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Federal Defenders of New York Second Circuit Blog


Tuesday, January 17th, 2017

In Summary Order, Circuit affirms use of low copy number DNA evidence at trial

In United States v. Morgan, the Second Circuit affirmed the conviction despite the defendant’s challenge to the use of Low Copy Number DNA evidence at trial.  The Circuit concluded that “although LCN analysis is supported by significantly weaker evidence of reliability than traditional DNA analysis, the district court did not abuse its discretion in this case in holding that the proffered expert evidence met the reliability standards of Rule 702: We cannot say that its ruling here was ‘manifestly erroneous.'” The Circuit did say that it expressed “no opinion on the propriety of admitting the results of LCN testing in other cases and note[d] that OCME is discontinuing its use of LCN testing in favor of newer technology that produces reliable results in most of the sensitivity range for which it previously employed LCN testing.”  Hopefully, this limits the already-limited applicability of this summary order in future cases.

The …

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Categories: DNA

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Categories: DNA

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Thursday, January 12th, 2017

New DOJ Guidelines for Photo Arrays

Earlier this month, the Department of Justice issued new guidelines for the use of photo array identification procedures.  You may find this useful in support your request for an expert in cases in which these procedures were not followed.

The ABA Journal has an update on the policy as well as links to the DOJ memo and other media coverage of the policy.

http://www.abajournal.com/news/article/new_justice_department_guidelines_aim_to_ensure_reliability_of_photo_arrays…

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Categories: identification procedures, Uncategorized

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Categories: identification procedures, Uncategorized

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Monday, January 9th, 2017

Sentencing Commission’s Interactive Sourcebook

Have you ever wanted to know the average length of sentences for a particular criminal history category for a particular guideline?  Do you want to make an argument that cases involving MDMA see a higher rate of below-guideline sentences than other drug cases, either nationally, by circuit or by district?

Then this is the website for you!

The Sentencing Commission has an interactive Sourcebook that you can use to generate tables that are not available in the printed version of the annual Sourcebook.  You can use it to compare below-guideline sentences by each primary guideline across the district or circuit, to break down the average length of sentence by criminal history category for each primary guideline, or to find the rate of below-guideline sentences for drug offenses involving different drugs.

You can access the Interactive Sourcebook here:

http://isb.ussc.gov/Login

Our friends at the Sentencing Resource Counsel Project have shared this helpful, …

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Categories: sentencing

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Categories: sentencing

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Thursday, December 15th, 2016

Good News and Bad News for a Defendant Sentenced under a Rule 11(c)(1)(C) Plea Agreement Who Subsequently Moved for a Sentence Reduction under 18 U.S.C. §3582(c)(2)

In United States v. Jamahl Leonard, No. 15-2232-cr (Dec. 14,  2016) (Circuit Judges: Raggi, Chin, Droney), the Circuit, in a published opinion, vacates a district court’s ruling that the defendant is ineligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) and remands for further proceedings. But it also holds that the defendant cannot receive a sentence reduction to the extent he was seeking.

At the initial sentencing, the district court determined that the Guidelines range was 121 to 151 months. But the court sentenced Leonard under a plea agreement pursuant to  Fed.R.Crim.P.11(c)(1)(C) using an agreed-upon range of 97 to 121 months. Under Rule 11(c)(1)(C), the parties agree to a particular sentencing range (Fed.R.Crim.P.11(c)(1)(C)), but if the sentencing court rejects the agreement, it must “give the defendant an opportunity to withdraw the plea.” Fed.R.Crim.P.11(c)(5)(B).  Applying the range of the 11(c)(1)(C) agreement, the district court imposed a sentence of 114 …

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Categories: 3582(c)(2), harmless error

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Categories: 3582(c)(2), harmless error

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Thursday, December 8th, 2016

60-year Sentence in Child Pornography Case Is Found Substantively Reasonable

On Tuesday, the Second Circuit issued a decision in United States v. Brown. The opinion presents an interesting debate about how the federal system punishes defendants accused of child pornography charges. I encourage defense attorneys to check out both the concurrence and dissent, for some powerful arguments about the risks of unreasonable sentences in child pornography cases.

The opinion examines defendant Nathan Brown’s 60-year sentence for procedural and substantive reasonableness. The defendant pleaded guilty to 3 counts of production of child pornography in violation of 18 U.S.C. § 2251(a) and 2 counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

The majority (J. Droney) begins with a recitation of some of the more egregious facts, which you can find on pp. 3-11. The basics: The defendant took sexually-explicit photos of girls, ranging in ages from 8 -12, who were in his care and then uploaded …

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Categories: child pornography, sentencing

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Categories: child pornography, sentencing

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Tuesday, December 6th, 2016

“Exigent Circumstances” Includes Potential Sexual Exploitation of a Minor; Allows for GPS Cellphone Tracking

On 12/1/16, the Second Circuit (Newman, Winter & Cabranes) handed down a decision finding that exigent circumstances justified the warrantless GPS tracking of a suspected sex trafficker. In United States v. Gilliam, the defendant, who was suspected of prostituting an underage girl, was located thanks to GPS coordinates on his cellphone provided to the police by Sprint. The girl had been reported missing and her involvement in prostitution was confirmed through credible sources.  During the course of the investigation, the police obtained the GPS location for the defendant’s cellphone from Sprint by informing them that there were “exigent circumstances” and a “missing child.”  GPS tracking led police to the defendant and the girl on a street in the Bronx.

