Federal Defenders of New York Second Circuit Blog


Tuesday, August 4th, 2020

District court erred in relying on uncharged conduct to select the applicable Guideline provision, and the error is not harmless despite the court’s claim that it would have imposed the same sentence under the correct Guideline.

In United States v. Huberfeld, 2d Cir. No. 19-436 (L), the Court (opinion by Judge Pooler, joined by Judges Lynch and Menashi) vacated both a 30-month sentence and a $19 million order of restitution for basically the same reason – the district court erred in relying on uncharged criminal conduct, beyond and broader than what the defendant actually pleaded guilty to via a negotiated information and plea agreement, in selecting the applicable Guideline provision and awarding restitution. The Court also found that the Guideline-selection error is not harmless, despite the district court’s claim that it would’ve imposed the same 30-month sentence under the correct Guideline, because under the circumstances here, the Court was not “confident” that the incorrect range did not “clearly” affect the court’s selection of the ultimate sentence.

Here’s the factual gist. Huberfeld solicited investments for Platinum Partners, a hedge fund. He spoke to co-conspirator Jona Rechnitz, …


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Categories: bribery, guideline, restitution, Uncategorized

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Wednesday, July 29th, 2020

Second Circuit: 31-Day Delay In Seeking Warrant To Search Seized Tablet Computer Violates Fourth Amendment, But Suppression Not Warranted Because Delay Resulted From Mere “Isolated Negligence.”

In United States v. Smith, the Circuit (Meyer, D. Conn., joined by Katzmann and Kearse), the Circuit held that police violated the Fourth Amendment by waiting 31 days before seeking a warrant to search a seized tablet computer, but declined to apply the exclusionary rule because the error was due to “isolated negligence,” and because existing precedent would not have told an objectively reasonable police officer that the delay was unreasonable.

Police encountered Smith, drunk to the point of unconsciousness, in his car on the side of the road in a rural area of upstate New York. After removing Smith from the car, and while searching the car for identification, an officer observed a tablet computer on the front passenger seat displaying what appeared to be child pornography. The officer arrested Smith for DUI and seized the tablet. Smith was released and refused consent to search the tablet. However, …


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Categories: child pornography, Exclusionary Rule, Fourth Amendment

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Wednesday, July 22nd, 2020

Flawed “Interested Witness” Instruction Requires New Trial

In United States v. Solano, the Circuit (Kearse, joined by Calabresi and Carney) held that the district court’s interested witness instruction—namely, that “any” witness with “an interest in the outcome” of the trial had “a motive to testify falsely”—was plain error requiring vacatur of the conviction, because the defendant had testified and the instruction violated the presumption of innocence. Mr. Solano was represented on appeal by our own Daniel Habib.

Solano, a commercial truck driver, was arrested after picking up and delivering a sealed shipping container that had held cocaine and was now under surveillance. He was charged with attempting to distribute a controlled substance. At trial, the sole disputed issue was knowledge. The government’s principal proof came from three law enforcement officers who testified that, in a post-arrest interview, Solano had confessed knowledge. Solano, for his part, testified that he did not know that the container had held …

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Categories: jury instructions

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Categories: jury instructions

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Tuesday, July 21st, 2020

Circuit Will Decide En Banc Whether New York First-Degree Manslaughter Is a “Violent Felony” and “Crime of Violence.”

In United States v. Scott, 954 F.3d 74 (2d Cir. Mar. 31, 2020), a divided panel held that New York first-degree manslaughter is neither a predicate “violent felony” under the Armed Career Criminal Act nor a “crime of violence” under the Career Offender Guideline because it can be committed by complete inaction and therefore without the use of force, as defined in Curtis Johnson v. United States, 559 U.S. 133 (2010). The panel also held that New York first-degree manslaughter does not match any of the generic offenses enumerated in the Career Offender Guideline.

