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Author Archive | Sarah Baumgartel

Thursday, June 24th, 2021

Challenging § 924(c) convictions based on multiple predicates after Davis.

Since the Supreme Court decided United States v. Davis, 139 S. Ct. 2319 (2019), lower courts have grappled with pre-Davis § 924(c) convictions predicated on both a valid crime of violence and a predicate offense that no longer categorically qualifies (for example, a § 924(c) conviction predicated on both a substantive Hobbs Act robbery and a Hobbs Act conspiracy). In United States v. Eldridge, No. 18-3294-cr (2d Cir. June 22, 2021), the Second Circuit provides guidance on this issue.

In Eldridge, one defendant was convicted at trial of a § 924(c) offense with three possible predicate crimes of violence: (1) kidnapping in aid of racketeering; (2) conspiracy to commit Hobbs Act robbery; and (3) attempted Hobbs Act robbery. The trial was conducted before Davis was decided, so there was no dispute about these predicates. Following Davis, however, both parties agreed that the kidnapping and Hobbs …

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Categories: 924(c), Davis, plain error

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Categories: 924(c), Davis, plain error

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Monday, June 21st, 2021

Questioning about phone number violated Miranda rights.

By summary order dated June 21, 2021, the Second Circuit reaffirmed limitations on law enforcement’s ability to elicit so-called pedigree information after an arrest.

In United States v. Durand, No. 20-1992, the defendant requested a lawyer and did not waive his Miranda rights following arrest. Nonetheless, officers asked him about his phone number, purportedly as part of the administrative booking process. Typically, law enforcement may ask a detainee certain biographical or pedigree information without running afoul of Miranda. However, without a Miranda waiver, police may not ask questions during the booking procedure that are designed to, or that officers have reason to know will, elicit an incriminating response. There are no categorical exemptions from Miranda for certain booking questions and the issue is highly fact-specific.

In Durand, the Circuit held that officers should have known that their post-arrest questioning of the defendant regarding his phone number was …

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Categories: Miranda

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Categories: Miranda

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Thursday, February 25th, 2021

Court issues opinion detailing SDNY prosecutorial misconduct

On February 22, 2021, the district court issued its full opinion regarding prosecutorial misconduct issues in United States v. Ali Sadr Hashemi Nejad, 18 Cr. 224 (AJN), and made public affidavits filed by United States Attorneys involved in the case. The full opinion is here.

In this opinion, the district court restates that it did not find proof of intentional misconduct, but nonetheless finds “pervasive” “errors and ethical lapses.”

With respect to these lapses, the publicly filed exhibits include, inter alia, these exchanges between the U.S. Attorney supervisors involved in the case:

Crowley, Shawn (USANYS) 5:26 PM:
i think i’m going to stop with the closing and devote the rest of the night to cleaning out my
office
Emil J. . Bove 5:26 PM:
seriously
i was just going to write to you – like the window was on my screen and yours popped in – are

…
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Categories: Brady, prosecutorial misconduct

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Categories: Brady, prosecutorial misconduct

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Friday, February 19th, 2021

District Court urges the DOJ to investigate misconduct by SDNY prosecutors

On February 17, 2021, the district court issued a new order in the continuing saga of United States v. Ali Sadr Hashemi Nejad, 18 Cr. 224 (AJN). A previous opinion detailing the relevant facts was issued on September 16, 2020.

This is a prosecution that began to unravel back in early 2020. In 2018, Mr. Sadr was indicted on charges of conspiracy to defraud the United States, conspiracy to violate the International Emergency Economic Powers Act, bank fraud, and money laundering offenses. The prosecution was handled by AUSAs Andrew J. DeFilippis, Matthew Laroche, David W. Denton, Jr., Emil J. Bove, III, Jane Kim, Michael Krouse, Rebekah Donaleski, Shawn Crowley, and Stephanie Lake.

In March 2020, after a two-week jury trial, Mr. Sadr was found guilty of five counts.

After trial, Mr. Sadr moved for acquittal as a matter of law or, alternatively, a new trial. While that motion was …

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Categories: Brady, prosecutorial misconduct

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Categories: Brady, prosecutorial misconduct

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Friday, May 1st, 2020

Pop off, G-Unit

In a murder-for-hire trial, is it constitutional for a defense attorney to concede—over his client’s objection—that the client hired someone to shoot at the victim (an element of the offense), but argue that the client did not intend for the victim to die?

This may seem like a strange strategic choice, but it starts to make more sense in context. On May 1, 2020, in United States v. James Rosemond, No. 18-3561, the Second Circuit takes a foray into the world of hip hop while considering a defendant’s Sixth Amendment autonomy rights.

Rosemond, aka “Jimmy Henchman,” was a manager and music executive whose Czar Entertainment managed, among others, The Game, Brandy, Gucci Mane, and Salt-n-Pepa. Czar had a rivalry with Violator Records, whose offices were located across the street. Violence ensued. Per the Second Circuit,

The rivalry intensified in February 2005. At that time, Czar represented rapper Jayceon Taylor,

…
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Categories: Sixth Amendment

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Categories: Sixth Amendment

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Thursday, April 30th, 2020

“Our mindless addiction to punishment”: Keeping up with Covid-19 in the BOP

This week, the Federal Bureau of Prisons announced the death of an inmate named Andrea Circle Bear from Covid-19. In January 2020, a pregnant Ms. Circle Bear was remanded to begin serving a 26-month federal sentence for a nonviolent drug offense. She contracted Covid-19 in custody. On April 1, her baby was delivered by cesarean section. On April 28, Ms. Circle Bear died.

