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Author Archive | Matt Larsen

Thursday, April 2nd, 2020

A Crime that Can be Committed by Inaction is Not a “Crime of Violence”

The Second Circuit held this week that an offense is not a “crime of violence [if] it can be committed by complete inaction and therefore without the use of force.”  United States v. Scott, ___ F.3d ___, 2020 WL 1522825, at *1 (2d Cir. Mar. 31, 2020).

Mr. Scott had originally been subjected to the Armed Career Criminal Act’s 15-year mandatory minimum, along with the Career Offender Guideline, based on two prior convictions for New York manslaughter in the first degree.  Someone is guilty of that offense when, “[w]ith intent to cause serious physical injury to another person, he causes the death of such person or of a third person.”  N.Y. Penal Law § 125.20(1).  New York’s highest court has said this statute reaches a parent’s “failure to obtain medical care for a child.”  People v. Steinberg, 79 N.Y.2d 673, 680 (1992).  See also id. (“The Penal …

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Categories: ACCA, career offender, crime of violence

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Categories: ACCA, career offender, crime of violence

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Saturday, March 28th, 2020

A Note on § 922(g) Clients

As the defense community continues to focus on clients at elevated risk during the COVID-19 pandemic, a recent ruling from the Fourth Circuit offers new support for vacating the convictions of clients who pleaded guilty to gun possession in violation of 18 U.S.C. § 922(g).  An element of that offense is that, at the time the defendant possessed a gun, he “knew he belonged to the relevant category of persons barred from possessing a firearm.”  Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019).  For most clients, that means knowing of a prior conviction for “a crime punishable by imprisonment for a term exceeding one year.”  § 922(g)(1).

In United States v. Gary, ___ F.3d ___, 2020 WL 1443528 (4th Cir. Mar. 25, 2020), the court held the failure to advise a defendant of the Rehaif element at his guilty plea is “a structural error that requires …

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Categories: 922(g), Rehaif

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Categories: 922(g), Rehaif

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Thursday, January 23rd, 2020

Another Court Rules Attempted Hobbs Act Robbery is NOT a “Crime of Violence”

As blogged about here, Judge Johnson of the E.D.N.Y. has ruled that attempted Hobbs Act robbery is not a “crime of violence” under 18 U.S.C. § 924(c).

He’s just been joined by Judge Telesca of the W.D.N.Y.  “[A]ttempted Hobbs Act robbery does not categorically entail the use, threatened use, or attempted use of force.”  Lofton v. United States, 2020 WL 362348, at *9 (W.D.N.Y. Jan. 22, 2020).  That is because the “requisite categorical approach,” by “which a court must examine ‘the minimum criminal conduct necessary for conviction,’” shows that the crime can be committed “‘without any use, attempted use, or threatened use of violence.’”  Id. at *7 (citations omitted).

As briefed in a pending case, United States v. Pica, E.D.N.Y. 08-559, the minimum conduct for attempted Hobbs Act robbery is surveilling a target with the intent to rob him but not actually use force: in short, to bluff.  …

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Categories: 924(c), crime of violence, Hobbs Act, robbery

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Categories: 924(c), crime of violence, Hobbs Act, robbery

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Rehaif Claims — Keep ‘Em Comin’!

To convict someone of unlawful gun possession under 18 U.S.C. § 922(g), “the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.”  Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019).  For the most commonly charged § 922(g) violation, that means proving the defendant was subjectively aware of the fact — at the moment he possessed the gun — that he had “been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.”  § 922(g)(1).

The mere fact of having a felony conviction is not enough.  There must be proof the defendant was subjectively aware of the conviction at the moment he possessed the gun.  Judge Sullivan explained this in a ruling blogged about here.  See also Rehaif, 139 S. …

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Categories: Rehaif

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Thursday, November 7th, 2019

Rehaif Error Prompts New Trial– Despite Stipulation as to Prior Felony and Despite PSR Suggesting Defendant’s Knowledge of Prior Felony

To secure a conviction under 18 U.S.C. § 922(g), “the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.”  Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019).  For the most commonly charged § 922(g) violation, that means proving the defendant knew he had “been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.”  § 922(g)(1).

Yet there was neither allegation nor proof of that in Wilfredo Sepulveda’s trial.  On the contrary, “the jury was wrongly instructed that ‘[t]he government need not prove that the defendant knew that his prior conviction was punishable by a term of imprisonment exceeding one year.'”  United States v. Sepulveda, 2019 WL 5704398, at *11 (S.D.N.Y. Nov. 5, 2019).

Ruling on a motion under Fed. …

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Categories: Rehaif

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Categories: Rehaif

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Friday, October 4th, 2019

Second Circuit Panel holds residual clause definition of “crime of violence” in the Bail Reform Act is not void for vagueness

In today’s United States v. Watkins, No. 18-3076, a panel of the Second Circuit held the residual clause definition of “crime of violence” in the Bail Reform Act is not void for vagueness.

This may surprise some observers, as the Bail Reform Act’s residual clause is identical to – and subject to the same categorical approach as – the residual clauses the Supreme Court struck down for vagueness in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and United States v. Davis, 139 S. Ct. 2319 (2019).

