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Author Archive | Darrell Fields

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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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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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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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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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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