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Author Archive | Darrell Fields

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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Tuesday, April 20th, 2021

Second Circuit upholds conviction for insider trading. United States v.  Chow, No. 19-0325, __F.3d__, 2021 WL 1256649 (2d Cir. Apr. 6, 2021) (C.J.J. Kearse, Carney, Bianco).

Benjamin Chow was a high ranking corporate officer at a couple of Chinese State-owned firms that, in 2016, tried to acquire Lattice Semiconductor Corporation, a manufacturer of a type of semi-conductor used in smart-phones. Op. 4, 5. Mr. Chow was alleged to have tipped off someone he knew, named Michael Yin, about the progress of the negotiations to acquire Lattice. Op. at 4-9 . During a 4-month period from July to November 2016, Yin traded on Lattice stock, purportedly based on this information, and made $5 million. Id. at 15.

A jury convicted Benjamin Chow of one count of conspiracy to commit securities fraud, in violation of 18 U.S.C. § 371; one count of securities fraud, in violation of 18 U.S.C. §§ 1348 and 2; and six counts of insider trading, in violation of 15 U.S.C. §§ 78j(b) and 78ff, 17 C.F.R. §§ 240.10b-5 and 10b5-2, and 18 U.S.C. § …

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Categories: insider trading, jury instructions, sufficiency, venue

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Wednesday, December 16th, 2020

Pity the poor taxpayer: Appellant goes to a federal building to get tax forms and has an argument with “aggressive” “court security officers (‘CSOs’),” resulting in a misdemeanor conviction that is affirmed in United States v. Wasylyshyn, 979 F.3d 165 (2d Cir. Nov. 3, 2020) (Chief Judge Livingston; Circuit Judge Carney; District Judge Richard M. Berman).

The Appellant in United States v. Wasylyshyn, 979 F.3d 165 (2d Cir. 2020) was convicted of creating a loud noise and nuisance at the Binghamton federal courthouse, in violation of  41 C.F.R. § 102-74.390(a), after getting into an argument with two court security officers (“CSOs”). Id.  at 168. Although the Circuit was “troubled by [the] aggressive treatment” that Appellant received “at the hands of the CSOs[,]” it nevertheless affirms the conviction. 979 F.3d at 177.

Facts

a. The trip to the federal courthouse

“Near noon on February 14,  2017, Dr. Marina Wasylyshyn” — a “surgical oncologist” specializing in the treatment of breast cancer and melanoma — went to the U.S. Courthouse in Binghamton, New York, “to collect tax forms” from a “self-service rack” in a hallway off the building’s lobby. This is what “she had done in previous years.” 979 F.3d at 169; see 2018 WL 4191137 at *8 …

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Categories: mens rea, vagueness

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Second Circuit affirms conviction for conspiracy to distribute synthetic cannabinoids, under the Analogue Act, 21 U.S.C. § 813(a). United States v Requena, 980 F.3d 30 (2d Cir. Nov. 4, 2020) (Livingston, Chief Judge; Kearse and Walker, Circuit Judges).

Defendants Brian Racine and Andrew Raymond ran a business producing and selling synthetic marijuana between 2013 and 2015. At the time, “synthetic” cannabinoids weren’t listed on the federal controlled substances schedules. Instead, the government charged that these substances were “controlled substance analogues” under the Controlled Substance Analogue Enforcement Act of 1986 (“Analogue Act”), 21 U.S.C. § 813. See 980 F.3d at 35-36.

“The Analogue Act identifies a controlled substance analogue as a substance with chemical and pharmacological properties substantially similar to those of a substance listed on schedule I or II, 21 U.S.C. § 802(32), and directs, in part, that these substances—if intended for human consumption—be treated[ ] for the purposes of any Federal law as a controlled substance in schedule I[.]” Requena, 980 F.3d at 35 (citing id. § 813(a)). “In turn, 21 U.S.C. § 841(a)(1) and (b) (1)(C) prohibit the distribution of schedule I controlled substances and …

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Categories: mens rea, sufficiency, vagueness

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Monday, November 23rd, 2020

Second Circuit affirms conviction of payday-loan lender on RICO and Truth in Lending Act (“TILA”) charges. United States v. Moseley, __F.3d__, No. 18-2003-cr, 2020 WL 6437737 (2d Cir. Nov. 3, 2020) (Circuit Judges: Kearse, Carney, Bianco).

