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Author Archive | Darrell Fields

Wednesday, September 21st, 2016

Tax Attorney’s Conviction Affirmed

The single opinion the Circuit issued today is United States v. Daugerdas, No. 14-2437-cr  (Circuit Judges: Kearse, Walker, and Cabranes).

The defendant was a Certified Public Accountant and tax attorney. He and others designed tax shelters (for wealthy clients) in which the transactions underlying the shelters focused on the transactions tax consequences, not on their profitability. And the tax shelters “generally did not generate meaningful returns.” The defendant was convicted by a jury of seven counts related to the tax shelters (i.e., 1 count of conspiracy to defraud the IRS [§371] ; 4 counts of client tax evasion [26 U.S.C. § 7201]; 1 count of IRS obstruction [id. 7212(a)]; and 1 count of mail fraud [18 U.S.C. § 1341] ).

Interesting though, the jury acquitted Mr. Daugerdas of the 3 counts that charged him with personal tax evasion based on his use of  the tax shelters …

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Categories: fraud, hearsay, tax evasion

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Thursday, August 25th, 2016

Follow up on third opinion from August 24, 2016

Note, this is a follow up on the third of three opinions issued yesterday that we blogged about; see original teaser post here.

Hobbs Act robbery (the interstate commerce element); Rule 16 violation (late disclosure of defendant’s statement); defense counsel’s summation comment (case agent is an interested witness); sequestration of a witness (the case agent).

United States v. Hisan Lee, et al., Nos.11-2539; 11-2543; 11-2834; 11-4068 (Aug. 24, 2016) (Circuit Judges: Cabranes, Pooler, and Lynch).

A) A robbery that affects the “intrastate” sale of marijuana satisfies the interstate commerce element of Hobbs Act robbery (18 USC § 1951)

The defendants were part of a group (called the DeKalb Avenue Crew) that robbed dealers of cocaine and marijuana. Relying on the Circuit’s prior caselaw, the several defendants argued that evidence of an effect on interstate commerce was insufficient “because there was no evidence that any marijuana involved in the …

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Categories: Hobbs Act, summation

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Categories: Hobbs Act, summation

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Wednesday, August 24th, 2016

Second Circuit Updates – August 24, 2016 – Part 2

I. A state court’s ruling denying collateral review of a “mixed claim” of  ineffective assistance of counsel (involving matters on the record and outside of the record),  on the procedural ground that the claim was not raised on direct appeal, was not “adequate” to bar federal habeas corpus review (28 U.S.C. § 2254).

Pierotti v. Walsh, No.15-1944-pr (Circuit Judges: Pooler, Livingston, and Lohier), holds that a state prisoner’s claim of ineffective assistance of counsel (“IAC”) was not procedurally barred under 28 U.S.C. § 2254 .

A. The state trial

Petitioner Pierotti has been hearing impaired since childhood. He “wears hearing aids in both ears,” and “the only hearing aid he had with him in jail broke.”  At a pretrial hearing, his lawyer asked for a continuance to make “some accommodation for his hearing loss.”  The judge denied the request saying “this is a very small courtroom” and suggesting that …

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Categories: ineffective assistance of counsel, supervised release

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Second Circuit Updates – August 24, 2016 – Part 1

The Circuit issued three Opinions today that are relevant to people litigating issues of criminal law.  Below is a brief description, which will be followed up with more discussion later.

I. In Pierotti v. Walsh, No.15-1944-pr (Circuit Judges: Pooler, Livingston, and Lohier), the Circuit ruled in favor of a State prisoner. It holds that his claim of ineffective assistance of counsel, presented under 28 U.S.C. § 2254,  is not procedurally barred.

The petitioner in the case was hearing impaired since childhood and required two hearing aids.  His last hearing aid was destroyed while he was in jail awaiting trial.  The ineffective assistance of counsel (“IAC”) claim was that his trial lawyer did not take measures to ensure his hearing disability was accommodated at trial, so he could not understand much of what was occurring.

The IAC claim was not raised on direct appeal.  But it was presented in a …

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Categories: Hobbs Act, ineffective assistance of counsel, interstate commerce

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Wednesday, August 3rd, 2016

Court reporter’s inability to provide a complete transcript of the guilty plea allocution does not, in itself, warrant vacating a guilty plea.

United States v. Jiamez-Dolores, et al., No. 14-1840(L), 14-1842 (CON) (Circuit Judges:  Hall, Lynch, Chin).

In addition to today’s decision in Elvin Hill, the Circuit also issued this Opinion in United States v. Jiamez-Dolores, et al.

Incomplete transcript of the guilty plea.   Here, only a partial transcript of the Rule 11 colloquy was produced by the court reporter. “Both the government and the defendant agree[d] that a considerable portion of the transcript of the Rule 11 proceedings is unavailable despite their diligent efforts to locate it.” Op. at 3. Missing from the transcript were the parts of the Rule 11 proceeding that would have concerned inquiries about the defendant’s competence, his knowing waiver of various trial and constitutional rights, and his understanding of the nature of  the charges.

The defendant argued that “the absence of a complete transcript makes it impossible for this Court to determine whether …

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Categories: plea allocution, Rule 10(c), Rule 11

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An Uphill Battle

United States v. Elvin Hill, No. 14-3872-cr (Circuit Judges: Jacobs, Livingston, and Droney).(Disclosure: This is an appeal that this Office litigated).

