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Two summary orders today.

First, United States v. Tanaka: To understand this one, a short backstory is needed: In 2010, Mr. Tanaka and Mr. Vilar were sentenced to 60 months and 108 months of prison time, respectively. Both were fined $25,000. Fast forward to 2014, when both men were resentenced after a successful appeal. But, things weren’t better this time around: Mr. Tanaka got 72 months and Mr. Vilar, 120 months. The fine was increased by 400% to $ 10 million. What changed in between? Mr. Tanaka and Mr. Vilar argued nothing…except that they were successful on appeal and had defended themselves against a government civil suit. They argued their increased sentences were vindictive.

However, the Second Circuit disagreed. The court found that their increased sentences were not based on the exercise of their legal rights, but on their “anti-social conduct following their initial sentence.” The court affirmed the …

No new criminal decisions out of the Second Circuit today. But there was one interesting argument that focused on prosecutorial overreach.

The Second Circuit heard argument today in the case of former Connecticut governor, John Rowland, who was sentenced last year to 30 months for trying to conceal his role as a paid consultant in two separate congressional campaigns in Connecticut. It was his second conviction in a decade relating to corruption. Today before the panel (Chin, Winter and Carney), his lawyer accused the government of arguing for an “unprecedented expansion” of a financial accountability law to criminalize legal consulting work that Rowland undertook during the 2012 campaign season. Rowland’s lawyer, Andrew Fish, (embed: http://www.lockelord.com/professionals/f/fish-andrew-l) a former S.D.N.Y federal prosecutor, made prosecutorial over-zealousness a centerpiece of his brief and argument in the case. Read more about the case here: http://www.courant.com/politics/hc-gov-john-rowland-appeal-0316-20160318-story.html.

-Thea Johnson…

United States v. Ronell Wilson, 04-Cr-1016 (NGG), Mem. & Order (Dkt 1535) (Filed 3/15/16)

Ronell Wilson cannot be executed, Judge Garaufis found, despite twice being sentenced to death, because under the Supreme Court’s recent decision in Hall v. Florida, he is intellectually disabled, and, therefore, executing him would violate the Eighth Amendment and the Federal Death Penalty Act.  This is a stunning victory in so many ways, and the opinion is an important read in any case where there is a possibility that the defendant may be intellectually disabled.   The Second Circuit vacated Wilson’s first death sentence in 2010 because of prosecutorial misconduct in the penalty phase (if he were really remorseful, he would have gotten up here and told you that himself).

On remand for the new penalty phase proceeding, the defense argued that Wilson was intellectually disabled. Judge Garaufis conducted an Atkins hearing and concluded that …

The Court did not release any published criminal decisions today, but did issue four summary orders in criminal cases:

1. United States v. Peña, No. 14-3837(L) (Katzmann, Lohier, and Droney)

The Peña brothers (Hector and Jose) were convicted after a jury trial of various counts relating to the murders of a drug dealer and others. The Court affirmed their convictions.

First, the Court held that the district court did not abuse its discretion by denying Hector’s request to continue the trial date because of a scheduling conflict, even though that denial forced a change of lawyers and deprived the defendant of his counsel of choice. The Court noted the defendant’s interest in a speedy trial and the original lawyer’s failure to bring the scheduling conflict to the court’s attention in a timely manner. The Court further noted that the right to counsel of choice does not extend to defendants …

No criminal decisions out of the Second Circuit today, although the court did hear arguments today in the infamous “deflate-gate case” and did not seem receptive to the arguments made by the N.F.L. Player’s Union.

Two interesting local criminal justice stories today: First, a look at the plan to stop arresting people in Manhattan for minor offenses , such as public drinking or taking up two seats on the subway, that was unveiled this week by Mayor DeBlasio, Police Commissioner Bratton, and Manhattan DA Cyrus Vance. Vance predicts that the plan will reduce the number of low-level cases coming through the court each year by as many as 10,000.  Second, New York City Council Speaker Melissa Mark-Viverito’s Bail Fund, which would provide bail to indigent defendants charged with low-level crimes, has been approved as a not-for-profit charity by the state attorney general’s office. The fund is …

United States v. Raymonda, No. 13-4899-cr (2d Cir. Mar. 2, 2013) (Walker, Lynch, and Chin), available here

Someone using defendant’s IP address accessed thumbnail images of child pornography on the Internet. More than nine months later, government agents obtained a search warrant for defendant’s  home and discovered over 1,000 files of child pornography. The district court granted the defendant’s motion to suppress, holding that the government’s evidence that defendant had accessed child pornography on a single occasion nine months earlier was too stale to establish probable cause that he would still possess illicit images at the time of the search.

The Circuit reversed, over a dissent by Judge Chin. The majority agreed with the district court that a single incident of access to thumbnail images of child pornography, absent any other circumstances suggesting that the suspect accessed those images deliberately or has a continuing interest in child pornography, fails …

United States v. Van Mead, No. 12-4054-cr (2d Cir. Dec. 8, 2014) (Livingston, Lohier, and Stein), available here

Section 130.40-2 of New York’s Penal Law provides that “[a] person is guilty of criminal sexual act in the third degree when . . . [b]eing twenty-one years old or more, he or she engages in oral sexual conduct or anal sexual conduct with a person less than seventeen years old.”

The question presented by this appeal was whether the conduct prohibited by this statute qualified categorically as a “crime of violence” under Sections 2K2.1 and 4B1.2 of the Sentencing Guidelines. The Circuit said no.

The Court distinguished this case from its earlier ruling in United States v. Daye, 571 F.3d 225 (2d Cir. 2009), in which the Circuit held that violation of a Vermont law barring sexual contact with a minor aged fifteen or younger constituted a “violent felony” under …

United States v. Sanchez, No. 11-2429-CR (2d Cir. Dec. 4, 2013) (Cabranes, Straub, and Livingston), available here

Defendant pleaded guilty to possession with intent to distribute more than 1 kilogram of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), an offense that carries a 10-year mandatory minimum.  The government filed a prior felony information pursuant to 21 U.S.C. § 851, arguing that defendant’s prior Connecticut narcotics conviction increased his mandatory minimum to 20 years.  Defendant did not object.  Without making any reference to the mandatory minimum, the district court (D. Conn.; Nevas, J.) sentenced defendant to 288 months, a downward variance from the Guidelines range of 360-life.

On appeal, the Circuit accepted the government’s concession that it was clear error to treat defendant’s prior as a qualifying predicate because the Connecticut and federal narcotics laws are not coterminous.  However, the Circuit rejected the government’s argument that the …

United States v. Wiltshire, No. 13-3590-cr (2d Cir. Dec. 1, 2014) (Kearse, Straub, and Wesley), available here

The district court found that defendant violated her supervised release by making false statements to her probation officer and by leaving the district of her supervision without permission. She was sentenced to 90 days in custody, to be served on weekends, to be followed by five years of supervised release.

During the pendency of her appeal, defendant completed her custodial sentence, but her term of supervision had not yet run.

Did the expiration of defendant’s custodial sentence render her appeal moot? The Court said no, because the district court’s judgment directly exposed defendant to two additional years of supervised release. The appeal was thus not moot because a favorable appellate ruling might prompt the district court to reduce defendant’s term of supervised release.

Unfortunately for defendant, however, the Circuit ruled on the merits that the …