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Last week, the Circuit closed the door on any Davis issue relating to 18 U.S.C. § 111(b), holding that 18 U.S.C. § 111(b) is a crime of violence. Even though this was a matter of first impression for the Circuit, it issued a per curiam decision without ordering full briefing (or indeed any briefing by the government). Instead, it simply denied a motion for a certificate of appealability to Mr. Gray finding that the “use” of a dangerous weapon and the infliction of bodily injury in the course of a § 111(b) assault or battery necessarily involves the use of physical force as defined in 18 U.S.C. § 924(c)(3)(A).

Only one bit of small good news: the Court did not address whether 18 U.S.C. § 111(a) is a crime of violence, so that remains open.…

Last week, the Circuit rejected an argument that the International Parental Kidnapping Crime Act was unconstitutionally vague as applied to a father who refused to bring his United States-citizen children to the US from Yemen to visit with their mother, even though the children had been living in Yemen for a number of years and he had not abducted them.

The facts, briefly

Mr. Houtar and his ex-wife have two daughters who were born in the United States. Both parents left their daughters in Yemen for some time, while they returned (separately) to the United States. While here, Mr. Houtar’s ex-wife sought custody of the girls, and the Family Court ordered Mr. Houtar to bring them back to the United States to visit with their mother. Instead, Mr. Houtar returned to Yemen himself. He might have remained there had he not applied for a new United States passport, triggering an …

In a decision on Thursday, the Second Circuit upheld Betsy Ramos’s two-year sentence for a violation of supervised release, finding that a district court may take recidivism enhancements into account in determining whether the maximum potential term of imprisonment for a crime is more than 20 years, qualifying the crime as a Grade A violation, under 7B1.1 (a)(1)(B).

The facts underlying the Circuit opinion in this case are tragic. In 1998, Ms. Ramos was on supervised release following a drug courier conviction when her boyfriend, who physically abused Ms. Ramos, shot and killed a police officer. Her abusive boyfriend was also killed. For reasons the Circuit opinion does not fully explain, Ms. Ramos was convicted of reckless manslaughter and served more than 20 years in state custody. When Ms. Ramos was granted parole, she was charged with a violation of her supervised release based on the manslaughter conviction, and sentenced …

In the Anglo-American legal tradition, if the accused dies before a conviction becomes final, the conviction is vacated and the indictment is dismissed. This is called “abatement” of the conviction, and hopefully most of you have not encountered it. The idea is that the defendant will now face the Lord’s justice, not the King’s, and that the family should not have to live with the stigma of a conviction that was not final.

The defendant in US v. Mladen, 18-0616, died during the pendency of his appeal, but the Second Circuit decided that abatement was too generous a remedy for him. The opinion is by Judge Kearse, joined by Judges Walker and Livingston. Perhaps the problem was that, although convicted only of one count of 18 USC § 1001, he also admitted to making anonymous threats against a federal judge. Then, while in jail awaiting sentence in this case, …

The First Step Act expanded so-called compassionate release, which permits a court to reduce a previously-imposed sentence if it finds that “extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A). The Act also for the first time enabled defendants to make an application directly to the court for such relief. We are still waiting to see the full impact of these legal changes. One open question is what constitutes “extraordinary and compelling reasons.” Both the Sentencing Commission and the Bureau of Prisons have promulgated definitions. But do these definitions limit the authority of courts to grant relief? Recently, a federal court in Utah found that they did not.

In United States v. Kepa Maumau, No. 08 Cr. 758 (TC) (D. Utah Feb. 18, 2020), the district court ruled that it was not bound by the Sentencing Commission’s or Bureau of Prisons’ definitions of “extraordinary and compelling …

In an opinion expanding the scope of federal criminal liability for “insider trading,” a two-Member majority of the Second Circuit affirmed several securities and fraud convictions in United States v. Blaszczak, 18-2811 (2d Cir. Dec. 30, 2019). Judge Kearse dissented from the decision.

This multi-defendant case involved a so-called expert services network: defendant Blaszczak was a political intelligence consultant, who provided clients with information about contemplated rule changes by the Centers for Medicare and Medicaid Services (CMS), a government agency. Prosecutors charged that a CMS employee disclosed confidential agency information to Blaszczak (ahead of announcements of rule changes), who in turn shared this information with employees at hedge funds. The CMS employee, Blaszczak, and two hedge-fund employees were charged.

Although this high-profile prosecution was presented as an “insider trading” case, the defendants were acquitted of all of the traditional insider trading charges (the Title 15 offenses). However they were …

Mincing no words, Judge Cabranes, writing for a two-judge majority, proclaimed today that a 17-year sentence was so “shockingly low [ ] that, if upheld, [it] would damage the administration of justice in our country.” Judge Hall, however, disagreed, saying that, “I fear the majority would prefer to substitute its sentencing preferences for that of the District Court.” Hall, who dissented in part and concurred in part, did not find the sentence shockingly low, and noted that the district court could give a similar sentence on remand. The decision is available here.

No surprise that these strong judicial reactions come in the context of a terrorism case. In brief: Fareed Mumuni, who was only 21 years old, pleaded guilty to an indictment charging him with, most seriously, conspiring to provide material support to ISIS and attempting to murder a federal agent. After considering numerous aggravating and mitigating factors, including …

The first challenge to a new breed of warrants is pending in the Eastern District of Virginia. Law enforcement is using “geofence” warrants to sweep up large amounts of data on all the cell phones in a particular geographic area. Rather than seeking a warrant for information about one person or one cell phone, these warrants seek information about all the cell phones that passed a location at the time of the crime. Paranoid yet?

Here, a bank robbery was committed, and the government had no suspects, so they got a warrant for Google to turn over data related to all smart phones that passed by a bank over the course of 2 hours one afternoon. Right by the bank was also a hotel, restaurant, mega church, and retirement home. Getting the early bird special at the Ruby Tuesday’s in Richmond? The government learned about it.

In a motion to …