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Federal Defenders of New York Second Circuit Blog


Wednesday, November 20th, 2019

Who is “indigent”? $5,000 special assessment issue to watch out for

The Second Circuit today issued a Jacobson remand for the district court to explain how it decided that a person represented by the Federal Defenders office was still “non-indigent” under Section 2014(a). (See the summary order in United States v. Rosario). For those who haven’t encountered this issue yet, section 2014(a) is the “Justice for Victims Trafficking Act,” which mandates a $5,000 – rather than $100 – special assessment for any “non-indigent” person convicted of certain sex offenses. “Indigent” isn’t defined. Although there do seem to be some good proxies the court could use – qualification for appointed counsel or a determination that a fine is inappropriate – so far, the Circuit has offered little guidance. Maybe they will when Rosario comes back before the panel.

In the meantime, object to the $5,000 special assessment if you have any argument your client is indigent. It may seem like a …

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Categories: restitution, sex offenses

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Categories: restitution, sex offenses

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Friday, November 15th, 2019

Second Circuit Holds that a Foreign National in a Stateless Vessel Can Be Convicted Under the Maritime Drug Law Enforcement Act Where the Offense Has No Nexus to the United States.

In United States v. Van Der End, No. 17-2926 (Nov. 14, 2019) the Court of Appeals affirmed the drug trafficking conviction of a Netherlands national intercepted at sea with cocaine bound for Canada. The defendant challenged the court’s subject matter jurisdiction and the constitutionality of the Maritime Drug Law Enforcement Act (“MDLEA”), and the government moved to preclude the defense from arguing at trial that the vessel was not subject to U.S. jurisdiction. The district court ruled for the government on all three issues, holding that there was subject matter jurisdiction, that the MDLEA was constitutional, and that the jurisdiction issue could not be presented to the jury. With no defense, the defendant entered an unconditional guilty plea, but raised these claims on appeal.

The Court of Appeals held that the defendant’s guilty plea waived his right to challenge the government’s proof that the vessel was subject to U.S. …

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Categories: jurisdiction, MDLEA

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Categories: jurisdiction, MDLEA

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Thursday, November 14th, 2019

Judge Rakoff Orders Discovery On Defense Claim of Racially Selective Enforcement By “Reverse Stings”

In an Opinion and Order in United States v. Lopez, 19-cr-323 (S.D.N.Y. November 13, 2019), Judge Rakoff ordered initial discovery on the defense claim that DEA agents targeted racial minorities in their reverse sting drug robbery operations. In this reverse sting, confidential informants working with the DEA recruited the defendants, all men of color, to rob fictitious drug shipments. The defense filed a motion with evidence showing that “not a single one of the 179 individuals targeted in DEA reverse sting operations in the SDNY in the past ten years was white, and that all but two were African-American or Hispanic.” This contrasted significantly with the racial makeup of the population and the racial proportions of those arrested  for felony drug arrests and robberies, the two offenses arranged by the reverse sting. A “compelling expert analysis” demonstrated that the racially disparate impact was statistically significant and not random.

Judge …

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Categories: discovery, reverse stings, selective enforcement

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Categories: discovery, reverse stings, selective enforcement

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Second Circuit Vacates A Firearm Possession Plea Under Rehaif

The Court of Appeals issued its first opinion vacating a conviction under Rehaif v. United States, 19 S.Ct. 2191, 2194(2019), which held that a conviction under 18 U.S.C. 922(g) requires proof that the defendant not only knowingly possessed a firearm, but that he knew at the time that he was a prohibited person. In this case, United States v. Balde, No. 17-3337-cr(November 13, 2019), the defendant pled guilty to possessing a firearm while an alien illegally or unlawfully in the United States. The knowledge element established in Rehaif –- that he knew he was an alien unlawfully in the United States — was neither charged in the indictment nor admitted at his guilty plea. The government contended that he waived his right to appeal both in his plea agreement and in his plea. The Second Circuit rejected that argument, holding that Balde could not have waived his Rehaif…

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Categories: Rehaif, Rule 11, waiver of appeal

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Thursday, November 7th, 2019

Rehaif Error Prompts New Trial– Despite Stipulation as to Prior Felony and Despite PSR Suggesting Defendant’s Knowledge of Prior Felony

To secure a conviction 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).  For the most commonly charged § 922(g) violation, that means proving the defendant knew he had “been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.”  § 922(g)(1).

Yet there was neither allegation nor proof of that in Wilfredo Sepulveda’s trial.  On the contrary, “the jury was wrongly instructed that ‘[t]he government need not prove that the defendant knew that his prior conviction was punishable by a term of imprisonment exceeding one year.'”  United States v. Sepulveda, 2019 WL 5704398, at *11 (S.D.N.Y. Nov. 5, 2019).

Ruling on a motion under Fed. …

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Categories: Rehaif

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Friday, November 1st, 2019

Connecticut First-Degree Robbery is a Crime of Violence Under Section 16(a)

Continuing to develop its “crime of violence” jurisprudence, the Second Circuit held that Connecticut first-degree robbery, Section 53a-134(a)(4), is a crime of violence under 18 U.S.C. § 16(a).

In Wood v. Barr, 17-514-ag (2d Cir. Nov. 1, 2019), a lawful permanent resident facing deportation argued that his Connecticut robbery conviction was not a “crime of violence,” and therefore not an aggravated felony.

