Federal Defenders of New York Second Circuit Blog

Did the Second Circuit Just Read Rule 33 Out of Existence?

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Federal Rule of Criminal Procedure 33(a) authorizes a judge to “grant a new trial if the interest of justice so requires.”  This rule has traditionally been understood to “confer[] broad discretion upon a trial court to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.”  United States v. … Read more

Second Circuit holds that district courts may grant compassionate release on expansive grounds and are not limited to the Sentencing Commission’s criteria.

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In United States v. Brooker (Zullo), No. 19-3218, 2020 WL 5739712 (2d Cir. Sept. 25, 2020), the Second Circuit, in an opinion by Judge Calabresi (joined by Judges Winter and Chin), held that the First Step Act of 2018 (“FSA”) empowers district courts evaluating motions for compassionate release to consider any “extraordinary and compelling reasons” … Read more

Second Circuit: On a motion under the First Step Act, a court isn’t obligated to “recalculate” the Sentencing Guidelines range to account for new Guidelines provisions “or new judicial interpretations of existing Guidelines.” Only Guideline-changes “that flow from the Fair Sentencing Act of 2010” have to be considered. But there’s an acknowledged circuit split. United States v. Moore, __F.3d__, No. 19-1390-cr, 2020 WL 5523205 (2d Cir. Sept. 15, 2020).

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In United States v. Moore, No. 19-1390-cr (available here), the Circuit (Nardini, joined by Chin and Sullivan), holds that, on a motion for a sentence reduction under Section 404 of the First Step Act, a court isn’t required to “recalculate” the Guidelines range under the current law, unless (and only to the extent) the Fair … Read more

Federal law barring false voter registrations applies to town election because New York’s “unitary registration scheme” allows a falsely registered voter to vote in future federal elections. And the Travel Act’s bar on “bribery” is not limited to acts involving public officials (as payees) and encompasses a New York law barring payments to voters.

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In United States v. Smilowitz, 2d Cir. No. 19-361 (Sep. 8, 2020), a panel of the Court (Walker, Parker, and Carney) ruled that the defendant’s conduct of falsely registering voters for a town election, and of offering payment to voters for their votes in that election, fell within the reach of the federal election law, … Read more

Government operation of child pornography website to catch visitors is not outrageous government misconduct and the good faith exception applied to evidence found through a warrant based on the site.

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United States v. Caraher, No. 18-511 (2d Cir. August 25, 2020)(Hall, joined by Lynch and Menashi), involved the government’s takeover and operation of the child pornography website “Playpen” for two weeks so that it could track visitors to the site, identify their identities and locations, and search their computers. The FBI obtained a warrant allowing … Read more

Reliability challenge to a new testing technique, “computerized voice stress analyzer,” to verify compliance with supervised release, is not ripe for review until supervision begins.

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In United States v. Birkedahl, No. 19-2304 (2d Cir. Aug. 25, 2020), the Second Circuit (Sullivan, joined by Park and Nardini)) rejected a challenge to a special condition of supervised release requiring testing by “computerized voice stress analyzer (CVSA)” to verify the defendant’s compliance with conditions in a child pornography possession case. Birkedahl had contested … Read more

Circuit Reverses Convictions For Aiding And Abetting VICAR Murder For Insufficient Evidence

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In United States v. Anastasio, the Circuit (Carney, joined by Jacobs and Pooler), reversed two convictions for aiding and abetting VICAR murder, 18 U.S.C. § 1959(a)(1), for insufficient evidence. Specifically, the Circuit held that Anastasio undertook no affirmative act that facilitated the murders; he had merely been in the company of the murderers, without offering … Read more

Circuit Vacates LWOP Sentence Based On Inadequate Consideration Of Juvenile Offender’s Age

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In United States v. Delgado, the Circuit (Pooler, joined by Jacobs and Carney) vacated a life sentence imposed on a 17-year-old convicted of two murders, on the ground that the district court had failed to give the requisite consideration to the defendant’s age, as required by Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery … Read more

Rehaif claim cannot be brought in second or successive § 2255 motion because the decision involved statutory interpretation and did not render a “constitutional” rule as required by AEDPA’s gatekeeping provision.

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In Mata v. United States, 2d Cir. No. 20-1875, a panel of the Court (Park, Nardini, and Menashi) held in a per curiam opinion that federal prisoners cannot rely on the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct 2191 (2019), to challenge their underlying conviction or sentence in a second or … Read more