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Author Archive | Thea Johnson

Thursday, December 8th, 2016

60-year Sentence in Child Pornography Case Is Found Substantively Reasonable

On Tuesday, the Second Circuit issued a decision in United States v. Brown. The opinion presents an interesting debate about how the federal system punishes defendants accused of child pornography charges. I encourage defense attorneys to check out both the concurrence and dissent, for some powerful arguments about the risks of unreasonable sentences in child pornography cases.

The opinion examines defendant Nathan Brown’s 60-year sentence for procedural and substantive reasonableness. The defendant pleaded guilty to 3 counts of production of child pornography in violation of 18 U.S.C. § 2251(a) and 2 counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

The majority (J. Droney) begins with a recitation of some of the more egregious facts, which you can find on pp. 3-11. The basics: The defendant took sexually-explicit photos of girls, ranging in ages from 8 -12, who were in his care and then uploaded …

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Categories: child pornography, sentencing

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Categories: child pornography, sentencing

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Tuesday, December 6th, 2016

“Exigent Circumstances” Includes Potential Sexual Exploitation of a Minor; Allows for GPS Cellphone Tracking

On 12/1/16, the Second Circuit (Newman, Winter & Cabranes) handed down a decision finding that exigent circumstances justified the warrantless GPS tracking of a suspected sex trafficker. In United States v. Gilliam, the defendant, who was suspected of prostituting an underage girl, was located thanks to GPS coordinates on his cellphone provided to the police by Sprint. The girl had been reported missing and her involvement in prostitution was confirmed through credible sources.  During the course of the investigation, the police obtained the GPS location for the defendant’s cellphone from Sprint by informing them that there were “exigent circumstances” and a “missing child.”  GPS tracking led police to the defendant and the girl on a street in the Bronx.

The defendant challenged the use of the GPS information that lead to his location and arrest. The Second Circuit affirmed the district court’s decision that the Stored Communications Act (18 …

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Categories: Fourth Amendment, sex offenses

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Categories: Fourth Amendment, sex offenses

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Wednesday, November 23rd, 2016

Engelmayer (SDNY) Finds Juvenile Should Not be Prosecuted as an Adult

No Second Circuit decisions today.

But yesterday there was a decision out of the SDNY on the issue of whether a juvenile should be transferred for prosecution as an adult.

Judge Paul Engelmayer decided that a juvenile who was almost 18 years old at the time he was indicted for committing a number of violent offenses should not be prosecuted as an adult. The decision, United States v. C.F., Male Juvenile (15 Cr 445), can be found here. In it, Engelmayer gives a thorough break-down of the six factors that courts consider in the balancing test laid out under The Juvenile Justice and Delinquency Prevention Act (JJDPA), 18 U.S.C. §§ 5031-504.

Under JJDPA, the court must find that the transfer of a juvenile to adult status is in the “interest of justice.” This “interest of justice” standard is determined by balancing six factors : 1.) “the age and social …

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Categories: evidence, juvenile facility, Y.O.

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Categories: evidence, juvenile facility, Y.O.

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Friday, October 14th, 2016

Second Circuit rejects Sixth Circuit’s Interpretation of 26 U.S. C. § 7212(a)’s “Omnibus Clause”

The Second Circuit decided the case of United States v. Marinello (Docket No. 15-2224) on Friday. You can see the 44-page decision here.  The case involved small businessman, Carlo Marinello, who did not keep corporate records or file personal or corporate income tax returns for nearly two decades. Marinello was convicted by a jury in 2014 in the Western District of New York on nine counts of tax-related offenses. In his appeal, he raised three grounds. I’ll review two of them here.  First, he challenged his conviction under the “omnibus clause” of 18 U.S.C. § 7212(a), which imposes criminal liability on one who “in any other way corruptly . . . obstructs or impedes, or endeavors to obstruct or impede, the due administration of this title.” In making his argument, Marinello relied on the Sixth Circuit case, United States v. Kassouf, 144 F.3d 952 (6th Cir. 1998), which …

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Categories: knowledge, overbreadth, statutory construction, statutory interpretation, tax evasion

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Categories: knowledge, overbreadth, statutory construction, statutory interpretation, tax evasion

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Tuesday, October 11th, 2016

No Second Circuit decisions today.

In EDNY news: On Friday, Jeffrey Hurant, the CEO of Rentboy.com, pleaded guilty to promoting prostitution. He will be sentenced on February 2. Rentboy.com allowed escorts to advertise their services online. The case made headlines last year when Hurant and others were arrested and the files of Rentboy.com seized. The site, which ran for nearly 20 years, was shut down. The particularly detailed affidavit in support of the warrant drew censure by many for describing gay sex acts, as one pundit put, “ with shuddering relish.” As the popular blogger, Dan Savage, and others noted, Rentboy cut out the middleman – namely pimps – in connecting escorts to clients, which actually made the process safer. After a massive amount of criticism of the prosecution, charges were dropped against all of the defendants, save Mr. Hurant.…

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Categories: prostitution, travel act

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Categories: prostitution, travel act

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Friday, June 17th, 2016

Second Circuit Updates – June 17, 2016

One major decision out of the Second Circuit today, United States v. Rowland (Docket 15-985). It’s a good read for those interested in statutory construction and interpretation. A brief overview of the facts: The defendant, John Rowland was once governor of Connecticut. After being released from federal custody following a 2004 conviction for corruption and a kickback scandal, Rowland attempted to get back in the political game by offering his consulting services to Connecticut politicians running for federal office. When the politicians, wanting his advice, but not an association with him, raised their concerns about the optics, Rowland suggested that their respective companies and non-profits hire him as a consultant. As the government alleged, though, in reality he would offer advice to their campaigns.

