Author Archive | Edward S. Zas

Thursday, November 17th, 2022

Defendants may not use a purported motion to correct a sentence under Rule 35 to circumvent an appeal waiver.

The Circuit held today, in United States v. Rakhmatov, No. 21-151(L) (2d Cir. Nov. 17, 2022), that “when a challenge to a prison sentence purportedly under [Fed. R. Crim. P.] 35(a) does not fall within the narrow scope of Rule 35(a), an appeal waiver can bar consideration of the motion.”

Rakhmatov pleaded guilty to conspiracy to provide material support to a terrorist group. His plea agreement said he would not appeal or “otherwise challenge” any prison sentence of 150 months or less.

Three days after being sentenced to 150 months, Rakhmatov moved to correct the sentence, citing Rule 35(a).  The motion argued that the district court “failed to properly apply the sentencing factors,” producing a sentence that was “unreasonable” and “greater than necessary.”  The district court denied the motion, holding that it was not a proper Rule 35(a) motion and, in any event, was barred by the appeal waiver. …

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Categories: appeal waiver, Rule 35(a)

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Categories: appeal waiver, Rule 35(a)

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Wednesday, November 16th, 2022

Supreme Court to Clarify the Scope of Aggravated Identity Theft

In case you missed it, the Supreme Court recently granted certiorari in Dubin v. United States, No. 22-10, which presents the question whether a person commits aggravated identity theft any time he or she mentions or otherwise recites someone else’s name while committing a predicate offense.

David Dubin was convicted of Medicaid fraud. As the case arrives at the Supreme Court, he is challenging a separate conviction under a federal law (18 U.S.C. § 1028A(a)(1)) that makes it a crime to use another person’s “means of identification” during and in relation to certain other crimes, including healthcare fraud. Federal prosecutors contend that Dubin’s use of his patient’s name on a false Medicaid claim violated the statute, adding an extra two years to his one-year sentence for fraud.

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld Dubin’s conviction and sentence, and on rehearing a …

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Categories: fraud

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Categories: fraud

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Thursday, September 8th, 2022

Three Interesting Cert. Petitions

Our friends at Scotusblog.com recently discussed three pending cert. petitions that present important and interesting criminal issues. Because these issues may arise in your practice, I note them again here so that you can preserve them for review:

  1. Shaw v. United States, No. 22-118.

Issues:  (1) Whether the jury clauses of Article III and the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence on the basis of conduct that a jury necessarily rejected, given its verdicts of acquittal on other counts at the same trial; (2) whether the Supreme Court’s decision in United States v. Watts should be overruled; and (3) whether, in avoidance of the constitutional question, the rules of issue preclusion, as applied in federal criminal cases, bar imposition of an aggravated sentence on a factual predicate necessarily rejected by the jury at trial …


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Categories: Fifth Amendment, First Amendment, Fourteenth Amendment, Sixth Amendment

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Thursday, February 24th, 2022

Evidentiary Errors Prompt Second Circuit to Vacate Forced-Labor Convictions.

Our friend Alexandra Shapiro of Shapiro Arato Bach, LLP, earned an important victory this week in United States v. Dan Zhong, No. 19-4110 (2d Cir. Feb. 23, 2022), persuading the Court to vacate her client’s conviction on three forced-labor charges. (While the Court affirmed the defendant’s convictions on two other counts, those convictions carry far shorter sentences.)

The ruling represents a rare defense victory based on multiple evidentiary errors. The Circuit, in an opinion by Judge Menashi, granted a new trial as to three forced-labor counts. The decision provides ammunition for defendants in future trials trying to rein in the Government’s efforts to introduce evidence of uncharged conduct, to curtail defense cross-examination of Government witnesses, and to use experts in improper ways.

First, the District Court had permitted the Government to introduce evidence of uncharged criminal conduct that pre-dated the charged conduct by nearly a decade and involved violence …

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Categories: Uncategorized

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Friday, June 11th, 2021

Circuit Affirms Grant of Habeas Relief Based on Clear Confrontation Clause Violation.

In Garlick v. Lee, No. 20-1796, the Circuit (Wesley, Sullivan, and Menashi) upheld Chief Judge Colleen McMahon’s decision to grant a petition for habeas corpus relief under 28 U.S.C. § 2254.

Garlick was convicted in state court of first-degree manslaughter. At trial, an autopsy report—prepared at the request of law enforcement during an active homicide investigation—was admitted into evidence over Garlick’s objection through a witness who had not participated in the autopsy or the preparation of the autopsy report. On appeal, the First Department affirmed the conviction, concluding that Garlick’s Sixth Amendment right of confrontation was not violated because the autopsy report did not link the commission of the crime to Garlick and therefore was not “testimonial.”

On collateral review, the district court granted Garlick’s § 2254 petition because the First Department’s decision was an “unreasonable application of clearly established federal law.”

The Second Circuit affirmed. Judge Menashi’s opinion …


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Categories: habeas corpus, manslaughter

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Thursday, June 10th, 2021

Supreme Court holds that a crime with a mens rea of recklessness is not a “violent felony” under the Armed Career Criminal Act.

Today’s big legal news is Borden v. United States, 593 U.S. __ (2021), in which the Supreme Court held that a criminal offense with a mens rea of recklessness does not qualify as a “violent felony” under the Armed Career Criminal Act (“ACCA”).

