Author Archive | Matt Larsen

Thursday, September 22nd, 2016

net-meme

In today’s United States v. Harris, the Second Circuit (Newman, Calabresi, Raggi) decided two things with respect to supervised release.

First, “18 U.S.C. § 3583(e) does not preclude revocation of supervised release on the basis of conduct that earlier prompted a modification of supervision conditions.”  Here, the district court first modified Harris’s terms of supervision — based on his being arrested for allegedly selling drugs — and later revoked supervision when that suspected violation was confirmed by two police officers credibly testifying to witnessing the drug sale.

Second, Federal Rule of Criminal Procedure 32.1(b)(2)(c) does not preclude revocation of supervised release on the basis of hearsay if (1) there is good reason to proffer hearsay and (2) the hearsay is sufficiently reliable.  Here, a witness who claimed Harris punched her “professed fear of retaliation” if she testified against him, which the Court deemed good reason to excuse her …


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Categories: Confrontation Clause, supervised release

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Thursday, July 21st, 2016

New York Robbery is Not a “Crime of Violence”

marble rye-blog

In today’s United States v. Jones, the Second Circuit (Walker, Calabresi, Hall, C.JJ.) overruled its prior precedents in light of Johnson v. United States, 559 U.S. 133 (2010), and Johnson v. United States, 135 S. Ct. 2551 (2015), to hold that “a first‐degree robbery conviction in New York is no longer necessarily a conviction for a ‘crime of violence’ as that term is used in the Career Offender Guideline.”

New York robbery, whatever its degree, is “forcible stealing” and requires actual or threatened “physical force upon another person.”  N.Y. Penal Law § 160.00.  This does not make the offense a “crime of violence,” the Circuit explained, because New York courts “have made clear that ‘forcible stealing’ alone does not necessarily involve the use of ‘violent force'” required to make something a “crime of violence” under the Guideline’s force clause.  “Violent force” is “strong” and “substantial,” Johnson, …


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Categories: ACCA, career offender, crime of violence, robbery

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Tuesday, July 19th, 2016

Filing a Notice of Appeal: Just Do It!

In today’s United States v. Lajud-Pena (Diaz), the Second Circuit (Pooler, Parker, Livingston, C.JJ.) granted the government’s motion to dismiss an untimely appeal but remanded with instructions that the district court “convert the Appellant’s notice of appeal (as supplemented by the Defendant’s brief claiming ineffectiveness resulted in his failure to timely file his appeal) into a petition” under 28 U.S.C. § 2255.

Should the aspiring appellant establish in district court that his lawyer failed to timely file a notice of appeal as instructed, the relief will presumably be issuance of a new judgment from which he could appeal.  See Roe v. Flores-Ortega, 528 U.S. 470 (2000); United States v. Fuller, 332 F.3d 60 (2d Cir. 2003).  And should that appeal ultimately prove unsuccessful, the Circuit indicated the “converted” § 2255 petition seeking “only reinstatement of the right to a direct appeal” will not render a subsequent § …

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Categories: Notice of Appeal

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Categories: Notice of Appeal

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“Precipitous Pepper Purchase” Precludes Pot Pushers’ Partying

peppers

In today’s United States v. Compton, the Second Circuit (Walker, Raggi, Hall, C.JJ.) held a Border Patrol agent had reasonable suspicion to stop Compton and his brother, found to be transporting 145 pounds of marijuana, based on “(1) the brothers’ avoidance of [a Border Patrol] checkpoint, (2) the checkpoint’s proximity to the [Canadian] border, and (3) the brothers’ peculiar attempt to conceal the avoidance.”  The “peculiar attempt” was the brothers’ “abruptly slow[ing] down” when their SUV came within sight of the checkpoint and then “veer[ing] into the U‐shaped driveway of [a] vegetable stand” where they each bought “a pint of peppers.”

