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Thursday, March 29th, 2018

Opinion Reversing Alcohol-Related Supervised Release Condition

Yesterday the Second Circuit issued a short opinion reversing a special condition of supervised release requiring the defendant to abstain from any alcohol while on supervision. The opinion in United States v. Betts, No. 17-231 (Leval, Calabresi, Cabranes) (reversal from WDNY) is available here. (The Second Circuit recently issued a summary opinion that reached the same conclusion on plain error review).

The defendant in Betts was originally convicted of conspiracy to commit bank fraud, and pled guilty to a violation of supervised release for failing to notify his probation within 72 hours of an arrest (for driving without a license). As a special condition of supervised release, the district court imposed a total ban on alcohol consumption. The Second Circuit held that this condition was not reasonably related to his underlying conviction or his admitted supervised release violation:

The District Court was not presented with any evidence

…
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Friday, February 9th, 2018

VOSR Sentence Declared Procedurally Unreasonable on Plain Error Review

It’s been a slow week for the Second Circuit, but today it issued a summary order reversing a sentence for violations of supervised release as procedurally unreasonable. This holding is unremarkable in light of the district court’s failure to articulate any specific reasons for the defendant’s above-Guidelines sentence. Somewhat notable, however, is the panel’s discussion of why the sentence is reversible under plain error review. The summary order in United States v. Kalaba, No. 17-328 (Katzmann, Pooler, Droney) (appeal from Preska, J., SDNY), is available here.

While on supervised release, Mr. Kalaba was arrested and indicted for several counts relating to a narcotics distribution conspiracy. He was sentenced to 84 months’ imprisonment after pleading guilty to one count and being convicted of the others at trial. While awaiting trial, the Probation Office submitted a report charging four violations of supervised release. Two violations were established by the narcotics …

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Categories: 3553(c), plain error, procedural reasonableness, supervised release

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Thursday, February 1st, 2018

Plain Error Reversal of Supervised Release Condition re. Alcohol

Today the Second Circuit reversed a district court’s sentence imposing as a special condition of supervised release that the defendant refrain from using any alcohol whatsoever while on supervision. The summary order in United States v. Betts, No. 17-231-cr (Leval, Calabresi, Cabranes) (appeal from W.D.N.Y.) is available here.

The defendant in Betts was originally convicted of conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349. After release from prison, he pled guilty to a supervised release violation (pursuant to a plea agreement) for failing to notify his probation officer within 72 hours of arrest. The district court sentenced the defendant to ten months’ imprisonment and four months of supervised release. As a special condition of the supervised release, the court required that the defendant refrain from consuming any alcohol.

On plain error review, the Second Circuit held that the district court abused its discretion by …

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Categories: plain error, supervised release

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Thursday, September 22nd, 2016

net-meme

In today’s United States v. Harris, the Second Circuit (Newman, Calabresi, Raggi) decided two things with respect to supervised release.

First, “18 U.S.C. § 3583(e) does not preclude revocation of supervised release on the basis of conduct that earlier prompted a modification of supervision conditions.”  Here, the district court first modified Harris’s terms of supervision — based on his being arrested for allegedly selling drugs — and later revoked supervision when that suspected violation was confirmed by two police officers credibly testifying to witnessing the drug sale.

Second, Federal Rule of Criminal Procedure 32.1(b)(2)(c) does not preclude revocation of supervised release on the basis of hearsay if (1) there is good reason to proffer hearsay and (2) the hearsay is sufficiently reliable.  Here, a witness who claimed Harris punched her “professed fear of retaliation” if she testified against him, which the Court deemed good reason to excuse her …

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Categories: Confrontation Clause, supervised release

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Wednesday, August 24th, 2016

Second Circuit Updates – August 24, 2016 – Part 2

I. A state court’s ruling denying collateral review of a “mixed claim” of  ineffective assistance of counsel (involving matters on the record and outside of the record),  on the procedural ground that the claim was not raised on direct appeal, was not “adequate” to bar federal habeas corpus review (28 U.S.C. § 2254).

Pierotti v. Walsh, No.15-1944-pr (Circuit Judges: Pooler, Livingston, and Lohier), holds that a state prisoner’s claim of ineffective assistance of counsel (“IAC”) was not procedurally barred under 28 U.S.C. § 2254 .

A. The state trial

Petitioner Pierotti has been hearing impaired since childhood. He “wears hearing aids in both ears,” and “the only hearing aid he had with him in jail broke.”  At a pretrial hearing, his lawyer asked for a continuance to make “some accommodation for his hearing loss.”  The judge denied the request saying “this is a very small courtroom” and suggesting that …

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Categories: ineffective assistance of counsel, supervised release

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Friday, June 24th, 2016

Conditions of Supervised Release Must Be Reasonably Related To Sentencing Objectives

The Circuit issued decisions in four criminal cases today.

