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Federal Defenders of New York Second Circuit Blog


Tuesday, June 8th, 2021

Government Did Not Act Unconstitutionally or in Bad Faith by Refusing to Make “Substantial Assistance” Motion Under § 3553(e).

In United States v. Trimm, No. 20-2264 (2d Cir. June 2, 2021) (per curiam) (Livingston, Jacobs, and Menashi), the Second Circuit held that the district court erred in concluding that the government’s refusal to make a “substantial assistance” motion under 18 U.S.C. § 3553(e) was unconstitutional and motivated by bad faith. Accordingly, the Court vacated the defendant’s sentence and, to preserve the appearance of justice, remanded for resentencing before a different judge.

Pursuant to a plea agreement, Trimm pleaded guilty to conspiracy to use a minor to produce child pornography. Trimm also agreed to assist the government in securing the conviction of her co-conspirator. The agreement vested in the government sole discretion to determine whether and how to credit Trimm’s cooperation, including whether to file a “substantial assistance” motion under U.S.S.G. § 5K1.1, § 3553(e), or both.

After evaluating Trimm’s assistance, the government decided to make a motion under …

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Thursday, June 3rd, 2021

Reminder: Hobbs Act Robbery is *NOT* a Career Offender or ACCA Predicate

Hobbs Act robbery is not a qualifying predicate under either the Career Offender Guideline or the Armed Career Criminal Act (“ACCA”).  But it does count under § 924(c).  This is because it can be committed “by means of actual or threatened force, or violence, or fear of injury, immediate or future, to [someone’s] person or property.”  18 U.S.C. § 1951(b)(1).

The Guideline and ACCA

“Because Hobbs Act robbery can be committed by using force against persons or property, it reaches more broadly than the Career Offender Guideline’s elements clause, [U.S.S.G. § 4B1.2(a)(1),] which is limited to offenses using force against persons.”  Nunez v. United States, 954 F.3d 465, 477 n.5 (2d Cir. 2020) (Raggi, J., concurring).  For the same reason, the offense is beyond the reach of ACCA’s elements clause, which is also limited to “force against the person of another.”  18 U.S.C. § 924(e)(2)(B)(i).

Also because Hobbs …

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Categories: career offender, Hobbs Act

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Categories: career offender, Hobbs Act

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Thursday, May 27th, 2021

Supreme Court overrules the “watershed rule of criminal procedure” portion of Teague v. Lane.

The issue in Edwards v. Vannoy, decided May 17, 2021, was whether the Supreme Court’s decision in Ramos v. Louisiana, 140 S. Ct. 1390 (2020), will apply retroactively to cases on federal collateral review.  Ramos is the case which decided that unanimous jury verdicts are required in state felony cases, thus outlawing the non-unanimous jury practices that existed in only two states – Louisiana and Oregon.  In a 6-to-3 vote, the Supreme Court decided against retroactive application, which means, as Justice Kagan tells us in dissent, that Mr. Edwards, unlike Mr. Ramos, “will serve the rest of is life in prison based on a 10-to-2 jury verdict.”

As many of us recall, when the Supreme Court promulgates a new rule of criminal procedure, it applies not just to future cases but also to cases that are already on direct appeal.  See Griffith v. Kentucky, 479 U.S. 314 …

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Supreme Court holds that there is no “community caretaking” exception to the Fourth Amendment’s warrant requirement.

In Caniglia v. Strom, decided May 17, 2021, the Supreme Court ruled that there is no such thing as a “community caretaking” exception to the warrant requirement of the Fourth Amendment.

This case began when Mr. Caniglia had an argument with his wife at their Rhode Island home.  He then retrieved a pistol from the bedroom and asked his wife to “shoot [him] now and get it over with.”  Instead, she left the house and spent the night at a hotel.  In the morning, when Mr. Caniglia did not answer his phone, she called the police and asked them to check on him.  The police found him on his porch.  Mr. Caniglia confirmed his wife’s account of the events of the previous evening, but denied that he was suicidal.  The police called an ambulance and eventually convinced him to go to the hospital for a psychiatric evaluation.  Later, his …

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Wednesday, May 26th, 2021

Twenty-year term of supervised release neither procedurally nor substantively unreasonable

In United States v. Joseph Williams, No. 20-1021 (2d Cir. May 26, 2021), a Panel of the Court (Pooler, Sullivan, and Park) ruled in a per curiam opinion that Williams’s 20-year term of supervised release, to follow a 160-month term of imprisonment, was neither procedurally nor substantively unreasonable on plain-error review. Williams argued principally that the term of supervised release was procedurally faulty because the district court violated 18 U.S.C. § 3553(c), requiring a sentencing court to “state in open court the reasons for its imposition of the particular sentence . . . .” Specifically, while the court the explained the basis for the chosen term of imprisonment (and discussed the § 3553(a) factors in so doing), it “did not separately explain the factors [in] imposing the term of supervised release.” Op. 4.

The Court found “no procedural error in the district court’s failure to separately explain the basis …

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Categories: plain error, supervised release

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Tuesday, May 25th, 2021

Circuit strikes a special condition of supervised release requiring the defendant to participate in a “restorative justice program” as vague and as delegating judicial authority to the Probation Office

In United States v. Patrick W. Carlineo, 2d Cir. No. 20-1020 (May 25, 2021), a Panel of the Court (Parker, Lohier, and Menashi) invalidated a special condition of supervised release requiring the defendant to “participate in a program known as the Partners in Restorative Initiatives” as too vague and as delegating too much authority to the Probation Office. Judge Parker’s opinion does not invalidate all such conditions. Rather, the takeaway is that if a district judge wishes to impose a restorative-justice-related condition of supervision, the judge must specify the details of the program — preferably one vetted by the Probation Office — and indicate specifically what the defendant must do to satisfy the condition and avoid violation.

