Federal Defenders of New York Second Circuit Blog

Panel affirms R. Kelly’s RICO and Mann Act convictions and 30-year prison sentence; Judge Sullivan objects to “windfall” restitution of brand-name medication for herpes-infected victim.

by

Judge Chin’s opinion in United-States-v.-Robert-Sylvester-Kelly, 2d Cir. No. 22-1481 (L) (Feb. 12, 2025), joined almost entirely by Judges Carney and Sullivan, affirms the singer R. Kelly’s conviction for RICO and Mann Act offenses, as well as his 30-year prison sentence and a restitution award of $300,668 to “Jane,” a minor whom Kelly infected with herpes … Read more

Circuit Holds a Search is Not a “Search”

by

Per the Second Circuit’s ruling today in United-States-v.-Poller (Parker, Bianco, Nardini), police may use a smartphone’s camera application to search inside a car with tinted windows without getting a warrant. Officers in Waterbury, CT, observed Christopher Poller possibly dealing drugs from his car.  After he left the car, they approached and tried to open a door … Read more

Second Circuit: 18 U.S.C. § 1546(a) Prohibits the Possession of Authentic Immigration Documents Obtained by Fraud, Not Just the Possession of Counterfeit Documents.

by

In United States v. Greenberg, Nos. 23-7168 and 23-7249 (2d Cir. Feb. 3, 2025) (per curiam), the Second Circuit (Walker, Robinson, Merriam, JJ.) held that 18 U.S.C. § 1546(a) (“Fraud and misuse of visa, permits and other documents”) prohibits the possession of authentic immigration documents that have been obtained by fraud, not just the possession … Read more

Gun suppressed: A heavy pocket could be a “paperback book” “critical of the government,” not a gun

by

Last week, Judge Morrison granted a motion to suppress a gun, holding that police didn’t have reasonable suspicion to seize or subsequently frisk a person stopped on the street in Brooklyn. United States v. Burvick, No. 23-CR-450 (NRM), 2025 WL 240976 (E.D.N.Y. Jan. 17, 2025). The lengthy opinion discusses and rejects some common police reasons … Read more

Second Circuit remands for clarification in “close” case involving denial of motion for compassionate release

by

In United States v. Castillo, No. 23-6229 (2d Cir. Jan. 15, 2025), a Second Circuit panel (Livingston, Calabresi, Merriam, JJ.) remanded for the district court to clarify its reasons for denying a compassionate release motion—or, in the alternative, to grant the motion. The defendant, 65-year-old Frank Smith Castillo, moved for compassionate release after serving more … Read more

En Banc Second Circuit: A Naturalized U.S. Citizen Has A Sixth Amendment Right To Be Advised By Defense Counsel That He May Be Denaturalized And Deported As A Result Of His Guilty Plea.

by

In United States v. Farhane, No. 20-1666 (2d Cir. Oct. 31, 2024), the en banc Second Circuit (Carney, joined by Wesley, Lee, Robinson, Perez, Nathan, Merriam, and Kahn) held that “a naturalized U.S. citizen” charged with a crime “has a Sixth Amendment right to be advised by counsel that he may be denaturalized and deported … Read more

Circuit vacates supervised release revocation sentence.

by

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 … Read more

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

by

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 … Read more

Second Circuit affirms wire fraud convictions post-Ciminelli

by

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 … Read more

“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).

by

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. … Read more