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Federal Defenders of New York Second Circuit Blog


Tuesday, December 3rd, 2024

Circuit vacates supervised release revocation sentence.

In United States v. Jose Ramos, No. 23-6723 (2d Cir. Dec. 3, 2024), the Circuit vacates a significantly above Guidelines sentence imposed for the defendant’s violations of supervised release.

There is a lot going on in Ramos, including apparent factual and legal errors related to the defendant’s original underlying sentence. And numerous alleged supervised release violations.

As relevant here, the defendant admitted some low-level violations (petit larceny and failing to inform his probation officer of an address change). The Sentencing Guidelines recommended between 8 to 14 months for these violations. But the district court sentenced Ramos to 5 years in prison.

The Circuit held this sentence procedurally unreasonable: The district court failed to adequately explain its basis for imposing this above-Guidelines sentence. In addition, the record left open the possibility that the district court had improperly relied on unproven conduct in imposing this sentence. As a result, the …

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Categories: procedural reasonableness, sentencing, supervised release

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Categories: procedural reasonableness, sentencing, supervised release

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Friday, November 22nd, 2024

Second Circuit affirms above-Guidelines sentence, finding sufficient context and reliability for both ambiguous video and pending state indictment

In United States v. Chatman, No. 23-7895, a panel of the Second Circuit (Kearse, Sullivan, Robinson, JJ.) summarily affirmed an above-Guidelines sentence for Talmage Chatman, finding no error in the district court’s application of a four-level enhancement based on a video of Mr. Chatman firing the gun or in the district court’s consideration of a pending state indictment in pronouncing sentence.

The district court applied a four-level enhancement by determining that Mr. Chatman was committing another felony (attempted assault) while unlawfully possessing ammunition under 18 U.S.C. § 922(g)(1). It based that finding on a video showed Mr. Chatman firing a weapon while walking down a street, though no other individuals or targets were depicted. Thereafter, the district court considered the fact that Mr. Chatman had been arrested and indicted for a state-law narcotics violation while his federal case was pending, though the state case remained open. Although the parties …

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Categories: 922(g), sentencing, sentencing findings

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Categories: 922(g), sentencing, sentencing findings

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Tuesday, November 19th, 2024

Second Circuit affirms wire fraud convictions post-Ciminelli

In United States v. Tamaz Pasternak, No. 23-6316-cr, the Second Circuit (Parker, Robinson, Oliver (D. Conn.)) affirmed the defendant’s wire fraud convictions despite a concededly erroneous jury instruction.

The charges arose from a purported scheme to conceal the “salvage” histories of used cars—histories of purchase by insurance companies after they’ve been damaged. Pasternak, a used-car dealer, often sold these cars at a significant discount—so one of the government’s theories of wire fraud centered on depriving customers of information about the cars, not depriving them of money. After a jury convicted Pasternak of wire fraud and conspiracy to commit the same, Pasternak alleged two instructional errors on appeal.  First, Pasternak challenged a right-to-control instruction that was held invalid in Ciminelli v. United States, 598 U.S. 306 (2023). Second, Pasternak argued that the district court should have required the jury to find that the fraudulent scheme contemplated inflicting tangible economic harm. …

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Categories: guideline, jury charge, jury instructions, wire fraud

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Categories: guideline, jury charge, jury instructions, wire fraud

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Wednesday, October 9th, 2024

“Time credits,” under the First Step Act (as calculated by the Bureau of Prisons), 18 U.S.C. § 3632. A person serving a prison term for multiple offenses of conviction can’t earn “time credits” — under § 3632(d)(4)(A)-(C) — if any of the offenses appear on the list of ineligible offenses in § 3632(d)(4)(D). Charles Giovinco v. Timethea Pullen, Warden, No. 23-251-pr, __ F.4th ____, 2024 WL 4438759 (2d Cir. Oct. 8, 2024) (Chief Judge Livingston; C.J.J.’s Lohier and Menashi).

