zhang was strong.” 2022 WL 17419594 at *2.

The defendant didn’t, however, appeal the district court’s original decision denying pretrial release. He instead appealed the court’s subsequent decision denying his motion to “reopen” the detention hearing. Id. *3.

At the original detention hearing in the district court (on May 19, 2022), there was “a brief discussion of the possibility of capital punishment,” and the government couldn’t confirm whether it would seek the death penalty “because the matter was still pending with U.S. Department of Justice in Washington, D.C..” Id. at *2. “But the court noted its understanding that, as matter of policy, ‘this Justice Department was not pursuing the death penalty” in this case. …

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Tuesday, September 6th, 2022

A prior conviction under N.Y. Penal Law § 130.50(3) (1965) categorically “relates to” the sexual abuse of a minor, justifying the sentencing enhancements (for child pornography offenses) of 18 U.S.C. § 2252A(b)(1) and (b)(2) — which aren’t unconstitutionally vague. United States v. Ragonese, No. 20-3371-cr, __F.4th__ , 2022 WL 3903437 (2d Cir. Aug. 31, 2022) (Sack, Lynch, and Bianco, Circuit Judges).

  1.  The sentencing enhancements of 18 U.S.C.§ 2252A(b)(1) and (b)(2)

This case concerns the recidivist sentencing enhancements of the child pornography statute, 18 U.S.C. § 2252A. For offenses involving “possession” of child pornography, the penalty is 0 to 10 years’ imprisonment. For “receipt,” there’s a 5-year mandatory minimum prison sentence. But, if the defendant has a prior state conviction under a law “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” the minimum penalties are significantly enhanced: for possession, the minimum prison sentence increases from 0 years to 10 years; for receipt, the minimum increases from a 5-year prison term to 15 years. See18 U.S.C. § 2252A(b)(1) (receipt),  (b) (2) (possession). (The maxima also increase:  from 10 years to 20 years for possession, and from 20 years to 40 years for receipt).

In this case, Appellant pleaded guilty to one count of possessing …

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Categories: child pornography, plain error, vagueness

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Friday, September 2nd, 2022

In a motion for Compassionate Release, “a district court does not have discretion to consider new evidence . . . attacking the validity of the underlying conviction” in weighing “the 18 U.S.C. § 3553(a) factors.” United States v. Amato (Victor Orena), No. 21-2747, __ F.4th ____ (2d Cir. June 15, amended Aug. 31, 2022) (per curiam) (C.J.J.’s Pooler, Sack, and Nathan).

(The opinion in this case was originally issued on June 15 2022, and published at 37 F.4th 58, but was withdrawn and “this amended opinion [was issued] in its place”). See ECF No. 85, Opinion of Aug. 31, 2022  (“Op.”)  at 3 n.1.

Appellant Victor Orena appealed the district court’s denial of his motion to reduce his life-sentence, pursuant to 18 U.S.C. § 3582(c)(1), “colloquially known as the ‘compassionate release’ provision,” which “permits a district court to reduce a previously imposed sentence ‘after considering the factors set forth in [18 U.S.C. § 3553(a)] to the extent that they are applicable, if it finds that … extraordinary and compelling reasons warrant such a reduction.” Op. at 2-3 (alterations in original)..

Orena argued primarily that the district court erred in denying his § 3582(c) motion “by refusing to consider new evidence that he says calls into question the validity of his conviction.” …

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Marijuana distribution is still a violation of 21 U.S.C. § 841(a)(1). The Second Circuit REJECTS the argument that marijuana’s inclusion in Schedule I of the Controlled Substance Act (“CSA”) lacks a rational basis and thus violates Fifth Amendment due process and equal protection rights. United States v. Green, Nos. 19-997(L), 19-1027 (Con), __F.4th__ , 2022 WL 3903654 (2d Cir. Aug. 31, 2022) (C.J.J. Sack and Bianco; D.J. Underhill).

Two Rochester, New York, marijuana entrepreneurs, “the Green Brothers,” asked the Circuit to strike down marijuana’s classification as a Schedule I drug as an unconstitutional violation of their due process and equal protection rights and, on that basis, dismiss the narcotics charges against them.  Green, 2022 WL 3903654 at **1-2.

“They argued that marijuana’s scheduling has no ‘rational basis’ because it does not meet the statutory criteria for Schedule I classification; that is, the CSA requires that a substance have no currently accepted medical use in treatment in the United States to fall under Schedule I, see 21 U.S.C. § 812(b)(1), and marijuana does have accepted medical uses.” Id. at *2.  The Circuit rejects this argument.