On July 10, 2020, the Circuit granted the government’s petition for rehearing en banc. No briefing schedule has yet been issued. Stay tuned.…


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Categories: career offender, crime of violence, violent felony

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Monday, July 20th, 2020

Circuit Affirms Conviction on Charges Relating to Scheme to Evade U.S. Sanctions Against Iran; Instructional Error Regarding IEEPA Was Harmless.

Does the International Emergency Economic Powers Act (“IEEPA”) impose criminal liability for evading or avoiding the imposition of sanctions not yet in place, or only existing prohibitions already imposed? In United States v. Atilla, No. 18-1589 (2d Cir. July 20, 2020) (Pooler, Hall, and Sullivan), the Circuit agreed with the defendant that the latter, narrower construction is correct and that the district court mischarged the jury on this issue. But the Court held the error harmless because “the jury was properly instructed on an alternative theory of liability for which the evidence was overwhelming.”

Atilla, a Turkish national and former Deputy General Manager of Turkey’s state-owned bank, was convicted on charged relating to a multibillion-dollar scheme to evade U.S. sanctions against Iran. On appeal, he argued that the district court erred in instructing the jury on the IEEPA, that the evidence was insufficient to support his convictions, that the …

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Categories: harmless error

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Friday, July 17th, 2020

Second Circuit grants suppression motion and holds that reasonable suspicion for stop was not established by defendant’s match to suspect’s race, even in combination with other factors, because a description based primarily on race is not particularized enough to guard against police overreach or harassment.

In United States v. Walker (No. 18-3729), __ F.3d __, 2020 WL 3966958 (2d Cir. July 14, 2020), the Second Circuit, in a decision by Judge Pooler (joined by Judges Calabresi and Carney), reversed the district court’s denial of Jaquan Walker’s suppression motion, holding that the police lacked reasonable suspicion to stop Walker based on his purported match to a photograph because the police lacked “little meaningful identifying information” besides the race of the suspect, and even the additional details of “medium-to-dark skin tone, glasses, facial hair, and long hair,” did not suffice to constitute specific, articulable facts upon which to base the stop. In addition, the court held that the search of Walker, which yielded drugs and incriminating statements, was insufficiently attenuated from the unconstitutional stop, despite the subsequent police discovery of an unrelated arrest warrant for Walker. Given that the justification for the stop fell “woefully short …


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Categories: Fourth Amendment, reasonable suspicion, terry stop

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Thursday, July 9th, 2020

Glimmer of Hope for Challenging pre-Rehaif Guilty Pleas to § 922(g)(1)?

In “a prosecution under 18 U.S.C. § 922(g) [], the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.”  Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019).

The most common § 922(g) offense is gun possession by someone “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.”  § 922(g)(1).  Rehaif requires such a person to have known — when he possessed the gun — that he had previously been convicted of such a crime.

In United States v. Balde, 943 F.3d 73 (2d Cir. 2019), the Second Circuit held someone wishing to challenge his pre-Rehaif guilty plea must show a “reasonable probability that . . . [he] would not have entered the plea” if he …

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Categories: Rehaif

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Wednesday, July 8th, 2020

Supreme Court REALLY Keeps the Faith

Monday’s post, titled Supreme Court Keeps the Faith, discussed the Court’s distaste for “faithless electors.”

In two 7-2 rulings today, the Court took its distaste for the faithless to a new level, ruling labor and health laws largely do not apply to religious organizations.

In Our Lady of Guadalupe School v. Morrissey-Berru, two teachers sued the Catholic schools that fired them.  One teacher said she was fired because she’d asked for a leave of absence to treat her breast cancer (she later died); the other said she was fired for being too old.  In neither case did the school cite a religious reason for the firings (the reasons were, respectively, an unspecified failure to follow the curriculum and keep classroom order, and difficulty administering a reading and writing program).  Though the teachers were not nuns or religious instructors (or, for one teacher, even Catholic), their duties included conveying …

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Categories: Supreme Court

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Monday, July 6th, 2020

Supreme Court Keeps the Faith

Writing for a unanimous Supreme Court in today’s Chiafalo v. Washington, Justice Kagan upheld a state’s power to not just replace — but also to punish — “faithless electors.”  Such electors refuse to cast their Electoral College ballots for the presidential candidate the voters of their state selected.

