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Author Archive | Darrell Fields

Monday, October 7th, 2019

Second Circuit reverses district court’s grant of a new trial in securities fraud case: United States v. Gramins, No. 18-2007-cr, __ F. 3d__, 2019 WL 4554521 (Sept. 20, 2019).

This was a government appeal from the district court’s grant of a new trial motion, under Fed.R.Crim.P. 33, on a count of conspiracy to commit security fraud,  in violation of 18 U.S.C. § 371. See 15 U.S.C. § 78j(b) (securities fraud).  The Circuit, however, reversed the district court and remanded “with instructions to reinstate the conviction and proceed to sentencing.” 2019 WL 4554521 at *1.

The case concerned the distinctive market of Residential Mortgage Backed Securities (“RMBS”). The district court granted the defendant’s Rule 33 motion on the only count on which the jury convicted (out of 9 total counts), on evidentiary grounds relying on  United States v. Litvak, 889 F.3d 56 (2d Cir. 2018) (“Litvak II”), which concerned the same RMBS market. The district court found that —  similar to what occurred in Litvak II  — a government witness misstated relevant agency law in a way …

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Categories: fraud, Rule 403, securities law

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Categories: fraud, Rule 403, securities law

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Thursday, September 19th, 2019

Second Circuit vacates and remands for fact-finding on claim the government breached a plea agreement by its oral representations during plea negotiations, despite the agreement’s “merger clause” (saying the written agreement is “the total agreement” between the parties). United States v. Feldman, Nos. 17-2868-cr, 17-2869-cr,  __F.3d__, 2019 WL 4419378  (Sept. 17,  2019). 

In United States v. Feldman, an opinion authored by Judge Pierre Leval, the Circuit addresses the government’s obligations under a plea agreement based on oral representations “made by the government to the defendant in the course of plea negotiations[.]” 2019 WL 4419378 at *1.

The defendant in this case wasn’t seeking vacatur of his guilty plea. He sought rather to vacate and stay a writ of execution that the government obtained to seize his retirement account and use for restitution. But the government had made representations during plea negotiations indicating the retirement account would be safe. The district court denied the defendant’s motion to vacate and stay the writ of execution on the account. The Circuit, however, vacated the district court’s order denying the defendant’s motion, and remanded for “factfinding and reconsideration of Feldman’s motions.” The Opinion provides an important discussion of the government’s obligations concerning plea agreements.

Facts…

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Categories: breach, plea agreement

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Categories: breach, plea agreement

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Tuesday, September 3rd, 2019

Second Circuit affirms convictions arising from a person’s alleged attempt to join ISIS in Syria. But it vacates consecutive prison sentences (of 420 months) as procedurally unreasonable because of the judge’s deficient statement of the reasons for the sentence.

Second Circuit affirms convictions arising from a person’s alleged attempt to join ISIS in Syria.  But it vacates consecutive prison sentences (of 420 months) as procedurally unreasonable because of the judge’s deficient statement of the reasons for the sentence: United States v. Pugh, No. 17-1889-cr, __F.3d__, 2019 WL 4062635  (Aug. 29, 2019). 

In United States v. Pugh, the Second Circuit rules (against the defendant) on the marital communications privilege. And it finds there was sufficient evidence of an “attempt” to provide material support to a foreign terrorist organization (18 U.S.C. § 2339B(a)(1)), and of obstruction and attempted obstruction of an official proceeding (18 U.S.C. § 1512(c)(1) and (c)(2)).

The Circuit does, however, vacate the (consecutive) sentence because of the inadequacy of the Judge’s explanation. In addition, a separate concurring opinion explicates concern about the overuse of obstruction of justice charges. Pugh, 2019 WL 2019 WL 4062635 at …

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Categories: 3553(c), evidence, marital communications privilege, Material Support, material support statute, obstruction of justice, official proceeding, sentencing, terrorism

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Categories: 3553(c), evidence, marital communications privilege, Material Support, material support statute, obstruction of justice, official proceeding, sentencing, terrorism

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Second Circuit vacates a sentence as procedurally unreasonable because the district court’s “calculation of drug quantity” wasn’t supported by a preponderance of the evidence

Second Circuit vacates a sentence as procedurally unreasonable because the district court’s “calculation of drug quantity” wasn’t supported by a preponderance of the evidence: United States v. Burks, No. 18-1361-cr, __ F. App’x__, 2019 WL 4049857  (Aug. 28, 2019). 

