Author Archive | Yuanchung Lee

Wednesday, September 21st, 2022

Court must provide habeas petitioner with notice and an opportunity to respond before sua sponte dismissing the petition on procedural grounds

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 …

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A sealed sentencing conducted by videoconference, which was not accessible to the public, does not implicate Rule 53’s ban on broadcasting judicial proceedings

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 …

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Friday, July 30th, 2021

A district court may consider the defendant’s future earning potential to conclude that the defendant is “non-indigent” and thus subject to the mandatory $5,000 “special assessment” under 18 U.S.C. § 3014(a)

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 …

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A substance can be an “analogue” of fentanyl for purposes of 21 U.S.C. § 841(b)(1)(B)(vi) — requiring a 5-year minimum sentence where the offense involved “10 grams or more of a mixture or substance containing a detectable amount of any analogue of” fentanyl — even if it does not qualify as a “controlled substance analogue” under 21 U.S.C. § 802(32).

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 …

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District court’s egregious flouting of long-established procedures regarding a jury note and a proposed Allen charge does not constitute “plain error” because its mistakes did not prejudice the defendant

In United States v. Catherine Melhuish, No. 19-485 (2d Cir. July 27, 2021) (opinion by Judge Nardini, joined by Judges Walker and Wesley), the Circuit rejects the defendant’s argument that the trial judge erred in responding to a jury note and in proposing an Allen charge during deliberations; concludes that 18 U.S.C. § 111, prohibiting the assault of a federal officer, is a general-intent offense; and remands for further fact-finding on the defendant’s claim that trial counsel rendered ineffective assistance by failing to introduce evidence supporting an insanity defense. The first is worth discussing.

The principal issue is the trial judge’s egregious refusal to follow the Circuit’s long-established procedures for how to deal with jury notes and supplemental instructions during deliberations. These are the steps that a trial judge must follow:

(1) the jury inquiry should be in writing; (2) the note should be marked as the court’s exhibit …

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Thursday, July 29th, 2021

Panel upholds 40-year prison sentence for Hizballah “sleeper agent” who did not injure anyone or engage in violence; Judge Pooler dissents on the ground that the Guidelines’ terrorism enhancements yield inappropriately high ranges that can result in sentences that, like this one, “shock[] the conscience.”

Ali Kournai was a “sleeper agent” working on behalf of Hizballah1 and the Islamic Jihad Organization (IJO) in the United States and Canada for over a decade. In United States v. Kourani, No. 19-4292 (2d Cir. July 27, 2021) (opinion by Judge Cabranes, joined by Judge Kearse), the Circuit affirms the judgment below, rejecting Kourani’s challenges to his conviction following trial as well as to his 480-month sentence.

Judge Pooler agrees that “Kourani received a fair trial and was properly adjudicated guilty by a jury.” But she dissents on the punishment: Although “[h]is crimes were undeniably serious” and “[i]t is not lost on me that Kourani’s actions could have culminated in far more injurious results,” she explains, “[n]evertheless, they did not, and accordingly, the sentence imposed is disproportionately high.”

Here are the relevant facts as recounted by Judge Cabranes; whether 40 years is “unreasonably long” is the principal …

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District court lacks jurisdiction to amend a clerical error in the judgment (under Rule 36) while an appeal is pending from the court’s denial of a prior Rule 36 motion

In an opinion by Judge Kearse, the Circuit ruled in United States v. Jacques, No. 20-1762(L) (2d Cir. July 26, 2021), that a district court lacks authority under Rule 36 (of the Federal Rules of Criminal Procedure) to correct a clerical error in the judgment while an appeal is pending in the Circuit from the court’s denial of the defendant’s prior Rule 36 motion. This simply applies the general rule that “the filing of a notice of appeal confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Op. 14.