As FAMM President Kevin Ring put it, “[N]othing better demonstrates our mindless addiction to punishment more than the fact that, in the midst of a global pandemic, our government moved a 30-year-old, COVID-vulnerable pregnant woman not to a hospital or to her home, but to a federal prison. Her death is a national disgrace ….”

This “mindless addiction” is particularly stark in Ms. Circle Bear’s case, but it is no less apparent in the actions of the BOP and our local United States Attorney’s Offices as this …

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Categories: Covid-19

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Examining the scope of crack resentencings under the First Step Act

Last week we highlighted the Second Circuit’s decision in United States v. Holloway, No. 19-1035, holding that a motion for a sentence reduction under Section 404 of the First Step Act of 2018 is governed by 18 U.S.C. § 3582(c)(1)(B), not § 3582(c)(2).

In United States v. Chambers, No. 19-7104, 2020 WL 1949249 (4th Cir. Apr. 23, 2020), the Fourth Circuit recently reached the same conclusion in addressing a slightly different issue. In Chambers, the district court erroneously applied a career offender enhancement in a First Step Act crack resentencing, because the career offender enhancement had been applied at the original sentencing. Overturning this decision, the Fourth Circuit holds that the “First Step Act does not constrain courts from recognizing Guidelines errors” and that “any Guidelines error deemed retroactive … must be corrected in a First Step Act resentencing.”

Although this is a somewhat narrow issue, the …

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Categories: career offender, First Step Act of 2018

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Compassionate Release and Covid-19

Numerous district courts in the Second Circuit and across the country have used the expanded compassionate release provision of the First Step Act, 18 U.S.C. § 3582(c)(1)(A)(i), to release at-risk defendants from custody during the Covid-19 crisis. These courts have found that the ongoing Covid-19 pandemic, combined with underlying medical issues that increase a defendant’s risk from the virus, can constitute “extraordinary and compelling” reasons to reduce the defendant’s sentence and order release from custody.

The national Federal Defenders website and Douglas Berman’s Sentencing Law and Policy blog are two great sources of information about these compassionate release grants.

Here I wanted to highlight a few notable decisions within the Second Circuit related to this issue.

In United States v. Gerard Scparta, No. 18 Cr. 578 (AJN), ECF Dkt. 69 (S.D.N.Y. Apr. 19, 2020), Judge Nathan granted a compassionate release motion of a 55-year old defendant who suffers from …

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Categories: Covid-19, First Step Act of 2018

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Tuesday, April 28th, 2020

Some Summary Orders: Bikes, Guns, Fines

On April 27, 2020, the Second Circuit issued three summary orders in criminal matters.

In United States. v. Cuello, No. 19-2053, the Circuit affirmed a district court’s denial of suppression of a gun found during a traffic stop. This “traffic” stop was of a bike that did not have proper “head and tail lights,” in violation of New York Vehicle and Traffic Law § 1236(a). During the stop, police asked the bike rider for identification and his “bicycle registration.”

Did you know that “bicycle registration” is a thing? Apparently, the Syracuse Revised General Ordinances, Section 29-1 requires every person in the city of Syracuse who owns a bicycle operated in the city to register that bicycle “with the chief of police.” Well.

When the bike rider failed to produce his registration, police asked him about a black backpack he was wearing. Because how suspicious is it to be riding …

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Categories: 922(g), fine, reasonable suspicion, Rehaif, traffic stop

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Categories: 922(g), fine, reasonable suspicion, Rehaif, traffic stop

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Wednesday, February 19th, 2020

Committing or threatening violence is a “crime of violence.”

For one brief, beautiful moment, it seemed like nothing could ever be a crime of violence. But the pendulum is swinging back and now everything is becoming a crime of violence once again.

In United States v. Nikolla, 17-2206-cr (2d Cir. Feb. 19, 2020), the Second Circuit held that threatening violence in furtherance of an extortion plan, in violation of 18 U.S.C. § 1951(a), is categorically a “crime of violence” under the force (or elements) clause of 18 U.S.C. § 924(c).

In Nikolla, the defendant pled guilty to several charges, including a § 924(c) offense, pursuant to a written plea agreement. On appeal, he nonetheless challenged his § 924(c) conviction. In upholding this conviction, the Circuit found § 1951(a) divisible and noted that the defendant pled guilty to the provision which applies to a defendant who “commits or threatens physical violence to any person or property in furtherance” …

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Categories: 924(c), crime of violence

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Categories: 924(c), crime of violence

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Notable compassionate release decision

The First Step Act expanded so-called compassionate release, which permits a court to reduce a previously-imposed sentence if it finds that “extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A). The Act also for the first time enabled defendants to make an application directly to the court for such relief. We are still waiting to see the full impact of these legal changes. One open question is what constitutes “extraordinary and compelling reasons.” Both the Sentencing Commission and the Bureau of Prisons have promulgated definitions. But do these definitions limit the authority of courts to grant relief? Recently, a federal court in Utah found that they did not.

In United States v. Kepa Maumau, No. 08 Cr. 758 (TC) (D. Utah Feb. 18, 2020), the district court ruled that it was not bound by the Sentencing Commission’s or Bureau of Prisons’ definitions of “extraordinary and compelling …

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