In  United States v. Moseley, No.18-2003, 2020 WL 5523210 (2d Cir. Nov. 3,  2020) , the Second Circuit holds that the choice-of-law provisions in the defendant’s payday-loan agreements — which named  3 jurisdictions that don’t have usury laws — were unenforceable under New York law, so  the usury laws of New York applied in the case of loans to New York residents. And, here, the RICO counts were based on New York domiciled  borrowers . The agreements also didn’t sufficiently disclose the total payments the borrower would have to make on the loans, as required by TILA.

The loans

Richard Moseley operated a payday-loan business, between 2004 and 2014,  in which he “lent money to borrowers in New York and other states at interest rates exceeding —by many multiples—the maximum legal interest rates allowed in those states; in its loan documents, it failed to meet TILA disclosure requirements; and …

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Categories: due process, hearsay, RICO, Sixth Amendment

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Second Circuit affirms the convictions of two N.Y. correction officers for civil rights conspiracy and false records charges, under 18 U.S.C. §§ 241 and 1519, based on an assault of an inmate. United States v. Scott, __F.3d__, No. 18-2882-cr, 2020 WL 6494642 (2d Cir. Nov. 5, 2020) (C.J.J. Kearse, Sullivan, Park).

Defendants-Appellants Kathy Scott and George Santiago, Jr. are former correction officers with the New York State Department of Correction and Community Supervision (“DOCCS”) at the Downstate Correctional Facility in Fishkill, New York.

The evidence at their jury trial was that “Scott and Santiago, along with other officers of DOCCS, assaulted Kevin Moore, an inmate at the Downstate Correctional Facility in Fishkill, New York.” Scott, 2020 WL 6494642 at *1.  In addition, “[t]he evidence –  which included the testimony of [two] fellow DOCCS officers …  – further revealed that Defendants took numerous steps to cover up the assault, including falsifying the initial use-of force incident report.” Id.

Scott and Santiago were convicted of conspiracy to deprive a person of civil rights, in violation of 18 U.S.C. § 241; deprivation of civil rights, in violation of 18 U.S.C. § 242; conspiracy to falsify records, in violation of 18 U.S.C. § 371; …

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Monday, October 26th, 2020

Second Circuit reverses the denial of a motion to suppress a firearm found during a frisk, following a traffic stop, because the officers lacked objective reasons to believe the defendant was armed and dangerous. United States v. Weaver, __F.3d__, No. 18-1697-cr, 2020 WL 5523210 (2d Cir. Sept. 15, 2020).

In United States v. Weaver, No.18-1697, 2020 WL 5523210 (2d Cir. Sept. 15, 2020) , the Second Circuit holds that police officers didn’t have reasonable suspicion that Weaver was armed and dangerous when, after ordering him out of the car, they made him place his hands on the car’s trunk, with his legs spread apart. At best, they had reason to believe Weaver had something illicit. And the search began when Weaver was made to “spread-eagle” on the car trunk — before any officer actually put hands on him.

Judge Pooler wrote the majority opinion; Judge Calabresi concurs in a separate opinion; and Chief Judge Livingston dissents.

I. Facts

At about 5 p.m. in February 2016, when it was still “‘daylight,’” police officers in Syracuse, New York, driving an unmarked car with tinted windows, stopped the car in which Weaver was a passenger, ostensibly for a traffic violation. See…

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Wednesday, September 16th, 2020

Second Circuit: On a motion under the First Step Act, a court isn’t obligated to “recalculate” the Sentencing Guidelines range to account for new Guidelines provisions “or new judicial interpretations of existing Guidelines.” Only Guideline-changes “that flow from the Fair Sentencing Act of 2010” have to be considered. But there’s an acknowledged circuit split. United States v. Moore, __F.3d__, No. 19-1390-cr, 2020 WL 5523205 (2d Cir. Sept. 15, 2020).

In United States v. Moore, No. 19-1390-cr (available here), the Circuit (Nardini, joined by Chin and Sullivan), holds that, on a motion for a sentence reduction under Section 404 of the First Step Act, a court isn’t required to “recalculate” the Guidelines range under the current law, unless (and only to the extent) the Fair Sentencing Act of 2010 changed the Guidelines range.

Here, the district court found Moore eligible for relief under the First Step Act, as indeed he was: he was sentenced in 2009 for  “possessing with intent to distribute more than 5 grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).” Op. at 4.  The district court  nevertheless declined to exercise it’s discretionary authority, under the Act, to reduce the (188-month) sentence. The Circuit affirmed that decision. Op. at 2, 26-27.