In a summary order, the Second Circuit vacates and remands “for sentencing” because the evidence didn’t support the district court’s drug-quantity calculation.  United States v. Burks, 2019 WL 4049857 at *3.

Local police executed a search warrant at Burks apartment and recovered “1.21 grams of cocaine residue from various narcotics packaging and processing materials at the apartment and an adjoining unit.” Id. at *1. “In the Plea Agreement,” Burks admitted that, before the police search, he had “distributed cocaine in 1//2 ounce and one ounce amounts.” Id. And the drug quantity that “could be readily proven by the government” “was less than 50 grams,” resulting in a Sentencing Guidelines …

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Categories: drug quantity, sentencing, sentencing findings

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Categories: drug quantity, sentencing, sentencing findings

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Friday, August 30th, 2019

FINAL DECISION by the Second Circuit in BARRETT

Because the residual clause of 18 U.S.C.§  924(c)(3)(B)  is unconstitutionally vague, “conspiracy” to commit Hobbs Act robbery isn’t a qualifying 924(c) predicate, since Hobbs Act conspiracy doesn’t meet the elements clause of § 924(c)(c)(3)(A). United States v. Barrett, No. 14-2641-cr, __F.3d__, 2019 WL 4121728  (Aug. 30, 2019). 

The Supreme Court vacated the Second Circuit’s original judgment that affirmed Barrett’s conviction (see 903 F.3d 166). And it remanded the case to the Circuit for further consideration in light of United States v. Davis, 139 S. Ct. 2319 (June 24, 2019). See  Barrett v. United States, 139 S.Ct. 2774 (June 28, 2019) (“petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Second Circuit for further consideration in light of United States v. Davis[.]”).

In United States v. Davis, 139 S. Ct. 2319 (2019), the Supreme …

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Categories: 924(c), conspiracy, crime of violence, Davis, Hobbs Act, Johnson

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Categories: 924(c), conspiracy, crime of violence, Davis, Hobbs Act, Johnson

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Monday, June 24th, 2019

In a 7-2 decision, the Supreme Court holds that in prosecutions under 18 U.S.C. § 922(g) and § 924(a)(2), “the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” Rehaif v. United States, Sup. Ct. No. 17-9560, __ S.Ct.__, 2019 WL 2552487 (June 21, 2019).

The Supreme Court holds that, to convict a defendant of violating § 922(g) and § 924(a)(2),  the government must show not only that the defendant knew he possessed a firearm, but “also that he knew he had the relevant status when he possessed it.” Opinion (“Op.”)  at 1. The Court states: “We conclude that in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” See Opinion (“Op.”) at 11 (emphases added).

This holding was reached in a 7-2 decision in Rehaif v. United States, Sup. Ct. No. 17-9560, 2019, __S.Ct.__, WL 2552487 (June 21, 2019), authored by Justice Breyer. Justice Alito filed a dissenting opinion joined by Justice Thomas.

Petitioner Ali Rehaif came to the United States “on …

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Categories: 922(g), mens rea

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The Supreme Court reverses death sentence for State inmate because of violations of Batson v. Kentucky (proscribing racially based exercises of peremptory challenges in jury selection): Flowers v. Mississippi, No. 17-9572, __S.Ct. __, 2019 WL 2552489 (June 21, 2019).

In Flowers v. Mississippi, No. 17-9572, __U.S.__ , 2019 WL 2552489  (June 21, 2019), the Court reversed a death sentence because of a violation of Batson v. Kentucky, 476 U.S. 79 (1986), which prohibits the racially discriminatory use of peremptory challenges.

Curtis Flowers was tried in six separate trials, by the “same lead prosecutor” for an offense that occurred in 1996. The first trial was reversed for prosecutorial misconduct; the second and third trials involved judicial findings of Batson violations;  and after the fourth and fifth trials resulted in hung juries, in the sixth trial, the prosecutor struck five of the six black prospective jurors, and Flowers was convicted. Op. at 1-2.  In a 7-2 decision, authored by Justice Kavanagh, the Court reversed the decision of the Mississippi Supreme Court affirming the conviction.

The Court cited four critical facts that taken together required reversal. “First, in …

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Categories: Batson, government misconduct, jury selection

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Categories: Batson, government misconduct, jury selection

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Friday, June 21st, 2019

A SCOTUS plurality holds that Congress authorizing the U.S. Attorney General  “to specify the applicability” of  SORNA’s registration requirements to people convicted before SORNA was enacted (in 2006), is not an unconstitutional delegation of legislative authority under Article I, § 1 of the Constitution.

