After a trial, Anael Sainfil was convicted of bank robbery on a theory that he was the lookout, who stayed outside the bank. At sentencing, the court enhanced his guidelines because a co-conspirator, who entered the bank, wore a bulletproof vest. On appeal, two judges upheld the enhancement, saying that even though Mr. Sainfil didn’t know about the bulletproof vest, it was foreseeable that someone would wear a bulletproof vest during an armed robbery.

Judge Jacobs dissented, saying that the majority “sweeps too broadly” by essentially holding that is is always foreseeable that someone else may wear body armor. Jacobs writes: “True, body armor is not (yet) a fashion statement and is rarely (if ever) worn when there is no risk of gunfire. But that does not mean that whenever there is a risk of gunfire the use of body armor follows.” According to Jacobs, the majority “reduces reasonable foreseeability …

In Murray v. Noeth, No. 20-3136 (2d Cir. Apr. 26, 2022), the Circuit (Nardini, joined by Sack and Park), held that a state trial court’s erroneous denial of a defendant’s peremptory strike does not violate the federal Constitution under Rivera v. Illinois, 556 U.S. 148 (2009), and therefore cannot support federal habeas corpus relief.

Murray was tried in New York state court for murder. After he exercised a number of peremptory strikes against male prospective jurors, the People raised a “reverse-Batson” challenge, arguing that Murray’s strikes were discriminating on the basis of sex. The state trial court sustained the People’s challenge and disallowed two strikes, restoring two men to the jury. Murray was convicted and the state appellate courts affirmed.

Murray filed a federal habeas corpus petition, contending that the state trial court had erred in sustaining the People’s reverse-Batson challenge. Specifically, Murray argued that …

In United States v. Nosov, No. 21-187-cr (2d Cir. March 17, 2022) (summary order), the Second Circuit ordered a limited remand for clarification of a court’s denial of a motion for a sentence reduction under 18 U.S.C, § 3582(c)(1)(A), pursuant to United States v. Jacobson, 15 F.3d 129 (2d Cir. 1994).

In Nosov, the defendant moved for a reduction of his concurrent life terms, citing his youth at the time of the offenses, his rehabilitation, and his health conditions. The government agreed that the defendant’s obesity put him at increased risk from COVID-19, and that this could constitute an extraordinary and compelling reason for a sentence reduction.

Nonetheless, without further explanation, the district court opined that the defendant had not shown “extenuating and compelling” reasons warranting a reduction and denied the motion. This finding was in tension with the government’s concession and the Circuit noted that the …

Our friend Alexandra Shapiro of Shapiro Arato Bach, LLP, earned an important victory this week in United States v. Dan Zhong, No. 19-4110 (2d Cir. Feb. 23, 2022), persuading the Court to vacate her client’s conviction on three forced-labor charges. (While the Court affirmed the defendant’s convictions on two other counts, those convictions carry far shorter sentences.)

The ruling represents a rare defense victory based on multiple evidentiary errors. The Circuit, in an opinion by Judge Menashi, granted a new trial as to three forced-labor counts. The decision provides ammunition for defendants in future trials trying to rein in the Government’s efforts to introduce evidence of uncharged conduct, to curtail defense cross-examination of Government witnesses, and to use experts in improper ways.

First, the District Court had permitted the Government to introduce evidence of uncharged criminal conduct that pre-dated the charged conduct by nearly a decade and involved violence …

In United States v. Connolly, No. 19-3806 (2d Cir. Jan. 27, 2022), the Circuit (Kearse, joined by Cabranes and Pooler) reversed convictions for substantive wire fraud and for conspiracy to commit wire fraud and bank fraud for insufficient evidence.

This is a LIBOR-rigging prosecution. LIBOR (the “London Interbank Offered Rate”) was an interest-rate benchmark, published daily by the British Bankers’ Association (“BBA”), meant to reflect the rates at which one bank could borrow money from other banks. LIBOR also provided a reference interest rate for use in transactions between banks. The daily LIBOR for each currency was computed based on submissions from a panel of selected banks active in the interbank market for that currency. For example, to compute the U.S. currency LIBOR at issue here, the BBA instructed each of the 16 banks on the panel to submit “the rate at which it could borrow funds, were it …

In United States v. Beltran Leyva (Guzman Loera), No. 19–2239 (2d Cir. Jan. 25, 2022), the Circuit (Newman, joined by Lynch and Park) affirmed the conviction of Guzman Loera (“El Chapo”), the former leader of the Sinaloa Cartel, for conducting a continuing criminal enterprise, and for drug trafficking, firearms, and money laundering offenses. The Circuit rejected all 10 of Guzman Loera’s appellate claims:

1) Guzman Loera lacked standing to raise the claim that the indictment violated the international law doctrine of specialty (which provides that an extradited defendant can only be tried for offenses described in the extradition treaty and charged in the extradition proceedings). Under United States v. Barinas, 865 F.3d 99 (2d Cir. 2017), the U.S.-Mexico Extradition Treaty does not confer on extradited defendants individual rights to assert violations of the Treaty, and Mexico waived any specialty objection to Guzman Loera’s prosecution in the EDNY.

2) …