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Thursday, June 27th, 2019

Supreme Court Debrief: Flowers v. Mississippi

In Flowers v. Mississippi, the Supreme Court ruled 7-2 that death-row inmate Curtis Flowers’ criminal trial was affected by racial discrimination.  You can read more about the case here.

Georgetown Professors Abbe Smith and Vida Johnson of Georgetown Law’s Criminal Defense & Prisoner Advocacy Clinic, two career criminal defense attorneys, have recorded a video exploring the Flowers case, its implications and how criminal defenders and prosecutors should approach jury selection going forward.

You can watch the video here.…


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Categories: Batson, bias, jury selection, Uncategorized

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Tuesday, June 25th, 2019

Circuit Reverses Grant of Habeas Relief for Convicted Murderer

In Hyman v. Brown, __ F.3d __ (2d Cir. June 24, 2019), the Court reversed a judgment granting habeas corpus relief from a state murder conviction under 28 U.S.C. § 2254. Judge Raggi wrote the majority opinion, in which Judge Droney joined. Judge Jacobs concurred in a separate opinion.

The Court held that the petitioner had failed to make the “gateway showing of actual innocence” necessary to permit review of his procedurally barred claim of ineffective assistance of counsel. The Court’s reasoning is lengthy and merits the attention of anyone pursuing an “actual innocence” claim. And the news for other petitioners may not be all bad: the Court rejected the State’s argument, for example, that there are “categorical limits” on the types of evidence that can be offered to demonstrate actual innocence. Nevertheless, Hyman is a deeply troubling case: both the majority opinion and the concurrence acknowledge …

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Monday, June 17th, 2019

En banc Sixth Circuit Holds That Guidelines “Controlled Substance Offenses” Do Not Include Attempts

In United States v. Havis, the en banc Sixth Circuit held, unanimously, that a Tennessee state offense criminalizing the attempted delivery of a controlled substance was not a “controlled substance offense,” for purposes of U.S.S.G. §§ 2K2.1 and 4B1.2. ___ F.3d ___, 2019 WL 2376070 (6th Cir. June 6, 2019) (en banc). Overruling prior Circuit precedent, the Court explained that attempts appear only in Application Note 1 to § 4B1.2(b), not in the text of the Guideline itself. Consequently, the inclusion of attempts was not an interpretation of § 4B1.2(b)’s text, to which deference would be owed under Stinson v. United States, 508 U.S. 36 (1993), but rather an addition to § 4B1.2(b)’s text, due no deference at all:

To make attempt crimes a part of § 4B1.2(b), the Commission did not interpret a term in the guideline itself—no term in § 4B1.2(b) would bear that …

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Friday, June 7th, 2019

Let’s wait a bit on the non-delegation argument …

The Circuit today affirmed the defendant’s conviction in United States v. Michael O’Brien, which principally rejects, on fact-specific credibility grounds, his 4th and 5th Amendment arguments concerning Miranda and an alleged consent to search. Judge Kearse’s typically thorough opinion lays out the details; no legal ground is broken.

The only issue of note is the Court’s rejection of O’Brien’s additional claim that the substance he was accused of distributing — methylone (a.k.a. Molly) — was improperly placed on the federal list of controlled substances. O’Brien argues that Congress unconstitutionally delegated its legislative power by authorizing the Attorney General (who in turn re- or sub-delegated that authority to the D.E.A.) to determine whether a substance belongs on the federal schedule of controlled substances.

Judge Kearse rejected this argument on procedural and substantive grounds. First, it was untimely because he did not make this argument until after he was convicted. …

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Wednesday, May 8th, 2019

Circuit Vacates Special Condition of Supervised Release

The Second Circuit today vacated a special condition of supervised release and remanded for further proceedings. In United States v. Smith, which you can read here, the Circuit relied on its recent decision in United States v. Betts, 886 F.3d 198, 202 (2d Cir. 2018). In Betts, the Court held that “A 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.” Where the district court does not give the reason, the special condition can survive appeal “only if the district court’s reasoning is ‘self-evident in the record.'” Opinion at 3 (quoting Betts). In Smith, the district court imposed a special condition that prohibited Smith from consuming alcohol, but made no individualized assessment in determining whether to impose that condition. The district court’s comment …


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Wednesday, April 17th, 2019

Judge Rakoff Limits Government’s Description of Stock Market as “Level Playing Field”