Borden pleaded guilty as a felon-in-possession of a firearm. The prosecution sought an enhanced sentence under the ACCA, which mandates a 15-year minimum sentence for persons found guilty of illegally possessing a firearm who have three or more prior convictions for a “violent felony.” An offense qualifies as a violent felony under the ACCA’s elements clause if it necessarily involves “the use, attempted use, or threatened use of physical force against the person of another,” 18 U.S.C. 924(e)(2)(B)(i). One of Borden’s three predicate convictions was for reckless aggravated assault in violation of Tennessee law. He argued that this offense was not a violent felony under the …

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Categories: ACCA, mens rea, violent felony

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Wednesday, June 9th, 2021

Scheme to Bribe Basketball Coaches Fouls Out.

In United States v. Dawkins, No. 19-3623(L) (2d Cir. June 4, 2021) (Raggi, Sullivan, and Nardini), the Circuit affirmed the defendants’ convictions arising from a scheme to bribe college basketball coaches, in violation of 18 U.S.C. § 666(a)(2). As relevant, Section 666 makes it a crime to bribe “an agent of an organization … in connection with any business, transaction, or series of transactions of such organization … involving anything of value of $5,000 or more,” provided that “the organization … receives, in any one[-]year period, [federal] benefits in excess of $10,000.”

The defendants argued on appeal, among other things, that this statute requires (1) a “nexus” between the “agent” to be bribed and the federal funds received by his or her organization; and (2) evidence that the “business” of a federally funded organization, to which the bribery scheme is connected, be commercial in nature.

The Circuit rejected both …

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Categories: bribery

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Tuesday, June 8th, 2021

Government Did Not Act Unconstitutionally or in Bad Faith by Refusing to Make “Substantial Assistance” Motion Under § 3553(e).

In United States v. Trimm, No. 20-2264 (2d Cir. June 2, 2021) (per curiam) (Livingston, Jacobs, and Menashi), the Second Circuit held that the district court erred in concluding that the government’s refusal to make a “substantial assistance” motion under 18 U.S.C. § 3553(e) was unconstitutional and motivated by bad faith. Accordingly, the Court vacated the defendant’s sentence and, to preserve the appearance of justice, remanded for resentencing before a different judge.

Pursuant to a plea agreement, Trimm pleaded guilty to conspiracy to use a minor to produce child pornography. Trimm also agreed to assist the government in securing the conviction of her co-conspirator. The agreement vested in the government sole discretion to determine whether and how to credit Trimm’s cooperation, including whether to file a “substantial assistance” motion under U.S.S.G. § 5K1.1, § 3553(e), or both.

After evaluating Trimm’s assistance, the government decided to make a motion under …

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Categories: 3553(a)

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Thursday, April 22nd, 2021

Second Circuit Holds that Attempted Hobbs Act Robbery Is a § 924(c) “Crime of Violence.”

The Circuit ruled today in United States v. McCoy, No. 17‑1315(L) (Kearse, Parker, and Sullivan, JJ.), that the crime of attempting to commit a Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), remains a “crime of violence” under 18 U.S.C. § 924(c), even after United States v. Davis, 139 S. Ct. 2319 (2019). The Circuit had previously held that a completed Hobbs Act robbery is a “crime of violence,” United States v. Hill, 890 F.3d 51 (2d Cir. 2018), but that a conspiracy to commit Hobbs Act robbery is not, United States v. Barrett, 927 F.3d 126 (2d Cir. 2019).

In McCoy, the Circuit rejected the defendants’ argument that attempted Hobbs Act robbery, like conspiracy to commit Hobbs Act robbery, does not qualify as a “crime of violence” because it does not necessarily have “as an element the use, attempted use, or threatened …


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Categories: crime of violence, Davis, Hobbs Act

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Monday, April 19th, 2021

Supreme Court Grants Review to Clarify Rules Governing Forfeiture or Waiver of Constitutional Right to Confront Witnesses

The Supreme Court granted certiorari today in Hemphill v. New York (No. 20-637), to resolve the following question: “Whether, or under what circumstances, a criminal defendant who opens the door to responsive evidence also forfeits his right to exclude evidence otherwise barred by the Confrontation Clause.”

The facts are straightforward. In 2006, someone fired a 9- millimeter handgun during a melee in the Bronx, killing a child in a passing car. When Hemphill was tried for the crime, he contended that the shooter was another man at the scene, Nicholas Morris. As part of that defense, Hemphill elicited testimony that the police had recovered a 9-millimeter cartridge on Morris’s nightstand hours after the shooting. The State then successfully moved to introduce a guilty plea from Morris in which he said he possessed a different gun—a .357 revolver—at the scene of the shooting. The New York courts rejected Hemphill’s claim that …


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Categories: Confrontation Clause, Sixth Amendment

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Wednesday, July 22nd, 2020

Flawed “Interested Witness” Instruction Requires New Trial

In United States v. Solano, the Circuit (Kearse, joined by Calabresi and Carney) held that the district court’s interested witness instruction—namely, that “any” witness with “an interest in the outcome” of the trial had “a motive to testify falsely”—was plain error requiring vacatur of the conviction, because the defendant had testified and the instruction violated the presumption of innocence. Mr. Solano was represented on appeal by our own Daniel Habib.

Solano, a commercial truck driver, was arrested after picking up and delivering a sealed shipping container that had held cocaine and was now under surveillance. He was charged with attempting to distribute a controlled substance. At trial, the sole disputed issue was knowledge. The government’s principal proof came from three law enforcement officers who testified that, in a post-arrest interview, Solano had confessed knowledge. Solano, for his part, testified that he did not know that the container had held …

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Categories: jury instructions

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