The Electoral College is, of course, an anti-majoritarian abomination designed over 200 years ago to, among other things, placate white men who owned other human beings.  Seee.g., Juan F. Perea, Echoes of Slavery II: How Slavery’s Legacy Distorts Democracy, 51 U.C. Davis L. Rev. 1081 (2018).  Justice Kagan’s opinion notes some framers’ argument that the Electoral College would “entrust[] the Presidency to ‘men most capable of analyzing the qualities’ needed for the office,” and “would ‘be composed of the most enlightened and respectable citizens,’ whose choices would reflect ‘discretion and discernment.'”  Chiafalo, Slip. Op. at 12.  …

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Categories: Supreme Court

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Thursday, June 25th, 2020

Remedy for a violation of the prompt-presentment rules of Fed.R.Crim.P. 5(c)(2) (concerning the “initial appearance” of someone arrested in a district “other than where the offense was allegedly committed”) isn’t “dismissal of the criminal case,” but an evidentiary sanction. In addition, a magistrate judge’s failure to sign the jurat on the last page of the supporting affidavit of the criminal complaint doesn’t render the complaint invalid, under Fed.R.Crim.P. 3, because the magistrate signed the criminal complaint, thereby attesting that the affiant’s assertions had been sworn before the magistrate. United States v. Peeples, No. 18-2309-cr, __F.3d__, 2020 WL 3406445 (June 22, 2020).

I.  Remedy for a violation of Fed.R.Crim.P. 5(c)(2)

Fed.R.Crim.P. 5(c)(2) governs the place for the “initial appearance” of someone “arrested in a district other than where the offense was allegedly committed” and the circumstances permitting the person’s transfer to a district outside the place of arrest. See Fed.R.Crim.P. 5(c)(2).

In United States v. Peeples, No. 18-2309-cr,  __F.3d__, 2020 WL 3406445  (June 22,  2020),  the government violated Fed.R.Crim.P. 5(c)(2) by removing Peeples from the district where he was arrested (the N.D.N.Y.) to the district of the crime  (the W.D.N.Y.) ,  without arranging for his “initial appearance” before a magistrate in the district of arrest (the N.D.N.Y.). The Circuit holds, however, that the remedy for this violation isn’t dismissal of the indictment, but the exclusion of prejudicial post-arrest evidence. And here, the government didn’t introduce Peeples’ post-arrests statements at the trial.

Peeples robbed a bank in Rochester, N.Y., located in the …


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Categories: Fed.R.Crim.P. 3, Fed.R.Crim.P. 5(c)(2), identification procedures

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Wednesday, June 10th, 2020

In a felon-in-possession case (18 U.S.C. § 922(g)), a person charged in a single count with possessing a firearm on two separate dates, during a six-day period, isn’t entitled to an instruction that the jury “must agree unanimously on a particular date or dates on which he possessed a firearm.” Rather, possession of a firearm “is a continuing offense,” so the jury only needs to find “unanimously that the defendant possessed the firearm at any point” during period of the alleged possession.  United States v. Estevez, No. 17-4159-cr, 2020 WL 3022983 (June 5, 2020).

In Estevez, the sole count of the indictment alleged that Estevez possessed a firearm on two different dates: on February 21, 2016 and February 26, 2016. The charge was based on two separate shooting incidents, on those days. But a puzzling aspect of the Opinion is that it makes no reference to last years’ Supreme Court decision in Rehaif in discussing the elements of a § 922(g) offense. That hole in the Opinion is discussed at the end of this blog entry.

The unanimity instruction

At trial, Estevez requested “a particularized, rather than a general, unanimity instruction.” He  insisted that “all [12] jurors needed to agree either that he possessed the Firearm on February 21 or that he possessed it on February 26 (or that he possessed it on both dates)[.]”  2020 WL 3022983 at *4. The district court denied the request and gave a “general unanimity instruction[.]” Id.

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Categories: 922(g), Rehaif

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