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Wednesday, June 26th, 2019

The Supreme Court held in United States v. Davis that the so-called “residual clause” of 18 U.S.C. 924(c)(3)(B) is void for vagueness

The Supreme Court held in United States v. Davis that the so-called “residual clause” of 18 U.S.C. 924(c)(3)(B) is void for vagueness. This means that the only way a crime can qualify as a “crime of violence” for purposes of Section 924(c) is under the “elements” (or “force”) clause of 18 U.S.C. 924(c)(A). That clause defines a “crime of violence” to mean “an offense that is a felony” and “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

So what happens now? Here’s a quick overview:

  1. Davis means that the Second Circuit’s decision in United States v. Barrett, 903 F.3d 166 (2d Cir. 2018), which upheld the constitutionality of the residual clause, is no longer good law. And more specifically, the Supreme Court is likely to grant the pending petition for certiorari in Barrett, vacate that
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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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Wednesday, May 9th, 2018

Second Circuit Issues Amended Ruling in Hill

Today the Second Circuit issued an amended opinion in United States v. Hill, holding that Hobbs Act Robbery is a crime of violence under 18 U.S.C. 924(c)(3)(A) (924(c)’s so-called “force clause”).

The good news about the decision is that it omits the portion of the earlier-issued opinion that upheld against a vagueness challenge 18 U.S.C. 924(c)(3)(B) (924(c)’s so-called “residual clause” or “risk of force clause”).  This was a hoped-for development in light of the Supreme Court’s decision last month in Sessions v. Dimaya.

This means there is no longer any holding from the Second Circuit that 924(c)’s residual clause survived Johnson. This should mean district courts will see a green light to find that 924(c)’s residual clause, and the identical clause in the Bail Reform Act, are void.

The bad news is the portion of the original holding that remains intact, that Hobbs Act robbery is a …

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Tuesday, September 26th, 2017

Second Circuit Reverses Skelos Convictions

In a relatively lengthy summary order, the Second Circuit reversed Dean and Adam Skelos’s convictions in light of the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2016). The order is available here.

Dean Skelos and his son were convicted under the Hobbs Act and the honest services and federal bribery statutes. Each of their charged offenses included the performance of an “official act” as an element. The district court’s jury instructions provided that an “official act” does “not need to be specifically described in any law, rule, or job description, but may also include acts customarily performed by a public official with a particular position.” Sum. Order at 3. Consistent with this definition, a government witness testified that the “official duties” of a state senator included “assist[ing] individuals or companies in getting meetings with state agencies.” Id. at 11. Subsequent to trial, the …

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Categories: bribery, harmless error, Hobbs Act, honest services fraud

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Thursday, March 9th, 2017

The Dismantling of the Holder Memo Begins

It looks like the work of dismantling the progress made under the Holder memo has begun.

Attorney General Jeff Sessions has issued a memo directing US Attorneys to work with local law enforcement to identify the ‘criminals’ in their districts who are driving violent crime and prosecute them federally using all available tools. You can read the memo here. An additional memo on charging decisions in all criminal cases will follow.…

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Monday, August 29th, 2016

Second Circuit Updates – August 29, 2016

The Second Circuit issued summary affirmances in two criminal cases today.

In United States v. Jasmin, No. 15-2546, the Court affirmed the conviction of the former mayor of Spring Valley, New York, on mail fraud and extortion charges.  The Court held that the government’s reliance at trial on a mailing not specified in the indictment was not a constructive amendment or variance of the indictment.  The government did rely on a mailing that was listed in the indictment, and Jasmin had notice of the additional mailing more than a year before trial.  The Court found there was sufficient evidence to support both convictions.  In terms of the mail fraud count, the use of the mail was foreseeable to Jasmin.