1. Background

The Petitioner-Appellant appeals from the district court’s denial of a petition for a writ of habeas corpus, under 28 U.S.C. § 2241, in which he contended that the Bureau of Prisons (“BOP”) improperly denied him “earn[ed] time credits” under the First Step Act of 2018 (“FSA”), Pub. L. No. 115-391, 132 Stat. 5194. See Op. at 4-6.

Under the FSA, “[a] prisoner is not eligible to earn time credits if he ‘is serving a sentence for a conviction’ of certain enumerated offenses” that are listed in 18 U.S.C. § 3632(d)(4)(D).  See Op. at 3 (quoting § 3632(d)(4)(D)).

Here, the Petitioner, back in 2008, pleaded guilty to a 2-count indictment. And he received  concurrent prison sentences of 120 months’ on an ineligible offense, and 235 months’ for an offense not listed in § 3632(d)(4)(D).

Because Petitioner has served the 120-month sentence imposed on the ineligible offense (a child …

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Categories: First Step Act of 2018

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Monday, September 30th, 2024

A divided panel of the Second Circuit affirms a fraud sentence more than twice the top of the Guidelines range as substantively reasonable, where dissent sees “clear signs” that it was punishment for going to trial.

In United States v. John Trasacco, 23-cr-6344, September 26, 2024 (2d Cir.), the Circuit affirmed the conviction and 96-month sentence for substantive and conspiracy to commit wire fraud based on a scheme to defraud the City of West Haven of $400,000 in covid relief funds. (Lohier, Nathan, and Parker, dissenting in part). Trasacco conspired with three others, all of whom pled guilty and received sentences of 27 months, 13 months, and 6 months. Tasacco was the only defendant who went to trial. Trasacco argued that his sentence, more than twice the top of the Guidelines range, was substantively unreasonable because it was punishment for his refusal to plead guilty as the others had done. The panel split on this issue, with the majority accepting the district court’s “express statement” that the defendant would not be punished for exercising his right to trial, even as it referred to Trasacco’s …

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After reversal by the Supreme Court, Circuit vacates fraud convictions based on invalid legal theories, but allows new trial of two defendants on traditional fraud theories

On May 11, 2023, the Supreme Court reversed the Second Circuit in Ciminelli v. United States, 598 U.S. 306 (2023), and Percoco v. United States, 598 U.S. 319 (2023) holding invalid both the Circuit’s “right to control” theory of fraud (Ciminelli) and its theory that a private citizen with a “special relationship” with the government, who “dominated and controlled” government business may be convicted of honest services fraud (Percoco). See Blog May 15, 2023. Given the Supreme Court’s holding, the Circuit had to vacate their convictions, which were based on the invalid theories.

The Circuit did vacate those convictions, just this week, in United States v. Aiello, No 18-2990 (2d Cir. September 23, 2024) (Chin, Raggi, Sullivan) but remanded for retrial of Ciminelli and Percoco on traditional fraud theories, even though traditional fraud theories were not pursued at the first trial. …

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Categories: double jeopardy, fraud, honest services fraud

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Categories: double jeopardy, fraud, honest services fraud

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Second Circuit holds that search of an SD card inserted in a cell phone was authorized by a warrant to search the cell phone.

In United States v. Tompkins, No. 22-599 (2d Cir. Sept. 23, 2024)(Livingston, Menashi and Kahn), U.S. Marshalls obtained a warrant to search the defendant’s cell phone for evidence of his failure to register as a sex offender. They arrested him and took his cell phone to search it, but could not open it without the pin number. The found an SD card inserted into the back of the phone and searched that, finding child pornography. They obtained another warrant to search for child pornography, searched again, and found more child pornography on the SD card. Tomkins argued that the warrant did not authorize a search of the cell phone because it did not include the SD among the property to be searched. The Circuit disagreed, holding that the SD card was covered by the warrant’s language, in the “information” to be searched section, “including any form of …

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Categories: Warrants

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Tuesday, September 17th, 2024

Ghislaine Maxwell’s convictions upheld

The Second Circuit has affirmed Ghislaine Maxwell’s criminal convictions, see No. 22-1426 (2d Cir. Sep. 17, 2024). Maxwell is the notorious codefendant of the even more notorious Jeffrey Epstein: per the Second Circuit, “Maxwell coordinated, facilitated, and contributed to Jeffrey Epstein’s sexual abuse of women and underage girls” between 1994 and 2004.

