Navigation

Federal Defenders of New York Second Circuit Blog


Monday, July 10th, 2023

Circuit vacates condition of supervised release that limited defendant to possessing only one “Internet-capable device,” which the Probation Department could search at any time.

In United States v. Salazar, No. 22-1385-cr (2d Cir. July 6, 2023) (Livingston, Chin, Kahn) (summary order), my colleague Sarah Baumgartel persuaded the Circuit that the District Court committed reversible error by imposing a special condition of supervised release that prohibited the defendant from possessing more than one “personal Internet-capable device” and authorized the Probation Department to monitor all the data on that device at any time and for any reason.

The defendant had pleaded guilty to one count of possessing child pornography. At sentencing, the court imposed 30 months’ imprisonment plus 5 years’ supervised release. One of the conditions of supervised release prohibited the defendant from possessing more than one “personal Internet-capable device” and authorized the Probation Department to search that device at any time  and for any reason.

On appeal, the Circuit vacated this condition. It held that the condition was “neither narrowly tailored nor carefully explained.” …

Posted by
Categories: child pornography, supervised release

Posted By
Categories: child pornography, supervised release

Continue Reading

Guilty of money laundering? Not so fast.

The federal money-laundering statute, 18 U.S.C. § 1956(a)(1)(B)(i), makes it a crime for any person, “knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity,” to conduct or attempt to conduct “such a financial transaction which in fact involves the proceeds of specified unlawful activity … knowing that the transaction is designed in whole or in part … to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity.” (Emphasis added.)

In United States v. Aybar-Peguero, Nos. 21-1711(L), 21-1847(Con) (2d Cir. July 6, 2023) (Walker, Lee, and Nathan), the defendant pleaded guilty to this offense—known as “concealment money laundering”—and to drug trafficking. He admitted that he sold narcotics out of his convenience store and deposited the proceeds into his bank accounts along with his store’s legitimate earnings. …

Posted by
Categories: money laundering, plain error

Posted By
Categories: money laundering, plain error

Continue Reading
Friday, July 7th, 2023

Statute of limitations for habeas corpus claims requires a claim-by-claim approach.

In Clemente v. Lee, No. 21-279-pr (2d Cir. July 5, 2023) (Pooler, Sack, and Park), the Circuit, deciding an issue of first impression for this Court, held that the statute of limitations for a habeas corpus petition, 28 U.S.C. § 2244(d)(1), requires a claim-by-claim approach — meaning that each claim raised in the petition must be analyzed separately for timeliness. The Court rejected the petitioner’s argument that the statute of limitations requires only that at least one claim in the petition be timely.

Clemente, the petitioner, was convicted in New York State of murder in the second degree and criminal possession of a weapon. He ultimately filed a federal petition for a writ of habeas corpus in the Eastern District of New York. The district court dismissed some of the claims asserted in the petition as time-barred under 28 U.S.C. § 2244(d)(1).

The Second Circuit affirmed. Joining all …

Posted by
Categories: habeas corpus, statute of limitations

Posted By
Categories: habeas corpus, statute of limitations

Continue Reading
Friday, June 30th, 2023

Section 922(g)(1) Held Unconstitutional As Applied to a Murderer

Section 922(g)(1) of Title 18 bars anyone ever convicted of any felony from ever possessing a gun.

Judge Carlton Reeves of the Southern District of Mississippi just dismissed an indictment charging a violation of § 922(g)(1).  He ruled that, in light of New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), section 922(g)(1) is unconstitutional as applied to Jessie Bullock, a man with felony convictions for “aggravated assault and manslaughter.”  United States v. Bullock, ___ F. Supp. 3d ___, 2023 WL 4232309, at *2 (S.D. Miss. June 28, 2023).

