In United States v. Tagliaferri, No. 15–536, the Second Circuit held that a conviction for investment adviser fraud, under section 206 of the Investment Advisers Act of 1940, 15 U.S.C. § 80b–6 and 80b–17, requires only intent to deceive one’s clients, not intent to harm them as well. Tagliaferri ran a boutique investment advisory firm … Read more
United States v. Rodriguez, No. 14-4267 (2d Cir. Apr. 27, 2016) (Leval, Droney, and Engelmayer). Rodriguez was convicted by a jury of charges of racketeering conspiracy and conspiracy to distribute narcotics. He argued on appeal that the district court erred by disallowing certain cross-examination of a key prosecution witness, and that the district court committed … Read more
The Circuit did not issue today either a decision or a summary order relevant to criminal practice. Nor did the Supreme Court. Check back again tomorrow!
Defendant Cannot Benefit on Direct Appeal from Guideline Amendment that Became Effective after His Sentencing if Amendment Is Substantive rather than Clarifying (unless the Commission Determines that the Amendment Should Have Retroactive Effect under § 1B1.10) In United States v. Miguel Jesurum, No. 14-4464-cr (2d Cir. April 14, 2016), the Court (op. by Pooler, joined … Read more
Lawyers in both districts should be aware of a change in ICE detainer policy. The old so-called “detainer” form (1-247) is being retired and replaced with three different forms. The change in policy is summarized here on the ICE website. One of the new forms, the I-247N, is a request for voluntary notification of the … Read more
The Second Circuit today issued a summary order affirming the denial of a reduction in sentence under 18 U.S.C. 3582(c)(2) and Amendment 782 to the Sentencing Guidelines. In United States v. Johnson, 15-2051-cr, the Court held that because Mr. Johnson’s guideline range remained 360-life even after Amendment 782, the District Court correctly concluded he was ineligible … Read more
In a summary order, the Court declined to reach as plain error whether Aggravated Identity Theft, under 18 U.S.C. § 1028(c)(5), requires the government to prove that the individuals did not consent to the unlawful use of their identities. The majority of circuits to consider the issue have rejected the argument. It is an open question in … Read more
No opinions or relevant summary orders from the Second Circuit today. But, big news from SDNY on solitary confinement: Yesterday, Judge Scheindlin approved a settlement in Peoples v. Annucci that will overhaul solitary confinement in New York state prisons. The settlement is about what is called the “SHU,” which is pronounced like “shoe,” and is … Read more
The Office of the Inspector General released this review of BOP medical staffing challenges. According to the March 2016 report, BOP staffing shortages limit inmate access to medical care and impact the safety and security of BOP facilities. The report may be useful at sentencing to demonstrate that the BOP will not provide adequate care … Read more
United States Jonathan Bulluck, No. 13-255-cr (Summary order of March 24, 2016 (Leval, Calabresi, Lynch): The Court did not a issue a published opinion today. Its one summary order affirmed the denial of an ineffectiveness claim for lack of prejudice, on the ground that the search of a bag (which contained drugs)in a car stop … Read more