After Epstein’s death at the now-shuttered MCC jail, Maxwell was tried before a jury and convicted of conspiracy and sex trafficking offenses. She was sentenced to 20 years in prison.

On appeal, Maxwell’s lawyers argued that her prosecution was barred by Epstein’s 2007 non-prosecution agreement with federal prosecutors in Florida; that her indictment came after the applicable statute of limitations had run as to certain offenses; that she was prejudiced by a constructive amendment or variance from her indictment; that her sentence was procedurally unreasonable; and that she should have been granted a new trial based on a …

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Friday, September 6th, 2024

District court erred in allowing eleven-person jury to convict the defendant, but the error is (1) not structural and (2) harmless under harmless-error analysis.

Judge Menashi’s opinion for the majority in United States v. Ricky Johnson, 2d Cir. No. 22-1289 (Sep. 6, 2024) (Menashi, joined by Englemayer, D.J.) affirms Johnson’s conviction for making threats, but creates a circuit split –and provokes a strong dissent from Judge Chin – in the process. Johnson (represented by this Office) challenged his conviction on several grounds, but the focus is his Rule 23 argument.

Specifically, Johnson argued that the district court erred when, before the jury retired to deliberate, it (1) dismissed a juror for cause over defense objection; and then (2) allowed the remaining eleven-person jury to proceed and then to deliberate (and convict) without a written stipulation from the parties. Johnson contends that his conviction by the eleven-person jury is structural error, warranting a new trial without consideration of harmlessness.

Everyone agrees with Johnson that the district court erred: Under Rule 23, a district court …

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Wednesday, August 28th, 2024

Second Circuit: Postal Robbery And Aggravated Postal Robbery, 18 U.S.C. § 2114(a), Even On Pinkerton Theory Of Liability, Are 18 U.S.C. § 924(c) Crimes Of Violence.

In Pannell v. United States, No. 21–2849 (2d Cir. Aug. 28, 2024) (Menashi, joined by Raggi and Wesley), the Second Circuit held that postal robbery and aggravated postal robbery, 18 U.S.C. § 2114(a), even pursuant to a Pinkerton theory of liability, are 18 U.S.C. § 924(c) crimes of violence.

A jury convicted Pannell of conspiracy to commit postal robbery, aggravated postal robbery, and brandishing a firearm during and in relation to a crime of violence, namely, the aggravated postal robbery. After Johnson v. United States, 576 U.S. 591 (2015), and United States v. Davis, 588 U.S. 445 (2019), Pannell filed a successive 28 U.S.C. § 2255 motion challenging his § 924(c) conviction on the ground that aggravated postal robbery on a Pinkerton theory of liability was not a valid predicate crime of violence. The district court (Gershon, EDNY) denied the motion and the Second Circuit affirmed.

First, …

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Categories: crime of violence

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Thursday, June 27th, 2024

A victory for lenity?

Yesterday, in Snyder v. United States, the Supreme Court held that 18 USC 666 prohibits bribes to state and local officials, but does not prohibit  gratuities to state and local officials. The difference between a bribe and a gratuity is largely one of timing of the agreement: a bribe is given to a public official to induce them to take future action, while a gratuity is given to a public official to thank them for taking a past action.  (But, note that “rewards” are still covered by Section 666). Applying the statute to gratuities would create “traps for unwary state and local officials.” The court trots out various examples:  “Is a $100 Dunkin’ Donuts gift card for a trash collector wrongful? What about a $200 Nike gift card for a county commissioner who voted to fund new school athletic facilities? Could students take their college professor out to Chipotle …

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