I. Background facts

“Alexander Green obtained hundreds of kilograms of marijuana from California which he shipped to his brother, Charles Green, in New York State” for distribution “in the Rochester, New York area.” …

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Monday, November 15th, 2021

On appeal, a preserved challenge to a Rule 11 error at the guilty plea is reviewed for harmless error, and it’s the government’s burden to prove that the Rule 11 error was harmless. United States v. Freeman, No. 19-2432, __F.4th__ , 2021 WL 5114918 (2d Cir. Nov. 4, 2021) (C.J.J. Sullivan, Park, and Nardini).

During a guilty plea allocution to a drug conspiracy, the district court erroneously stated that the mandatory minimum term of supervised release term was 5 years, when it actually was 10 years, thereby violating Fed.R.Crim.P. 11(b)(1)(I)’s requirement the defendant be accurately informed about punishment, including “any mandatory minimum penalty.” Freeman preserved his challenge to the Rule 11 error by moving to withdraw his guilty plea before sentencing. The district court denied the motion. And the Circuit affirmed, saying the error was harmless (under Fed.R.Crim.P. 11(h)). But the Opinion’s stated purpose is to “clarify” that “a preserved challenge to a Rule 11 error is subject to harmless error review on appeal and that the government bears the burden of showing that the error had no effect on the defendant’s substantial rights.” Op at 3.

BACKGROUND

The grand jury returned a one-count  indictment charging Freeman with a drug conspiracy in violation of …

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Monday, September 13th, 2021

Second Circuit reverses and remands an order of restitution, imposed under the Mandatory Victim’s Restitution Act of 1996 (“MVRA”) — 18 U.S.C. § 3663A(a)(2), (c) — because the Government failed to prove, by a preponderance, the proximate cause element: i.e., that the losses to the victims were foreseeable to the defendant in the course of committing the “offense of conviction.” United States v. Goodrich, No. 19-208, __F.4th__ , 2021 WL 3889801 (2d Cir. Sept. 1, 2021) (C.J.J. Calabresi, Pooler, Carney).

The Circuit reversed, in part, an Amended Judgment that imposed restitution under the MVRA, because, although the defendant was responsible for the $479,000 losses to purchasers of stocks traded on the public market, the government didn’t establish that the $1.85 million of losses from the “private placement” trades were foreseeable to Goodrich.

Defendant Goodrich, a broker-dealer in the over-the-counter securities market,  pleaded guilty to a conspiracy to commit securities fraud, in violation of 18 U.S.C. § 371. Goodrich executed fraudulent trades with co-defendants to artificially inflate the share price of a sham company named, Cubed, Inc.  Op at 3-4 (They allegedly engaged in a “pump and dump” market manipulation scheme, through “wash” and “matched” trades); see Op at 4, 6, footnotes 1 & 4 defining a pump & dump scheme and wash and matched trades).

Goodrich executed trades in the public market, while “his co-defendants, who are not appellants here, …

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Monday, July 12th, 2021

The Second Circuit holds that the concurrent sentence doctrine applies when a defendant collaterally challenges the legality of a conviction, under 28 U.S.C. § 2255, and declines to review the § 2255 appeal. Kassir v. United States, No. 19-1477, __F.3d__ (2d Cir. July 9, 2021) (C.J.J. Jacobs, Nardini).

The Circuit applies the “discretionary” concurrent sentence doctrine because the petitioner’s 2255 motion attacked only a single count of conviction, that resulted in a 20-year sentence that is concurrent to “two terms of life in prison” on counts unchallenged. The Circuit said it was exercising its discretion “to decline” to review Mr.  Kassir’s 2255 appeal (challenging the validity of a conviction) because “[e]ven  if  his challenge were successful, our decision would  not shorten the time Kassir must remain in custody because he remains subject to two concurrent life sentences[.]” Op. at 2-3.

The Circuit holds, however, that  if, in the future, the petitioner is able to challenge his two life sentences, he may renew his 2255 challenge to the concurrent 20-year sentence. Op at 25-27.

I. The Circuit avoids deciding (i) whether Dimaya and Davis established a new rule of constitutional law, retroactive to cases on collateral review; or …

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Categories: 2255, concurrent sentence doctrine, Davis, Dimaya, habeas corpus, harmless error, Johnson

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