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Author Archive | Darrell Fields

Wednesday, October 9th, 2024

“Time credits,” under the First Step Act (as calculated by the Bureau of Prisons), 18 U.S.C. § 3632. A person serving a prison term for multiple offenses of conviction can’t earn “time credits” — under § 3632(d)(4)(A)-(C) — if any of the offenses appear on the list of ineligible offenses in § 3632(d)(4)(D). Charles Giovinco v. Timethea Pullen, Warden, No. 23-251-pr, __ F.4th ____, 2024 WL 4438759 (2d Cir. Oct. 8, 2024) (Chief Judge Livingston; C.J.J.’s Lohier and Menashi).

1. Background

The Petitioner-Appellant appeals from the district court’s denial of a petition for a writ of habeas corpus, under 28 U.S.C. § 2241, in which he contended that the Bureau of Prisons (“BOP”) improperly denied him “earn[ed] time credits” under the First Step Act of 2018 (“FSA”), Pub. L. No. 115-391, 132 Stat. 5194. See Op. at 4-6.

Under the FSA, “[a] prisoner is not eligible to earn time credits if he ‘is serving a sentence for a conviction’ of certain enumerated offenses” that are listed in 18 U.S.C. § 3632(d)(4)(D).  See Op. at 3 (quoting § 3632(d)(4)(D)).

Here, the Petitioner, back in 2008, pleaded guilty to a 2-count indictment. And he received  concurrent prison sentences of 120 months’ on an ineligible offense, and 235 months’ for an offense not listed in § 3632(d)(4)(D).

Because Petitioner has served the 120-month sentence imposed on the ineligible offense (a child …

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Categories: First Step Act of 2018

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Thursday, November 16th, 2023

The Government is seeking certiorari from Range v. Attorney General, United States, 69 F.4th 96 (3d Cir. 2023) (en banc), which held that 18 U.S.C. § 922(g)(1) was unconstitutional as applied to Bryan Range, whose predicate offense was a (1995) conviction for making a false statement to obtain government benefits. See Merrick B. Garland, Attorney General, et al. v. Bryan David Range, No. 23-374. The case is to be conferenced tomorrow, November 17, 2023.

The Solicitor General filed the government’s petition for a writ of certiorari on October 5, 2023. Respondent Bryan Range’s papers were filed on October 18, 2023. The Solicitor General filed its reply on November 1, 2023.

The Supreme Court docket is available at: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-374.html…

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Categories: 922(g), second amendment

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Categories: 922(g), second amendment

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Tuesday, November 14th, 2023

Supreme Court grants certiorari to an alleged drug courier (challenging a federal drug conviction) because the prosecution used an “expert witness” to rebut her defense that she didn’t know about the drugs that were hidden inside her car, which she said belonged to her boyfriend. Petitioner says the “expert” testimony violated Fed.R.Evid. 704(b).

The Supreme Court granted certiorari in Diaz v. United States, No. 23-14 (cert. granted, Nov. 13, 2023).

Discussions and relevant cert. papers are available here: https://www.scotusblog.com/case-files/cases/diaz-v-united-states/

The petition for certiorari frames the “Question Presented” as follows:

Federal Rule of Evidence 704(b) provides: “In a criminual case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.” Fed.R.Evid.704(b).

The question is: In a prosecution for drug trafficking —— where an element of the offense is that the defendant knew she was carrying illegal drugs —— does Rule 704(b) permit a governmental expert witness to testify that most couriers know they are carrying drugs and that drug-trafficking organizations do not entrust large quantities of drugs to unknowing transporters?

 …

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Categories: expert witnesses, Rule 704(b)

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Categories: expert witnesses, Rule 704(b)

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In a summary order, the Second Circuit vacates a district court’s judgment imposing a complete ban on internet use, as a condition of supervised release. The Circuit concludes that it’s “substantively unreasonable” to impose such a ban on someone whose offense involved child pornography, and no evidence suggested he “is likely to seek out children on social media or prey on them in reality.” United States v. Gonyea, Nos. 22-1722-cr, 22-1727-cr (2d Cir. Nov. 13, 2023) (C.J.J.’s Jacobs, Lohier, Lee) (“Summary Order”).

I. Background

In 2017, Appellant was convicted of one count “of receiving child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1)” and sentenced to 72 months’  imprisonment “and a life term of supervised release.” Order at 3.

In 2021, after his release from custody, Probation Officers discovered that he had “created two email accounts but failed to disclose them to the New York State Division of Criminal Justice Services,” as required by the terms of his supervised release. Id. Probation Officers also “seized an unauthorized cell phone . . . containing at least three images of child pornography.” Order at 3-4.

After Gonyea admitted to several supervised release violations, the district court revoked his supervised release and sentenced him to a term of imprisonment “and a new life term of supervised release.” Order at 4. In addition, he “separately  pleaded guilty . . . to one count of …

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Categories: child pornography, Sex offender registration, substantive unreasonableness, supervised release

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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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Categories: deportation

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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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