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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 …

When agents came to search his business, Mr. Drago asked, why and what crime was being investigated? The agents said, look at the warrant. But…the warrant didn’t say what crime they were investigating. Instead, it completely failed to state any crimes at all. Even the government admitted the warrant was invalid. But, it argued that they didn’t mean to draft an unconstitutional warrant and that they were protected by their good faith intentions.

In a lengthy report and recommendation issued this week, an EDNY magistrate judge rejected that argument. The judge wrote: the “lack of intent to create a bad warrant (or to cover-up that error) does not automatically translate into a finding of objective good faith belief that the conduct was lawful.”  Instead, the conduct of the search was “sufficiently reckless such that no objective officer could have believed that they were acting in good faith.”

A rare defense …

Unfortunately, the Supreme Court might decide that the answer is yes. The Supreme Court has granted cert in a case out of Kansas, in which a police officer ran the license plate of a passing car (for reasons unexplained in the Kansas decision given that there was no traffic infraction) and saw that the registered owner had a suspended driver’s license. Based only on that – and with no information about whether the owner was actually driving – the police pulled over the car. Mr. Glover, who was the owner and did not have a valid driver’s license, was charged with “driving as a habitual violator.”

The Kansas Supreme Court held that the officer did not have reasonable suspicion to pull over the car and suppressed the evidence (which in this case, seems to only be the fact that Mr. Glover was, indeed, driving). That sounds right! But Kansas sought …

On August 9, 2019, the Second Circuit vacated a high-profile civil forfeiture judgment, in an opinion that may be of interest to criminal practitioners. The litigation involves the government’s efforts to seize 650 Fifth Avenue, a skyscraper in midtown, and other property, based on allegations that the property owners violated federal law through their relationships with the Islamic Republic of Iran.

In In re 650 Fifth Avenue and Related Properties, No. 17-3258(L) (2d Cir. Aug. 9, 2019), 2019 WL 3756033, the Circuit held that, among other errors, the trial court mistakenly denied a motion to suppress evidence obtained pursuant to a defective search warrant. In a prior 2016 appeal in the case, the Circuit ruled that a certain search warrant was constitutionally deficient because, on its face, it lacked particularity as to the alleged crimes.

Thus, the Circuit had already found a Fourth Amendment violation. The only question was …