Author Archive | Kendra Hutchinson

Wednesday, September 6th, 2023

Drug-distribution premises sentencing enhancement applies to dealing drugs from premises formerly used as residence

In United States v. Vinales, No. 22-331-cr (Aug. 29, 2023), the panel (Lynch, Lohier, and Bianco) issued a per curiam opinion affirming application of the drug-distribution premises enhancement of U.S.S.G. § 2D1.1(b)(12).

Vinales was charged with selling drugs out of an apartment where he had once resided, but no longer did at the time of arrest. On appeal, he argued that the two-point enhancement should not apply because he did not maintain the premises after moving out “for the purpose of manufacturing or distributing a controlled substance.” In its first published opinion on this enhancement, the Circuit relied on guidelines commentary to endorse the “totality-of-the-circumstances” test employed below. It held the enhancement was applicable, reasoning that Vinales maintained the apartment and continued to sell drugs from it once he moved out. Thus, even if he still socialized there after moving out, the district court properly determined that, at his arrest, …


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Categories: 2D1.1, drug distribution, sentencing findings

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Tuesday, May 9th, 2023

Circuit considers several summation misconduct claims, affirms in summary orders

In two summary orders issued on the same day by the same panel (Cabranes, Bianco, and Merriam), the Second Circuit considered several different claims of prosecutorial misconduct. Ultimately, neither defendant prevailed, although for different reasons. 

During the main summation and rebuttal of United States v. Saunders, No. 22-569 (2d Cir. May 3, 2023) (summary order), an 18 U.S.C. 922(g)(1) felon-in-possession trial, prosecutors described the facts of the case in vivid detail that emphasized the dangers posed to the public and bystanders. Comments included: “Samuel Saunders . . . sprayed bullets into the middle of a city street”; “he barely missed other innocent bystanders”; “That’s why we’re here, because Samuel Saunders sprayed bullets into a public street and almost killed someone”; “The defendant acted with a complete disregard for human life. He could have killed multiple people that night. There were kids in the street. You saw them running for …


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Categories: prosecutorial misconduct

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Friday, April 7th, 2023

Certiorari petition to watch: United States v. Rahimi, No. 22-915

In United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), the Fifth Circuit held that 18 U.S.C. § 922(g)(8), criminalizing firearm possession by a person subject to a domestic violence restraining order, was facially unconstitutional in light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, — U.S. –, 142 S. Ct. 2111 (2022). In doing so, it became the first — and only — circuit to invalidate a federal criminal statute on Second Amendment grounds.

Within weeks, the government filed a “highly expedited” Supreme Court petition, acknowledging the lack of a Circuit split but contending that the Fifth Circuit’s decision was incorrect, had “significant disruptive consequences,” and “threatens grave harm for victims of domestic violence.”

Rahimi’s response is due on April 20, 2023. Amicus briefs should be due 30 days after that. Bruen aficionados: keep your eyes peeled and start hitting refresh on that …


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Categories: firearms, second amendment, Supreme Court

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Thursday, November 3rd, 2022

Conviction Affirmed on Ground Not Initially Briefed by the Government and First Raised by Court at Oral Argument

In United States v. Graham, No. 20-832 (2d Cir. Oct. 14. 2022) (Park, joined by Walker; Pérez concurring separately in the judgment), the defendant was convicted after trial of conspiracy to commit mail, wire, and bank fraud. On appeal, she argued, inter alia, that her lawyer rendered ineffective assistance of counsel per Missouri v. Frye by failing to timely convey a pre-trial plea offer.

The facts as to counsel’s inaction were not in dispute. The government argued, in response, that the defendant needed to raise her claim in a Section 2255 motion, and had not established prejudice.

The appeal proceeded to oral argument where, it turns out, the Court had some questions about something else: waiver. More specifically, whether Graham had waived her ineffectiveness claim. Supplemental briefing was ordered.

Ultimately, the majority affirmed the conviction on the ground of . . . you guessed it . . . …

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Friday, August 19th, 2022

Panel holds, over dissent, that non-disclosure of 5,000 pages of complainant’s psychiatric records is not an unreasonable application of Brady

The 2010 New York trial at issue in McCray v. Capra, 18-2336 (2d Cir. Aug. 17, 2022), an appeal of a state habeas corpus denial, was a pure credibility contest: the complainant testified she was violently raped; McCray testified the encounter was consensual but the two struggled afterward when she tried to steal from him; and both parties had injuries.

Prior to trial, however, and as often occurs in New York, after the prosecution disclosed the complainant’s psychiatric history, the trial judge examined her mental health records in camera for Brady material. Although there were over 5,000 pages of records, the judge only turned over 28 pages to the defense. McCray’s ensuing first-degree rape conviction was affirmed in the Appellate Division and New York Court of Appeals, both of which were closely-divided on the Brady non-disclosure issue he raised.

On appeal of the denial of McCray’s N.D.N.Y. habeas

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Monday, April 25th, 2022

Circuit affirms denial of Rule 33 motion on Brady grounds, finding lack of prejudice, but expresses “skepticism” that DOJ’s Narcotic and Dangerous Drug Section was not “part of the prosecution team” in “unusual case”

When multiple law enforcement agencies or subdivisions are involved in a case, who is “part of the prosecution team” for Brady purposes? In United States v. Hunter, Nos. 18-3074, 18-3489, & 19-790 (2d Cir. Apr. 20, 2022) (C.J.J. Cabranes, Raggi, and Korman (sitting by designation)), the Circuit affirmed the district court’s denial of Rule 33 motions following belated disclosure of exculpatory information, relying on a different Brady prong. Nevertheless, in dicta, it explored this challenging question.

The case came before the Court with a torturous and troubling procedural history. The co-defendants were convicted in SDNY in April 2018, following a joint jury trial, of various murder-for-hire, conspiracy, § 924(j), and money laundering counts, based on allegations that they were part of a transnational criminal organization. The boss of this organization was cooperating witness Paul LeRoux, who had been nabbed by the DEA in Liberia in 2012. “The scale and …


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Categories: Brady, Rule 33, Uncategorized

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