Federal Defenders of New York Second Circuit Blog

After a Supreme Court remand, a Circuit Panel concludes that the defendants’ fraud and conversion convictions should be reversed because the confidential information misappropriated from a federal regulatory agency didn’t constitute “property” or a “thing of value” (to the agency) for purposes of wire fraud, Title 18 securities fraud, and conversion (in violation of 18 U.S.C. §§ 1343, 1348, and 641). United States v. Blaszczak, Nos. 18-2811, 18-2825, 18-2867, 18-2878, __F.4th__, 2022 WL 17926047 (2d Cir. Dec. 27, 2022) (C.J.J. Kearse and Walker; Judge Sullivan dissents).

by

After the Circuit’s original decision (in 2019) affirmed the fraud and conversion convictions of the four defendants (over a dissent by Judge Kearse), the Supreme Court granted cert., vacated the judgment, and “remanded for further consideration, in light of Kelly v. United States, ––– U.S. ––––, 140 S. Ct. 1565 (2020).”  See United States v. … Read more

The government’s use of a former cellmate’s testimony to introduce a defendant’s statements about his planned trial strategy didn’t violate the Sixth Amendment right to the effective assistance of counsel where the witness wasn’t a government informant when the defendant confided in him. Also, a federal probation officer’s warrantless search of the home and car of a person “serving a term of supervised release” didn’t violate the Fourth Amendment because the probation officer needed only a “reasonable suspicion” to search, not a warrant or probable cause. United States v. Chandler, No. 18-1841, 56 F.4th 27 (2d Cir. [Dec. 27,] 2022) (C.J.J.’s Lynch, Carney, and Sullivan).

by

This appeal addresses a Fourth Amendment claim raised in the context of a Probation Officer’s search of the home and car of  “an individual serving a term of supervised release.” The Circuit concludes that the searches were valid because the Probation Officer had a “reasonable suspicion” that the defendant was committing crimes. The case also … Read more

Supreme Court Alert

by

The Supreme Court recently granted certiorari in four criminal cases to resolve the following questions. Note that in two of the cases, Lora and Samia, the Court will review decisions issued by the Second Circuit. Lora v. United States, 22-49 Whether 18 U.S.C. § 924(c)(1)(D)(ii), which provides that “no term of imprisonment imposed … under … Read more

District Court Did Not Abuse Discretion in Declining to Resentence Defendant De Novo Following Vacatur of Firearms Convictions.

by

In United States v. Peña, No. 20-4192 (2d Cir. Dec. 13, 2022), the Circuit ruled that the District Court did not abuse its discretion when it declined to resentence the defendant de novo following the vacatur of two firearms convictions. Peña was convicted in 2013 of three counts charging him with conspiring to commit, and … Read more

Under 18 U.S.C. § 1591, the term “commercial sex act” — defined as “any sex act, on account of which anything of value is given to or received by any person,” id. § 1591(e)(3) — doesn’t require that the “[]thing of value” have a monetary value; it can be something “intangible” that has a subjective value to the person receiving it. United States v. Raniere, Nos. 20-3520-cr(L), 20-3789-cr(Con), __ F.4th ____, 2022 WL 17543156 (2d Cir. Dec. 9, 2022) (C.J.J.’s Calabresi, Cabranes, and Sullivan).

by

This case concerns the meaning of “commercial sex act,” in subdivision (e)(3) of 18 U.S.C. § 1591, titled “Sex trafficking of children or by force, fraud, or coercion.”  A “commercial sex act” is defined as “any sex act, on account of which anything of value is given to or received by any person.” 18 U.S.C. … Read more

Third Circuit holds that “loss,” for Guidelines purposes, means actual loss, not intended loss.

by

The Sentencing Guidelines provide that the base offense level for certain crimes must be increased based on the amount of financial “loss.” E.g., U.S.S.G. § 2B1.1(b)(1). The commentary to the Guidelines says that “loss” means the actual or intended loss, whichever is greater. Id. cmt. n.3(A). In an important new ruling, the Third Circuit held in United … Read more

In this summary order, the Circuit vacates a district court judgment that summarily denied a 28 U.S.C. § 2255 motion, alleging that ineffective assistance counsel caused the petitioner to forego a direct appeal. Kenya Brown v. United States, No. 20-3404-pr (2d Cir. Dec. 6, 2022) (C.J.J.’s Livingston, Nardini, and Menashi) (“Summary Order”).

by

Petitioner-Appellant Kenya Brown was sentenced on December 28, 2016. But no notice of appeal was filed. Brown had pleaded guilty, under a plea agreement, to conspiring to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846; and possessing a firearm in furtherance of that conspiracy, in violation of 18 U.S.C. § 924(c). … Read more

The Second Circuit holds that N.Y. Attempted Third-Degree Sale of a Controlled Substance, N.Y.P.L. 220.39(1) is NOT a Guidelines Controlled Substance Offense

by

Earlier this week, on December 6, 2022, the Second Circuit held in United States v. Gibson, No. 20-3049 (2d Cir. Dec. 6, 2022), that a 2002 New York state conviction for attempted third-degree criminal sale of a controlled substance, NYPL 220.39(1) and 110.00, is not a  “controlled substance offense” under the Guidelines. Gibson was convicted … Read more

In an appeal from a district court’s decision declining to “reopen [a] detention hearing under 18 U.S.C. § 3142(f),” the Second Circuit concludes that the district court declining to reopen the detention hearing wasn’t an abuse of discretion. And the district court’s consideration of the strength of the evidence against the defendant, in weighing the bail factors listed in § 3142(g), didn’t impinge on the presumption of innocence because that’s a trial right that “has no application to a determination of the rights of a pretrial detainee.” United States v. Zhang, No. 22-1761-cr, __ F.4th ____, 2022 WL 17419594 (2d Cir. Dec. 6, 2022) (C.J.J.’s Raggi, Wesley, and Nardini).

by

Defendant-Appellant Zhe Zhang was indicted for participating in a successful murder-for-hire scheme. And the district court ordered him detained pending trial noting, among other things. “[t]hat the charged crime was ‘extremely serious’ and the evidence against Zhang was strong.” 2022 WL 17419594 at *2. The defendant didn’t, however, appeal the district court’s original decision denying … Read more

Third time’s a charm? Case sent back to the district court to decide if a 924(c) conviction based on an attempt to commit Hobbs Act Robbery should be vacated.

by

In 2004, Lawrence Savoca was convicted for using a gun during an attempt to commit Hobbs Act robbery. Since Johnson was decided in 2016, he has been trying to get this 924(c) conviction vacated in lengthy litigation involving three trips to the Second Circuit. First, the Circuit granted his request to file a successive habeas … Read more