Moreover, the Second Circuit’s ruling is plainly moot: after being denied bail, Mr. Watkins pleaded guilty and was sentenced to prison.  See United States v. Watkins, W.D.N.Y. No. 18-cr-131.  Only now, months later, has the panel weighed in on whether the residual clause of the “crime of violence” definition in the Bail Reform Act is void for vagueness.  But …

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Categories: crime of violence, Davis, Johnson, Uncategorized

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Categories: crime of violence, Davis, Johnson, Uncategorized

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Monday, August 5th, 2019

Second Circuit Throws Out § 924(c) Conviction Linked to Conspiracy . . . And Does Other Good Things, Including as to Rehaif

In today’s United States v. Watkins, the Second Circuit (Jacobs, Pooler, Wesley) vacated a conviction for violating 18 U.S.C. § 924(c) in relation to a conspiracy to commit Hobbs Act robbery.  Because § 924(c)’s residual clause is “unconstitutionally vague,” United States v. Davis, 139 S. Ct. 2319, 2336 (2019), a “crime of violence” under § 924(c) is limited to an offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”  Because a conspiracy never fits that bill, “Watkins’s section 924(c)(1)(A) conviction” — and all others based on conspiracy — “must be vacated.”

And in United States v. Prado, the court (Leval, Pooler, Hall) threw out more convictions, this time under the Maritime Drug Law Enforcement Act.  The Coast Guard had intercepted a speed boat in international waters, found three men aboard with …

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Categories: Davis, guilty plea, jurisdiction, Rehaif

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Thursday, May 23rd, 2019

The New Go-To Ruling on Insufficient Evidence

Oh, insufficient evidence– so hard to show in district court after a jury convicts, harder still on appeal with all the “deference” shown to the government.  Yet both were done in United States v. Pauling, where the government sought an enhanced charge and punishment based on five words spoken by neither the defendant nor his co-conspirator.

John Pauling was alleged to have agreed with a supplier named “Low” to sell 100 grams of heroin.  There was proof as to 89 grams, but the government needed 11 more.  So it offered the jury a wiretapped call between Pauling and some guy named “Steve” in which Steve said he wanted “same thing as last time” and referenced the “14th floor.”  The government argued that meant Pauling would get 14 more grams of heroin from Low and sell them to Steve, which would put the total of the Pauling-Low conspiracy over 100 …

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Tuesday, May 21st, 2019

Favorable Finding on First Step Act Feature

 

The First Step Act of 2018, Pub. L. 115-391, allows judges to now “impose a reduced sentence” on people sentenced before August 3, 2010, for certain offenses involving 5 grams or more of crack cocaine.  There’s been a lot of litigation on the Act — yielding over 200 written decisions nationally so far — with a number of bad rulings from courts relying on pro se pleadings or meritless arguments from the government.  Judge Allyne Ross, of the Eastern District of New York, recently addressed both and issued a good ruling for people serving (or not) long crack sentences.

In United States v. Miles, the defendant had been sentenced in 2009 for a 50-gram crack offense that then carried a mandatory minimum of 10 years, which Judge Ross imposed.  After passage of the First Step Act, Miles moved pro se for a reduced sentence given that, per the …

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Wednesday, June 7th, 2017

“Toxic” Hearsay Warrants New Trial

In an opinion yesterday, the Second Circuit (Jacobs, Pooler, Hall) ordered a retrial of Armani Cummings based on the admission of non-harmless hearsay.

Cummings was charged with killing two people in the course of committing drug crimes.  A government witness testified, in essence: “Someone told me Cummings threatened to kill me.”  The Court explained that this was not an admissible statement by Cummings (the party opponent) but, rather, was double hearsay from a third party “someone” and thus inadmissible.

The error of admitting the statement, the Court further held, was not harmless: “The hearsay was especially toxic because it created a grave risk that the jury would use it as evidence of Cummings’s murderous propensity” and thus convict him for being a “bad man” rather than for committing the two alleged murders.

Of particular note, the Court ordered a retrial even though (1) the jury heard evidence that Cummings …

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Categories: harmless error, hearsay

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Tuesday, November 15th, 2016

Despite the Jones Delay, EDNY Rules New York Robbery is Not a “Crime of Violence”

still-not-a-cov

As blogged about here, the Second Circuit held in United States v. Jones that New York robbery is not a “crime of violence” for federal sentencing purposes.  And as blogged about here, the Circuit then vacated that ruling pending the Supreme Court’s decision in Beckles v. United States.

Notwithstanding Jones being put on hold, Judge Cogan of the Eastern District of New York has ruled — like the Jones court and Judges Ross and Weinstein in pre-Jones rulings — that New York robbery is not a “crime of violence.”  The decision, available here, explains that New York robbery can be committed with less than the “violent” force required by the force clause of the Career Offender Guideline (which controls in felon-in-possession cases), and that the Guideline’s residual clause was effectively invalidated by Johnson v. United States, 135 S. Ct. 2551 (2015).  Because the Guideline’s …

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Categories: crime of violence, robbery

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