Navigation

Author Archive | Sarah Baumgartel

Friday, November 1st, 2019

Connecticut First-Degree Robbery is a Crime of Violence Under Section 16(a)

Continuing to develop its “crime of violence” jurisprudence, the Second Circuit held that Connecticut first-degree robbery, Section 53a-134(a)(4), is a crime of violence under 18 U.S.C. § 16(a).

In Wood v. Barr, 17-514-ag (2d Cir. Nov. 1, 2019), a lawful permanent resident facing deportation argued that his Connecticut robbery conviction was not a “crime of violence,” and therefore not an aggravated felony.

Since the Supreme Court struck down Section 16(b)’s so-called residual clause in Sessions v. Dimaya, the Second Circuit focused on Section 16(a)’s elements clause. This provision defines a “crime of violence” as an offense that has an element requiring “the use, attempted use, or threatened use of physical force against the person or property of another.” The Circuit adopted its rationale in an earlier decision, United States v. Bordeaux, 886 F.3d 189 (2d Cir. 2018), which addressed New York first-degree robbery. The Circuit noted that …

Posted by
Categories: crime of violence, robbery

Posted By
Categories: crime of violence, robbery

Continue Reading
Tuesday, October 29th, 2019

Circuit Strikes Supervised Release Condition Based on Variation from Pronounced Sentence

A criminal defendant has the right to be present at the pronouncement of sentence. “Therefore, after a sentence has been pronounced, the written judgment may clarify the terms of the spoken sentence, but may not add to them.” If there is a substantive difference between the spoken and written versions of a sentence, the spoken version ordinarily controls.

Based on this rule, in United States v. Dodd, 18-2320 (2d Cir. Oct. 28, 2019), the Second Circuit ordered the district court to strike a condition of supervised release that the court had added to the written judgment, but which it had not imposed orally at sentencing. The condition prohibited the defendant from maintaining or opening any bank or financial accounts without approval from his probation officer. Because the condition had not been part of the oral sentence, on appeal the government conceded that it must be vacated.

In the same …

Posted by
Categories: sentencing, supervised release, Uncategorized

Posted By
Categories: sentencing, supervised release, Uncategorized

Continue Reading
Thursday, August 22nd, 2019

Second Circuit Vacates Civil Forfeiture Judgement Based on Suppression Issue and Other Errors

On August 9, 2019, the Second Circuit vacated a high-profile civil forfeiture judgment, in an opinion that may be of interest to criminal practitioners. The litigation involves the government’s efforts to seize 650 Fifth Avenue, a skyscraper in midtown, and other property, based on allegations that the property owners violated federal law through their relationships with the Islamic Republic of Iran.

In In re 650 Fifth Avenue and Related Properties, No. 17-3258(L) (2d Cir. Aug. 9, 2019), 2019 WL 3756033, the Circuit held that, among other errors, the trial court mistakenly denied a motion to suppress evidence obtained pursuant to a defective search warrant. In a prior 2016 appeal in the case, the Circuit ruled that a certain search warrant was constitutionally deficient because, on its face, it lacked particularity as to the alleged crimes.

Thus, the Circuit had already found a Fourth Amendment violation. The only question was …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading

Federal Second-Degree Murder is Not a Crime of Violence …

In the Ninth Circuit, at least. This week in United States v. Begay, No. 14-10080, 2019 WL 3884261 (9th Cir. Aug. 19, 2019), the Ninth Circuit held that second-degree murder, in violation of 18 U.S.C. § 1111, is not a crime of violence for purposes of 18 U.S.C. § 924(c).

In Begay, the defendant, “[a]fter a few hours of drinking and smoking methamphetamine,” “shot [the victim] in the head with a handgun,” killing him. The defendant was convicted of second-degree murder and discharging a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii).

The Ninth Circuit vacated the § 924(c) conviction. The Circuit applied the categorical approach to determine whether second-degree murder qualifies as a crime of violence, looking to the elements of that offense rather than the specific facts of the case. (And after United States v. Davis, an offense must qualify …

Posted by
Categories: 924(c), crime of violence, murder

Posted By
Categories: 924(c), crime of violence, murder

Continue Reading

Second Circuit Grants Habeas Relief in State Murder Case Based on Right to Present a Complete Defense

In Scrimo v. Lee, No. 17-3434 (2d Cir. Aug. 20, 2019), the Second Circuit ordered the grant of a writ of habeas corpus, undoing the defendant’s 2002 second-degree murder conviction.

Defendant Paul Scrimo was convicted of second-degree murder following trial in New York state court and sentenced to 25 years to life. Briefly, the defendant was charged with strangling a woman in her apartment early in the morning, after drinking with her and a man named John Kane at various bars. The chief evidence against the defendant was the testimony of John Kane. Kane admitted that he was with the victim and the defendant on the night of the murder, and in the victim’s apartment during the crime. Kane claimed that he saw the defendant strangle the victim after she insulted him.

There was little to corroborate Kane’s account of the murder and, in fact, other evidence pointed to …

Posted by
Categories: cumulative impact, evidence, harmless error, right to present a defense; Rule 403, state

Posted By
Categories: cumulative impact, evidence, harmless error, right to present a defense; Rule 403, state

Continue Reading
Monday, August 19th, 2019

Second Circuit Vacates Excessive Community Service Condition

Today in United States v. Parkins, No. 18-1019 (2d Cir. Aug. 19, 2019), the Second Circuit—for the second time—reversed a district court’s imposition of more than 400 hours of community service as a special condition of supervised release.

Back in 2017, the defendant was sentenced to time served and three years of supervised release for his role in bank and health care fraud conspiracies. As a special condition of supervised release, the district court imposed 300 hours of community service per year, for a total of 900 hours.

The defendant appealed, arguing that this amount of community service violated 18 U.S.C. § 3583(d) because it was not reasonably related to any legitimate statutory purpose of supervised released; it involved a greater deprivation of liberty than reasonably necessary; and it was inconsistent with Sentencing Guidelines Section 5F1.3 Application Note 1, which states that community service “generally should not be imposed …

Posted by
Categories: sentencing, supervised release

Posted By
Categories: sentencing, supervised release

Continue Reading