Author Archive | Edward S. Zas

Tuesday, October 1st, 2019

Circuit Affirms Conviction and Sentence for Felon in Possession of a Firearm

In United States v. Wiggins, No. 18-1337-cr, __ F. App’x __ (2d Cir. Sept. 30, 2019), the Court summarily affirmed the defendant’s conviction and 78-month prison sentence for possessing a firearm as a convicted felon. First, the Court rejected the defendant’s argument that suppression was required because the district court improperly authorized a second search warrant of his cellphone despite the absence of probable cause. Even if probable cause was lacking, the Court ruled, the police officers executed the warrant in good faith, such that suppression was not required.

Second, the Court upheld evidentiary rulings: (1) admitting certain text messages; and (2) excluding sweatpants that the defendant allegedly wore at the time of his arrest, police recordings of his arrest, and a summary of those recordings.

The text messages tended to show that the defendant had access to a firearm as recently as a “few weeks” before his arrest …


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Categories: crime of violence, evidence, good faith, search warrant

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Friday, August 2nd, 2019

Wealthy Defendants Cannot Buy Their Way Out of Jail by Hiring Private Security Guards

In United States v. Boustani, No. 19-1018-cr (2d Cir. Aug. 1, 2019), the Second Circuit held that “the Bail Reform Act does not permit a two-tiered bail system in which defendants of lesser means are detained pending trial while wealthy defendants are released to self-funded private jails.”

Boustani was charged with conspiring to commit wire fraud, securities fraud, and money laundering. He sought bail, proposing conditions that included home confinement under the supervision of private armed security guards, to be paid for by him. The district court denied bail, finding Boustani to pose a risk of flight based on the seriousness of the charges, the lengthy potential sentence, the strength of the evidence, and the defendant’s personal characteristics, which included his “substantial financial resources.” The court also found that no set of conditions would reasonably assure the defendant’s appearances in court. Judge Kuntz specifically noted that releasing Boustani to …

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Categories: bail

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Categories: bail

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Thursday, August 1st, 2019

Mandatory Life Sentences for Murders Committed by 18-Year-Olds and Over Do Not Violate the Eighth Amendment

In Miller v. Alabama, 567 U.S. 460, 465 (2012), the Supreme Court held “that mandatory life imprisonment without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishments.” Today, the Second Circuit declined to extend Miller to cover three defendants who were between 18 and 22 when they committed murders and conspiracy-to-murder in aid of racketeering. The Court noted that “the Supreme Court has repeatedly chosen in the Eighth Amendment context to draw th[e] line at the age of 18,” which “is the point where society draws the line for many purposes between childhood and adulthood.”

The Circuit also rejected a separate argument raised by one of the defendants: that his mandatory life sentence was cruel and unusual punishment because his murder convictions were premised on Pinkerton liability, rather than personal commission of the murders.…

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Categories: Eighth Amendment, life

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Categories: Eighth Amendment, life

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Wednesday, July 31st, 2019

Circuit Affirms Convictions for Producing and Distributing Child Pornography

United States v. DiTomasso, No. 17-1699 (2d Cir. July 30, 2019), involves a defendant who was convicted after a jury trial of producing and distributing child pornography. On appeal, he argued that the district court should have granted his motion to suppress certain electronic communications found through searches conducted by two Internet service providers (AOL and Omegle), and reported to the National Center for Missing and Exploited Children. He also argued that he should have been granted a hearing on whether his trial attorney was ineffective for not calling a witness (the defendant’s uncle) who supposedly would have confessed that he, not the defendant, was guilty of the charged crimes. The Circuit rejected all the defendant’s contentions and affirmed his convictions.

First, the Court held, the AOL searches did not afford a basis for relief. The district court found that the AOL searches constituted government searches for Fourth Amendment …


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Categories: Fourth Amendment, ineffective assistance of counsel

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Tuesday, July 30th, 2019

Acquit First, Sentence Later?

The Second Circuit, like other federal circuits, has long held that the Due Process Clause permits a sentencing court to take into account conduct for which the defendant was acquitted (so-called “acquitted conduct”). See, e.g., United States v. Vaughn, 430 F.3d 518, 521 (2d Cir. 2005). But the Michigan Supreme Court just held otherwise: “Once acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime.” People v. Beck, No. 152934 (Mich. July 29, 2019).

The Court’s holding was based on the United States Constitution (rather than the Michigan Constitution). Thus, the state of Michigan could reasonably decide to petition for certiorari in the Supreme Court of the United States.

Given this possibility, and the chance that the Supreme Court of the United States will grant review and ultimately agree with Beck, you may wish to …

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Categories: due process

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Categories: due process

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Monday, July 29th, 2019

Circuit Affirms Convictions and Sentences for Bitcoin-Related Fraud

In United States v. Lebedev, No. 17-3691(L) (2d Cir. July 26, 2019), defendants Lebedev and Gross challenged their convictions, after a jury trial, of multiple counts arising from their roles in the operation of a Bitcoin exchange and a scheme to use a federal credit union for illegal purposes. Gross also challenged the application of several Sentence Guidelines provisions in imposing his sentence and his order of restitution. The Circuit affirmed.

