Federal Defenders of New York Second Circuit Blog

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.

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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 … Read more

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

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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 … Read more

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

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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 § … Read more

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

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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 … Read more

Circuit Strikes Supervised Release Condition Based on Variation from Pronounced Sentence

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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 … Read more

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.

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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 … Read more

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.”

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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 … Read more

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

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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 … Read more

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).

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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 … Read more