Federal Defenders of New York Second Circuit Blog


Thursday, August 25th, 2022

The government can garnish your 401(k) for restitution

In United States v. Greebel, 21-993-cr (2d Cir. Aug. 24, 2022), the Second Circuit holds that the Mandatory Victims Restitution Act (MVRA) enables the government to garnish a defendant’s retirement accounts to pay restitution.

Defendant Greebel was convicted of conspiracy to commit wire fraud and securities fraud and ordered to pay over $10 million in restitution. Pursuant to this restitution order, the government tried to garnish two of his 401(k) retirement accounts. The defendant objected. The Circuit found that these accounts’ plans permitted the defendant himself to withdraw lump-sums. And because the MVRA empowered the government to reach any property “in which the debtor has a substantial nonexempt interest,” allowing the government to “step[] into the defendant’s shoes, acquiring whatever rights the defendant himself possesses” to property, the funds were fair game for the government.

In so holding, the Circuit addressed a potential conflict between the MVRA and the …

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Monday, August 22nd, 2022

No GAAP violation, no expert, no problem

Are accounting standards and securities laws as complex as the tax code? Not according to the Second Circuit. In United States v. Petit, Taylor, Nos. 21-543-cr, 21-559-cr (2d Cir. Aug. 22, 2022) (summary order), the Second Circuit upheld the securities fraud convictions of two former public company executives charged with using “accounting tricks to artificially inflate” their company’s reported revenue in quarterly reports.

The defendants, who were convicted after trial, argued that the government failed to prove their so-called “tricks” violated any Generally Accepted Accounting Principles (GAAP). They also argued that the district court gave erroneous jury instructions on the scienter element (“knowingly and willfully”) and conscious avoidance.

The Circuit was unmoved. According to the Circuit, the “government was not required to prove” the defendants “violated GAAP,” so long as the defendants “intentionally misled investors.” Similarly, to prove the charged fraud, the government “did not need to offer expert …


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Categories: conscious avoidance, securities law

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Friday, August 19th, 2022

Panel holds, over dissent, that non-disclosure of 5,000 pages of complainant’s psychiatric records is not an unreasonable application of Brady

The 2010 New York trial at issue in McCray v. Capra, 18-2336 (2d Cir. Aug. 17, 2022), an appeal of a state habeas corpus denial, was a pure credibility contest: the complainant testified she was violently raped; McCray testified the encounter was consensual but the two struggled afterward when she tried to steal from him; and both parties had injuries.

Prior to trial, however, and as often occurs in New York, after the prosecution disclosed the complainant’s psychiatric history, the trial judge examined her mental health records in camera for Brady material. Although there were over 5,000 pages of records, the judge only turned over 28 pages to the defense. McCray’s ensuing first-degree rape conviction was affirmed in the Appellate Division and New York Court of Appeals, both of which were closely-divided on the Brady non-disclosure issue he raised.

On appeal of the denial of McCray’s N.D.N.Y. habeas

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Friday, August 12th, 2022

Factual dispute at sentencing? Object, object, and object again!

Yesterday, in United States v. Cherimond, the Second Circuit remanded a sentence for the defense to make a fuller objection.

Here’s what happened: at sentencing, the district court upwardly departed based on pending and dismissed charges. Defense counsel objected to the departure and added that the defense was “not consenting or conceding to the allegations of fact in any of those cases.” Counsel said this in a few different ways: it was “not conceding any of the factual recitations are accurate,” and later that the defense had “said repeatedly we’re not conceding.” It seems clear, right? The defense objected. But – at one point, counsel said that “certainly the Court can take [the allegations] into account if it wants.” Counsel then again said that it “wouldn’t be appropriate” to do so.

On appeal, the Circuit discussed counsel’s comments at some length, saying counsel “signaled an objection,” but also “appeared …

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Over dissent, sentencing enhancement for body-armor upheld even though person didn’t know a co-conspirator was wearing body armor

After a trial, Anael Sainfil was convicted of bank robbery on a theory that he was the lookout, who stayed outside the bank. At sentencing, the court enhanced his guidelines because a co-conspirator, who entered the bank, wore a bulletproof vest. On appeal, two judges upheld the enhancement, saying that even though Mr. Sainfil didn’t know about the bulletproof vest, it was foreseeable that someone would wear a bulletproof vest during an armed robbery.

Judge Jacobs dissented, saying that the majority “sweeps too broadly” by essentially holding that is is always foreseeable that someone else may wear body armor. Jacobs writes: “True, body armor is not (yet) a fashion statement and is rarely (if ever) worn when there is no risk of gunfire. But that does not mean that whenever there is a risk of gunfire the use of body armor follows.” According to Jacobs, the majority “reduces reasonable foreseeability …

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Thursday, August 4th, 2022

Second Circuit: Application of an Extradition Treaty’s “Lapse of Time” Provision is a Discretionary Decision for the Secretary of State, and Not for the Court.

In Yoo v. United States, 21-2755(2d Cir. Aug. 1, 2022), the Circuit (Lynch, joined by Calabresi and Lohier) affirmed the denial of a petition for habeas corpus alleging that petitioner’s extradition to South Korea was time-barred, holding that the extradition treaty’s “Lapse of Time” provision was a discretionary provision for the executive authority and not a legal question for the court.

