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Author Archive | Sarah Baumgartel

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 …

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Categories: Confrontation Clause, Sixth Amendment

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Categories: Confrontation Clause, Sixth Amendment

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Thursday, July 20th, 2023

Plaintiff can pursue punitive damages related to his unlawful state supervision

In Aponte v. Perez, No. 20-2186 (2d Cir. July 20, 2023), the Second Circuit rules largely in favor of the plaintiff-appellant, who brought a civil rights suit after he was wrongfully subjected to post-release supervision.

 In 2000, plaintiff Felix Aponte was sentenced in New York State court to 8 years in prison for robbery. After sentencing, the New York State Department of Correctional Services (DOCS) “administratively added a five-year term of post-release supervision” (PRS). This practice seems obviously unconstitutional and, in 2006, the Second Circuit so held. Aponte was eventually resentenced in 2008.

In the meantime, Aponte was subject to this illegal supervision term. He was imprisoned for violating the terms of his (illegal) supervision.

Aponte, acting pro se, brought suit under 42 U.S.C. § 1983 against DOCS and others, seeking damages related to his unlawful supervision and incarceration.

The district court found a violation of Aponte’s due …

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Wednesday, July 19th, 2023

Second Circuit finds that VICAR murder may categorically qualify as a crime of violence

This week, in United States v. Davis, No. 21-1486-cr (2d Cir. July 18, 2023), the Circuit holds that murder in aid of racketeering (also known as “VICAR murder”), 18 U.S.C. § 1959(a)(1), may categorically qualify as a “crime of violence” for purposes of 18 U.S.C. §§ 924(c) and 924(j)(1).

In Davis, the defendant argued that VICAR murder is not categorically a crime of violence because it includes generic, second-degree murder, which can be committed recklessly. And offenses with a mens rea of recklessness do not categorically qualify as violent felonies. See Borden v. United States, 141 S. Ct. 1817, 1834 (2021).

The Circuit rejected this argument. The Circuit found that VICAR murder is divisible, meaning a court must apply the “modified categorical approach” to determine the specific elements of a defendant’s underlying murder offense. Here the defendant’s jury instructions established that he was charged with and convicted …

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Categories: crime of violence, murder, racketeering

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Categories: crime of violence, murder, racketeering

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Tuesday, May 16th, 2023

Supreme Court to decide how to decide which state drug convictions qualify as ACCA predicates

The Supreme Court has granted certiorari in another pair of ACCA cases. Under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), a defendant who possesses a gun faces a minimum 15-year sentence if he has three prior state or federal convictions that qualify as “violent” felonies or “serious drug offenses.” We have talked a lot recently about what qualifies as a “violent” felony. Now it is time to consider “serious drug offenses.”

Under § 924(e)(2)(A), a “serious drug offense” includes offenses “under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law.”

Courts use the categorical approach to decide if a prior state conviction involves a “controlled substance,” comparing the elements of that …

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Categories: ACCA

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Friday, March 3rd, 2023

Circuit rejects new trial bid, despite evidentiary errors and refusal to voir dire on “antisemitic bias.”

In United States v. Mendlowitz, No. 21-2049-cr (2d Cir. March 2, 2023) (summary order), the Second Circuit affirms the defendant’s wire fraud convictions, despite possible evidentiary errors and the district court’s refusal to ask about “potential antisemitic bias” during jury selection.

On appeal following trial, the defendant challenged the district court’s exclusion of a proffered expert witness and a recorded conversation between the defendant and a cooperating witness. The Circuit largely agreed with defendant’s arguments: it recognized that, contra the district court, the proffered expert testimony about standard industry practices would have been relevant to the defendant’s good faith defense. The expert testimony also would have provided relevant information outside the average juror’s knowledge and beyond any government witness testimony.

With respect to the recorded conversation, the defendant argued that it reflected his state of mind at the time of the charged conduct and supported his defense. The district …

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Categories: expert witnesses, harmless error, jury selection, voir dire

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Categories: expert witnesses, harmless error, jury selection, voir dire

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Circuit orders resentencing in light of statements that created a risk of the appearance that a defendant’s nationality impacted his sentence.

In United States v. Vasquez-Drew, No. 20-2195-cr (2d Cir. March 2, 2023) (summary order), the Second Circuit ordered the defendant resentenced before a new district judge because certain remarks the original judge made at sentencing created a “risk that a reasonable observer … ‘might infer, however incorrectly’ that Vasquez’s nationality played a role in determining his sentence.”

In sentencing the defendant, a Bolivian national, the district court (Cote, J.) stated that the sentence was “motivated by concerns about appropriate punishment, but also general deterrence,” and that it was “important” “that the people in Bolivia understand the kind of sentences that are potentially imposed here from engagement in activity to send cocaine into America.”

