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Federal Defenders of New York Second Circuit Blog


Thursday, August 31st, 2017

Judge Caproni Dismisses § 922(g) Charge for Lack of Venue

Yesterday, Southern District Judge Valerie Caproni dismissed an indictment for lack of venue. The indictment charged a defendant with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Judge Caproni’s opinion, however, is valuable beyond the § 922(g) context as a concise primer on a difficult-to-parse set of venue cases.

The opinion and order are available here.

Section 922(g) makes it unlawful for a person convicted of a felony  to “possess in or affecting commerce, any firearm or ammunition.” In this case, United States v. DeJesus, Port Authority police stopped the defendant at the New Jersey entrance to the George Washington Bridge and found a handgun while searching his car. The government conceded that Mr. DeJesus did not possess a firearm in New York, but contended that venue was proper in the Southern District because “he was about to use an instrumentality …

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Categories: 922(g), interstate commerce, venue

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Categories: 922(g), interstate commerce, venue

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Monday, August 28th, 2017

Second Circuit Vacates Sentence Based on Erroneous PSR

Today, in United States v. Genao, the Second Circuit vacated an illegal reentry sentence as procedurally unreasonable where the sentencing court relied on a factually erroneous presentence investigation report (PSR) to calculate the defendant’s Guidelines range. The opinion is notable both for its analysis of whether an offense under the New York burglary statute is a “crime of violence” and its determination that the district court failed to satisfy § 3553(c)’s requirement that it provide reasons for its sentence in open court.

You can access the opinion here.

Roman Bartolo Genao was convicted of illegal reentry, and had previously been convicted in New York state of first-degree robbery and first-degree burglary. At the time of Genao’s sentencing, the Guidelines imposed a 16-level enhancement for illegal reentry sentences where the defendant had previously been convicted of a “crime of violence.” (This Guideline has since been revised to impose enhancements based …

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Categories: 3553(c), Johnson, plain error, procedural reasonableness, sentencing

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Categories: 3553(c), Johnson, plain error, procedural reasonableness, sentencing

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Friday, August 25th, 2017

Second Circuit Relaxes “Personal Benefit” Requirement for Insider Trading Offenses

This week, in United States v. Martoma, the Circuit held that a “meaningfully close personal relationship” does not need to exist between an insider and a tippee in order to establish an insider trading violation under a “gift theory” of liability. The Circuit reached this conclusion on the ground that the Supreme Court abrogated the holding of United States v. Newman, 773 F.3d 438 (2d Cir. 2014), and thereby relaxed the “personal benefit” requirement necessary to support an insider trading conviction. You can access the Martoma opinion here.

Martoma was convicted of insider trading in violation of 15 U.S.C. §§ 78(b) & 78ff for trading on material, nonpublic information that he received from a neurologist concerning the results of a clinical drug trial. To establish an insider trading violation in this context, the government must prove that the insider stood to personally benefit, “directly or indirectly, from his …

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Categories: insider trading, jury instructions, securities law

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Categories: insider trading, jury instructions, securities law

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Monday, July 31st, 2017

Bail Reform Act Controls Whether Defendant Released Pretrial; ICE Cannot Detain A Defendant Held For Prosecution

In the first decision of its kind within the Second Circuit, Judge Caproni in the SDNY held that once a defendant has met the conditions of release imposed under the Bail Reform Act, ICE cannot detain that defendant unless it is actually taking steps to remove him.  You can read the opinion in United States v. Galitsa, 17 Cr. 324 (VEC), here.

Mr. Galitsa met the bail conditions set by Magistrate Judge Fox at presentment.  Because ICE had filed a detainer, he was transferred to ICE custody rather than released after meeting his bail conditions.  Six days later, the government had Mr. Galitsa transferred back to the MDC Brooklyn pursuant to a writ of habeas corpus ad prosequendum.  He moved to dismiss the indictment or, in the alternative, to compel his release from custody.  The government conceded that, since detaining Mr. Galitsa, ICE had taken no steps to …

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Categories: bail, ICE detention

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Categories: bail, ICE detention

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Monday, July 24th, 2017

Circuit Upholds Conviction Where Defendant “Never Submitted to Police Authority”

The Circuit affirmed the denial of a suppression motion today in United States v. Huertas.  You can access the opinion here.

A woman drove up to a patrol car and told the officer that “a man named Branden was nearby with a gun.”  The officer drove in the direction the woman pointed and saw Huertas, who was standing on a street corner holding a black bag.  The officer asked Huertas questions through his car window.  The questioning lasted about thirty-sixty seconds.  Huertas “stayed in a fixed position” and “answer[ed] the questions.”  When the officer got out of his car, Huertas ran away.  He was later found and arrested by other officers.

