Navigation

Author Archive | Peggy Cross-Goldenberg

Wednesday, August 10th, 2016

Second Circuit Updates – August 10, 2016

The Second Circuit didn’t decide any criminal cases today. But for your daily dose of criminal justice info, check out this new report about the views of crime victims on incarceration and punishment. A study by the Alliance for Safety and Justice found that the vast majority of crime victims would prefer that the criminal justice system focus more on rehabilitation than on punishment: about 60% of victims think that the criminal justice system should attempt to rehabilitate people convicted of crimes rather than giving them long prison sentences, and 70% support alternatives to incarceration. Could these statistics bolster your next sentencing argument? Download the full report here.…

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Tuesday, August 9th, 2016

Failure to Charge Loss Amount in 18 U.S.C. 641 Case Harmless Error

In United States v. Lee, 15-458, the Second Circuit affirmed a conviction under 18 U.S.C. 641 and the 30-month sentence that followed.

Relying in part on Apprendi, the Court concluded that a loss amount in excess of $1000 is an element of a felony offense under Section 641 and that, to allege a felony, the indictment should allege that the loss amount exceed $1000.  In this case, however, where the pretrial discovery and the trial included “overwhelming” evidence that hundreds of thousands of dollars worth of government property had been stolen, the violation of the Fifth Amendment’s Grand Jury Clause was harmless.  Opinion at 3.  The deficient indictment gave Lee “specific notice of the nature of the offense and the core of the criminal conduct to be proven at trial.”  Opinion at 22.…

Posted by
Categories: Apprendi, grand jury, indictment

Posted By
Categories: Apprendi, grand jury, indictment

Continue Reading

In an Extraterritorial Duel of Canons, the Aversion to Superfluity Trumps Expressio Unius and the Presumption against Extraterritoriality.

Last week, the Second Circuit decided United States v. Epskamp, No. 15-2028.   The Court affirmed the district court’s decisions regarding the extraterritoriality of 21 U.S.C. 959.  The appeal followed a trial in front of Judge Sullivan and concerned the use of an aircraft registered in the United States as part of a scheme to fly drugs from the Dominican Republic to Amsterdam.

Section 959(b) makes it unlawful for any person on board an aircraft registered in the United States to (1) manufacture or distribute a controlled substance or (2) possess a controlled substance with intent to distribute.  [NB:  the statute has since been amended, so that the old section (b) is now section (c) and the old section (c) is now section (d).  Because the amendments did not result in substantive changes, the Court referred to the old version of the statute.]  Section 959(c), entitled “Acts committed outside territorial …

Posted by
Categories: extraterritorial jurisdiction

Posted By
Categories: extraterritorial jurisdiction

Continue Reading
Tuesday, August 2nd, 2016

Second Circuit Updates – August 2, 2016

Yesterday, in United States v. Carabello, 12-3839, the Second Circuit held that exigent circumstances justified the warrantless “pinging” of a defendant’s cell phone.  Law enforcement officers searching for Caraballo in connection with the execution-style murder of one of his drug associates asked Sprint to utilize its emergency procedures to “ping” Caraballo’s cell phones so that the phones, and hopefully Caraballo, could be located through the triangulation of signals given off by the phones in response to the “pings” sent by Sprint.

The Court affirmed the district court’s denial of suppression, holding that it was not clearly erroneous for the district court to find that exigent circumstances justified the warrantless pinging.

The Court reviewed the exigency factors laid out in Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970)(en banc) and United States v. MacDonald, 916 F.2d 766, 769-70 (2d Cir. 1990)(en banc) and considered these factors …

Posted by
Categories: cell phone location information

Posted By
Categories: cell phone location information

Continue Reading
Wednesday, July 13th, 2016

SDNY Judge Pauley Suppresses Evidence Obtained Through Warrantless Use of Stingray Device

In the first opinion of its kind, SDNY Judge William A. Pauley suppressed evidence obtained through the warrantless use of a stingray device.

You can read Judge Pauley’s opinion in United States v. Lambis here.  The New York Times has coverage of the case here.