Moore’s argument was that the district court miscalculated the Guidelines …

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Categories: career offender, First Step Act, guideline

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Thursday, June 25th, 2020

Remedy for a violation of the prompt-presentment rules of Fed.R.Crim.P. 5(c)(2) (concerning the “initial appearance” of someone arrested in a district “other than where the offense was allegedly committed”) isn’t “dismissal of the criminal case,” but an evidentiary sanction. In addition, a magistrate judge’s failure to sign the jurat on the last page of the supporting affidavit of the criminal complaint doesn’t render the complaint invalid, under Fed.R.Crim.P. 3, because the magistrate signed the criminal complaint, thereby attesting that the affiant’s assertions had been sworn before the magistrate. United States v. Peeples, No. 18-2309-cr, __F.3d__, 2020 WL 3406445 (June 22, 2020).

I.  Remedy for a violation of Fed.R.Crim.P. 5(c)(2)

Fed.R.Crim.P. 5(c)(2) governs the place for the “initial appearance” of someone “arrested in a district other than where the offense was allegedly committed” and the circumstances permitting the person’s transfer to a district outside the place of arrest. See Fed.R.Crim.P. 5(c)(2).

In United States v. Peeples, No. 18-2309-cr,  __F.3d__, 2020 WL 3406445  (June 22,  2020),  the government violated Fed.R.Crim.P. 5(c)(2) by removing Peeples from the district where he was arrested (the N.D.N.Y.) to the district of the crime  (the W.D.N.Y.) ,  without arranging for his “initial appearance” before a magistrate in the district of arrest (the N.D.N.Y.). The Circuit holds, however, that the remedy for this violation isn’t dismissal of the indictment, but the exclusion of prejudicial post-arrest evidence. And here, the government didn’t introduce Peeples’ post-arrests statements at the trial.

Peeples robbed a bank in Rochester, N.Y., located in the …

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Categories: Fed.R.Crim.P. 3, Fed.R.Crim.P. 5(c)(2), identification procedures

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Wednesday, June 10th, 2020

In a felon-in-possession case (18 U.S.C. § 922(g)), a person charged in a single count with possessing a firearm on two separate dates, during a six-day period, isn’t entitled to an instruction that the jury “must agree unanimously on a particular date or dates on which he possessed a firearm.” Rather, possession of a firearm “is a continuing offense,” so the jury only needs to find “unanimously that the defendant possessed the firearm at any point” during period of the alleged possession.  United States v. Estevez, No. 17-4159-cr, 2020 WL 3022983 (June 5, 2020).

In Estevez, the sole count of the indictment alleged that Estevez possessed a firearm on two different dates: on February 21, 2016 and February 26, 2016. The charge was based on two separate shooting incidents, on those days. But a puzzling aspect of the Opinion is that it makes no reference to last years’ Supreme Court decision in Rehaif in discussing the elements of a § 922(g) offense. That hole in the Opinion is discussed at the end of this blog entry.

The unanimity instruction

At trial, Estevez requested “a particularized, rather than a general, unanimity instruction.” He  insisted that “all [12] jurors needed to agree either that he possessed the Firearm on February 21 or that he possessed it on February 26 (or that he possessed it on both dates)[.]”  2020 WL 3022983 at *4. The district court denied the request and gave a “general unanimity instruction[.]” Id.…

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Categories: 922(g), Rehaif

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Wednesday, June 3rd, 2020

The Second Circuit vacates and remands for resentencing because of the erroneous application of the Sentencing Guidelines enhancements for possessing a “dangerous weapon” (§ 2B3.1, cmt. n.2) and “physical restraint” (§ 2B3.1(b)(4)(B)) – – which increase the offense level for robbery offenses. United States v. Taylor, No. 18-1710,  __F.3d__, 2020 WL 2745536  (May 27,  2020). 

In United States v. Taylor, the Circuit interprets two provisions of the Sentencing Guidelines that increase the offense level for robbery. It concludes that the sparse facts “set forth in the Presentence Report (PSR), upon which the district court relied at sentencing, are insufficient to support the application of either enhancement.” 2020 WL 2745536 at *1.

First, the Circuit holds that a defendant’s “hand” doesn’t become an “object” qualifying for the “dangerous weapon” enhancement when he gestures (with his hand) that he has a gun in his belt, but he’s actually unarmed and doesn’t have an object that “resembles” a gun. See U.S.S.G.§ 2B3.1(b)(2)(E).

Second, on the physical restraint enhancement, the Circuit holds that a robber’s act of ordering  a person to move from one room into another room — without actually retraining the person or locking the person in a room — doesn’t qualify as “physical[] restrain[t]” under …

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Categories: breach, guideline, robbery

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