Archive | Uncategorized

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 …

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 …

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 …

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. …

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 …

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.”…