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Federal Defenders of New York Second Circuit Blog


Thursday, June 15th, 2017

Judge Nathan Grants Suppression in Fraud Case

Southern District Judge Alison Nathan suppressed evidence obtained as a result of “essentially limitless” warrants that were “insufficiently particularized.”  The 92-page opinion in United States v. Wey,  15-cr-611 (AJN), can be accessed here.  Agents executing the searches collected, among other things, personal documents and materials from Wey’s home and office.  The Court found that the “catch-all” gathering of all of this material had no “linkage to the suspected criminal activity, or indeed any meaningful content-based parameter or other limiting principle” and that the Agents’ actions ran afoul of “well-established constitutional principles that provide a bulwark against the execution of general warrants.”  Recognizing that it was and “extraordinary remedy,” the Court ordered suppression of all evidence gathered from both search locations.…

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Categories: Fourth Amendment, search warrant

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Monday, June 12th, 2017

Multiple Conspiracies, Reasonable Foreseeability, and Government Misconduct in Closing, Oh My… A Clean Sweep for the Defendant as Judge Oetken Grants Rule 29 and Rule 33 Motions in a Noteworthy Opinion

John Pauling contested two counts at trial in an eight-count indictment relating to various drug and gun charges. First, he challenged a 924c charge (possessing a gun in furtherance of a drug conspiracy) and was acquitted by the jury.  Second, he challenged the weight of the drugs in the drug conspiracy count that would have triggered a five-year mandatory minimum.  The jury convicted him on that count.  Judge Oetken now vacates that conviction, leaving Pauling with no mandatory minimum.  A copy of the opinion is attached here.

In an opinion worth reading for its explanation of the distinction between a single conspiracy and multiple conspiracies, Judge Oetken in referencing the common wheel analogy, found that the government failed to show there was “a ‘rim’ around the ‘spokes,’ such that the spokes became coconspiractors.” At trial, the Court gave a multiple conspiracies instruction over the government’s objection, finding the government’s …

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Categories: conspiracy, Rule 29, Rule 33

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Categories: conspiracy, Rule 29, Rule 33

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Wednesday, June 7th, 2017

“Toxic” Hearsay Warrants New Trial

In an opinion yesterday, the Second Circuit (Jacobs, Pooler, Hall) ordered a retrial of Armani Cummings based on the admission of non-harmless hearsay.

Cummings was charged with killing two people in the course of committing drug crimes.  A government witness testified, in essence: “Someone told me Cummings threatened to kill me.”  The Court explained that this was not an admissible statement by Cummings (the party opponent) but, rather, was double hearsay from a third party “someone” and thus inadmissible.

The error of admitting the statement, the Court further held, was not harmless: “The hearsay was especially toxic because it created a grave risk that the jury would use it as evidence of Cummings’s murderous propensity” and thus convict him for being a “bad man” rather than for committing the two alleged murders.

Of particular note, the Court ordered a retrial even though (1) the jury heard evidence that Cummings …

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Categories: harmless error, hearsay

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Friday, May 12th, 2017

Johnson Win in WD Va – Court Holds New York First Degree Robbery is Divisible and Does not Satisfy the Force Clause; Sessions Memo Replaces Holder Memo on Charging Decisions

In U.S. v Batista, a Western District of Virginia  judge hold that New York first degree robbery is divisible, that defendant does not have the burden to produce Shepard documents, and the offense does not satisfy the force clause.
In less uplifting news, say goodbye to the Holder Memo.  Attorney General Jeff Sessions sent this memo on charging and sentencing policy to AUSAs this week, instructing them to charge and pursue the most serious charges.
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Categories: charge, Johnson

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Monday, May 8th, 2017

Second Circuit Holds that Beckles does not Foreclose Johnson Claims Challenging Pre-Booker Sentences

In Nelson Vargas v. United States, No. 16-2112, the Second Circuit granted a motion for leave to file a second or successive Johnson-based 2255 petition challenging a 480- month pre-Booker career offender sentence.  The Court wrote:

“Although the Supreme Court held in Beckles v. United States that ‘[b]ecause they merely guide the district courts’ discretion, the Guidelines are not amenable to a vagueness challenge, ‘ 137 S.Ct. 886, 894 (2017), Beckles did not clearly foreclose the argument that this reasoning is inapplicable to the Petitioner’s circumstances, given that his sentence was imposed prior to United States v. Booker, 543 U.S. 220 (2005), which rendered the previously mandatory Guidelines discretionary.”

NB:  The Federal Defenders represents Mr. Vargas.

 …

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Categories: 2255, Johnson

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Monday, April 17th, 2017

Second Circuit Vacates 225-month Sentence in Child Pornography Case as Substantively Unreasonable

Today, in United States v. Jenkins, the Second Circuit concluded that a 225-month sentence for the possession and transportation of child pornography was substantively unreasonable and vacated and remanded for resentencing, concluding that the district court’s sentence “went far overboard” and was “shockingly high”  Opinion at 11, 12.