South Korea requested Yoo’s extradition pursuant to a treaty that provided, in relevant part, that “[e]xtradition may be denied” when prosecution of the offense “for which extradition is requested would have been barred because of the statute of limitations of the Requested State had the same offense been committed in the Requested State.” Yoo was found extraditable under the treaty and he filed a petition for habeas corpus, arguing that his extradition was time-barred under that provision. The court denied the petition, ruling that the determination whether the …


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Wednesday, August 3rd, 2022

Second Circuit Holds That a Fourth Amendment Challenge to Evidence Seized Under a State Warrant Is Not Precluded by a Prior Guilty Plea in State Court.

In United States v. Jones, No. 20-3009 (2d Cir. Aug.1, 2022), the Circuit (Livingston, joined by Chin and Nardini) held that the defendant’s state guilty plea did not preclude him from challenging the evidence seized pursuant the state warrant in his federal case because the Fourth Amendment claim was not raised in state court. On the merits, the Court upheld admission of the evidence under the good faith exception to the exclusionary rule.

Jones had pled guilty to sexual exploitation of a minor in Tennessee based on evidence seized under several warrants and was subsequently charged in federal court with production of child pornography with respect to another minor. The defendant moved to suppress that evidence seized under the Tennessee warrants, and the federal warrants as fruit of the poisonous tree. The district court held that Jones’s state guilty plea collaterally estopped him from challenging the Tennessee warrants and, …


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Categories: collateral estoppel, Exclusionary Rule, Fourth Amendment, good faith

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Friday, April 29th, 2022

Second Circuit: State Court’s Erroneous Denial Of Defendant’s Peremptory Strike Is Not Grounds For Federal Habeas Corpus Relief

In Murray v. Noeth, No. 20-3136 (2d Cir. Apr. 26, 2022), the Circuit (Nardini, joined by Sack and Park), held that a state trial court’s erroneous denial of a defendant’s peremptory strike does not violate the federal Constitution under Rivera v. Illinois, 556 U.S. 148 (2009), and therefore cannot support federal habeas corpus relief.

Murray was tried in New York state court for murder. After he exercised a number of peremptory strikes against male prospective jurors, the People raised a “reverse-Batson” challenge, arguing that Murray’s strikes were discriminating on the basis of sex. The state trial court sustained the People’s challenge and disallowed two strikes, restoring two men to the jury. Murray was convicted and the state appellate courts affirmed.

Murray filed a federal habeas corpus petition, contending that the state trial court had erred in sustaining the People’s reverse-Batson challenge. Specifically, Murray argued that …

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Monday, April 25th, 2022

Circuit affirms denial of Rule 33 motion on Brady grounds, finding lack of prejudice, but expresses “skepticism” that DOJ’s Narcotic and Dangerous Drug Section was not “part of the prosecution team” in “unusual case”

When multiple law enforcement agencies or subdivisions are involved in a case, who is “part of the prosecution team” for Brady purposes? In United States v. Hunter, Nos. 18-3074, 18-3489, & 19-790 (2d Cir. Apr. 20, 2022) (C.J.J. Cabranes, Raggi, and Korman (sitting by designation)), the Circuit affirmed the district court’s denial of Rule 33 motions following belated disclosure of exculpatory information, relying on a different Brady prong. Nevertheless, in dicta, it explored this challenging question.

The case came before the Court with a torturous and troubling procedural history. The co-defendants were convicted in SDNY in April 2018, following a joint jury trial, of various murder-for-hire, conspiracy, § 924(j), and money laundering counts, based on allegations that they were part of a transnational criminal organization. The boss of this organization was cooperating witness Paul LeRoux, who had been nabbed by the DEA in Liberia in 2012. “The scale and …


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Categories: Brady, Rule 33, Uncategorized

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Thursday, March 31st, 2022

“Hybrid” Restitution Order Makes Less Culpable Defendant Liable to Personally Pay the Full Amount Jointly Imposed Until All Restitution Has Been Paid, Including Additional Restitution Assessed Against More Culpable Defendant

After Ayfer and Hakan Yalincik, mother and son, pled guilty to a fraud scheme led by Hakan, the district court imposed $500,000 in restitution for one victim, for which the defendants were jointly and severally liable, and an additional $250,000 for the same victim, for which only Hakan was individually liable. After the victim had received more than $500,000 in payments, but was still owed $139,057 out of the total $750,000, the defendants moved for an order declaring Ayfer’s obligation satisfied because the amount for which she was jointly liable had been paid. Ayfer had personally “made only minimal restitution payments;” most of the payments were made by Hakan or distributed from bankruptcies of his businesses. The district court denied the motion. The Second Circuit affirmed, in an opinion by Judge Lynch, ruling that Ayfer was liable until either the victim was made completely whole or Ayfer had personally paid …


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Thursday, March 17th, 2022

Lack of rationale for denying compassionate release prompts Jacobson remand.

In United States v. Nosov, No. 21-187-cr (2d Cir. March 17, 2022) (summary order), the Second Circuit ordered a limited remand for clarification of a court’s denial of a motion for a sentence reduction under 18 U.S.C, § 3582(c)(1)(A), pursuant to United States v. Jacobson, 15 F.3d 129 (2d Cir. 1994).

In Nosov, the defendant moved for a reduction of his concurrent life terms, citing his youth at the time of the offenses, his rehabilitation, and his health conditions. The government agreed that the defendant’s obesity put him at increased risk from COVID-19, and that this could constitute an extraordinary and compelling reason for a sentence reduction.

Nonetheless, without further explanation, the district court opined that the defendant had not shown “extenuating and compelling” reasons warranting a reduction and denied the motion. This finding was in tension with the government’s concession and the Circuit noted that the …

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