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Friday, October 4th, 2019

Second Circuit Panel holds residual clause definition of “crime of violence” in the Bail Reform Act is not void for vagueness

In today’s United States v. Watkins, No. 18-3076, a panel of the Second Circuit held the residual clause definition of “crime of violence” in the Bail Reform Act is not void for vagueness.

This may surprise some observers, as the Bail Reform Act’s residual clause is identical to – and subject to the same categorical approach as – the residual clauses the Supreme Court struck down for vagueness in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and United States v. Davis, 139 S. Ct. 2319 (2019).

Moreover, the Second Circuit’s ruling is plainly moot: after being denied bail, Mr. Watkins pleaded guilty and was sentenced to prison.  See United States v. Watkins, W.D.N.Y. No. 18-cr-131.  Only now, months later, has the panel weighed in on whether the residual clause of the “crime of violence” definition in the Bail Reform Act is void for vagueness.  But …


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Categories: crime of violence, Davis, Johnson, Uncategorized

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Thursday, September 12th, 2019

EDNY: Officers’ good intentions can’t save unconstitutional general warrant

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 …

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Wednesday, September 11th, 2019

SCOTUS watch: Is a car stop legal even when the police officer doesn’t see a traffic infraction?

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 …

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Thursday, August 22nd, 2019

Second Circuit Vacates Civil Forfeiture Judgement Based on Suppression Issue and Other Errors

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 …

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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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