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Federal Defenders of New York Second Circuit Blog


Friday, June 8th, 2018

New Supreme Court Opinions on 3582(c)

Along with some decision about cake, the Supreme Court issued two opinions this week concerning the scope of 18 U.S.C. § 3582(c)(2)’s requirement that, to be eligible for a sentencing reduction, the defendant’s sentence must have been “based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 18 U.S.C. § 994(o).”

In Koons v. United States, the Court issued a short, unanimous opinion holding that a sentence is not “based on” the Guidelines where the defendant was originally sentenced below the mandatory minimum for providing substantial assistance to the government. When the government so moves, see U.S.S.G. § 5K1.1, the district court is authorized to “impose a sentence below” the statutory minimum “so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.” 18 U.S.C. § 3553(e). The Court held that, under …

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Categories: 3582(c)(2)

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Categories: 3582(c)(2)

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Friday, June 1st, 2018

This Week’s Supreme Court Opinions

This week the Supreme Court issued two opinions, both of which seem relatively straightforward in their holdings.

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In Collins v. Virginia, the Court held that the automobile exception to the Fourth Amendment does not permit a warrantless search of a vehicle parked within the curtilage of a home. In Collins, police officers tracked a stolen vehicle to the address of the defendant’s girlfriend. There, parked in the driveway, an officer saw what appeared to be a motorcycle frame covered with a white tarp. The officer entered the driveway, uncovered the tarp, and confirmed that it was the stolen motorcycle.

Justice Sotomayor’s opinion, for an eight-member majority, is clear in its language and broad in its scope. The opinion swiftly concludes that the part of the driveway on which the motorcycle was parked was curtilage.  That portion of the driveway was enclosed on three sides, but open …

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Categories: automobile exception, curtilage, Fourth Amendment, MVRA

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Categories: automobile exception, curtilage, Fourth Amendment, MVRA

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Friday, May 18th, 2018

Supreme Court Roundup (including post-Dimaya GVRs)

This week the Supreme Court issued a number of significant criminal opinions, as well as a number of GVRs signalling that the holding of Sessions v. Dimaya likely extends to § 924’s residual clause (18 U.S.C. § 924(c)(3)(B)).

In McCoy v. Louisiana, 16-8255, the Court held that it was structural Sixth Amendment error for an attorney to concede a defendant’s guilt, against his wishes, in the hope of sparing him the death penalty. McCoy’s attorney argued that his client lacked the mental capacity to form the specific intent necessary for first-degree murder, see slip op. at 3 n.1, but conceded in his opening statement that the jury could not reach “any other conclusion than Robert McCoy was the cause of” the victims’ deaths. Id. at 4. This strategy, the Court held, violated the client’s Sixth Amendment rights regardless whether it was “counsel’s experienced-based view . . . that confessing …

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Categories: 924(c), Fourth Amendment, ineffective assistance of counsel, right to counsel, traffic stop, wiretaps

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Categories: 924(c), Fourth Amendment, ineffective assistance of counsel, right to counsel, traffic stop, wiretaps

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Tuesday, May 15th, 2018

Judge Woods Grants New Trial Due to Jencks Act Violation

The Supreme Court issued a number of significant opinions yesterday, but it is worth highlighting an important district court decision that might otherwise escape notice. This month, Southern District Judge Gregory Woods issued an opinion and order granting a new trial based on the government’s inadvertent failure to provide Jencks Act material—specifically the notes of proffer sessions with a key cooperating witness. Judge Woods’s opinion in United States v. Russell, No. 16-cr-396 (May 4, 2018), DE 618, is available here.

Mr. Russell was the sole person who went to trial among twenty-one defendants who were indicted in a cocaine distribution conspiracy. The government’s principal witness at the trial, Kenneth Ashe, testified pursuant to a cooperation agreement. After a short trial, involving only five witnesses and two days of testimony, Mr. Russell was convicted of conspiracy to sell crack cocaine and a 924(c) charge. Mr. Ashe’s testimony was …

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Categories: 3500 Material, harmless error

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Wednesday, May 9th, 2018

Second Circuit Issues Amended Ruling in Hill

Today the Second Circuit issued an amended opinion in United States v. Hill, holding that Hobbs Act Robbery is a crime of violence under 18 U.S.C. 924(c)(3)(A) (924(c)’s so-called “force clause”).

The good news about the decision is that it omits the portion of the earlier-issued opinion that upheld against a vagueness challenge 18 U.S.C. 924(c)(3)(B) (924(c)’s so-called “residual clause” or “risk of force clause”).  This was a hoped-for development in light of the Supreme Court’s decision last month in Sessions v. Dimaya.

This means there is no longer any holding from the Second Circuit that 924(c)’s residual clause survived Johnson. This should mean district courts will see a green light to find that 924(c)’s residual clause, and the identical clause in the Bail Reform Act, are void.

