Navigation

Author Archive | Sarah Baumgartel

Thursday, March 20th, 2025

Objecting to evidence does not preserve the objection, according to the Second Circuit

In United States v. Stephen Buyer, No. 23-7202 (2d Cir. Mar. 19, 2025), the Second Circuit upholds the defendant’s trial convictions for securities fraud. This is a dense summary order, but let’s start with the ruling that jumps out.

At trial, defendant objected to admission of a Cellebrite forensic cellphone report. The analyst who actually prepared this forensic report had left the FBI, so the government sought to offer the report through a surrogate witness—per the defendant’s brief, “a last-minute substitute for a previous witness that the government was going to call.” Before this surrogate witness took the stand, the defendant objected to the testimony. The district court limited argument on the issue during trial and allowed the witness to testify, but invited the defendant to submit a supplemental written objection later that day.

So later that day the defense filed a written motion to strike the testimony. The …

Posted by
Categories: Sixth Amendment

Posted By
Categories: Sixth Amendment

Continue Reading
Saturday, March 8th, 2025

Continuous pole camera monitoring of business is not a “search”

In United States v. Harry, No. 23-7106, — F.4th –, 2025 WL 732085 (2d Cir. March 7, 2025), the Second Circuit holds, as a matter of first impression in this Circuit, that setting up a pole camera to continuously monitor a building for 50 days is not a “search” for purposes of the Fourth Amendment—meaning that the government does not need a warrant or probable cause to do it.

In Harry, DEA agents “affixed a video surveillance camera to a utility pole on a lot across the street from” the business where the defendant worked. “The camera was connected to the internet and fed footage to DEA investigators, who could remotely tilt, pan, and zoom the camera. The camera recorded 24 hours per day for approximately 50 days,” recording the company’s “exterior, the outdoor parking lot, and, occasionally, a slice of the interior of the business’s garage bay …

Posted by
Categories: Fourth Amendment, search warrant

Posted By
Categories: Fourth Amendment, search warrant

Continue Reading
Monday, March 3rd, 2025

Supreme Court grants new trial based on prosecutorial misconduct

Richard Glossip, who was sentenced to death in Oklahoma State for a 1997 murder, has been granted a new trial by the Supreme Court, Glossip v. Oklahoma, 604 U.S. –, 2025 WL 594736 (Feb. 25, 2025). The Court’s opinion recounts some of the saga of Mr. Glossip’s case.

Ten years ago, Mr. Glossip’s case first came to the Supreme Court in a failed challenge to Oklahoma’s lethal injection protocol. See Glossip v. Gross, 576 U.S. 863 (2015). In the intervening years, new revelations have cast doubt on his guilt and the reliability of evidence presented against him at trial.

The Supreme Court ultimately orders a new trial based on prosecutorial misconduct, in light of its prior ruling in Napue v. Illinois, 360 U.S. 264 (1959). In Napue, the Court held that a prosecutor’s knowing use of false evidence to obtain a conviction violates due process.…

Posted by
Categories: prosecutorial misconduct

Posted By
Categories: prosecutorial misconduct

Continue Reading

Supreme Court takes Second Circuit case to decide if defendants can be constitutionally punished under both § 924(c) and § 924(j)

The Supreme Court has granted certiorari in Barrett v. United States, No. 24-5774, to decide if the Double Jeopardy Clause permits a court to impose separate sentences for an act that violates both 18 U.S.C. § 924(c) and § 924(j). The petition is available here.

Section 924(c)(1)(A) is violated if someone, “during and in relation to any crime of violence or drug trafficking crime . . . , uses or carries a firearm, or [], in furtherance of any such crime, possesses a firearm.” Section 924(j) is violated if someone, “in the course of a violation of subsection (c), causes the death of a person through the use of a firearm.”

Most circuits to address the issue have held that § 924(c) is a lesser included offense of § 924(j), meaning that, under the Double Jeopardy Clause, a defendant may not be constitutionally punished for both offenses. The …

Posted by
Categories: 924(c), 924(j), double jeopardy

Posted By
Categories: 924(c), 924(j), double jeopardy

Continue Reading
Tuesday, December 3rd, 2024

Circuit vacates supervised release revocation sentence.

In United States v. Jose Ramos, No. 23-6723 (2d Cir. Dec. 3, 2024), the Circuit vacates a significantly above Guidelines sentence imposed for the defendant’s violations of supervised release.

There is a lot going on in Ramos, including apparent factual and legal errors related to the defendant’s original underlying sentence. And numerous alleged supervised release violations.

As relevant here, the defendant admitted some low-level violations (petit larceny and failing to inform his probation officer of an address change). The Sentencing Guidelines recommended between 8 to 14 months for these violations. But the district court sentenced Ramos to 5 years in prison.

The Circuit held this sentence procedurally unreasonable: The district court failed to adequately explain its basis for imposing this above-Guidelines sentence. In addition, the record left open the possibility that the district court had improperly relied on unproven conduct in imposing this sentence. As a result, the …

Posted by
Categories: procedural reasonableness, sentencing, supervised release

Posted By
Categories: procedural reasonableness, sentencing, supervised release

Continue Reading
Tuesday, September 17th, 2024

Ghislaine Maxwell’s convictions upheld

The Second Circuit has affirmed Ghislaine Maxwell’s criminal convictions, see No. 22-1426 (2d Cir. Sep. 17, 2024). Maxwell is the notorious codefendant of the even more notorious Jeffrey Epstein: per the Second Circuit, “Maxwell coordinated, facilitated, and contributed to Jeffrey Epstein’s sexual abuse of women and underage girls” between 1994 and 2004.

