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 … Read more
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 … Read more
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 … Read more
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 … Read more
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 … Read more
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 … Read more
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 … Read more
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. … Read more
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 … Read more
Reading a 45-page opinion about the “third point” in the acceptance-of-responsibility Guideline, U.S.S.G. § 3E1.1(b), makes one wonder whether Booker was but a dream. Why, one might ask, do judges in 2020 care so much about a miniscule adjustment to the offense level when they can simply go outside the advisory range and impose whatever … Read more