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Friday, June 10th, 2016

Second Circuit Updates – June 10, 2016

Not much to report today, just one summary order, which reminds us of the importance of due dates!   In United States v. Russow, 15-1768, the district court extended the defendant’s time to file an appeal.  When the defendant failed to file by that date and the government objected, the 2nd Circuit precluded an appeal. The court noted that in their ruling in United States v. Frias, 521 F.3d 229, (2d. Cir. 2008), if the government objects to a further extension of time to file an appeal after the first extension has been granted, Federal Rule of 8 Appellate Procedure 4(b) is inflexible and the appeal must be precluded.…

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Friday, May 27th, 2016

More Thoughts on Ganias

Today there was a big decision (both metaphorically and literally – the decision runs 104-pages) from the Second Circuit in United States v. Ganias about search warrants in an age of digital data. In Ganias, the government seized and made identical copies of three hard drives that belonged to an accountant, Stavros Ganias, pursuant to a warrant (the “2003 warrant”) in a fraud investigation. The government continued to hold the files, even after reviewing them for all relevant information contained in the 2003 warrant. In 2006, the government obtained a second warrant (the “2006 warrant”) as part of an IRS tax evasion investigation and they searched the files anew pursuant to that second warrant.

There were two questions presented:

  1. Whether the fourth amendment was violated when, pursuant to a warrant, the government seized and cloned three computer hard drives containing both responsive and non-responsive files, retained the cloned hard
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Categories: Fourth Amendment, good faith, search warrant

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Friday, May 20th, 2016

Second Circuit Updates – May 20, 2016

There were three summary orders from the Second Circuit. Of particular interest is the Court’s order in United States v. Choudhry, No. 15-1737-cr. There a panel of the Second Circuit (Newman, Cabranes, Lohier, Jr.) addressed, among other issues, whether jury instructions regarding the charge of transmission of a threat to injure were erroneous in light of the Supreme Court’s decision in Elonis v. United States, 135 S. Ct. 2001 (2015). As I’ve written about here before, and as this case demonstrates, courts are still struggling with the boundaries of Elonis.

The District Court in Choudhry gave the following instruction:

“[a] statement is a threat if it was made under such circumstances that a reasonable person hearing or reading the statement [who] was familiar with the context of the threat would interpret it as a threat of injury.”

But, as the Second Circuit noted, in Elonis, …

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Categories: jury instructions, plain error

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Categories: jury instructions, plain error

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Tuesday, April 26th, 2016

New RDAP Rules

Below is a message from Denise Barrett from the National Sentencing Resource Counsel Project reporting on new rules relating to the Bureau of Prisons’ Residential Drug Abuse Program (RDAP).

The BOP changed some of the RDAP rules.  They are published in the federal register and take effect May 26, 2016.

Unfortunately, BOP has retained the provision that prohibits early release for persons convicted of certain crimes (e.g. possession of a firearm).  It did, however, change the rules on prior convictions such that violent offenses older than ten years do not make the person ineligible for early release.

A substantive change was made to the rules governing  expulsions from the RDAP program.  Those who committed acts involving alcohol or drugs, violence or threats of violence, escape or attempted escape, or any 100 level series incident, are no longer subject to expulsion. 

Below is a link to the federal register, which has

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Friday, April 22nd, 2016

Second Circuit Updates – April 22, 2016

After this week’s Supreme Court decision in Welch v. United States, — S. Ct. –, slip op. (April 18, 2016) (No. 15-6418), which found that Johnson v. United States, 135 S. Ct. 2551 (2015) is retroactive to those serving Armed Career Criminal sentences, the next big question is whether the rule in Johnson will apply retroactively to career offender guidelines cases. (Quick reminder: Johnson struck down the “residual clause” in ACCA as void-for-vagueness. Identical or nearly-identical language to the residual clause pops up in many other sentencing statutes and guidelines). Welch gives some cause for hope. In an amicus brief filed yesterday in support of petitioner Alfrederick Jones for a writ of certiorari to the Supreme Court (Alfrederick Jones v. United States, No. 15-8629), the Federal Public and Community Defenders and the National Association of Federal Defenders laid out the case for why the Supreme Court …

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Categories: ACCA, career offender, crime of violence, guideline, retroactivity

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Second Circuit Updates – April 18, 2016

No published opinions today, and only one notable summary order involving an SEC civil enforcement action.

