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Author Archive | Darrell Fields

Friday, September 22nd, 2023

A Panel of the Second Circuit holds (over a dissent) that a non-citizen is removable for a crime involving moral turpitude “for which a sentence of one year or longer may be imposed” — under 8 U.S.C. § 1227(a)(2)(A)(i) — even though New York subsequently reduced the maximum sentence for Class A misdemeanors from one year to “364 days” and made the change retroactive. Vasquez v. Garland, No. 21-6380, __ F.4th ____ (2d Cir. Sept. 13, 2023) (C.J.J.’s Jacobs and Chin; C.J.J. Robinson dissenting).

I. Background

Under 8 U.S.C. § 1227(a)(2)(A)(i) —  which is Section 237(a)(2)(A)(i) of the Immigration and Nationality Act (“INA”) — a non-citizen “is deportable” if “convicted of a crime of moral turpitude” (committed within a specified period “after the date of admission”) “for which a sentence of one year or longer may be imposed.” (emphasis added).

“Peguero Vasquez . . . was admitted to the United States as a permanent resident in 2012.” See Opinion (“Op”) at 5. In 2017, he pleaded guilty to the New York offense of criminal possession of a forged instrument in the third degree, a Class A misdemeanor, because of “his use of a fraudulent license plate.” Op at 3-5; see N.Y. Penal Law  § 170.20.

But “[i]n 2019, the New York legislature reduced the maximum possible sentence for Class A misdemeanors … (including the forged instrument offense to which Peguero Vasquez pleaded …

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Tuesday, June 27th, 2023

By a 6-3 vote, the Supreme Court holds that a federal prisoner who has already filed (and exhausted) a motion under 28 U.S.C. § 2255 can’t file another postconviction motion to raise a claim of legal innocence based on an intervening statutory-interpretation-decision of  the Supreme Court.  Section 2255(h) bars second or successive 2255 motions based on non-constitutional claims; and the “saving clause” of § 2255(e) doesn’t authorize a petition for a “writ of habeas corpus,” under § 2241, for claims barred by § 2255(h). Jones v. Hendrix, Sup. Ct.  21-857, __U.S.. __  (June 22, 2023).

Thomas, J.,  delivered the Court’s opinion. Sotomayor and Kagan, JJ., filed a dissenting opinion. Jackson, J.,  filed a dissenting opinion.

Background

In 2000, petitioner Marcus DeAngelo Jones was convicted of two counts “of unlawful possession of a firearm by a felon, in violation of 18 U. S. C. § 922(g)(1)” and sentenced to 327 months’ imprisonment (a little over 27 years’). Op. at 2. After losing his direct appeal (in 2001), “Jones filed a timely § 2255 motion to vacate, set aside, or correct his sentence, which resulted in the vacatur of one of his concurrent § 922(g) sentences but no other relief.” Op. at 2. Jones exhausted his first § 2255 motion in 2006. Id.

“Years later, in Rehaif v. United States” the Supreme Court held “that a defendant’s knowledge of the status that disqualifies him from owning a firearm is an element of a § 922(g) conviction,” …

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Monday, June 26th, 2023

The Second Circuit holds that, despite the erroneous jury instructions defining the “crime of violence” required for a § 924(c) conviction — allowing the jury to convict the Petitioners based on predicate offenses that didn’t necessarily require the actual or threatened use of force — the Petitioners failed to show that the instructional errors “resulted in prejudice that would entitle them to the relief they [sought] under 28 U.S.C. § 2255.” Nardino Colotti, et al. v. United States, Nos. 21-932(L), 21-937(CON), 21-950(CON), 21-992(CON), 21-1548(CON), __ F.4th ____ (2d Cir. June 21, 2023) (C.J.J.’s Leval, Parker, Menashi).

Background

This is an appeal from a district court judgment denying the Petitioners’ motions, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct their convictions under 18 U.S.C. § 924(c).  The Circuit affirms the district court.

The Petitioners were convicted after a jury trial — conducted “in late 2005 and early 2006″ — on 14 out of 15 counts, including Count 13, which charged the Petitioners with using and carrying firearms during and in relation to a “crime of violence,” 18 U.S.C. § 924(c), which was predicated on the “offense charged in Count  One, racketeering activity in violation of the Racketeer Influenced and Corrupt Organizations Act (‘RICO’), 18 U.S.C. § 1962(c).” See Op. at 3-5.

The RICO offense, in turn, was “predicated on Racketeering Acts 4 and 5, which in turn  charged violations of N.Y. Penal Law § 155.40, the New York penal statute defining second degree …

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Categories: 2255, 924(c), crime of violence, divisible/indivisible statute, modified categorical approach, RICO

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Monday, April 24th, 2023

(1) Evidence was sufficient to prove a violation of 18 U.S.C. § 2251(a) — which prohibits using a minor to engage in sexually explicit conduct to produce a visual depiction of that conduct — when the defendant created a video showing a fully clothed, sleeping teenager and the defendant (nearby) engaging in conduct with himself. (2) Also, a 5-level sentencing enhancement, for engaging in a “pattern of activity” involving “prohibited sexual conduct,” was proper — under U.S.S.G. § 4B1.5(b)(1) — based on the offense of conviction and proof (by a preponderance) of just one other prohibited act. (3) Finally, a 70-year prison sentence, the Circuit holds. isn’t substantively unreasonable. United States v. Osuba, No. 20-3322, __ F.4th ____ (2d Cir. Apr. 17, 2023) (C.J.J.’s Calabresi, Park, Nardini).

I. The sufficiency of the evidence to prove the production count: 18 U.S.C. § 2251(a)

Appellant challenged the sufficiency of the evidence supporting his conviction, after a jury trial, of violating 18 U.S.C. §  2251(a), which mandates a minimum 15-year prison term for: “Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct . . .”

Back in 2018, Appellant “was in the living room of his girlfriend’s house, talking to someone over Kik Messenger, an instant-messaging app.” See Opinion (“Op”) at 4. While “[h]is girlfriend’s seventeen-year-old daughter was sleeping, fully clothed, on the couch in the same room, with her face turned away from him[,]” he “turned on his camera and recorded two short videos” that “show him masturbating close to the minor—first sitting or lying …

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Appellant’s submission of (three) “forged letters” of support, to the sentencing court, results in a 5-level increase in offense level: a two level upward adjustment for obstruction of justice (U.S.S.G. § 3C1.1) and the denial of a 3-level reduction for acceptance of responsibility (id. § 3E1.1). United States v. Strange, No. 21-2923, __ F.4th ____ (2d Cir. Apr. 17, 2023) (C.J.J.’s Pooler, Wesley, and Menashi).

Background

Appellant worked for a company that (generously) matched the charitable donations of its employees “up to $25,000 in donations per employee annually.” Opinion (“Op”) at 2. From 2015 to 2019, Appellant he “carried out a scheme to defraud” by “submitt[ing] fake documentation purporting to show that he, as well as some of his coworkers, had made significant charitable donations to an entity that Strange himself controlled.” Op at 2-3. The coworkers “had no knowledge of the submissions.” Op at 3. Appellant received about $600,000 from the company’s matching program, which he used “for personal expenses.” Id.

Appellant ultimately pleaded guilty to one count of wire fraud (18 U.S.C. § 1343). And his initial Guidelines range was “33 to 41 months incarceration.” Op at 3.

But a few days before sentencing, he submitted three letters “each encouraging the imposition of a probationary sentence rather than imprisonment.”Op at 3. The government …

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Categories: acceptance of responsibility, obstruction of justice, wire fraud

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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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Categories: fraud, insider trading

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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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