In this direct appeal,  Mr.  Hill argued: (1)  that Hobbs Act robbery (18 U.S.C. § 1951) did not “categorically” constitute a “crime of violence” under the “force” clause of 18 U.S.C. § 924(c)(3);  and (2) that Johnson v. United States, 135 S.Ct. 2551 (2015)  applied to the residual clause of  § 924(c)(3), which is worded similarly to that of the ACCA statute — 18 U.S.C.. § 924(e)(2)(B) — and that Johnson rendered 924(c)(3)’s residual void for vagueness. Both claims were rejected by the Circuit.

The Cateqorical approach: The Circuit stated that it was applying the “categorical approach” in determining whether the predicate crime (the Hobbs Act robbery) was a “crime of violence” under §924(c).  The categorical approach looks only to the statutory definition of the predicate …

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

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More to Follow

Johnson (Bad) News:

Today, the Circuit  decided  Hill adverse to the defendant. It holds that Hobbs Act Robbery is “categorically” a “Crime of Violence” under 18 U.S.C.§ 924(c)(3).  It also holds that Johnson does not apply to § 924(c): i.e., it does not  “effectively render[]  the ‘risk-of-force clause’” of § 924(c) “void for vagueness.” United States v. Elvin Hill, No. 14-3872-cr (Jacobs, Livingston, and Droney).

We are still digesting the Opinion. More will follow.  But defense counsel will still have to raise and litigate these claims until the Supreme Court decides the issue. The Government already has a cert petition pending with the Supreme Court  based on defendant wins in the Ninth Circuit and two other circuits. This Second Circuit case clearly creates a split that the Supreme Court will most likely take on.…

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

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Friday, July 29th, 2016

Petition to file a Second or Successive 2255 petition is granted by the Circuit –in a Career Offender case based on Johnson and the cert. grant in Beckles — and the district court has discretion to proceed without waiting for the Beckles decision.

Today the Circuit amended its decision in Blow v. United States, No. 16-1530 (Katzmann, chief judge; Wesley and Hall, circuit judges). It added a single line at the end of the opinion to say that the district judge has discretion to proceed on Blow’s  2255 petition and  is not required to hold the petition in abeyance until the Supreme Court decides  Beckles v. United States, No. 15-8544, 2016 WL 1029080 (U.S. June 27, 2016).

The Circuit’s initial opinion was filed about two weeks ago, on July 14, 2016. It granted Blow’s motion to file a Second or Successive 2255 petition. But it  “instructed” the district court to “hold Blow’s §2255 motion in abeyance pending the outcome of Beckles.”

In Beckles,  the Supreme Court granted certiorari to decide whether Johnson v. United States, 135 S.Ct. 2551 (2015)  — which declared that the “residual clause” of the …

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Categories: 2255, career offender, Johnson, Uncategorized

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Wednesday, June 29th, 2016

Second Circuit Updates – June 29, 2016

Today there is a short opinion discussing the meaning of “aggravated felony” in the context of a removal proceeding. And there is a summary order in a criminal case.

In Weiland v. Lynch, No. 14-3631-ag (Circuit Judges:  Parker, Lohier, and Carney), the Circuit rejects the petitioner’s argument, in his fight against removal to Germany, that his conviction for possession of child pornography under the New York Penal Law (§263.11) did not qualify as an aggravated felony under the Immigration and Nationality Act (“INA”). His argument was that the New York offense was not an offense “described in” the analogous federal crime because the New York offense lacks an interstate commerce element that is present in the analogous federal child pornography statute. See 8 U.S.C. § 1101(a)(43) (defining aggravated felony as an offense “described in” certain federal laws).  The Circuit relied on this years’ Supreme Court decision in Torres v. …

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Friday, June 3rd, 2016

Second Circuit Updates – June 3, 2016

No criminal cases were decided by the Circuit today.

But there is an interesting civil case resulting from the plaintiff’s arrest by NYPD detectives,  on charges that were later dismissed. The plaintiff brought a civil suit against the defendants — several named NYPD detectives — under 42 U.S.C.§ 1983 .

The case is Figueroa v. Mazza et al.,  No. 14-4116-cv  (2d Cir. June 3, 2016)  (Circuit Judges: Kearse, Walker, and Cabranes; Judge Kearse dissents from part of the opinion).

In the plaintiff’s civil suit under 42 U.S.C.§ 1983  and state law, he raised the following claims against the detectives: (1) false arrest, (2) excessive force, (3) assault, (4) failure to intervene (because the detectives did not stop an unidentified police officer from beating him as he sat in a  police car), and (5) unlawful entry.

Of interest is Circuit’s discussion of the unlawful entry claim because it involves a …

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Thursday, May 19th, 2016

District court’s decision denying a motion for a sentence reduction under 18 U.S.C.§ 3582(c)(2) is vacated — explanation was insufficient to permit meaningful appellate review

United States v. Mazza, No.15-2394-cr  (2d Cir. May 19, 2016)
(summary order) (Jacobs, Parker, and Raggi).

Congratulations to the Federal Defenders in New Haven for obtaining a vacatur and remand of a district judge’s refusal to grant a defendant’s motion for a reduction of sentence under 18 U.S.C.  § 3582(c)(2).  In this summary order, the Circuit concluded that the district judge’s explanation for the summary denial of the motion was not sufficient for meaningful appellate  review, even under an abuse- of-discretion standard.

Mazza  had been convicted and sentenced in 2011 for a marijuana conspiracy:  for conspiring to manufacture and possess with intent to distribute over 1000 marijuana plants. The district court sentenced Mazza to 168 months in prison, which was the top of the Sentencing Guidelines range (of 135-168 months) as calculated at the 2011 sentencing.

But under a subsequent retroactive amendment to the Guidelines  — Amendment 782,  reducing …

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