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Author Archive | Sarah Baumgartel

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 …

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Categories: procedural reasonableness, sentencing, supervised release

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Categories: procedural reasonableness, sentencing, supervised release

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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 …

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Categories: jury, jury selection

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Categories: jury, jury selection

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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 …

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Categories: Confrontation Clause, Sixth Amendment

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Categories: Confrontation Clause, Sixth Amendment

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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 …

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Categories: categorical approach, sentencing

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Categories: categorical approach, sentencing

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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 …

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Categories: Fourth Amendment, special needs, supervised release

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Categories: Fourth Amendment, special needs, supervised release

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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 …

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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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