“Because [the agent] had already determined that the SUV had made the abrupt turn into the vegetable stand in order to avoid the checkpoint, [he] could reasonably interpret the pepper purchase to be an attempt to conceal that avoidance.  He could reasonably discount the probability of an alternate …


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Categories: Fourth Amendment, reasonable suspicion, terry stop

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Tuesday, July 12th, 2016

The PSR Must be Read AND DISCUSSED

DISCUSS

In today’s United States v. Richards, the Second Circuit emphasized the importance of strictly adhering to Federal Rule of Criminal Procedure 32(i)(1)(A), which requires a judge to “verify that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report.”  The Circuit implied that, where the “discussion” is not confirmed, raising that issue on appeal may require reversal.…

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Categories: Rule 32

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Categories: Rule 32

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Tuesday, June 21st, 2016

Supreme Court Again Excuses “Unconstitutional Police Conduct”

whoops

In yesterday’s Utah v. Strieff, five of the eight members of the Supreme Court held the existence of an arrest warrant for someone a police officer unlawfully stops sufficiently “attenuates” the taint of the illegal stop, at least where the stop is not “flagrantly” unconstitutional.

Based on an anonymous tip, a South Salt Lake City police detective conducted “intermittent surveillance” of a house to see if it was being used to sell drugs.  He saw people leave “a few minutes after arriving at the house,” and this “raise[d] his suspicion that the occupants were dealing drugs.”  One day he saw Strieff leave the house; he followed Strieff on foot and stopped him.  When he got Strieff’s ID card and relayed the information to a colleague, he discovered “Strieff had an outstanding arrest warrant for a traffic violation.”  The detective then arrested Strieff and searched him, finding drugs in his …


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Categories: Exclusionary Rule, Fourth Amendment

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Thursday, April 21st, 2016

Second Circuit “Disturb[ed] That District Courts Do Not Routinely Follow” Rule 11

rule 11 meme

Today in United States v. Pattee, the Second Circuit (Calabresi, Lynch, Lohier, CJJ.) found it “disturbing that district courts do not routinely follow the minimal procedures put in place to protect defendants’ rights.”

In accepting a guilty plea to producing, distributing and possessing child pornography, the district court (Geraci, Ch.J.) failed to advise the defendant of “five of the approximately fifteen rights” listed in Federal Rule of Criminal Procedure 11.  The Circuit found this troubling, as the “Court has stated time and again that [w]e have adopted a standard of strict adherence to Rule 11” and that “compliance with Rule 11 is not a difficult task” because “errors can be avoided if a district or magistrate judge has a standard script for accepting guilty pleas. . . .  Yet failures to meet those requirements are a recurring issue.”  The Court further cautioned that “even strict adherence to Rule 11 …


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Categories: child pornography, ineffective assistance of counsel, Rule 11

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Monday, April 18th, 2016

Johnson is Retroactive

onwards

In last year’s Johnson v. United States, the Supreme Court held the residual clause of the Armed Career Criminal Act (ACCA) void for vagueness.

In today’s Welch v. United States, the Supreme Court held Johnson applies retroactively.  Only Justice Thomas dissented.

This means defendants serving final sentences — meaning ones previously affirmed on appeal — are now eligible for relief if they were sentenced under ACCA’s residual clause.  This is true even if they’re arguably subject to ACCA’s force/elements clause: though the government’s position was that Mr. Welch merits no relief because his prior conviction for Florida robbery falls under that clause, the Court said that’s debatable and remanded the case for further proceedings.

The question lurking in the shadows here, which Welch didn’t address, is whether Johnson also has the effect of retroactively invalidating the residual clauses of the Career Offender Guideline, 18 U.S.C. § 16, 18 …

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Categories: ACCA, retroactivity

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Categories: ACCA, retroactivity

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Wednesday, March 30th, 2016

Supreme Court: Pretrial Restraint of Untainted Assets Needed to Hire a Lawyer is Unconstitutional

money-in-chains-RED

No opinions or relevant summary orders from the Second Circuit today.

Operating with only 8 justices, a fractured Supreme Court today decided Luis v. United States.  The Court’s holding is that “pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment.”

Justice Breyer’s plurality opinion, joined by Chief Justice Roberts and Justices Ginsburg and Sotomayor, explains that 18 U.S.C. § 1345 generally authorizes the government to freeze the assets of people accused of federal banking or health-care crimes.  Specifically, § 1345(a)(2)(B)(i) authorizes the pretrial restraint of “property of equivalent value,” meaning property that is neither “obtained as a result of” nor “traceable to” the alleged crime.

This license to freeze “property that is untainted by the crime, and that belongs fully to the defendant,” violates the Sixth Amendment if such funds (in Luis’s case, some $2 million) are needed to hire counsel of …


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Categories: forfeiture, right to counsel, Sixth Amendment

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