One politician declined his offered, going so far as to rip up the proposed contract Rowland provided that would have him work for the politician’s non-profit. …

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Categories: fraud, statutory construction, statutory interpretation

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Categories: fraud, statutory construction, statutory interpretation

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Friday, June 10th, 2016

Second Circuit Updates – June 10, 2016

Not much to report today, just one summary order, which reminds us of the importance of due dates!   In United States v. Russow, 15-1768, the district court extended the defendant’s time to file an appeal.  When the defendant failed to file by that date and the government objected, the 2nd Circuit precluded an appeal. The court noted that in their ruling in United States v. Frias, 521 F.3d 229, (2d. Cir. 2008), if the government objects to a further extension of time to file an appeal after the first extension has been granted, Federal Rule of 8 Appellate Procedure 4(b) is inflexible and the appeal must be precluded.…

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Categories: Rule 8

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Categories: Rule 8

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Friday, May 27th, 2016

More Thoughts on Ganias

Today there was a big decision (both metaphorically and literally – the decision runs 104-pages) from the Second Circuit in United States v. Ganias about search warrants in an age of digital data. In Ganias, the government seized and made identical copies of three hard drives that belonged to an accountant, Stavros Ganias, pursuant to a warrant (the “2003 warrant”) in a fraud investigation. The government continued to hold the files, even after reviewing them for all relevant information contained in the 2003 warrant. In 2006, the government obtained a second warrant (the “2006 warrant”) as part of an IRS tax evasion investigation and they searched the files anew pursuant to that second warrant.

There were two questions presented:

  1. Whether the fourth amendment was violated when, pursuant to a warrant, the government seized and cloned three computer hard drives containing both responsive and non-responsive files, retained the cloned hard
…
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Categories: Fourth Amendment, good faith, search warrant

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Categories: Fourth Amendment, good faith, search warrant

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Friday, May 20th, 2016

Second Circuit Updates – May 20, 2016

There were three summary orders from the Second Circuit. Of particular interest is the Court’s order in United States v. Choudhry, No. 15-1737-cr. There a panel of the Second Circuit (Newman, Cabranes, Lohier, Jr.) addressed, among other issues, whether jury instructions regarding the charge of transmission of a threat to injure were erroneous in light of the Supreme Court’s decision in Elonis v. United States, 135 S. Ct. 2001 (2015). As I’ve written about here before, and as this case demonstrates, courts are still struggling with the boundaries of Elonis.

The District Court in Choudhry gave the following instruction:

“[a] statement is a threat if it was made under such circumstances that a reasonable person hearing or reading the statement [who] was familiar with the context of the threat would interpret it as a threat of injury.”

But, as the Second Circuit noted, in Elonis, …

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Categories: jury instructions, plain error

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Categories: jury instructions, plain error

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Friday, April 22nd, 2016

Second Circuit Updates – April 22, 2016

After this week’s Supreme Court decision in Welch v. United States, — S. Ct. –, slip op. (April 18, 2016) (No. 15-6418), which found that Johnson v. United States, 135 S. Ct. 2551 (2015) is retroactive to those serving Armed Career Criminal sentences, the next big question is whether the rule in Johnson will apply retroactively to career offender guidelines cases. (Quick reminder: Johnson struck down the “residual clause” in ACCA as void-for-vagueness. Identical or nearly-identical language to the residual clause pops up in many other sentencing statutes and guidelines). Welch gives some cause for hope. In an amicus brief filed yesterday in support of petitioner Alfrederick Jones for a writ of certiorari to the Supreme Court (Alfrederick Jones v. United States, No. 15-8629), the Federal Public and Community Defenders and the National Association of Federal Defenders laid out the case for why the Supreme Court …

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Categories: ACCA, career offender, crime of violence, guideline, retroactivity

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Categories: ACCA, career offender, crime of violence, guideline, retroactivity

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Thursday, April 7th, 2016

Second Circuit Updates – April 7, 2016

No decisions or orders out of the Second Circuit today. Two interesting notes:

  • An attorney in Albany received a public reprimand and a two-year ban from practicing as a CJA lawyer before the Second Circuit for “engaging in conduct unbecoming a member of the bar.” The attorney had failed to file documents in a timely manner on numerous occasions in at least 3 different cases, among other unprofessional conduct. The Second Circuit found two aggravating factors in making this finding. First, that the attorney had been privately reprimanded for the same sort of behavior previously and that the “misconduct occurred in criminal appeals, where important liberty interests are at stake.” Interestingly, the panel (Cabranes, Sack, and Wesley) made clear that the order “should not be perceived” as requiring reciprocal discipline in the district court, where the attorney can still practice. (See New York Law Journal article here.)
  • Yesterday a
…
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Categories: ineffective assistance of counsel, interstate commerce

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Categories: ineffective assistance of counsel, interstate commerce

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