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Tuesday, July 20th, 2021

But is it one conspiracy? And is it securities fraud?

The answer to those questions is pretty much always “yes.” In United States v. Khalupsky, Nos. 19-197-cr, 19-780-cr (2d Cir. July 19, 2021), the Second Circuit affirmed the trial convictions of two defendants, rejecting various legal challenges. According to the circuit, the evidence at trial established that the defendants participated in a multi-year scheme to use stolen pre-publication press releases to make securities trades. Specifically, “hackers in Ukraine” “hacked into three newswires” that disseminated press releases for publicly traded companies, and passed those press releases to an intermediary (Dubovoy) before they were published. This intermediary then equipped and funded each defendant for trading, and gave them access to the releases. The defendants traded, kept a percentage of trading profits for themselves, and passed the rest back to Dubovoy.

On appeal, the defendants argued that there was not sufficient evidence to establish the existence of the single charged conspiracy, since …

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Categories: conscious avoidance, conspiracy, constructive amendment, securities law

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Second Circuit rules no double jeopardy violation to admit the same evidence of a cocaine conspiracy that resulted in acquittal in the first trial to prove a RICO conspiracy in a second trial.

In United States v. Hicks, No. 19-590 (2d Cir. July 16, 2021), the defendant was tried for conspiracy to distribute marijuana, conspiracy to distribute cocaine and cocaine base, a 924(c) violation, and a RICO conspiracy. He was convicted of the marijuana conspiracy but acquitted of both the conspiracy to distribute cocaine and cocaine base and the 924(c) count. The jury hung on the RICO conspiracy count, which was retried. At the second trial, the government relied “on substantially the same evidence” as it presented in the first trial, including “the same evidence that it had used unsuccessfully in the first trial to convict Hicks of engaging in a cocaine conspiracy.” The defense objected to this on double jeopardy grounds, but the second jury was allowed to convict on this evidence.

The Second Circuit held there was no double jeopardy violation. First, it held that double jeopardy did not bar …

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Categories: conspiracy, double jeopardy, issue preclusion

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Categories: conspiracy, double jeopardy, issue preclusion

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Monday, November 23rd, 2020

Second Circuit affirms the convictions of two N.Y. correction officers for civil rights conspiracy and false records charges, under 18 U.S.C. §§ 241 and 1519, based on an assault of an inmate. United States v. Scott, __F.3d__, No. 18-2882-cr, 2020 WL 6494642 (2d Cir. Nov. 5, 2020) (C.J.J. Kearse, Sullivan, Park).

Defendants-Appellants Kathy Scott and George Santiago, Jr. are former correction officers with the New York State Department of Correction and Community Supervision (“DOCCS”) at the Downstate Correctional Facility in Fishkill, New York.

The evidence at their jury trial was that “Scott and Santiago, along with other officers of DOCCS, assaulted Kevin Moore, an inmate at the Downstate Correctional Facility in Fishkill, New York.” Scott, 2020 WL 6494642 at *1.  In addition, “[t]he evidence –  which included the testimony of [two] fellow DOCCS officers …  – further revealed that Defendants took numerous steps to cover up the assault, including falsifying the initial use-of force incident report.” Id.

Scott and Santiago were convicted of conspiracy to deprive a person of civil rights, in violation of 18 U.S.C. § 241; deprivation of civil rights, in violation of 18 U.S.C. § 242; conspiracy to falsify records, in violation of 18 U.S.C. § 371; …

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Tuesday, February 11th, 2020

Second Circuit Holds N.Y. Attempted Second Degree Assault With a Deadly Weapon (N.Y.P.L. §120.05. (2) ) a “Crime of Violence” Under Force Clause and §846 Narcotics Conspiracy a “Controlled Substance Offense.”

In United States v. Tabb, __ F.3d __, 2020 WL 573379 (2d Cir. Feb. 6, 2020), the Court of Appeals held that New York’s attempted assault in the second degree with a deadly weapon or dangerous instrument qualifies as a crime of violence under the force clause. The Court had previously held, in Singh v. Barr, 939 F.3d 457 (2d Cir. 2019), that the completed crime qualifies under the force. It relied here on Singh and on its pre-Johnson decision in United States v. Walker, 442 F.3d 787 (2d Cir. 2006), which held that attempted assault with a deadly weapon was a violent felony under the ACCA’s force clause. The Court followed Singh in rejecting the argument, based on Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003), that the substantive offense could be committed by indirect force or omission. Chrzanoski held that Connecticut third …

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Categories: assault, attempt, conspiracy, crime of violence

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Categories: assault, attempt, conspiracy, crime of violence

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Friday, August 30th, 2019

FINAL DECISION by the Second Circuit in BARRETT

Because the residual clause of 18 U.S.C.§  924(c)(3)(B)  is unconstitutionally vague, “conspiracy” to commit Hobbs Act robbery isn’t a qualifying 924(c) predicate, since Hobbs Act conspiracy doesn’t meet the elements clause of § 924(c)(c)(3)(A). United States v. Barrett, No. 14-2641-cr, __F.3d__, 2019 WL 4121728  (Aug. 30, 2019). 

The Supreme Court vacated the Second Circuit’s original judgment that affirmed Barrett’s conviction (see 903 F.3d 166). And it remanded the case to the Circuit for further consideration in light of United States v. Davis, 139 S. Ct. 2319 (June 24, 2019). See  Barrett v. United States, 139 S.Ct. 2774 (June 28, 2019) (“petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Second Circuit for further consideration in light of United States v. Davis[.]”).