Relying on United States v. Baldwin, 496 F.3d 215, 219 (2d Cir 2007), the Circuit held that Huertas did not actually submit to police authority when he answered the officer’s questions because his actions were “evasive, …

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Categories: Fourth Amendment

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Categories: Fourth Amendment

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Friday, July 21st, 2017

Second Circuit Tosses Indictments Following Fifth Amendment Violation, Denies Rehearing in Jenkins

Earlier this week, in United States v. Allen, the Second Circuit reversed the defendants’ convictions and dismissed the indictments against them.  You can access the Circuit’s 81-page opinion here.  The Circuit considered whether a witness’s involuntary testimony that was compelled by a foreign government can be used against in a U.S. prosecution.  In its introduction, the Circuit outlined its four-step conclusion:

First, the Fifth Amendment’s prohibition on the use of compelled testimony in American criminal proceedings applies even when a foreign sovereign has compelled the testimony.

Second, when the government makes use of a witness who had substantial exposure to a defendant’s compelled testimony, it is required under Kastigar v. United States, 406 U.S. 441 (1972), to prove, at a minimum, that the witness’s review of the compelled testimony did not shape, alter, or affect the evidence used by the government.

Third, a bare, generalized denial of …

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Categories: child pornography, Fifth Amendment

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Categories: child pornography, Fifth Amendment

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Limitations on In-Court Identifications

This article by the Marshall Project looks at recent efforts to limit in-court identifications. Led by the work of the Innocence Project, efforts to reduce wrongful convictions caused by in-court identifications are making progress.  Connecticut, for example, has prohibited in-court identifications unless the witness knew the defendant prior to witnessing the events at issue or previously picked the defendant out of a photo array or lineup.  Massachusetts has similarly revised its procedures for allowing in-court identification.  If you have a case in which the government is seeking to offer a first-time, in-court identification, the litigation and decisions related to the changes in Massachusetts and Connecticut can guide your efforts to preclude or limit such testimony.

 …

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Categories: identification procedures, Uncategorized

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Categories: identification procedures, Uncategorized

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Friday, July 14th, 2017

Second Circuit Vacates Silver Conviction, Denies Second or Successive Habeas Petition

The Second Circuit vacated former New York Speaker of the House Sheldon Silver’s convictions for honest services fraud, Hobbs Act extortion, and money laundering based on an erroneous jury instruction.  You can access the opinion here.  At trial, the District Court instructed the jury that an “official act” within the meaning of the charges was “any action taken or to be taken under color of official authority.”  After Silver’s conviction, the Supreme Court decided McDonnell v. United States, 136 S.Ct. 2355 (2016).  In McDonnell, the Supreme Court defined “official act” within the meaning of honest services fraud and extortion charges as “a decision or action on a ‘question, matter, cause, suit, proceeding or controversy” involving “a formal exercise of governmental power.”  In light of the McDonnell decision, the Second Circuit vacated Silver’s conviction, finding that the error in instructing the jury was not harmless, even though the …

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Categories: honest services fraud

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Categories: honest services fraud

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Wednesday, July 5th, 2017

Circuit overturns decision to withhold acceptance of responsibility despite guilty plea

In an opinion issued today, the Circuit vacated and remanded a decision by SDNY Judge Katherine B. Forrest to deny the defendant a reduction in offense level based on acceptance of responsibility despite his guilty plea.  You can access the decision in United States v. Delacruz, No. 15-4174, here.

The Circuit held that “[I]n light of a defendant’s due process right to contest alleged factual errors in his PSR, his good-faith objections to material PSR statements that he disputes does not provide a proper foundation for denial of the acceptance-of-responsibility credit.”  Op. at 22.  If the defendant objects to, and denies, facts that are neither part of the count(s) of conviction nor “relevant conduct” within the meaning of U.S.S.G. Section 1B1.3, the District Court may not deny an acceptance-of-responsibility reduction based on the defendant’s objections or denials.  Op. at 28. It may, however, consider in its analysis pursuant …

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Categories: acceptance of responsibility

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Categories: acceptance of responsibility

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Useful Link Regarding Collateral Consequences of Convictions and the Restoration of Rights

The Restoration of Rights project has a useful website that can help you determine the collateral consequences of conviction your client may face.  The project offers executive and judicial mechanisms for avoiding or mitigating those consequences and advice regarding non-discrimination in employment following a conviction.  The project tracks this information for each state and for federal rights and benefits.  The information can be found at http://restoration.ccresourcecenter.org/.…

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Categories: collateral consequences

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Categories: collateral consequences

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Wednesday, June 21st, 2017

Circuit Holds that NYPL 220.31 – Criminal Sale 5th – Is Not A Controlled Substance Offense (for Immigration Purposes)

Today, the Circuit held in Harbin v. Sessions, No. 14-1433-ag, that the New York offense of criminal sale of a controlled substance in the 5th degree, NYPL 220.31, is not a controlled substance offense for immigration purposes.

You can access the opinion here.

The analysis is straightforward: (1) The NY statute prohibits the sale of a “controlled substance.” That element is indivisible under Mathis v. United States, 136 S. Ct. 2243 (2016). (2) The NY controlled substance schedule is categorically broader than the federal schedule because the former includes at least one substance (human chorionic gonadotropin, HCG) that the latter does not.

If your client has a prior conviction under 220.31, you should be arguing that 220.31 is not a controlled substance offense under the Guidelines (for example, under the felon-in-possession or career-offender guidelines), or any other enhancement provision. Although not controlling, Harbin is extremely helpful on …

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Categories: categorical approach

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Categories: categorical approach

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