Prior to opening statements in United States v. Pinto-Thomaz, 18 Cr. 579 (JSR), Southern District Judge Jed S. Rakoff precluded the government from giving a jury the standard line that the stock market should be a “level playing field.” According to this report from Law360.com, Judge Rakoff said, “Anyone who thinks the stock market is a level playing field obviously has no contact with reality.” He permitted the government to argue that the defendant “conferred an ‘illegal advantage'” through tips. …


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Friday, August 17th, 2018

Judge Carter Issues Lengthy Opinion Justifying Bail Grant

If you’re looking for some inspiring beach reading this weekend, look no further than this opinion in United States v. Paulino. On appeal by the government, S.D.N.Y. Judge Andrew Carter upheld the Magistrate’s decision to set bail in Mr. Paulino’s case. The government appealed to the Second Circuit, which remanded with instructions for Judge Carter to elaborate his rationale for granting bail. Today, he issued this memorandum opinion discussing the history of bail in American courts; the presumptions, burdens and standards of proof that apply to bail decisions; and how imposing conditions of release can mitigate the risk of flight and danger to the community.

NB: The Federal Defenders represents Mr. Paulino.…


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Thursday, June 28th, 2018

Second Circuit Reversal of Vulnerable Victim Sentencing Enhancement

Today, in a summary order, the Second Circuit remanded a case for resentencing based on the district court’s erroneous application of the vulnerable victim enhancement. The decision may be useful to practitioners whose clients who were not necessarily aware of a victim’s vulnerable status during the commission of their charged offenses. The summary order in United States v. Nicholson, No. 17-197 (2d Cir. 2018) (Newman, Cabranes, Carney) (appeal from WDNY), is available here.

The defendant in Nicholson was himself a victim of a “Jamaica lottery scam,” wherein he was advised that he won $15 million in a lottery, which he could collect after paying $860 in local taxes. The scam-runner told Nicholson he could bay off these taxes by collecting money from third parties who were also victims of the scam. As it happened, one of those third parties was an elderly man in California, who …

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Friday, April 27th, 2018

Circuit Remands for New Hearing on VOSR; Orders Case Reassigned to New District Judge

In United States v. Langston, the Second Circuit vacated and remanded a violation of supervised release.  The government conceded that the judgment should be vacated, because the District Court had held a hearing on the violation over the objection of Langston and his counsel, who was not prepared, but disagreed that the case needed to be reassigned to a new district judge.  The District Court had concluded that the defendant had deliberately attempted to perpetrate a fraud on the court by claiming to be too ill to attend court and had suggested that defense counsel had assisted in that fraud, and, as a result, denied counsel’s CJA fee application.  The Second Circuit felt that the “appearance of justice would be preserved by reassignment.”…


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Thursday, December 14th, 2017

Second Circuit on the Exclusion Non-Hearsay Evidence Concerning the Advice of Counsel Defense

Yesterday, in a published opinion, the Second Circuit reversed the convictions in an off-label drug importing case because the district court erroneously excluded evidence concerning the advice of counsel defense. The opinion in United States v. Scully, No. 16-3073 (Pooler, Lynch, Cogan (by designation) (appeal from Spatt, J., EDNY) is available here. The opinion touches on hearsay issues that arise beyond the fraud context.

The defendants in Scully were charged with fraud, conspiracy, and drug importation counts resulting from a “parallel importing” scheme: that is, the defendants’ company would import foreign versions of FDA-approved drugs and sell them at a reduced rate. One of the defendants cooperated and, at trial, the other defendant (Scully) advanced an advice-of-counsel defense. The defense sought to introduce evidence of an attorney’s legal advice through Scully’s own testimony, and elicited the following exchange during its direct examination of Scully:

Q. Did Mr.


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Wednesday, November 8th, 2017

Inability to Pay Criminal Forfeiture

Today the Second Circuit vacated a criminal forfeiture order so that the district court could evaluate the defendant’s ability to pay in setting the amount. The summary order in United States v. Muzaffar, 16-579 (appeal from EDNY, Cogan, J.) is available here.

The Supreme Court, in United States v. Bajakaijan, 524 U.S. 321 (1998), identified four factors that a court must  consider to determine whether a punitive forfeiture is unconstitionally excessive: “(1) the essence of the crime and its relation to other criminal activity; (2) whether the defendant fits into the class of persons for whom the statute was principally designed; (3) the maximum sentence and fine that could have been imposed; and (4) the nature of the harm caused by the defendant’s conduct.” United States v. Viloski, 814 F.3d 104, 108 (2d Cir. 2016) (internal quotation marks omitted). In Viloski, the Second Circuit held …


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