Although Rule 36 states that the court “may at any time correct a clerical error in the judgment,” the Circuit reads this as “meant literally in the temporal sense, rather than in a situational sense.” That is, Rule 36 empowers a court to correct …

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Wednesday, May 26th, 2021

Twenty-year term of supervised release neither procedurally nor substantively unreasonable

In United States v. Joseph Williams, No. 20-1021 (2d Cir. May 26, 2021), a Panel of the Court (Pooler, Sullivan, and Park) ruled in a per curiam opinion that Williams’s 20-year term of supervised release, to follow a 160-month term of imprisonment, was neither procedurally nor substantively unreasonable on plain-error review. Williams argued principally that the term of supervised release was procedurally faulty because the district court violated 18 U.S.C. § 3553(c), requiring a sentencing court to “state in open court the reasons for its imposition of the particular sentence . . . .” Specifically, while the court the explained the basis for the chosen term of imprisonment (and discussed the § 3553(a) factors in so doing), it “did not separately explain the factors [in] imposing the term of supervised release.” Op. 4.

The Court found “no procedural error in the district court’s failure to separately explain the basis …


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Tuesday, May 25th, 2021

Circuit strikes a special condition of supervised release requiring the defendant to participate in a “restorative justice program” as vague and as delegating judicial authority to the Probation Office

In United States v. Patrick W. Carlineo, 2d Cir. No. 20-1020 (May 25, 2021), a Panel of the Court (Parker, Lohier, and Menashi) invalidated a special condition of supervised release requiring the defendant to “participate in a program known as the Partners in Restorative Initiatives” as too vague and as delegating too much authority to the Probation Office. Judge Parker’s opinion does not invalidate all such conditions. Rather, the takeaway is that if a district judge wishes to impose a restorative-justice-related condition of supervision, the judge must specify the details of the program — preferably one vetted by the Probation Office — and indicate specifically what the defendant must do to satisfy the condition and avoid violation.

Carlineo pleaded guilty to threatening Congresswoman Ihlan Omar and to possessing a gun after a felony conviction. Before sentencing, the district court received an unsolicited letter “from Will Bontrager, who identified himself …

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The Supreme Court throws a wrench into § 1326(d) motions in the Second Circuit

In United States v. Palomar-Santiago, No. 20-437 (May 24, 2021), Justice Sotomayor ruled for a unanimous Court that as a matter of statutory interpretation (1) each of 8 U.S.C. § 1326(d)’s three requirements must be satisfied; and that (2) a showing by the defendant that the deportation proceeding was “fundamentally unfair” under § 1326(d)(3) — because the immigration judge (IJ) mistakenly told him that he was removable as an aggravated felon due to his DUI conviction (this became error six years later in Leocal v. Ashcroft, 543 U.S. 1 (2004), holding that a DUI is not a § 16(b) “crime of violence” and thus not an “aggravated felony”) – does not suffice to dismiss a reentry indictment. The decision overrules Ninth Circuit law holding that “defendants are ‘excused from proving the first two requirements’ of § 1326(d) [– noncitizen defendants must show that they exhausted administrative remedies and …


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Wednesday, February 24th, 2021

SCOTUS will review the ACCA’s “committed on occasions different from one another” requirement – so object, object, object

Earlier this week the Supreme Court granted cert. in Wooden v. United States, SCOTUS No. 20-5279, which concerns the interpretation of the ACCA’s requirement that each of the three required prior convictions arise from offenses “committed on occasions different from one another . . . .” 18 U.S.C. § 924(e)(1). The Court will likely resolve a Circuit split on whether mere temporal distinctness between two offenses suffices to satisfy the requirement of separateness, or whether a broader inquiry is necessary.1

In Mr. Wooden’s case, the Sixth Circuit ruled that his burgling of 10 different units at the same Georgia mini-storage facility, one after another, which resulted in a guilty plea to 10 counts of burglary more than twenty years ago, constituted 10 separate burglaries for purposes of the ACCA, even though everything occurred at the same location over a short period of time. Several Circuits agree with the …

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