Author Archive | Edward S. Zas

Thursday, November 7th, 2013

Anonymous Tips Did Not Create Reasonable Suspicion

United States v. Freeman, No. 12-2233 (2d Cir. Nov. 7, 2013) (Pooler, Wesley, and Droney) (as amended), available here

In this important Fourth Amendment decision — required reading for anyone dealing with a search or seizure based on an anonymous tip — the Court held that the police, acting primarily on a pair of anonymous 911 calls from the same caller, lacked reasonable suspicion to stop the defendant. Accordingly, the Court reversed the district court’s decision denying a motion to suppress and vacated the defendant’s conviction for illegally possessing a firearm. Judge Wesley dissented. [Disclosure: the Federal Defenders of New York represents Mr. Freeman.]
These were the facts: On April 27, 2011, around 1:40 a.m, the police responded to two 911 calls from the same caller. The initial call reported that a “Hispanic male, wearing a black hat and a white t-shirt had a gun, near the
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Wednesday, November 6th, 2013

District Court Erred in Denying Motion to Reduce Sentence

In United States v. Bethea, No. 12-961-cr (2d Cir. Oct. 13, 2013) (Winter, Jacobs, and Straub) (per curiam), available here, the Circuit vacated the district court’s decision denying the defendant’s motion to reduce his sentence under 18 U.S.C. 3582(c).

Convicted of distributing cocaine, Bethea was originally sentenced in September 2010 to 80 months of imprisonment, above the then applicable 60-to-71 month Guidelines range. In September 2011, he filed a 3582(c) motion for a reduced sentence based on retroactive amendments to the crack cocaine sentencing guidelines. Everyone believed at the time that the defendant faced a mandatory statutory minimum sentence of 60 months in prison. The district court summarily denied the defendant’s motion for a sentence below 80 months, stating only that, since the original sentencing range of 60-to-71 months was already found inadequate, a further reduction “would only exacerbate the insufficiency.”

The Circuit vacated, holding that the district …

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Alleyne v. United States Is Not Retroactive

In United States v. Redd (Shue), No. 13-2971 (2d Cir. Nov. 5, 2013) (Jacobs, Straub, and Pauley) (per curiam), available here, the Circuit held that Alleyne v. United States, 113 S. Ct. 2151 (2013), does not apply retroactively to cases on collateral review.

Alleyne held that “any fact that increases the mandatory minimum [sentence] is an ‘element’ that must be submitted to the jury” and proved beyond a reasonable doubt. 133 S. Ct. at 2155.

Shue, whose 1996 convictions and 292-month prison sentence had been affirmed on direct appeal, and whose 2255 motion had been denied as time-barred, sought to take advantage of the new rule announced in Alleyne. Specifically, he asked the Circuit to reinstate his direct appeal so he could obtain relief under Alleyne.

The Circuit first construed the request as motion for leave to file a successive 2255 motion. The Circuit then held that leave could …

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Monday, November 4th, 2013

United States v. Nunez-Banuelos: Circuit Upholds Convictions for Misusing Social Security Number and for Wire Fraud

In United States v. Nunez-Banuelos, No. 12-85-cr (2d Cir. Nov. 4, 2013) (summary order), the Circuit upheld the defendant’s convictions of misusing a social security number in violation of 42 U.S.C. 408(a)(7)(B) and of wire fraud in violation of 18 U.S.C. 1341. The evidence at trial showed that the defendant used a social security number that he had made up to obtain unemployment benefits from the Connecticut Department of Labor.

On appeal, the defendant argued that the evidence was insufficient to establish that he had the requisite intent to deceive. He claimed that he did not know that only United States citizens and aliens lawfully residing in the United States could receive unemployment benefits.

The Circuit rejected the defendant’s arguments. The trial evidence showed that the application for unemployment benefits asked the defendant to submit an alien registration number if he was not a citizen but that the defendant submitted a fictional social …

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