The bad news is the portion of the original holding that remains intact, that Hobbs Act robbery is a …

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Categories: 924(c), Hobbs Act, Johnson

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Categories: 924(c), Hobbs Act, Johnson

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Friday, May 4th, 2018

Second Circuit Reverses Insider Trading Conviction on 401/403 Grounds (Short Summary)

Yesterday, in a headline-making white collar case, United States v. Litvak, No. 17-1464 (2d Cir. 2018) (Winter, Chin, Korman (EDNY)), the Circuit reversed an insider trading conviction on Rule 401 and 403 grounds. In very general terms, the Circuit ruled that the district court erroneously admitted testimony of a witness’s subjective belief as to a bond trader defendant’s fiduciary responsibilities with respect to a trade, even though the belief was unreasonable and thus irrelevant to whether the defendant made a material misstatement. Time permitting, we will blog about the case in the coming weeks.  In the meantime, the opinion is available here.…

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Categories: insider trading, mortgage fraud, Rule 403, securities law

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Second Circuit Vacates Imposition of Lifetime Supervised Release

It’s been a busy week for the Second Circuit. On Wednesday, the Circuit reversed a sentence imposing a life term of supervised release for a defendant who had initially been convicted of drug offenses. See United States v. Brooks, No. 16-4063 (2d Cir. 2018) (per curiam) (Parker, Lynch, Chin) (appeal from Kaplan, J., SDNY). The opinion, available here, contains great language for use at sentencings and appeals.

The defendant in Brooks had initially pled guilty to distributing and possessing with intent to distribute cocaine and heroin, in violation statutes including 21 U.S.C. § 841(a)(1). After release from prison, he was charged with numerous supervised release violations, and pled guilty to violating three conditions related to drug use. At his revocation hearing, the defendant’s attorney noted the defendant’s “serious drug problem” as a “huge underlying and contributing factor” to his violations. Neither the government nor Probation recommended a specific …

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Categories: drug distribution, procedural reasonableness, sentencing, substantive reasonableness, supervised release

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Categories: drug distribution, procedural reasonableness, sentencing, substantive reasonableness, supervised release

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Tuesday, May 1st, 2018

Second Circuit Reverses Denial of Suppression Motion, Clarifies Scope of Curtilage

Today the Second Circuit reversed the denial of a motion to suppress guns that police found adjacent to a shed in the backyard of a defendant’s home. United States v. Alexander, No. 16-3708 (2d Cir. 2018) (Lynch, Carney, Hellerstein (SDNY)) (appeal from Amon, J., EDNY). This area, the panel held, was curtilage and thus considered part of the home for Fourth Amendment purposes. In so holding, the panel clarified that Florida v. Jardines, 569 U.S. 1 (2013), abrogates at least three Second Circuit opinions suggesting that driveways and other publicly accessible areas fall outside the curtilage of a home. The opinion in Alexander, which this office litigated, is available here.*

The defendant in Alexander lived in a narrow house, on a property fenced on three sides but open to the street. The property included a driveway that extended past the house, with a shed …

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Categories: curtilage, Fourth Amendment

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Friday, April 27th, 2018

Circuit Remands for New Hearing on VOSR; Orders Case Reassigned to New District Judge

In United States v. Langston, the Second Circuit vacated and remanded a violation of supervised release.  The government conceded that the judgment should be vacated, because the District Court had held a hearing on the violation over the objection of Langston and his counsel, who was not prepared, but disagreed that the case needed to be reassigned to a new district judge.  The District Court had concluded that the defendant had deliberately attempted to perpetrate a fraud on the court by claiming to be too ill to attend court and had suggested that defense counsel had assisted in that fraud, and, as a result, denied counsel’s CJA fee application.  The Second Circuit felt that the “appearance of justice would be preserved by reassignment.”…

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Wednesday, April 18th, 2018

Second Circuit Reverses Conviction and Reassigns Case Concerning Brady Violations, CJA Resources, and More

Though upstaged by Dimaya, the Second Circuit issued a remarkable summary order yesterday–one that calls attention to potential Brady violations in the EDNY, and to the CJA resources necessary to detect such violations. See United States v. Djibo, No. 16-3956 (2d Cir. 2018) (Sack, Hall, Droney) (appeal from Johnson, J, EDNY). In Djibo, the Circuit vacated the denial of a Rule 33 motion based on late Brady/Giglio disclosures, and held that the district judge abused his discretion by refusing to grant the CJA resources necessary to review those disclosures. The panel also determined that the defendant’s sentence was procedurally unreasonable, and reassigned the case “to preserve the appearance of justice.” The order in Djibo, available here, is worth reading in its entirety. Here is a lengthy summary (with some facts drawn from the briefs):

Mr. Djibo was convicted following a jury trial of four counts related …

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Categories: Brady, procedural reasonableness

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More on Dimaya

Courtesy of Sentencing Resource Counsel Sissy Phleger.  (See yesterday’s post for a quick take on Dimaya‘s implications for the Second Circuit’s holding, in United States v. Elvin Hill, that § 924(c)(3)’s residual clause is not constitutionally vague).

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Today, in Sessions v. Dimaya, the Supreme Court struck down the residual clause in 18 U.S.C. § 16(b) as unconstitutionally vague. Kagan authored the opinion, joined by Ginsburg, Breyer, Sotomayor, and in operative part, Gorsuch. Though it turned on the constitutionality of § 16(b)—a broadly applicable criminal statute—the case itself was an immigration proceeding in which the petitioner was challenging his pending deportation for an aggravated felony. The definition of aggravated felony in the Immigration and Nationality Act includes crimes of violence defined by § 16(b). 8 U.S.C. § 1101(a)(43)(F).

Section 16(b) defines “crime of violence” as any felony “that, by its nature, involves a substantial risk that physical …

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Categories: 924(c), ACCA, categorical approach, due process, INA

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