Federal Defenders of New York Second Circuit Blog

Judge Rakoff Limits Government’s Description of Stock Market as “Level Playing Field”

Prior to opening statements in United States v. Pinto-Thomaz, 18 Cr. 579 (JSR), Southern District Judge Jed S. Rakoff precluded the government from giving a jury the standard line that the stock market should be a “level playing field.” According to this report from Law360.com, Judge Rakoff said, “Anyone who thinks the stock market is … Read more

Credit Union Robbery is a Crime of Violence for the Purposes of 18 U.S.C. 924(c)

Today, in United States v. Hendricks, the Second Circuit held that robbery of a credit union, in violation of 18 U.S.C. 2113(a), is a “crime of violence” for the purposes of 18 U.S.C. 924(c). The Circuit said it had “little difficulty in holding that bank robbery committed ‘by intimidation’ categorically constitutes a crime of violence … Read more

Enhancement under U.S.S.G. 2A6.2(b)(1)(A) for “violation of a court order of protection” does not apply if the defendant was not served as required by law

In United States v. Thompson, the Second Circuit remanded for resentencing. At sentencing, the District Court determined that the two-level enhancement under U.S.S.G. 2A6.2(b)(1)(A) for “violation of a court order of protection” applied because Mr. Thompson had been “on notice of the issuance” of an order of protection. But Mr. Thompson had not been served … Read more

New York Penal Law 130.45 Not a “Prior Sex Offense” Under the Categorical Approach

Today the Second Circuit applied the categorical approach and vacated a life sentence. In United States v. Kroll, the Circuit held that under the categorical approach, the defendant’s 1993 conviction under New York Penal Law 130.45 did not constitute a “prior sex offense” as defined by 18 U.S.C. 3559(e)(1), and thus did not trigger a … Read more

Misleading Description of Circumstances Under Which Defendant Made Statement Leads to New Trial

In United States v. Vinas, the Second Circuit vacated a conviction and remanded for a new trial based on the government’s Rule 16 discovery violation.  In Vinas, a courier case, the government’s Rule 16 notice disclosed that Vinas had made a self-incriminating statement during the “initial inspection” of his luggage, i.e., in a public area … Read more

Appeal Waiver in Plea Agreement Invalid Without Consideration from Government

In United States v. Lutchman, the Second Circuit held a waiver of appeal contained in a plea agreement was invalid because it was not supported by consideration from the government.  Mr. Lutchman pled guilty to one count of conspiracy to provide material support to a foreign terrorist organization pursuant to a plea agreement that calculated … Read more

Ninth Circuit Holds Statute Barring “Encouraging and Inducing an Alien” Abridges Constitutionally-Protected Speech

Something to look out for on the immigration front: The Ninth Circuit held that 8 U.S.C. 1324(a)(1)(A)(iv) which prohibits “encouraging and inducing an alien to remain in the United States” abridges constitutionally-protected speech. Because “[a]t the very least, it is clear that the statute potentially criminalizes the simple words . . . “I encourage you … Read more

Judge Carter Issues Lengthy Opinion Justifying Bail Grant

If you’re looking for some inspiring beach reading this weekend, look no further than this opinion in United States v. Paulino. On appeal by the government, S.D.N.Y. Judge Andrew Carter upheld the Magistrate’s decision to set bail in Mr. Paulino’s case. The government appealed to the Second Circuit, which remanded with instructions for Judge Carter … Read more

Circuit Upholds Warrantless Search of Car, Remands for Resentencings to Consider Downward Departures and Concurrent Sentences

In United States v. Jones, the Circuit affirmed the district court’s refusal to suppress evidence seized during a warrantless search of a car parked in the common parking lot of a multi-family building.  The Circuit held Jones had no legitimate expectation of privacy in his car because it was parked in a driveway shared by … Read more