Federal Defenders of New York Blog
Serving the Second Circuit and the Eastern and Southern Districts of New York
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 for the purposes of [Section] 924(c)(1)(A).” Opinion at 15.
Stay tuned for a more detailed discussion of Henricks.…
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 with the order in compliance with state law. A state court ex parte order of protection may provide the basis for the application of the enhancement where that order was issued: (1) by a court with personal jurisdiction over both the petitioner and the respondent; (2) by a court with jurisdiction over the subject matter; (3) in compliance with federal procedural due process protections; and (4) in compliance with state time limits regarding notice and opportunity to be heard. Opinion at 8. Here, the court that issued the order of protection did not have …
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 mandatory life sentence, because the state statue sweeps more broadly than its federal equivalent.
For a prior state conviction to count as a “prior sex offense,” it must “‘consist[] of conduct that would be a Federal sex offense’ if there were a basis for Federal jurisdiction.'” Opinion at 10. The Circuit held that a district court must employ the categorical approach when determining whether the state statute consists of conduct that would be a Federal sex offense. Under the categorical approach, courts “ask[] whether the least of conduct made criminal by the state statute …
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 of the terminal at JFK Airport. Because the Circuit has held that routine questioning in the public area of an international terminal is non-custodial, the defense did not move to suppress, even though the statement was un-Mirandized. At trial, however, it emerged that the Rule 16 notice was not accurate (or, at least, ambiguous). Vinas had in fact made the statement only after four armed CBP officers took his passport and escorted him to a private search room, arguably a custodial setting. Defense counsel objected that the misleading disclosure caused him to forgo …
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 an advisory guidelines range at the statutory maximum and contained an appeal waiver for any sentence at or below the statutory maximum. Yet he “received no benefit from his plea beyond what he would have gotten by pleading guilty without an agreement.” The government’s agreement not to oppose the two-level reduction under the guidelines for acceptance of responsibility and to move for the one-level reduction under U.S.S.G. 3E1.1(b) for Lutchman’s timely notification of his intention to plead guilty did not constitute consideration for the appeal waiver because the combined three-level reduction was available to …
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 to stay here,” the statute “criminalizes a substantial amount of constitutionally-protected expression” and therefore is unconstitutionally overbroad in violation of the First Amendment.
The case is United States v. Sineneng-Smith, and you can access the opinion here.…
On the heels of its Pereira-Gomez decision on Friday, the Second Circuit issued a new opinion in United States v. Barrett, which is available here.
In Barrett, the Circuit held that 18 U.S.C. 924(c)(3)(B) is not unconstitutionally vague because “factfinding as to the violent nature of the predicate offense and the risk of physical force in its commission can be made by the trial jury in deciding the defendant’s guilt, thus avoiding both the Sixth Amendment and due process vagueness concerns at issue in Dimaya and Johnson.” The Court held that the fact that Barrett’s jury did not make a finding regarding force was harmless error in light of the specific facts of his case. The Circuit further held that a Hobbs Act Robbery conspiracy is a crime of violence because the object of the conspiracy, the Hobbs Act Robbery, is a crime of violence. “[T]his …
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 to elaborate his rationale for granting bail. Today, he issued this memorandum opinion discussing the history of bail in American courts; the presumptions, burdens and standards of proof that apply to bail decisions; and how imposing conditions of release can mitigate the risk of flight and danger to the community.
NB: The Federal Defenders represents Mr. Paulino.…
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 tenants of two multi-family homes, not within the curtilage of his private home, and he did not have exclusive control over the driveway. Op. at 13-15.
In United States v. Sawyer, the Circuit remanded the case for the second time, this time for resentencing in front of a new district judge. The Circuit previously had vacated as substantively unreasonable a 360-month sentence for the offenses of producing and receiving child pornography. In that opinion, the Circuit held that the “30-year sentence would have been appropriate for ‘extreme and heinous criminal behavior’ and the …
In Carpenter v. United States, the Supreme Court today held that the government’s acquisition of historical cell-site location information constitutes a Fourth Amendment search and the government generally will be required to obtain a warrant to acquire that information. The so-called third-party doctrine does not permit the government to obtain cell-site location information as “business records” because “[t]here is a world of difference between the limited types of personal information [permissibly obtained under the third-party doctrine] and the exhaustive chronicle of location information casually collected by wireless carriers.”
You can read SCOTUSblog’s analysis of the case here.
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An FYI for counsel who will be cross-examining witnesses in SDNY Judge Katherine B. Forrest’s Courtroom. Judge Forrest has issued “Guidelines Regarding Appropriate Use of 302 Forms in Criminal Trials.” You can read the Guidelines here and may need to plan ahead where you need to use a 302 to complete the impeachment of a witness.
In the eight-page document, the Court addresses what it sees as the “most common issues related to the proper use of 302s.” After discussing how the Federal Rules of Evidence apply to the use of 302s, the Court concludes: “It is clear that statements included in 302s are therefore classic hearsay without — in and of themselves — requisite indicia of reliability.” Because the Court views mention that the witness’s statements contained in the 302 were written down by an FBI agent as “giving [the statement] an indicia of reliability,” it will preclude counsel …