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Archive | sex offenses

Monday, March 9th, 2020

The evidence sufficiently proved the defendant “had a reasonable opportunity to observe” the underage victim, under 18 U.S.C. § 1591(b)(1) (sex trafficking of minors). And it wasn’t procedural error when the court used the defendant’s “false [trial] testimony” as an aggravating factor under § 3553(a) — in imposing a substantially below-Guidelines sentence — without finding the testimony qualified as perjury under Guidelines § 3C1.1. United States v. Almonte, No. 18-3769, __F.3d__, 2020 WL 1056786 (March 5, 2020).

1. Sufficiency of evidence of sex trafficking involving underage victim

The defendant was convicted, after trial,  of several offenses, including  sex trafficking of a minor who was less than 14 years old, in violation of 18 U.S.C. § 1591(a) and (b)(1).  She moved unsuccessfully for a judgment of acquittal (Fed.R.Crim.P. 29), arguing the evidence didn’t  establish she “had a reasonable opportunity to observe” the underage victim as required by 18 U.S.C. § 1591(c).  The Circuit affirms the district court’s denial of the Rule 29 motion. Almonte, 2020 WL 1056786 at *1.

Section 1591(c) states that in a prosecution for sex trafficking under § 1591(a)(1), “in which the defendant had a reasonable opportunity to observe the [underage victim] . . ., the Government need not prove that the defendant knew, or recklessly disregarded the fact, that the person had not attained the age of 18 years.” 18 U.S.C. § 1591(c). …

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Categories: 3553(a), obstruction of justice, procedural reasonableness, sex offenses, substantive reasonableness

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Wednesday, November 20th, 2019

Who is “indigent”? $5,000 special assessment issue to watch out for

The Second Circuit today issued a Jacobson remand for the district court to explain how it decided that a person represented by the Federal Defenders office was still “non-indigent” under Section 2014(a). (See the summary order in United States v. Rosario). For those who haven’t encountered this issue yet, section 2014(a) is the “Justice for Victims Trafficking Act,” which mandates a $5,000 – rather than $100 – special assessment for any “non-indigent” person convicted of certain sex offenses. “Indigent” isn’t defined. Although there do seem to be some good proxies the court could use – qualification for appointed counsel or a determination that a fine is inappropriate – so far, the Circuit has offered little guidance. Maybe they will when Rosario comes back before the panel.

In the meantime, object to the $5,000 special assessment if you have any argument your client is indigent. It may seem like a …

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Categories: restitution, sex offenses

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Categories: restitution, sex offenses

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Tuesday, March 5th, 2019

New York Penal Law 130.45 Not a “Prior Sex Offense” Under the Categorical Approach

Today the Second Circuit applied the categorical approach and vacated a life sentence. In United States v. Kroll, the Circuit held that under the categorical approach, the defendant’s 1993 conviction under New York Penal Law 130.45 did not constitute a “prior sex offense” as defined by 18 U.S.C. 3559(e)(1), and thus did not trigger a mandatory life sentence, because the state statue sweeps more broadly than its federal equivalent.

For a prior state conviction to count as a “prior sex offense,” it must “‘consist[] of conduct that would be a Federal sex offense’ if there were a basis for Federal jurisdiction.'” Opinion at 10. The Circuit held that a district court must employ the categorical approach when determining whether the state statute consists of conduct that would be a Federal sex offense. Under the categorical approach, courts “ask[] whether the least of conduct made criminal by the state statute …

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Categories: categorical approach, sex offenses

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Categories: categorical approach, sex offenses

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Monday, March 5th, 2018

Significant FDNY Cert. Grant Concerning SORNA

Today the Supreme Court granted certiorari in Gundy v. United States, No. 17-6086, to decide whether the Sex Offender Registration and Notification Act (SORNA) violates the nondelegation doctrine by delegating authority to the Attorney General to issue regulations under 42 U.S.C. § 16913(d). The grant is particularly significant because, as Sentencing Resource Counsel Ada Phleger observed, there is no clear circuit split on this issue. The petition in Gundy is available here. (The Court granted cert on Issue # 4, at pages 17-19 of the petition.)

SORNA delegates authority to the Attorney General to decide whether the Act’s registration requirements apply to sex offenders who were convicted before SORNA was enacted.  This delegation, Mr. Gundy argues, unconstitutionally grants the Attorney General “unfettered discretion to determine who is subject to criminal legislation without an ‘intelligible principle.'”  Cert. Petition at 19.  Notably, Justice Gorsuch raised a similar concern in a …

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Categories: Sex offender registration, sex offenses

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Tuesday, December 19th, 2017

New District Court Opinions Hold That Neither New York Robbery Nor First-Degree Sexual Abuse are Violent Felonies Under the ACCA

In recent weeks both the Eastern and Southern Districts have issued useful opinions on the scope of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). In summary, these opinions conclude that none of the following New York offenses is a “violent felony” within the meaning of the ACCA: (1) second-degree robbery and attempted robbery, N.Y. Penal Law §160.10; (2) attempted third-degree robbery N.Y. Penal Law §160.10; and (3) first-degree sexual abuse, N.Y. Penal Law § 130.65. For those grappling with Johnson issues, the relatively short opinions may be worth reading in their entirety.