Yesterday, in Gundy v. United States, Sup. Ct. No. 17-6086, 2019 WL 2527473 (June 20, 2019), a case out of the Second Circuit, a plurality of the Supreme Court held that 34 U.S.C. § 20913(d) — which authorizes the U.S. Attorney General “to specify the applicability” of the registration requirements of the Sex Offender Registration and Notification Act (“SORNA”) to people convicted before the statute’s enactment (in 2006) — is not an unconstitutional delegation of legislative authority.

The lead opinion was written by Justice Kagan, joined by Justices Breyer, Ginsburg, and Sotomayor. See Opinion (“Op.”) at 1-18. Justice Alito filed a short, one-page, opinion “concurring in the judgment.” Concurrence, Alito, J., at 1. And Justice Gorsuch filed a dissenting opinion that was joined by Chief Justice Roberts and Justice Thomas. Dissent, Gorsuch, J., at 1-33. Justice Kavanaugh did not participate in the decision since he was not on the …

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Categories: delegation, Sex offender registration

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Categories: delegation, Sex offender registration

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Favorable decision in a First Step Act case, concerning the defendant’s eligibility for relief and the nature of the proceeding under the Act: United States v. Rose, No. 03-CR-1501, _F.3d_, 2019 WL 2314479 (S.D.N.Y. May 24, 2019)

Section 404 of the First Step Act of 2018,  Pub. L. No. 115-391, 132 Stat. 5194 (2018),  empowers district courts to “impose a reduced sentence” on people who were convicted of certain cocaine base (crack cocaine) offenses before August 3, 2010, when the Fair Sentencing Act of 2010 was enacted. It makes retroactive — to defendants sentenced before August 3, 2010 — the provisions of the Fair Sentencing Act that raised from 50 to 280 grams, the quantity of crack cocaine necessary to trigger the enhanced penalties of § 841(b)(1)(A); and raised from 5 grams to 28 grams the quantity of crack cocaine necessary to trigger the enhanced penalties of § 841(b)(1)(B).

The two movants in  United States v. Rose, No 03-CR-1501,  __F.3d__,   2019 WL 2314479 (S.D.N.Y. May 24, 2019) (VEC), had been convicted at a trial, in 2005, of conspiracy to distribute 50 grams or more of crack …

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Categories: fair sentencing act, First Step Act of 2018

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Tuesday, June 18th, 2019

Supreme Court declines to overturn the dual sovereignty doctrine

In Gamble v. United States, No. 17-646, decided on June 17, 2019, the Supreme Court declined to overturn its “dual-sovereignty” doctrine — in the face of a Double Jeopardy challenge — in a 7-2 decision written by Justice Alito. Gamble v. United States, No. 17-646, 2019 WL 2493923 (June 17, 2019).

Terance Gamble was convicted in Alabama under the state’s felon-in-possession-of-a-firearm statute, after local police found a gun in his car during a traffic stop. He was sentenced to 1 year in prison (10 years’ imprisonment with all but 1 year suspended). He then was subjected to a second prosecution for the same conduct “by the United States under its own felon-in-possession law. ” Op. at 1. After Gamble’s motion to dismiss on double jeopardy grounds was denied, he pleaded guilty to the federal offense and was sentenced to 4 years in federal prison. The Eleventh Circuit affirmed …

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Thursday, December 15th, 2016

Good News and Bad News for a Defendant Sentenced under a Rule 11(c)(1)(C) Plea Agreement Who Subsequently Moved for a Sentence Reduction under 18 U.S.C. §3582(c)(2)

In United States v. Jamahl Leonard, No. 15-2232-cr (Dec. 14,  2016) (Circuit Judges: Raggi, Chin, Droney), the Circuit, in a published opinion, vacates a district court’s ruling that the defendant is ineligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) and remands for further proceedings. But it also holds that the defendant cannot receive a sentence reduction to the extent he was seeking.

At the initial sentencing, the district court determined that the Guidelines range was 121 to 151 months. But the court sentenced Leonard under a plea agreement pursuant to  Fed.R.Crim.P.11(c)(1)(C) using an agreed-upon range of 97 to 121 months. Under Rule 11(c)(1)(C), the parties agree to a particular sentencing range (Fed.R.Crim.P.11(c)(1)(C)), but if the sentencing court rejects the agreement, it must “give the defendant an opportunity to withdraw the plea.” Fed.R.Crim.P.11(c)(5)(B).  Applying the range of the 11(c)(1)(C) agreement, the district court imposed a sentence of 114 …

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Categories: 3582(c)(2), harmless error

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