In United States v. Davis, 139 S. Ct. 2319 (2019), the Supreme …

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Categories: 924(c), conspiracy, crime of violence, Davis, Hobbs Act, Johnson

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Friday, January 25th, 2019

The 924(c)(3)(B) Circuit Split Grows (in a Good Way)

This week, the Fourth Circuit held in United States v. Simms, No. 15-4640 (4th Cir. 2019) (en banc) that § 924(c)(3)’s residual clause is unconstitutionally vague and therefore that conspiracy to commit Hobbs Act robbery is not a crime of violence. The decision deepens the Circuit split on this issue, which the Supreme Court will soon address in Davis.

Notably, the en banc majority in Simms declined to apply the constitutional avoidance canon to adopt a conduct-specific reading of § 924(c)(3)(B). The avoidance canon has “no application,” the Court stated, where “there is an absence of more than one plausible construction” of the statute. Slip op. at 41 (quotation marks omitted). As the Court explained elsewhere, the government’s favored reading of § 924(c)(3)(B) is implausible because its text and structure “unambiguously require courts to analyze the attributes of an ‘offense that is a felony . . . by …

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Categories: 924(c), categorical approach, conspiracy, crime of violence, Hobbs Act, Johnson

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Friday, January 11th, 2019

Cert. Grant in Davis

The Supreme Court recently granted a certiorari petition in Davis v. United States that presents the following questions:

(1) Whether 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague;

(2) whether Hobbs Act robbery is a “crime of violence” as defined by 18 U.S.C. § 924(c)(3); and

(3) whether a prior Texas conviction for burglary is a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

Practitioners should take care to preserve challenges to § 924(c)(3)’s residual clause notwithstanding the Second Circuit’s holding in Barrett, and to preserve arguments that offenses such as Hobbs Act robbery (and conspiracy to commit that offense) are not crimes of violence under  § 924(c)(3). (Note that, as of the date of this post, the mandate has not issued in Barrett.)…

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Categories: 924(c), ACCA, categorical approach, certiorari, conspiracy, crime of violence, Hobbs Act, Johnson

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Friday, October 5th, 2018

Inaccurate Barrett Dicta

(This post has been updated to discuss the amended opinion in Fiseku.)

The Second Circuit issued an opinion this week containing some facially incorrect, and substantively troubling, dicta concerning tits recent decision in Barrett. See United States v. Fiskeu, No. 17-1222 (2d Cir. 2018) (Cabranes, Lynch, Carney) (appeal from Engelmayer, J., S.D.N.Y.), opinion available here.

The narrow, fact-specific holding of Fiseku is that under the “unusual circumstances” presented in the case, police officers did not act unreasonably when they briefly restrained the defendant in handcuffs while conducting a investigatory stop. Slip op. at 18. However, the defendant also raised an ineffective assistance claim because his defense attorney failed to argue that his crime of conviction, conspiracy to commit Hobbs Act robbery, was not a crime of violence within the meaning of U.S.S.G. 4B1.2. The Second Circuit declined to address this claim on direct review.

In so …

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Categories: 924(c), conspiracy, crime of violence, Johnson

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Monday, September 10th, 2018

Second Circuit decides Barrett

On the heels of its Pereira-Gomez decision on Friday, the Second Circuit issued a new opinion in United States v. Barrett, which is available here.

In Barrett, the Circuit held that 18 U.S.C. 924(c)(3)(B) is not unconstitutionally vague because “factfinding as to the violent nature of the predicate offense and the risk of physical force in its commission can be made by the trial jury in deciding the defendant’s guilt, thus avoiding both the Sixth Amendment and due process vagueness concerns at issue in Dimaya and Johnson.”  The Court held that the fact that Barrett’s jury did not make a finding regarding force was harmless error in light of the specific facts of his case.  The Circuit further held that a Hobbs Act Robbery conspiracy is a crime of violence because the object of the conspiracy, the Hobbs Act Robbery, is a crime of violence.  “[T]his …

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Categories: 924(c), conspiracy, crime of violence, Johnson

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Monday, August 27th, 2018

Second Circuit Limits Scope of Conspiracy Liability Under the FCPA

Today the Second Circuit issued an opinion holding that a non-U.S. citizen, employed by a foreign company, could not be prosecuted for conspiracy to violate the Foreign Corrupt Practices Act (FCPA). See United States v. Hoskins, No. 16-1010 (2d Cir. 2018) (Katzmann, Pooler, Lynch). The opinion is a statutory interpretation tour de force. Of course, the case does not necessarily present a factual scenario that attorneys will often encounter while representing indigent defendants. However, Judge Pooler’s analysis and methodology provide an excellent template for for those arguing for limitations on the scope of conspiracy liability in other contexts. The opinion is available here.

The defendant in Hoskins does not fall within any of the categories of persons who are subject to prosecution under the FCPA. This fact did not, in itself, render him immune from prosecution for conspiracy to violate the statute. As a general principle, “[a]  person …

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Categories: conspiracy, FCPA, statutory construction, statutory interpretation

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Friday, March 16th, 2018

SDNY: Venue for the World (St. Croix edition)

The Second Circuit held yesterday that venue in the SDNY was proper for defendants charged with a narcotics conspiracy that operated in the U.S. Virgin Islands and Florida. The only meaningful link to the SDNY was that, after arrest, a co-conspirator was transported to Manhattan and, at the behest of government agents, called some of his co-conspirators to inform them that he was “in New York.” See United States v. Tank Yuk et al., No. 15-131 (2d Cir. 2018) (Chin, Carney, Forrest (SDNY)) (appeal from Nathan, J., SDNY). Judge Chin wrote a short dissent that shows not only the peculiarity of this holding, but also how it expands the government’s power to charge defendants in any district they choose. The opinion—which also rejects Brady, sufficiency-of-the-evidence, Napue, and Guidelines claims—is available here.

The defendants in Tang Yuk were charged with a conspiracy involving the shipment of …

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