The defendant challenged the use of the GPS information that lead to his location and arrest. The Second Circuit affirmed the district court’s decision that the Stored Communications Act (18 …

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Categories: Fourth Amendment, sex offenses

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Categories: Fourth Amendment, sex offenses

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Supreme Court Upholds “Friends and Family” Insider-Trading Conviction

From SCOTUSblog:

“Bassam Salman, a Chicago grocery wholesaler, received stock tips from a friend, who had in turn received inside information from Salman’s brother-in-law, an investment banker at Citigroup. Salman made hundreds of thousands of dollars from the tips, but he was also charged with insider trading and sentenced to three years in prison. Today the Supreme Court upheld Salman’s conviction, rejecting his argument that he could not be held liable because his brother-in-law had not received any financial benefits in exchange for the inside information that he disclosed. The unanimous ruling – which came just over two months after the oral argument – was a big victory for the federal government, which had warned the justices that a ruling for Salman would lead to even more disclosures of confidential information by corporate insiders.”…

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Thursday, December 1st, 2016

The Unusual Nature of the Guidelines’ Fraud Loss Enhancements Is a Ground for Downward Variance

In an opinion written by Judge Newman, the Second Circuit today vacated the defendants’ sentences of 30 and 21 months, respectively, for food stamp fraud for the district court to consider imposing non-guideline sentences on the ground that the defendants’ Guidelines ranges were significantly increased by the loss enhancements, an unusual feature of the Guideline scheme. United States v. Algahaim, No. 15-2024(L)(2d Cir. Dec. 1 2016). The sentences here were “driven by the loss amount,” which increased the offense level from a 6-month base to levels 18 and 16 respectively. Slip op. at 9. The Court held: “Where the Commission has assigned a rather low base offense level to a crime and then increased it significantly by a loss enhancement, that combination of circumstances entitles a sentencing judge to consider a non-Guidelines sentence.” Id. at 11.

The Court acknowledged that the Commission had the authority to use loss amount …

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Categories: guideline, loss calculation, Uncategorized

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Supreme Court Rejects Double Jeopardy Claim

On Tuesday, in Bravo-Fernandez v. United States, the Court decided that, when a jury has returned inconsistent verdicts in a multi-count criminal case—acquittals on some counts but a conviction on another—and the conviction is subsequently vacated on appeal because of erroneous jury instructions, the double jeopardy clause does not preclude the government from retrying the defendant on the count that produced the conviction. Because “inconsistent verdicts shroud in mystery what the jury necessarily decided,” the Court ruled, the issue preclusion doctrine of Ashe v. Swenson cannot be applied.

The defendants were indicted in separate counts for federal bribery, conspiracy to commit that bribery, and traveling in furtherance of the bribery. Because the defendants conceded that they had both agreed and travelled, “the only contested issue at trial” was whether the offense of bribery had in fact been committed. At trial, the jury acquitted on the conspiracy and travel counts …

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Categories: bribery, double jeopardy

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Wednesday, November 23rd, 2016

Engelmayer (SDNY) Finds Juvenile Should Not be Prosecuted as an Adult

No Second Circuit decisions today.

But yesterday there was a decision out of the SDNY on the issue of whether a juvenile should be transferred for prosecution as an adult.

Judge Paul Engelmayer decided that a juvenile who was almost 18 years old at the time he was indicted for committing a number of violent offenses should not be prosecuted as an adult. The decision, United States v. C.F., Male Juvenile (15 Cr 445), can be found here. In it, Engelmayer gives a thorough break-down of the six factors that courts consider in the balancing test laid out under The Juvenile Justice and Delinquency Prevention Act (JJDPA), 18 U.S.C. §§ 5031-504.

Under JJDPA, the court must find that the transfer of a juvenile to adult status is in the “interest of justice.” This “interest of justice” standard is determined by balancing six factors : 1.) “the age and social …

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Categories: evidence, juvenile facility, Y.O.

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Tuesday, November 15th, 2016

Despite the Jones Delay, EDNY Rules New York Robbery is Not a “Crime of Violence”

still-not-a-cov

As blogged about here, the Second Circuit held in United States v. Jones that New York robbery is not a “crime of violence” for federal sentencing purposes.  And as blogged about here, the Circuit then vacated that ruling pending the Supreme Court’s decision in Beckles v. United States.

Notwithstanding Jones being put on hold, Judge Cogan of the Eastern District of New York has ruled — like the Jones court and Judges Ross and Weinstein in pre-Jones rulings — that New York robbery is not a “crime of violence.”  The decision, available here, explains that New York robbery can be committed with less than the “violent” force required by the force clause of the Career Offender Guideline (which controls in felon-in-possession cases), and that the Guideline’s residual clause was effectively invalidated by Johnson v. United States, 135 S. Ct. 2551 (2015).  Because the Guideline’s …

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Categories: crime of violence, robbery

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Categories: crime of violence, robbery

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