With respect to the Hobbs Act claim, the Court found the evidence sufficient to support the conviction.  Part of the proof on the interstate commerce element involved Jasmin’s travel to …

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Categories: extortion, Hobbs Act, illegal reentry

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Thursday, August 25th, 2016

Follow up on third opinion from August 24, 2016

Note, this is a follow up on the third of three opinions issued yesterday that we blogged about; see original teaser post here.

Hobbs Act robbery (the interstate commerce element); Rule 16 violation (late disclosure of defendant’s statement); defense counsel’s summation comment (case agent is an interested witness); sequestration of a witness (the case agent).

United States v. Hisan Lee, et al., Nos.11-2539; 11-2543; 11-2834; 11-4068 (Aug. 24, 2016) (Circuit Judges: Cabranes, Pooler, and Lynch).

A) A robbery that affects the “intrastate” sale of marijuana satisfies the interstate commerce element of Hobbs Act robbery (18 USC § 1951)

The defendants were part of a group (called the DeKalb Avenue Crew) that robbed dealers of cocaine and marijuana. Relying on the Circuit’s prior caselaw, the several defendants argued that evidence of an effect on interstate commerce was insufficient “because there was no evidence that any marijuana involved in the …

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Wednesday, August 24th, 2016

Second Circuit Updates – August 24, 2016 – Part 1

The Circuit issued three Opinions today that are relevant to people litigating issues of criminal law.  Below is a brief description, which will be followed up with more discussion later.

I. In Pierotti v. Walsh, No.15-1944-pr (Circuit Judges: Pooler, Livingston, and Lohier), the Circuit ruled in favor of a State prisoner. It holds that his claim of ineffective assistance of counsel, presented under 28 U.S.C. § 2254,  is not procedurally barred.

The petitioner in the case was hearing impaired since childhood and required two hearing aids.  His last hearing aid was destroyed while he was in jail awaiting trial.  The ineffective assistance of counsel (“IAC”) claim was that his trial lawyer did not take measures to ensure his hearing disability was accommodated at trial, so he could not understand much of what was occurring.

The IAC claim was not raised on direct appeal.  But it was presented in a …

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Categories: Hobbs Act, ineffective assistance of counsel, interstate commerce

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Wednesday, August 3rd, 2016

An Uphill Battle

United States v. Elvin Hill, No. 14-3872-cr (Circuit Judges: Jacobs, Livingston, and Droney).(Disclosure: This is an appeal that this Office litigated).

In this direct appeal,  Mr.  Hill argued: (1)  that Hobbs Act robbery (18 U.S.C. § 1951) did not “categorically” constitute a “crime of violence” under the “force” clause of 18 U.S.C. § 924(c)(3);  and (2) that Johnson v. United States, 135 S.Ct. 2551 (2015)  applied to the residual clause of  § 924(c)(3), which is worded similarly to that of the ACCA statute — 18 U.S.C.. § 924(e)(2)(B) — and that Johnson rendered 924(c)(3)’s residual void for vagueness. Both claims were rejected by the Circuit.

The Cateqorical approach: The Circuit stated that it was applying the “categorical approach” in determining whether the predicate crime (the Hobbs Act robbery) was a “crime of violence” under §924(c).  The categorical approach looks only to the statutory definition of the predicate …

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More to Follow

Johnson (Bad) News:

Today, the Circuit  decided  Hill adverse to the defendant. It holds that Hobbs Act Robbery is “categorically” a “Crime of Violence” under 18 U.S.C.§ 924(c)(3).  It also holds that Johnson does not apply to § 924(c): i.e., it does not  “effectively render[]  the ‘risk-of-force clause’” of § 924(c) “void for vagueness.” United States v. Elvin Hill, No. 14-3872-cr (Jacobs, Livingston, and Droney).

We are still digesting the Opinion. More will follow.  But defense counsel will still have to raise and litigate these claims until the Supreme Court decides the issue. The Government already has a cert petition pending with the Supreme Court  based on defendant wins in the Ninth Circuit and two other circuits. This Second Circuit case clearly creates a split that the Supreme Court will most likely take on.…

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