Since the Supreme Court struck down Section 16(b)’s so-called residual clause in Sessions v. Dimaya, the Second Circuit focused on Section 16(a)’s elements clause. This provision defines a “crime of violence” as an offense that has an element requiring “the use, attempted use, or threatened use of physical force against the person or property of another.” The Circuit adopted its rationale in an earlier decision, United States v. Bordeaux, 886 F.3d 189 (2d Cir. 2018), which addressed New York first-degree robbery. The Circuit noted that …

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Categories: crime of violence, robbery

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Categories: crime of violence, robbery

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Tuesday, October 29th, 2019

Circuit Strikes Supervised Release Condition Based on Variation from Pronounced Sentence

A criminal defendant has the right to be present at the pronouncement of sentence. “Therefore, after a sentence has been pronounced, the written judgment may clarify the terms of the spoken sentence, but may not add to them.” If there is a substantive difference between the spoken and written versions of a sentence, the spoken version ordinarily controls.

Based on this rule, in United States v. Dodd, 18-2320 (2d Cir. Oct. 28, 2019), the Second Circuit ordered the district court to strike a condition of supervised release that the court had added to the written judgment, but which it had not imposed orally at sentencing. The condition prohibited the defendant from maintaining or opening any bank or financial accounts without approval from his probation officer. Because the condition had not been part of the oral sentence, on appeal the government conceded that it must be vacated.

In the same …

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Categories: sentencing, supervised release, Uncategorized

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Monday, October 28th, 2019

Second Circuit affirms grant of summary judgment dismissing claim of excessive force in handcuffing on grounds of qualified immunity, but notes that the right to raise such a claim is now “clearly established” law.

On October 25, 2019, the Second Circuit, in an opinion by Judge Sack (joined by Judge Hall and Judge Droney), concluded that an excessive force claim under the Fourth Amendment can be established based on excessive use of force in handcuffing, even where the plaintiff signaled discomfort during the handcuffing only through brief and non-verbal manifestations. However, the Court nonetheless affirmed the grant of summary judgment in favor of the defendants and dismissed the plaintiff’s action under 42 U.S.C. § 1983 because it was not “clearly established law” at the time of the officer’s actions that a plaintiff who did not verbally complain or request to have her handcuffs adjusted or removed could recover on a handcuffing-based excessive force claim. Therefore, the officer was entitled to qualified immunity, and the Court affirmed the district court’s grant of summary judgment for the defendants.

In Cugini v. City of New York, __ …

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Categories: Fourth Amendment, Police Misconduct, Uncategorized

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Wednesday, October 23rd, 2019

Second Circuit affirms application of Sentencing Guidelines enhancement under § 2D1.1(b)(16)(E) for criminal conduct committed as part of a livelihood, addressing for the first time what constitutes “a substantial period of time” in this context and what it means for criminal activity to be engaged in as a “primary occupation.”

On October 22, 2019, the Second Circuit, in an opinion by Judge Chin (joined by Judge Cabranes and concurred with, in part, by Judge Calabresi), affirmed the application of two Sentencing Guidelines enhancements, including one for committing an offense as part of criminal conduct engaged in as a livelihood. With regard to that enhancement, the Court addressed several issues of first impression in this Circuit. Judge Calabresi concurred in the result but not the discussion of the criminal livelihood enhancement.

In United States v. Moran (reported case name United States v. Pristell), __ F.3d __, 2019 WL 5382053 (2d. Cir. 2019), Lamont Moran was sentenced, following a guilty plea, to 84 months’ imprisonment for conspiring to distribute and possess with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Before sentencing, Moran challenged both the managerial/supervisory role enhancement and the …

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Friday, October 11th, 2019

Internally inconsistent verdict on a single count (involving a single defendant) requires dismissal

It is long settled that inconsistency between or among counts of conviction is not a ground for dismissal. See, e.g., Dunn v. United States, 284 U.S. 390, 393 (1932); and United States v. Powell, 469 U.S. 57, 61-69 (1984). The same rule applies to jury verdicts that are inconsistent as to different defendants in a joint trial. See United States v. Dotterweich, 320 U.S. 277, 279 (1943). As the Supreme Court broadly stated in Rivera v. Harris, 454 U.S. 339, 345-46 (1981), the jury possesses “the unreviewable power [] to return a verdict of not guilty for impermissible reasons” and “[i]nconsistency in a verdict is not a sufficient reason for setting it aside.”

None of those cases, however, concerned a verdict that is internally inconsistent as to the same count and the same defendant. The Second Circuit recently encountered that situation in United States v. Janine …

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Categories: charge, jury, jury charge, jury trial, verdict

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Monday, October 7th, 2019

Second Circuit reverses district court’s grant of a new trial in securities fraud case: United States v. Gramins, No. 18-2007-cr, __ F. 3d__, 2019 WL 4554521 (Sept. 20, 2019).

This was a government appeal from the district court’s grant of a new trial motion, under Fed.R.Crim.P. 33, on a count of conspiracy to commit security fraud,  in violation of 18 U.S.C. § 371. See 15 U.S.C. § 78j(b) (securities fraud).  The Circuit, however, reversed the district court and remanded “with instructions to reinstate the conviction and proceed to sentencing.” 2019 WL 4554521 at *1.

The case concerned the distinctive market of Residential Mortgage Backed Securities (“RMBS”). The district court granted the defendant’s Rule 33 motion on the only count on which the jury convicted (out of 9 total counts), on evidentiary grounds relying on  United States v. Litvak, 889 F.3d 56 (2d Cir. 2018) (“Litvak II”), which concerned the same RMBS market. The district court found that —  similar to what occurred in Litvak II  — a government witness misstated relevant agency law in a way …

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Categories: fraud, Rule 403, securities law

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