In United States v. Brown, 14-4643, the Court vacated and remanded for resentencing.  The district court had imposed special conditions of supervision, but had not given any explanation for the conditions or stated the relationship between the conditions and any sentencing objective.  But a district court does not have “untrammeled” discretion in imposing special conditions of supervised release, the Circuit explained, and “usual and severe conditions,” like those impinging on a First Amendment right, will be “carefully scrutinize[d].”  The district court “is required to make an individualized assessment when determining whether to impose a special condition of supervised release and to state on the record the reason for imposing it.”  Because the district court failed to do so, and the reason for the special conditions was not “self-evident in the record,” the Circuit vacated the special conditions and remanded …

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Categories: child pornography, supervised release

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Thursday, May 26th, 2016

No Wins for Criminal Defendants Today

The Court issued two summary orders in criminal cases today. Neither Appellant prevailed.

  1. United States v. Humphries, No. 14-985-cr (2d Cir. May 26, 2016) (Cabranes, Straub, and Lohier)

Humphries was convicted after a jury trial of interstate travel in aid of racketeering, conspiracy to commit wire fraud to defeat Canadian tax revenue, conspiracy to manufacture tobacco products without a license, and money laundering. He was sentence to 72 months in prison.

On appeal, Humphries raised four arguments: (1) insufficiency of the trial evidence; (2) improper preclusion of certain affirmative defenses; (3) constructive amendment of the indictment; and (4) improper failure to suspend jury deliberations when it became “apparent” that he was no longer competent to stand trial. The Court addressed only the sufficiency argument, rejecting the other three claims without discussion.

The Court first held that the evidence was sufficient to establish Humphries’s intent to “distribute the proceeds of …

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Categories: criminal history, sufficiency, supervised release

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Wednesday, March 16th, 2016

Second Circuit Updates – March 16, 2016 – Home Confinement as Condition of Supervised Release, Sentencing Enhancement for Using Gun in a Robbery, Scope of Cross Examination

Three short summary orders today:

First up, United States v. Fiume: In this case, the sentencing court imposed “GPS tracking” as a condition of Mr. Fiume’s supervised release, but never stated that it was also imposing home detention, a “separate and additionally burdensome condition.” Nonetheless, a condition of home detention appeared in Mr. Fiume’s written judgment. The circuit vacated the home detention condition and remanded for the written judgment to be corrected. The circuit otherwise upheld Mr. Fiume’s 10-month prison sentence as reasonable.

Next up, another sentencing case, United States v. Crum. Here, Mr. Crum argued that the sentencing court should not have enhanced his weapon possession sentence on the basis that the weapon had been used in a robbery. The circuit disagreed, finding the enhancement was not clearly erroneous based on a witness’s 911 calls about a gunpoint robbery by two men, one wearing black and one …

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Friday, August 24th, 2012

Let’s Get Metaphysical

United States v. Cassesse, No. 10-2210-cr (2d Cir. July 11, 2012, amended July 25, 2012) (Newman, Katzmann, Parker, CJJ)

This case untangles a mathematic quandary left by some unclear statutes: how can a life term of supervised release, imposed on a supervised release violation, be reduced by the number of months of the prison term imposed for that same violation?  Here the district court simply sentenced the defendant to twelve months in prison on the violation to be followed by another life term of supervised release.  Describing the issue as “almost metaphysical,” the circuit affirmed.

Cassesse was originally convicted under a drug statute that carries a maximum possible supervised release term of life, and was sentenced to that, to follow an eighty-seven month term of imprisonment.

After his release to supervision, Cassesse pled guilty in a new federal case – this one involving racketeering – and received a …

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Sunday, June 3rd, 2012

That’s What She Said

United States v. Carthen, No. 10-4817-cr (2d Cir. May 23, 2012) (Winter, McLaughlin, Cabranes, CJJ)

Defenant Tyrone Carthen appealed the government’s reliance on hearsay at his supervised release violation hearing. The circuit, finding no error, affirmed.

Carthen was charged with violating his supervised release by beating and threatening his ex-girlfriend, Marquita Cox. The matter was investigated by Carthen’s probation officer, Darcy Zavatsky, who interviewed Cox and other witnesses, and also reviewed various police and court records. At the VOSR hearing, however, the government called only Zavatsky, who was permitted to, over objection, describe what she had learned. Just before the hearing, it emerged that Cox, who had been cooperative at first, was refusing to testify because she did not want to be respnosible for sending Carthen back to jail. Just after the district court decided the case, Cox submitted a letter to the court asserting that she had …

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Thursday, March 15th, 2012

PC World

United States v. Roccisano, No. 10-5237-cr (2d Cir. March 14, 2012) (Katzmann, Parkjer, CJJ, Restani, JCIT) (per curiam)

Guideline section 4A1.1(d) adds two criminal history points if the defendant committed the federal offense while under a criminal justice sentence, e.g., probation, parole or supervised release. The defendant here was deported to Italy in 2006 after completing the prison portion of a federal drug sentence that included a five-year term of supervised release. He was found in the United States in 2010, before the term of supervised release had expired, and the district court assessed those points. On appeal, he argued that this was error, because he had never been actively supervised in light of his deportation.

The circuit rejected this argument, joining at least five other circuits in holding that a term of supervised release is not extinguished by the defendant’s deportation. The court also noted that the amended version …

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