Jenkins was convicted after trial of one count of possession of child pornography (18 U.S.C. 2252A(a)(5)(B)) and one count of transportation of child pornography (18 U.S.C. 2252A(a)(1)).  He was sentenced to concurrent time of 120 months on the possession count (the statutory maximum) and 225 months on the transportation count (just below the statutory maximum of 240 months), and to 25 years of supervised release.  The child pornography he possessed (and brought with him on a family vacation to Canada) was for personal use.  He did not produce or distribute child pornography and did not attempt to contact a minor.  This …

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Categories: child pornography, guideline

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“How to Become a State or Federal Defender,” NYC Bar Association Panel, Monday, April 17

The New York City Bar Association will be hosting a panel on “How to Become a State or Federal Defender” on Monday, April 17, 6pm – 8pm. Register here.

Description:
This panel will discuss the qualifications for and application process to become a public criminal State or Federal Defender in New York. Panelists will consist of State and Federal defenders from the regions encompassing the Southern and Eastern Districts of New York.

Panelists:
Shannon Cumberbatch, Recruiting and Hiring Manager, Bronx Defenders
Amanda David, Assistant Federal Defender, Federal Defenders of New York, Eastern District of New York
Jennifer Brown, Attorney-in-Charge of the SDNY Trial Unit, Federal Defenders of New York, Southern District of New York
Timothy B. Rountree, Attorney-in-Charge of the Criminal Defense Practice, Queens County, The Legal Aid Society

Moderator:
Vincent Southerland, Executive Director, NYU Law School’s Center on Race, Inequality, and the Law…

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Wednesday, April 12th, 2017

Sessions Announces “Renewed Commitment to Criminal Immigration Enforcement” and the End of the National Commission on Forensic Science

Attorney General Jeff Sessions issued this  statement regarding a “Renewed Commitment to Criminal Immigration Enforcement” yesterday.  It’s unclear how much it will change enforcement priorities in the ED and SDNY, but it does encourage the piling on of additional charges, such as aggravated identity theft and document fraud, in immigration cases.  If you get assigned to a case that seems unusual to you, meaning an immigration case that would not have been prosecuted under previous administrations or one that involves unusual ICE investigative or arrest tactics, please reach out to the Federal Defenders so we can keep track of developments in this area.

Earlier this week, Sessions announced the end of the National Commission on Forensic Science, an advisory panel of judges, lawyers, scientists and crime lab leaders.  One of the outstanding items the Commission was addressing was national standards for forensic testimony.  The official announcement is here .  The …

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Friday, April 7th, 2017

Sessions Establishes Task Force on “Crime Reduction and Public Safety”

Attorney General Jeff Sessions issued another memo to US Attorneys this week.  You can access the memo here.

In it, he establishes a “Task Force on Crime Reduction and Public Safety” to identify ways federal prosecutors “can more effectively combat illegal immigration and violent crime, such as gun crime, drug trafficking, and gang violence.”  The task force will review “existing policies in the areas of charging, sentencing, and marijuana to ensure consistency with the Department’s overall strategy on reducing violent crime and with Administration goals and priorities.”  The task force’s recommendations are due by July 27.

The task force is headed by Steve Cook, the president of the National Association of Assistant United States Attorneys.  If the views he has promoted as the head of that organization are an indication, the task force could recommend rolling back a lot of the reforms we have seen over the past couple …

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Monday, April 3rd, 2017

Unanimous Supreme Court: District Court Can Consider Length of Consecutive Sentence in Imposing Sentence on the Underlying Offense

Today in Dean v. United States, the Supreme Court unanimously held that a district court may consider the consecutive mandatory sentence required under 18 U.S.C. 924(c) when imposing the sentence to be served on the underlying offense.  You can access the opinion here.  The length of the mandatory consecutive sentence bears on the factors to be considered under 18 U.S.C. 3553(a), such as the need to protect the public and to provide adequate deterrence.

“Nothing in § 924(c) restricts the authority conferred on sentencing courts by § 3553(a) and the related provisions to consider a sentence imposed under § 924(c) when calculating a just sentence for the predicate count,” the Court explained.  In other words, “nothing . . . prevents a district court from imposing a 30-year mandatory minimum sentence under § 924(c) and a one-day sentence for the predicate violent or drug trafficking crime, provided those terms …

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Friday, March 31st, 2017

Racial Discrimination in Stash House Sting Cases

Earlier this week, the Chicago Tribune ran a piece on the ND IL litigation challenging the disparate racial impact in stash house sting cases.  We blogged here about the report by Columbia Professor Jeffrey Fagan.  You can access Professor Fagan’s report, and other filings in the litigation, here.

If you have a case involving a stash house sting, please let us know.  We are trying to keep track of their use here, including their disparate racial impact.

 …

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