As the judge noted, “Bruen articulated a new legal standard applicable to all Second Amendment challenges.”  Id. at *29.  Namely: “[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.  To justify its regulation, . . . the government must demonstrate that the regulation is consistent …

Posted by
Categories: 922(g), Bruen

Posted By
Categories: 922(g), Bruen

Continue Reading
Tuesday, June 27th, 2023

By a 6-3 vote, the Supreme Court holds that a federal prisoner who has already filed (and exhausted) a motion under 28 U.S.C. § 2255 can’t file another postconviction motion to raise a claim of legal innocence based on an intervening statutory-interpretation-decision of  the Supreme Court.  Section 2255(h) bars second or successive 2255 motions based on non-constitutional claims; and the “saving clause” of § 2255(e) doesn’t authorize a petition for a “writ of habeas corpus,” under § 2241, for claims barred by § 2255(h). Jones v. Hendrix, Sup. Ct.  21-857, __U.S.. __  (June 22, 2023).

Thomas, J.,  delivered the Court’s opinion. Sotomayor and Kagan, JJ., filed a dissenting opinion. Jackson, J.,  filed a dissenting opinion.

Background

In 2000, petitioner Marcus DeAngelo Jones was convicted of two counts “of unlawful possession of a firearm by a felon, in violation of 18 U. S. C. § 922(g)(1)” and sentenced to 327 months’ imprisonment (a little over 27 years’). Op. at 2. After losing his direct appeal (in 2001), “Jones filed a timely § 2255 motion to vacate, set aside, or correct his sentence, which resulted in the vacatur of one of his concurrent § 922(g) sentences but no other relief.” Op. at 2. Jones exhausted his first § 2255 motion in 2006. Id.

“Years later, in Rehaif v. United States” the Supreme Court held “that a defendant’s knowledge of the status that disqualifies him from owning a firearm is an element of a § 922(g) conviction,” …

Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Monday, June 26th, 2023

The Second Circuit holds that, despite the erroneous jury instructions defining the “crime of violence” required for a § 924(c) conviction — allowing the jury to convict the Petitioners based on predicate offenses that didn’t necessarily require the actual or threatened use of force — the Petitioners failed to show that the instructional errors “resulted in prejudice that would entitle them to the relief they [sought] under 28 U.S.C. § 2255.” Nardino Colotti, et al. v. United States, Nos. 21-932(L), 21-937(CON), 21-950(CON), 21-992(CON), 21-1548(CON), __ F.4th ____ (2d Cir. June 21, 2023) (C.J.J.’s Leval, Parker, Menashi).

Background

This is an appeal from a district court judgment denying the Petitioners’ motions, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct their convictions under 18 U.S.C. § 924(c).  The Circuit affirms the district court.

The Petitioners were convicted after a jury trial — conducted “in late 2005 and early 2006″ — on 14 out of 15 counts, including Count 13, which charged the Petitioners with using and carrying firearms during and in relation to a “crime of violence,” 18 U.S.C. § 924(c), which was predicated on the “offense charged in Count  One, racketeering activity in violation of the Racketeer Influenced and Corrupt Organizations Act (‘RICO’), 18 U.S.C. § 1962(c).” See Op. at 3-5.

The RICO offense, in turn, was “predicated on Racketeering Acts 4 and 5, which in turn  charged violations of N.Y. Penal Law § 155.40, the New York penal statute defining second degree …

Posted by
Categories: 2255, 924(c), crime of violence, divisible/indivisible statute, modified categorical approach, RICO

Posted By
Categories: 2255, 924(c), crime of violence, divisible/indivisible statute, modified categorical approach, RICO

Continue Reading
Friday, June 23rd, 2023

Supreme Court holds that a defendant tried in an improper venue may be retried if the conviction is overturned on that ground.

In Smith v. United States, decided June 15, 2023, the Supreme Court ruled that if a defendant is successful in showing that their trial was held in an improper venue, the government is nonetheless permitted to retry them in the proper venue.

The Court reasoned that nothing in the language or history of either the venue clause of Art. I, section 2, clause 3 or the vicinage clause of the Sixth Amendment bars a retrial.  The Court further ruled that double jeopardy is not implicated because reversal on venue grounds is unrelated to factual guilt or innocence and does not resolve the “bottom-line question of criminal culpability.”