After Epstein’s death at the now-shuttered MCC jail, Maxwell was tried before a jury and convicted of conspiracy and sex trafficking offenses. She was sentenced to 20 years in prison.

On appeal, Maxwell’s lawyers argued that her prosecution was barred by Epstein’s 2007 non-prosecution agreement with federal prosecutors in Florida; that her indictment came after the applicable statute of limitations had run as to certain offenses; that she was prejudiced by a constructive amendment or variance from her indictment; that her sentence was procedurally unreasonable; and that she should have been granted a new trial based on a …

Posted by
Categories: jury, jury selection

Posted By
Categories: jury, jury selection

Continue Reading
Sunday, June 23rd, 2024

Smith reaffirms defendants’ right to confront forensic experts, while leaving open the question of which expert statements are “testimonial.”

Last week, the Supreme Court reaffirmed in Smith v. Arizona, No. 22-899 (June 21, 2024), that criminal defendants have a Sixth Amendment right to confront experts who provide forensic evidence for the prosecution. This right extends to testimonial statements by experts whose testing and opinions form the basis of a different expert’s opinion.

This issue should have been straightforward. The Supreme Court has long held that criminal defendants have a Sixth Amendment right to confront witnesses who provide forensic evidence against them. Thus, if a prosecutor wants to introduce the results of forensic testing, the defendant must have an opportunity to cross-examine the analyst responsible for the test. See Bullcoming v. New Mexico, 564 U.S. 647, 658 (2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 314-15 (2009).

But a defendant’s confrontation right extends only to “testimonial hearsay”—that is, out-of-court testimonial statements offered for their truth. And courts have …

Posted by
Categories: Confrontation Clause, Sixth Amendment

Posted By
Categories: Confrontation Clause, Sixth Amendment

Continue Reading
Wednesday, May 8th, 2024

A district court may not base its sentence on a disagreement with the categorical approach.

In United States v. Marcus Odom, No. 23-6105 (2d Cir. May 8, 2024) (summary order), the Second Circuit upheld the defendant’s challenged prison sentence, while also opining that a sentencing court may not increase a prison sentence based on its disagreement with the so-called “categorical” approach.

Odom’s case was before the district court for resentencing as a result of United States v. Taylor, 596 U.S. 845 (2022). Taylor held that attempted Hobbs Act robbery does not qualify as a “crime of violence” for purposes of 18 U.S.C. § 924(c), applying the well-established “categorical” approach. Odom had originally pled guilty to attempted Hobbs Act robbery and a violation of § 924(c) but, following Taylor, his § 924(c) conviction was vacated. He was resentenced on the attempted Hobbs Act robbery alone.

Some judges have complained about the categorical approach and Odom’s district judge is apparently among them. At the …

Posted by
Categories: categorical approach, sentencing

Posted By
Categories: categorical approach, sentencing

Continue Reading
Monday, March 18th, 2024

Special conditions of supervised release must be based on an individualized assessment of the defendant and adequately explained.

In two recent decisions, the Second Circuit reiterated the requirements for imposing special conditions of supervised release: a sentencing court must undertake an “individualized assessment” of the defendant and “state on the record the reason for imposing” any special condition. The failure to do so is error.

In United States v. Alex Oliveras, No. 21-2954, — F.4th — (2d Cir. March 15, 2024), the Circuit vacated a special condition allowing the federal probation officer to conduct suspicionless searches of the defendant and his property.

The defendant argued, first, that this special condition violated the Fourth Amendment, and, second, that it was not adequately justified on the record.

The Circuit recognized that individuals on supervised release have a diminished expectation of privacy, and that probation officers have a legitimate need to fulfill their supervisory duties by conducting searches. At the same time, supervisees retain Fourth Amendment rights and conditions infringing …

Posted by
Categories: Fourth Amendment, special needs, supervised release

Posted By
Categories: Fourth Amendment, special needs, supervised release

Continue Reading

Supreme Court narrows the “expanded” safety valve.

Under 18 U.S.C. § 3553(f), the so-called “safety valve” provision, district courts have a limited power to impose a sentence below the statutory mandatory minimum in certain drug cases. The defendant’s offense must not involve particular aggravating factors (violence, guns) and the defendant must have a limited criminal history. But how limited?

The 2018 First Step Act expanded this provision to apply to any defendant who “does not have–

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under the sentencing guidelines ….”

But is that “and” an “and” or an “or”? In other words, is any one of these criteria (4 points or a 3-point offense or a 2-point violent offense) disqualifying or is a …

Posted by
Categories: safety valve

Posted By
Categories: safety valve

Continue Reading
Friday, September 29th, 2023

Supreme Court will revisit the application of the Confrontation Clause to forensic evidence.

The Supreme Court has granted certiorari in Smith v. Arizona, No. 22-899. The question presented is:

Whether the Confrontation Clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst’s statements are offered not for their truth but to explain the expert’s opinion, and (b) the defendant did not independently seek to subpoena the analyst.

Defense counsel should be sure to make Confrontation Clause objections whenever the government seeks to use or admit forensic evidence at trial without calling the individual (or all of the individuals) who actually performed all of the underlying forensic testing.

Smith will hopefully bring some clarity to this area of law. The Supreme Court has long held that criminal defendants have a …

Posted by
Categories: Confrontation Clause, Sixth Amendment

Posted By
Categories: Confrontation Clause, Sixth Amendment

Continue Reading