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In the Southern District, Judge Rakoff issued an opinion holding that neither second- nor third-degree NY robbery offenses are violent felonies under the ACCA. See Austin v. United States, 16-cv-4446, available here. As Judge Rakoff notes, the Second Circuit reached the same result with respect to the Career Offender Guideline, U.S.S.G. § …

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Categories: ACCA, categorical approach, robbery, sex offenses

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Thursday, September 21st, 2017

Anthony Weiner’s Sentencing Memo

The Second Circuit’s most recent criminal opinions involve rather boutique issues. The Circuit has addressed, for example, whether a bail bond forfeiture must be vacated if a defendant dies while his appeal his pending (no), and whether the Circuit has jurisdiction to review a conviction when the defendant writes in the administrative section of the appeal form that he only seeking review of his sentence (yes).

Meanwhile, in the Southern District, Anthony Weiner’s attorneys have filed an interesting and detailed sentencing memorandum. The memo is instructive to attorneys representing defendants in child pornography cases. Of particular interest is the memo’s exhaustively researched argument section. Part I argues that the Guidelines provide an unreliable benchmark for determining the appropriate sentence in child pornography cases. Part II.A identifies aggravating factors that are often present in child pornography cases but which are absent from this case. The case discussion in …

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Categories: child pornography, forfeiture, sentencing, sentencing findings, sex offenses

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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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Friday, July 15th, 2016

Second Circuit Updates – July 15, 2016

The Record of the Psychiatric Evaluation of a Rape Complainant was Material Under Brady and State Court’s Ruling to the Contrary was Unreasonable Application of the Kyles standard.

(Full disclosure: Colleen Cassidy, today’s blogger, briefed and argued this case)

In Fuentes v. Griffin, Docket NO. 14 – 3878, the Second Circuit (KEARSE, J.), held that the state prosecutor’s suppression of the rape complainant’s psychiatric evaluation (the “Record”) violated Brady v. Maryland, 373 U.S. 83 (1963), and that the state court unreasonably applied the materiality standard of Kyles v. Whitley, 514 U.S. 419 (1995), in rejecting that claim. The state trial was a closely contested rape case with a consent defense, in which a sexual encounter on the roof of the complainant’s building was undisputed and the only issue was whether it was rape or consensual. The only witnesses to the encounter were the complainant and the defendant-petitioner …

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Categories: Brady, Kyles, sex offenses

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Thursday, May 12th, 2016

Advising Clients Regarding Sexual Polygraph Exams and the Fifth Amendment in Child Pornography Cases

Earlier this week, in United States v. Von Behren, the Tenth Circuit Court of Appeals held that requiring that a person on supervised release answer questions on a sexual history polygraph that are designed to elicit admissions of criminal conduct violates the Fifth Amendment’s privilege against self-incrimination.  You can read a copy of the opinion here.  Thank you to the folks at the Sentencing Resource Counsel for forwarding the opinion and congratulations to Assistant Federal Defender John T. Carlson who won the case before the Tenth Circuit.

This issue presents itself in many SDNY and EDNY cases, perhaps most frequently in possession of child pornography cases.  If your client is sentenced to a term of supervised release that contains a special condition regarding compliance with a sexual history polygraph, make sure you advise your client to assert his Fifth Amendment right, to do so in writing to his …

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Categories: child pornography, self-incrimination, sex offenses

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Monday, April 4th, 2016

Supreme Court: Sex Offender Who Leaves U.S. For Foreign Country Not Required To Update His Registration In U.S. (UPDATE)

If you move from Kansas to the Philippines, do you still “reside” in Kansas? Seems simple, right? The Supreme Court thought so, too.

In Nichols v. United States, No. 15–5238, the Court said no, in a unanimous, eight-page opinion issued just a month after oral argument.

Lester Nichols was convicted of a sex offense and required to register under SORNA. He lived (and registered) in Kansas for about a year, before he “disconnected all of his telephone lines, deposited his apartment keys in his landlord’s drop-box, and boarded a flight to Manila.” Slip op., at 3. Nicholas was arrested in the Philippines a month later and charged with failing to update his registration in Kansas, in violation of 18 U.S.C. § 2250(a).

Nichols moved to dismiss the indictment, arguing that he was not required to update his registration in Kansas because he no longer “resided” there. The district …

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Supreme Court: Sex Offender Who Leaves U.S. For Foreign Country Not Required To Update His Registration In U.S.

There were no Circuit opinions or summary orders today.

The Supreme Court decided Nichols v. United States, No. 15–5238. A unanimous Court, per Justice Alito, held that a sex offender residing in Kansas who moved to the Philippines could not be prosecuted under SORNA for failing to update his registration in Kansas after the move.

In Woods v. Etherton, No. 15–723, the Court summarily reversed the Sixth Circuit’s grant of habeas relief on an ineffective assistance of counsel claim.

And the Court granted certiorari in Pena-Rodriguez v. Colorado, No. 15–606, where the question presented is: “Whether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.”

I’ll be back with a more detailed recap later today.…

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Categories: sex offenses, Sixth Amendment

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