The decision unanimously affirmed the Eleventh Circuit in an opinion by Justice Alito.…

Posted by
Categories: double jeopardy, Sixth Amendment, venue

Posted By
Categories: double jeopardy, Sixth Amendment, venue

Continue Reading

Supreme Court holds that a 924(j) conviction does not require a consecutive sentence.

In Lora v. United States, decided June 16, 2023, the Supreme Court ruled that the bar on imposition of concurrent sentences in 18 U.S.C. 924(c)(1)(D)(ii) does not apply to a sentence for a 924(j) conviction.  Thus, the district court has the discretion to run a 924(j) sentence either concurrently with or consecutively to a sentence for another offense.

The Court reasoned that by its terms the consecutive sentence mandate of 924(c) is limited to sentences imposed “under this subsection.”  Quite obviously, 924(j) is a separate subsection.  It incorporates some of the offense elements of 924(c) but not its penalty provision.  Accordingly, the concurrent sentences bar of 924(c) does not apply to a sentence imposed under 924(j).

This decision unanimously reversed the Second Circuit in an opinion by Justice Jackson.…

Posted by
Categories: 924(c), 924(j)

Posted By
Categories: 924(c), 924(j)

Continue Reading
Sunday, June 11th, 2023

Circuit reverses conviction, orders Franks hearing

In a big defense win, last week, the Second Circuit reversed Anthony Molina’s conviction of five counts of robbery and brandishing, for two independent reasons. Judge Raggi wrote the decision. First, the Circuit held that the trial court should have conducted a Franks hearing and remanded for the court to hold one. The facts underling this issue are complicated. But, in short, the government conceded that there were errors in the warrant applications – these errors ranged from using the incorrect date of the crime, to attributing phone numbers to the wrong people, to stating there was evidence co-conspirators had communicated close in time to the robberies, when the government did not have evidence of that. The opinion explains in detail how these errors flowed together to give the magistrate the wrong impression about probable cause. Some of the highlights of the decision on this issue:

  • The government argued unsuccessfully
…
Posted by
Categories: Uncategorized

Posted By
Categories: Uncategorized

Continue Reading
Monday, May 22nd, 2023

Circuit construes supervised-release conditions (restricting or monitoring computer and Internet use) in the defendant’s favor in order to avoid constitutional, statutory, or delegation problems

In United States v. Victor Kunz, 2d Cir. No. 21-2577-cr (May 23, 2023), Judge Lynch (joined by Judges Livingston and Calabresi) upheld (with one exception) several potentially problematic conditions of supervised release restricting or monitoring Kunz’s computer and Internet usage. Kunz was convicted of CP possession in 2005 and has been on supervised release since 2009 (with several violations (and terms of imprisonment) between then and his current 33-year term of supervision). The Circuit acknowledged that he “raise[d] a number of legitimate concerns” on appeal, but ultimately concluded that “a sensible reading of the restrictions neutralizes the most troubling of those concerns” and thus affirmed the “judgment of the district court as construed in the manner set forth below.” Op. 3.

The relevant conditions / restrictions fall into three categories. Here’s how the Court dealt with them.

Conditions that are “technically vague or unworkable”

Kunz challenged several conditions requiring …

Posted by
Categories: supervised release

Posted By
Categories: supervised release

Continue Reading
Tuesday, May 16th, 2023

Supreme Court to decide how to decide which state drug convictions qualify as ACCA predicates

The Supreme Court has granted certiorari in another pair of ACCA cases. Under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), a defendant who possesses a gun faces a minimum 15-year sentence if he has three prior state or federal convictions that qualify as “violent” felonies or “serious drug offenses.” We have talked a lot recently about what qualifies as a “violent” felony. Now it is time to consider “serious drug offenses.”

Under § 924(e)(2)(A), a “serious drug offense” includes offenses “under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law.”

Courts use the categorical approach to decide if a prior state conviction involves a “controlled substance,” comparing the elements of that …

Posted by
Categories: ACCA

Posted By
Categories: ACCA

Continue Reading