Carlineo pleaded guilty to threatening Congresswoman Ihlan Omar and to possessing a gun after a felony conviction. Before sentencing, the district court received an unsolicited letter “from Will Bontrager, who identified himself …

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The Supreme Court throws a wrench into § 1326(d) motions in the Second Circuit

In United States v. Palomar-Santiago, No. 20-437 (May 24, 2021), Justice Sotomayor ruled for a unanimous Court that as a matter of statutory interpretation (1) each of 8 U.S.C. § 1326(d)’s three requirements must be satisfied; and that (2) a showing by the defendant that the deportation proceeding was “fundamentally unfair” under § 1326(d)(3) — because the immigration judge (IJ) mistakenly told him that he was removable as an aggravated felon due to his DUI conviction (this became error six years later in Leocal v. Ashcroft, 543 U.S. 1 (2004), holding that a DUI is not a § 16(b) “crime of violence” and thus not an “aggravated felony”) – does not suffice to dismiss a reentry indictment. The decision overrules Ninth Circuit law holding that “defendants are ‘excused from proving the first two requirements’ of § 1326(d) [– noncitizen defendants must show that they exhausted administrative remedies and …

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Categories: aggravated felony, crime of violence, deportation

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Friday, May 7th, 2021

Second Circuit: 21 U.S.C. § 848(e)(1)(A) Is Not A “Covered Offense” For Purposes Of First Step Act Resentencing.

In United States v. Gilliam, the Second Circuit (Nardini, joined by Katzmann and Wesley), held that drug-related murder, in violation of 21 U.S.C. § 848(e)(1)(A), is not a “covered offense” for purposes of First Step Act resentencing.

Gilliam killed a rival drug dealer and pleaded guilty to § 848(e)(1)(A), which punishes “any person engaging in an offense punishable under [21 U.S.C. § 841(b)(1)(A)] … who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results.” The district court (Gleeson, EDNY) sentenced him to 528 months.

Gilliam moved for a sentence reduction under § 404(b) of the First Step Act, which provides: “A court that imposed a sentence for a covered offense may … impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act … were in effect at the time the covered offense was committed.” …

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Thursday, April 22nd, 2021

Second Circuit Holds that Attempted Hobbs Act Robbery Is a § 924(c) “Crime of Violence.”

The Circuit ruled today in United States v. McCoy, No. 17‑1315(L) (Kearse, Parker, and Sullivan, JJ.), that the crime of attempting to commit a Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), remains a “crime of violence” under 18 U.S.C. § 924(c), even after United States v. Davis, 139 S. Ct. 2319 (2019). The Circuit had previously held that a completed Hobbs Act robbery is a “crime of violence,” United States v. Hill, 890 F.3d 51 (2d Cir. 2018), but that a conspiracy to commit Hobbs Act robbery is not, United States v. Barrett, 927 F.3d 126 (2d Cir. 2019).

In McCoy, the Circuit rejected the defendants’ argument that attempted Hobbs Act robbery, like conspiracy to commit Hobbs Act robbery, does not qualify as a “crime of violence” because it does not necessarily have “as an element the use, attempted use, or threatened …

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Categories: crime of violence, Davis, Hobbs Act

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Tuesday, April 20th, 2021

Second Circuit upholds conviction for insider trading. United States v.  Chow, No. 19-0325, __F.3d__, 2021 WL 1256649 (2d Cir. Apr. 6, 2021) (C.J.J. Kearse, Carney, Bianco).

Benjamin Chow was a high ranking corporate officer at a couple of Chinese State-owned firms that, in 2016, tried to acquire Lattice Semiconductor Corporation, a manufacturer of a type of semi-conductor used in smart-phones. Op. 4, 5. Mr. Chow was alleged to have tipped off someone he knew, named Michael Yin, about the progress of the negotiations to acquire Lattice. Op. at 4-9 . During a 4-month period from July to November 2016, Yin traded on Lattice stock, purportedly based on this information, and made $5 million. Id. at 15.

A jury convicted Benjamin Chow of one count of conspiracy to commit securities fraud, in violation of 18 U.S.C. § 371; one count of securities fraud, in violation of 18 U.S.C. §§ 1348 and 2; and six counts of insider trading, in violation of 15 U.S.C. §§ 78j(b) and 78ff, 17 C.F.R. §§ 240.10b-5 and 10b5-2, and 18 U.S.C. § …

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Monday, April 19th, 2021

Supreme Court Grants Review to Clarify Rules Governing Forfeiture or Waiver of Constitutional Right to Confront Witnesses

The Supreme Court granted certiorari today in Hemphill v. New York (No. 20-637), to resolve the following question: “Whether, or under what circumstances, a criminal defendant who opens the door to responsive evidence also forfeits his right to exclude evidence otherwise barred by the Confrontation Clause.”

The facts are straightforward. In 2006, someone fired a 9- millimeter handgun during a melee in the Bronx, killing a child in a passing car. When Hemphill was tried for the crime, he contended that the shooter was another man at the scene, Nicholas Morris. As part of that defense, Hemphill elicited testimony that the police had recovered a 9-millimeter cartridge on Morris’s nightstand hours after the shooting. The State then successfully moved to introduce a guilty plea from Morris in which he said he possessed a different gun—a .357 revolver—at the scene of the shooting. The New York courts rejected Hemphill’s claim that …

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Categories: Confrontation Clause, Sixth Amendment

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