Author Archive | Yuanchung Lee

In Ethridge v. Bell, 2d Cir. No. 20-1685-pr (Sep. 20, 2022), a Panel of the Court (Lynch, Bianco, and Nardini), in an opinion by Judge Bianco, ruled that the district court erred when it sua sponte dismissed Ethridge’s § 2254 petition, challenging his New York drug and weapons conviction on the ground that state courts erroneously denied his motion to suppress a gun seized during an allegedly unlawful search, without giving him any notice or an opportunity to be heard. Before sua sponte dismissing a petition on procedural grounds, the Circuit ruled, a district court must give the petitioner notice of its contemplated decision as well as a genuine opportunity to respond.

The district court erred in dismissing Ethridge’s petition sua sponte by invoking Stone v. Powell, 428 U.S. 465 (1976), which “held that a petitioner may not obtain [federal] habeas relief under the Fourth Amendment on the …

In United States v. Sealed Defendant One, 2d Cir. No. 21-118 (Sep. 21, 2022), a Panel of the Court (Newman, Chin, and Sullivan), in an opinion by Judge Sullivan, principally ruled that a sealed sentencing proceeding, which occurred via Skype videoconferencing during the COVID-19 pandemic, did not violate Rule 53’s bar on the “broadcasting” of judicial proceedings. See Fed. R. Crim. P. 53 (“Except as otherwise provided by statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”). This is so because the term “broadcasting” “clearly entails ‘public’ distribution to make something ‘widely’ known.” Op. 16-17 (emphases in original) (quoting Merriam-Webster’s online entry for “broadcast”). Because the sealed sentencing here occurred through a “closed” Skype call, which “no one other than Sealed Defendant, his wife, and …

Section 3014(a) of Title 18, enacted as part of the Justice for Victims of Trafficking Act of 2015 (“JVTA”), requires district courts to impose a $5,000 special assessment on “non-indigent” persons convicted of certain sex- and trafficking-related offenses.¹ Carlos Rosario is an indigent person represented by this Office. After he pleaded guilty to three qualifying offenses, the district court considered his future earning capacity, concluded that he was “non-indigent” in light of that capacity, and imposed the $5,000 special assessment. Rosario argued on appeal that this was error.

The Circuit affirms Rosario’s sentence. United States v. Rosario, No. 20-2268 (2d Cir. July 29, 2021). Writing for himself and Judge Sack, Judge Park concludes that “the ordinary meaning of ‘indigent’ encompasses not only a lack of present resources, but also includes a forward-looking assessment of the defendant’s ‘means’ or ability to pay.” This reading, moreover, is consistent with “all …

Torri McCray was charged under 21 U.S.C. § 841(b)(1)(B)(vi) for distributing 10 grams or more of “butyryl fentanyl,” an analogue of fentanyl under the ordinary meaning of the term “analogue.” As Webster’s New Collegiate Dictionary puts it, an “analogue” in the relevant chemistry context is “a chemical compound structurally similar to another but differing often by a single element of the same valence and group of the periodic table as the element it replaces.”

Everyone, including McCray, agrees that butyryl fentanyl is an analogue of fentanyl under this definition. And if this definition governed for purposes of § 841(b)(1)(B)(vi), then McCray would be subject to a 5-year mandatory minimum: Such a sentence is required when the defendant distributes “10 grams or more of a mixture or substance containing a detectable amount of any analogue of” fentanyl.

But McCray disagrees that the ordinary definition of “analogue” applies to § 841(b)(1)(B)(vi). He …