First, the Court rejected Lebedev’s challenge to the sufficiency of the evidence. The evidence was sufficient to establish wire fraud, the Court held, because a reasonable jury could conclude, inter alia, that Lebedev deprived the victims (certain financial institutions) of “the right to control their assets by mispresenting potentially valuable economic information.” Similarly, the evidence was sufficient to establish bank fraud because a reasonable jury could conclude that Lebedev (1) caused false information to be sent to …

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Wednesday, June 26th, 2019

The Supreme Court held in United States v. Davis that the so-called “residual clause” of 18 U.S.C. 924(c)(3)(B) is void for vagueness

The Supreme Court held in United States v. Davis that the so-called “residual clause” of 18 U.S.C. 924(c)(3)(B) is void for vagueness. This means that the only way a crime can qualify as a “crime of violence” for purposes of Section 924(c) is under the “elements” (or “force”) clause of 18 U.S.C. 924(c)(A). That clause defines a “crime of violence” to mean “an offense that is a felony” and “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

So what happens now? Here’s a quick overview:

  1. Davis means that the Second Circuit’s decision in United States v. Barrett, 903 F.3d 166 (2d Cir. 2018), which upheld the constitutionality of the residual clause, is no longer good law. And more specifically, the Supreme Court is likely to grant the pending petition for certiorari in Barrett, vacate that
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Categories: 924(c), Davis, Hobbs Act, RICO

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Tuesday, June 25th, 2019

Circuit Reverses Grant of Habeas Relief for Convicted Murderer

In Hyman v. Brown, __ F.3d __ (2d Cir. June 24, 2019), the Court reversed a judgment granting habeas corpus relief from a state murder conviction under 28 U.S.C. § 2254. Judge Raggi wrote the majority opinion, in which Judge Droney joined. Judge Jacobs concurred in a separate opinion.

The Court held that the petitioner had failed to make the “gateway showing of actual innocence” necessary to permit review of his procedurally barred claim of ineffective assistance of counsel. The Court’s reasoning is lengthy and merits the attention of anyone pursuing an “actual innocence” claim. And the news for other petitioners may not be all bad: the Court rejected the State’s argument, for example, that there are “categorical limits” on the types of evidence that can be offered to demonstrate actual innocence. Nevertheless, Hyman is a deeply troubling case: both the majority opinion and the concurrence acknowledge …

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Thursday, February 16th, 2017

Second Circuit Vacates Denial of Sentence Reduction

United States v. Melendez, No. 16-1019 (2d Cir. Feb. 16, 2007) (Leval, Calabresi, Carney).

In this summary order, the Circuit vacated the denial of a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). The Court ruled that the district court (Judge Hurley) clearly erred in deciding that the defendant (a client of Federal Defenders) was legally ineligible for a sentence reduction. Judge Hurley ruled that the defendant was ineligible because, at the original sentencing, conducted by Judge Platt, the court had found him responsible for 44.8 kilograms of heroin, a quantity that precluded him from receiving a sentence reduction. The Circuit held, however, that Judge Platt never adopted the PSR’s finding of 44.8 kilograms or otherwise made a specific quantity finding. The court merely said that the PSR’s range was “accurately computed,” which would have been true if the quantity was anywhere above 10 kilograms. Thus, the …


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Categories: 3582(c)(2), drug quantity, guideline

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Thursday, December 1st, 2016

Supreme Court Rejects Double Jeopardy Claim

On Tuesday, in Bravo-Fernandez v. United States, the Court decided that, when a jury has returned inconsistent verdicts in a multi-count criminal case—acquittals on some counts but a conviction on another—and the conviction is subsequently vacated on appeal because of erroneous jury instructions, the double jeopardy clause does not preclude the government from retrying the defendant on the count that produced the conviction. Because “inconsistent verdicts shroud in mystery what the jury necessarily decided,” the Court ruled, the issue preclusion doctrine of Ashe v. Swenson cannot be applied.

The defendants were indicted in separate counts for federal bribery, conspiracy to commit that bribery, and traveling in furtherance of the bribery. Because the defendants conceded that they had both agreed and travelled, “the only contested issue at trial” was whether the offense of bribery had in fact been committed. At trial, the jury acquitted on the conspiracy and travel counts …

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Categories: bribery, double jeopardy

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Categories: bribery, double jeopardy

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Tuesday, July 26th, 2016

Second Circuit Updates – July 26, 2016

The Court today issued no published decisions in criminal cases but did decide one criminal matter in a summary order: United States v. Wilson, No. 15-1991-cr (2d Cir. July 26, 2016) (Pooler, Sack, and Lynch).

Wilson had been convicted of two counts: theft of government property, which carries a ten-year maximum prison term, and aggravated identity theft, which carries a mandatory consecutive prison term of two years. The district court (Judge Scullin) imposed the statutory maximum term of 12 years. The Circuit affirmed.

At sentencing, the court correctly calculated the Guidelines range of imprisonment to be 168-210 months and imposed a lower sentence, 144 months, which the Circuit found to be procedurally and substantively reasonable.

But the Circuit noted that it was “troubled” by the district court’s conduct at sentencing. In particular, the court had stated that it felt deceived by letters submitted by the defendant’s wife and father. …

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Categories: sentencing

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