 …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Friday, July 1st, 2016

Circuit Clarifies that Government Retains the Ultimate Burden When Seeking Detention in “Presumption” Cases

Late last week, the Second Circuit issued a short summary order in United States v. Horton, No. 16-1574, ordering that the District Court vacate its order of detention and remanding for further proceedings. Although it issued just a short summary order, the Circuit clarified that even in “presumption” cases, the government retains the ultimate burden of persuasion on the issue of remand based on a defendant’s dangerousness.

In certain types of cases, Title 18 U.S.C. 3142(e) creates a rebuttable presumption that “no condition or combination of conditions will reasonably assure” the safety of the community.  The defendant bears the burden of producing evidence to rebut this presumption.  If the defendant does so, the presumption is not eliminated, but it remains a “factor” just like any other factor the district court has to consider and weigh.  “At all times,” though, “the government retains the ultimate burden of persuasion by …

Posted by
Categories: bail, presumption

Posted By
Categories: bail, presumption

Continue Reading
Friday, June 24th, 2016

Conditions of Supervised Release Must Be Reasonably Related To Sentencing Objectives

The Circuit issued decisions in four criminal cases today.

In United States v. Brown, 14-4643, the Court vacated and remanded for resentencing.  The district court had imposed special conditions of supervision, but had not given any explanation for the conditions or stated the relationship between the conditions and any sentencing objective.  But a district court does not have “untrammeled” discretion in imposing special conditions of supervised release, the Circuit explained, and “usual and severe conditions,” like those impinging on a First Amendment right, will be “carefully scrutinize[d].”  The district court “is required to make an individualized assessment when determining whether to impose a special condition of supervised release and to state on the record the reason for imposing it.”  Because the district court failed to do so, and the reason for the special conditions was not “self-evident in the record,” the Circuit vacated the special conditions and remanded …

Posted by
Categories: child pornography, supervised release

Posted By
Categories: child pornography, supervised release

Continue Reading
Thursday, June 23rd, 2016

Supreme Court reaffirms the categorical approach in ACCA cases

In Mathis v. United States, No. 15-6092, the Supreme Court reaffirmed the categorical approach to determining whether a prior conviction can give rise to the enhanced sentencing provisions of the ACCA.  If the elements of a state crime are broader than the elements listed in the generic offense, a conviction for the state crime cannot qualify as a predicate under the ACCA.  This remains true even if the defendant’s actual conduct fit within the definition of the generic offense.  In Mathis, the defendant’s prior conviction for burglary did not qualify as a prior violent offense under the ACCA because the Iowa burglary statute under which he was convicted — which listed “structures” and “vehicles” as alternative means for fulfilling one of the crime’s elements — was broader than generic burglary.  Even though his conduct had involved burglarizing a structure, that fact was “off-limits” to the sentencing judge.

Justice Kagan …

Posted by
Categories: ACCA, categorical approach

Posted By
Categories: ACCA, categorical approach

Continue Reading
Thursday, June 16th, 2016

Defendants bat 0-3 in the Circuit today

The Second Circuit issued three summary orders in criminal cases today.

In United States v. Clare, 15-1601, the Court affirmed the defendant’s conviction on marijuana and gun charges.  Clare argued that the evidence at trial was insufficient to sustain the convictions, primarily because the cooperating witnesses were not credible. The Court rejected this argument, explaining that “the credibility of witnesses is within the province of the jury, not this Court.”  Order at 2.  In light of the remaining evidence, the Court held that a reasonable juror could have concluded that Clare was guilty beyond a reasonable doubt.  Because the evidence was sufficient, Clare’s attorney was not ineffective in failing to move for a judgment of acquittal in post-trial briefing.  The Court also affirmed the district court’s denial of a motion to suppress.

In United States v. Washington, 14-4740, the Circuit rejected the defendant’s assertion that he had been …

Posted by
Categories: comptency, sentencing, sufficiency

Posted By
Categories: comptency, sentencing, sufficiency

Continue Reading