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Author Archive | Edward S. Zas

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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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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Categories: jury instructions

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Tuesday, July 21st, 2020

Circuit Will Decide En Banc Whether New York First-Degree Manslaughter Is a “Violent Felony” and “Crime of Violence.”

In United States v. Scott, 954 F.3d 74 (2d Cir. Mar. 31, 2020), a divided panel held that New York first-degree manslaughter is neither a predicate “violent felony” under the Armed Career Criminal Act nor a “crime of violence” under the Career Offender Guideline because it can be committed by complete inaction and therefore without the use of force, as defined in Curtis Johnson v. United States, 559 U.S. 133 (2010). The panel also held that New York first-degree manslaughter does not match any of the generic offenses enumerated in the Career Offender Guideline.

On July 10, 2020, the Circuit granted the government’s petition for rehearing en banc. No briefing schedule has yet been issued. Stay tuned.…

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Categories: career offender, crime of violence, violent felony

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Categories: career offender, crime of violence, violent felony

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Monday, July 20th, 2020

Circuit Affirms Conviction on Charges Relating to Scheme to Evade U.S. Sanctions Against Iran; Instructional Error Regarding IEEPA Was Harmless.

Does the International Emergency Economic Powers Act (“IEEPA”) impose criminal liability for evading or avoiding the imposition of sanctions not yet in place, or only existing prohibitions already imposed? In United States v. Atilla, No. 18-1589 (2d Cir. July 20, 2020) (Pooler, Hall, and Sullivan), the Circuit agreed with the defendant that the latter, narrower construction is correct and that the district court mischarged the jury on this issue. But the Court held the error harmless because “the jury was properly instructed on an alternative theory of liability for which the evidence was overwhelming.”

Atilla, a Turkish national and former Deputy General Manager of Turkey’s state-owned bank, was convicted on charged relating to a multibillion-dollar scheme to evade U.S. sanctions against Iran. On appeal, he argued that the district court erred in instructing the jury on the IEEPA, that the evidence was insufficient to support his convictions, that the …

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Categories: harmless error

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Categories: harmless error

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Saturday, June 6th, 2020

Eligibility for First Step Act relief depends on the statutory offense for which a defendant was sentenced, not the “actual conduct.”

The First Step Act of 2018 authorizes district courts to make a discretionary decision about whether and how to reduce a defendant’s sentence, but only if the defendant was sentenced for a “covered offense.” The Act defines a “covered offense” as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 . . ., that was committed before August 3, 2010.”

The question in United States v. Davis, No. 19-874 (2d Cir. June 5, 2020) (Katzmann, Wesley, and Bianco), was whether Davis was originally sentenced for a “covered offense,” in which case he was eligible for a sentencing reduction. The defendant said he was sentenced for a “covered offense” because he had been convicted and sentenced for conspiring to distribute at least 50 grams of crack cocaine, in a violation of 21 U.S.C. …

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Categories: First Step Act of 2018

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Friday, June 5th, 2020

The “realistic probability” test has no role to play in the “categorical approach” when a state statute on its face is broader than the federal definition.

Here’s an important decision you may have missed because it arises in the context of an immigration proceeding rather than a criminal case. In Williams v. Barr, No. 18-2535 (2d Cir. May 27, 2020) (Jacobs, Carney, and Bianco), the Circuit clarified that, under the “categorical approach” for determining whether a state statute criminalizes more conduct than the relevant federal counterpart, the “realistic probability” test has limited application. Specifically, the test does not apply when the text of the statute itself gives it a broader reach than the generic federal definition. And, because the “categorical approach” applies in both immigration cases and criminal cases, this holding should be helpful to many criminal defendants.

Williams fought removal from the United States based on his Connecticut state conviction for unlawful carrying of a pistol or revolver. The Second Circuit agreed with him that, under the “categorical approach,” the state statute criminalized more …

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Categories: categorical approach, firearms

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Categories: categorical approach, firearms

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Thursday, June 4th, 2020

Under 18 U.S.C. § 3582(c)(2), district courts may not reduce a sentence below the bottom of the amended Guidelines range based on a § 5G1.3(b) adjustment at the original sentencing.

In United States v. Zapatero, No. 18-3829 (2d Cir. June 3, 2020) (Hall, Sullivan, and Bianco), the Circuit held that the plain language of 18 U.S.C. § 3582(c)(2), and its incorporated Guidelines provisions, preclude a district court from reducing a sentence below the amended Guidelines range based on a § 5G1.3(b) adjustment at the original sentencing.

Zapatero was originally sentenced in the District of Vermont to 168 month of imprisonment, below the then-applicable Guidelines range of 210-262 months. The court directed that the sentence should run concurrently with an undischarged 51-month prison term previously imposed in the Southern District of New York. And the court also directed that Zapatero receive “credit” toward his Vermont sentence from the time his detention began in Vermont, even though the credit would also include time spent in custody on the New York case. Zapatero characterized this purported granting of “credit” as a sentence …

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Categories: 3582(c)(2)

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Wednesday, June 3rd, 2020

Circuit affirms convictions arising from usurious and fraudulent lending scheme.

In United States v. Tucker, No. 18-181(L) (2d Cir. June 2, 2020) (Leval, Pooler, and Parker), the Second Circuit unanimously affirmed Muir’s and Tucker’s convictions arising from their operation of an illegal payday lending scheme.

The central issue on appeal concerned the jury instructions regarding “willfulness.” The trial judge instructed the jury with respect to several counts that the defendants acted willfully if they knew of the high interest rates being charged to borrowers, even if the defendants believed the lending was lawful. The defendants, however, failed to object to the jury instructions after they were given, as generally required by Fed. R. Crim. P. 30. Thus, the Circuit held, the defendants’ had to satisfy the demanding “plain error” standard to prevail on appeal.

The Circuit ruled that, even if the challenged “willfulness” instruction was erroneous—an issue it did not resolve—any error was not reversible plain error. The Court …

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Categories: jury instructions, plain error

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Tuesday, June 2nd, 2020

Supreme Court Holds that a Motion to Alter or Amend a Judgment Under Civil Rule 59(e) Is Not a Second or Successive Habeas Petition.

In Bannister v. Davis, No. 18-6943 (June 1, 2020), the Supreme Court today held that a motion to alter or amend a judgment under Fed. R. Civ. P. 59(e) is not a “second or successive” petition for habeas corpus purposes. The vote was 7–2, with only Justices Alito and Thomas dissenting.

Justice Kagan’s opinion for the Court begins this way:

A state prisoner is entitled to one fair opportunity to seek federal habeas relief from his conviction. But he may not usually make a “second or successive habeas corpus application.” 28 U.S.C. §2244(b). The question here is whether a motion brought under Federal Rule of Civil Procedure 59(e) to alter or amend a habeas court’s judgment qualifies as such a successive petition. We hold it does not. A Rule 59(e) motion is instead part and parcel of the first habeas proceeding.

And the Court’s opinion concludes as follows:

Our …

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Categories: habeas corpus

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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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