SEC v. DAVID SMITH, LYNN SMITH, et al., Nos. 15-1314-cv(L), 15-1317-cv(con), 15-1354-cv(con) (Summary Order of April 18, 2016) (Pooler, Park, and Livingston). This summary affirmance addressed multiple disgorgement orders by a district court in a civil enforcement action relating to violations of the securities laws.

Defendant David Smith, who was ordered to return $87,433,218 obtained from investors, claimed that collateral estoppel limited the disgorgement amount in the SEC case to the amount awarded in restitution in a preceding criminal action. The court disagreed and noted that the SEC allegations proven spanned from 2003 to 2009, whereas the criminal cases addressed only from 2006 to 2009. In addition, the court declared that disgorgement and restitution are “separate remedies with separate goals, and need not be treated the same.”

Defendants David and Lynn Smith together …

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Thursday, April 7th, 2016

Second Circuit Updates – April 7, 2016

No decisions or orders out of the Second Circuit today. Two interesting notes:

  • An attorney in Albany received a public reprimand and a two-year ban from practicing as a CJA lawyer before the Second Circuit for “engaging in conduct unbecoming a member of the bar.” The attorney had failed to file documents in a timely manner on numerous occasions in at least 3 different cases, among other unprofessional conduct. The Second Circuit found two aggravating factors in making this finding. First, that the attorney had been privately reprimanded for the same sort of behavior previously and that the “misconduct occurred in criminal appeals, where important liberty interests are at stake.” Interestingly, the panel (Cabranes, Sack, and Wesley) made clear that the order “should not be perceived” as requiring reciprocal discipline in the district court, where the attorney can still practice. (See New York Law Journal article here.)
  • Yesterday a
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Categories: ineffective assistance of counsel, interstate commerce

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Wednesday, April 6th, 2016

Second Circuit Updates – April 6, 2016

In a summary order, the Court declined to reach as plain error whether Aggravated Identity Theft, under 18 U.S.C. § 1028(c)(5), requires the government to prove that the individuals did not consent to the unlawful use of their identities. The majority of circuits to consider the issue have rejected the argument. It is an open question in the Second Circuit.

-Philip Weinstein

 …

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Friday, March 18th, 2016

Second Circuit Hears Argument Regarding Prosecutorial Over-Zealousness

No new criminal decisions out of the Second Circuit today. But there was one interesting argument that focused on prosecutorial overreach.

The Second Circuit heard argument today in the case of former Connecticut governor, John Rowland, who was sentenced last year to 30 months for trying to conceal his role as a paid consultant in two separate congressional campaigns in Connecticut. It was his second conviction in a decade relating to corruption. Today before the panel (Chin, Winter and Carney), his lawyer accused the government of arguing for an “unprecedented expansion” of a financial accountability law to criminalize legal consulting work that Rowland undertook during the 2012 campaign season. Rowland’s lawyer, Andrew Fish, (embed: http://www.lockelord.com/professionals/f/fish-andrew-l) a former S.D.N.Y federal prosecutor, made prosecutorial over-zealousness a centerpiece of his brief and argument in the case. Read more about the case here: http://www.courant.com/politics/hc-gov-john-rowland-appeal-0316-20160318-story.html.

-Thea Johnson…

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Friday, March 4th, 2016

Second Circuit Hears “Deflate-gate Case”

No criminal decisions out of the Second Circuit today, although the court did hear arguments today in the infamous “deflate-gate case” and did not seem receptive to the arguments made by the N.F.L. Player’s Union.

Two interesting local criminal justice stories today: First, a look at the plan to stop arresting people in Manhattan for minor offenses , such as public drinking or taking up two seats on the subway, that was unveiled this week by Mayor DeBlasio, Police Commissioner Bratton, and Manhattan DA Cyrus Vance. Vance predicts that the plan will reduce the number of low-level cases coming through the court each year by as many as 10,000.  Second, New York City Council Speaker Melissa Mark-Viverito’s Bail Fund, which would provide bail to indigent defendants charged with low-level crimes, has been approved as a not-for-profit charity by the state attorney general’s office. The fund is …

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