This decision follows an interesting and wide-ranging oral argument available here and previewed here.

Ultimately, the Circuit’s short summary order hewed closely to precedent: “[E]ven the appearance that the sentence reflects a defendant’s race or …

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Categories: sentencing, Uncategorized

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Monday, February 27th, 2023

The Second Circuit Grants Panel Rehearing in Gibson to Reject the Government’s Request to Recast its Holding as Dicta

In United States v. Gibson, 55 F.4th 153 (2d Cir. 2022), the Second Circuit held that the defendant’s 2002 New York state conviction for attempted third-degree criminal sale of a controlled substance was not a “controlled substance” offense under the career offender Sentencing Guideline because the New York drug schedules in 2002 included naloxegel, which had been removed from the federal schedules in 2015, making the New York offense categorically broader than the federal controlled substance offense when Gibson was sentenced in 2020. The government had conceded that the New York 2002 schedule was broader than the current federal schedule, but argued that the comparison should be between the New York and federal schedules in 2002. The Circuit rejected that argument. See December 8, 2022, Blog post.

The government (W.D.N.Y.) sought panel rehearing, asking the Court to issue an amended opinion stating that this holding was actually dicta. …

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Categories: guideline, sentencing

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Supreme Court to review the scope of the expanded “safety valve.”

Today the Supreme Court granted certiorari in Pulsifer v. United States, No. 22-340, to clarify the First Step Act’s expansion of 18 U.S.C. § 3553(f)’s “safety valve.”

Section 3553(f) permits a district court to sentence a defendant below the otherwise applicable statutory mandatory minimum for federal drug offenses if the defendant meets certain criteria. The 2018 First Step Act expanded this provision.

As relevant here, to be eligible for the safety valve, a defendant must have a limited number of criminal history points. The defendant must “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 ….”

The “and” has been a source of confusion.

Several circuits hold the “and” …

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Categories: safety valve, sentencing

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Argument preview: Second Circuit appoints amicus to defend sentence apparently based on defendant’s national origin.

“It has long been settled in this Circuit” that “national origin and naturalized status” cannot be “the basis for determining” a defendant’s sentence. United States v. Arslanouk, 853 F. App’x 714, 720 (2d Cir. 2021) (quoting United States v. Kaba, 480 F.3d 152, 156 (2d Cir. 2007)). The Circuit is thus “compelled” to order resentencing where a district court’s reference to “deter[ring] others sharing that national origin” “create[s] an improper appearance that a defendant’s national origin or immigration status might be driving the choice of sentence.” Id. at 721 (ordering resentencing where district court said sentence would send a “message” that “Russian organized crime that seeks to come to the shores of the United States … will be dealt with, with the power of our criminal justice system”).

In United States v. Vasquez-Drew, No. 20-2195-cr, the district court (Cote, J.) sentenced the defendant, a Bolivian national, to …

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Thursday, August 25th, 2022

The government can garnish your 401(k) for restitution

In United States v. Greebel, 21-993-cr (2d Cir. Aug. 24, 2022), the Second Circuit holds that the Mandatory Victims Restitution Act (MVRA) enables the government to garnish a defendant’s retirement accounts to pay restitution.

Defendant Greebel was convicted of conspiracy to commit wire fraud and securities fraud and ordered to pay over $10 million in restitution. Pursuant to this restitution order, the government tried to garnish two of his 401(k) retirement accounts. The defendant objected. The Circuit found that these accounts’ plans permitted the defendant himself to withdraw lump-sums. And because the MVRA empowered the government to reach any property “in which the debtor has a substantial nonexempt interest,” allowing the government to “step[] into the defendant’s shoes, acquiring whatever rights the defendant himself possesses” to property, the funds were fair game for the government.

In so holding, the Circuit addressed a potential conflict between the MVRA and the …

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Categories: MVRA, restitution

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Monday, August 22nd, 2022

No GAAP violation, no expert, no problem

Are accounting standards and securities laws as complex as the tax code? Not according to the Second Circuit. In United States v. Petit, Taylor, Nos. 21-543-cr, 21-559-cr (2d Cir. Aug. 22, 2022) (summary order), the Second Circuit upheld the securities fraud convictions of two former public company executives charged with using “accounting tricks to artificially inflate” their company’s reported revenue in quarterly reports.

The defendants, who were convicted after trial, argued that the government failed to prove their so-called “tricks” violated any Generally Accepted Accounting Principles (GAAP). They also argued that the district court gave erroneous jury instructions on the scienter element (“knowingly and willfully”) and conscious avoidance.

The Circuit was unmoved. According to the Circuit, the “government was not required to prove” the defendants “violated GAAP,” so long as the defendants “intentionally misled investors.” Similarly, to prove the charged fraud, the government “did not need to offer expert …

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Categories: conscious avoidance, securities law

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