Federal Defenders of New York Second Circuit Blog

Tuesday, October 25th, 2016

SCOTUS sets argument in Beckles v. United States for November 28, 2016

The Supreme Court has scheduled the oral argument in Beckles v. United States for Monday, November 28.

The issues in Beckles are whether the Court’s decision in Johnson v. United States applies retroactively on collateral review to cases challenging sentences imposed under the Career Offender Guideline, USSG 4B1.2(a)(2), whether Johnson renders that section of the Guidelines void for vagueness, and whether possession of a sawed-off shotgun remains a “crime of violence” for purposes of the Career Offender Guideline following Johnson.

Earlier this month, as discussed here, the Second Circuit vacated its decision in Jones v. United pending the outcome of Beckles. Many Johnson-based 2255 petitions have been stayed pending the outcome as well.…

Posted by Peggy Cross-Goldenberg
Categories: Johnson

Posted By Peggy Cross-Goldenberg
Categories: Johnson

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Restitution Isn’t A Windfall

In today’s United States v. Stevens, the Second Circuit (Winter, Chin, Droney) remanded a case for further proceedings because it was unclear whether the district court made the findings needed to support its restitution order.

Stevens fraudulently obtained a loan, ultimately acquired by Capital One Bank, for his business partnership. The partnership later repaid Capital One in full and Stevens pleaded guilty to fraud in federal court. The judge, in addition to ordering Stevens’s imprisonment, ordered him to pay restitution to the partnership. The Second Circuit remanded, however, because “the district court did not make sufficient factual findings, which are necessary to our review of the restitution award.”

“Because restitution is intended to make the victim whole, it must be based only on the actual loss caused by the scheme. Restitution is not intended to provide a victim with a windfall.” And where a victim is reimbursed by a …

Posted by Matt Larsen
Categories: restitution

Posted By Matt Larsen
Categories: restitution

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Thursday, October 20th, 2016

Bribery Convictions Affirmed Notwithstanding McDonnell Error

In United States v. Vincent Tabone and Malcolm Smith, Docket Nos. 15-2351 (L) & 15-2433 (Con), the Court (Newman, Lynch & Droney) in a summary order affirmed the convictions of both defendants, thus concluding (at least at the Circuit level) the saga of Democrat Malcolm Smith’s attempt to run for Mayor of New York City as the Republican Party nominee by way of a “Wilson-Pakula Certificate,” which can be issued upon the approval of at least three of the five Republican Party chairs representing the five NYC boroughs (co-appellant Tabone was the de facto head of the Queens Republican Party). Earlier this year, the Court affirmed the conviction of another member of this scheme. See United States v. Daniel Halloran, 821 F.3d 321, 337 (2d Cir. 2016). As discussed below, the Panel here relies on Halloran to dispose of many of the appellants’ claims. The only issues worth …

Posted by Yuanchung Lee
Categories: bribery

Posted By Yuanchung Lee
Categories: bribery

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Wednesday, October 19th, 2016

Sooner or Later, the Career Offender Guideline Will Get You

In United States v. Anthony Lewis, Docket Nos. 15-3245-cr (L) & 15-3307-cr (CON), an unpublished summary order, the Court (Calabresi, Livingston & Rakoff (by designation)) rejected two appeals by Mr. Lewis from two denials of two § 3582(c)(2) motions for a reduced sentence based on two retroactively applicable Guideline amendments, one in 2010 and the other in 2014. The case is of interest principally for demonstrating the see-saw application of the Career Offender Guideline vis-a-via the Drug Guideline (§ 2D1.1) in the context of § 3582(c)(2) motions.

Mr. Lewis was originally sentenced in 2004. Under the drug table in § 2D1.1, his total offense level (based on distributing 1.5 KG or more of cocaine base) was 37, and at Criminal History Category VI, the range was 360 months to life. He also qualified as a Career Offender under § 4B1.1, but that determination resulted in a total offense …

Posted by Yuanchung Lee
Categories: 3582(c)(2), career offender

Posted By Yuanchung Lee
Categories: 3582(c)(2), career offender

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Manslaughter is Not a “Crime of Violence”

In a recent ruling, Judge Woods of the Southern District held first-degree manslaughter in violation of N.Y. Penal Law § 125.20(1) is not a “crime of violence” under the pre-August 1, 2016, Career Offender Guideline, U.S.S.G. § 4B1.2. A person commits such manslaughter when, “[w]ith intent to cause serious physical injury to another person, he causes the death of such person or of a third person.”

Judge Woods first held this offense does not qualify under the Guideline’s residual clause as that clause was “rendered void” by Johnson v. United States, 135 S. Ct. 2551 (2015). The judge next held the offense does not qualify under the Guideline’s force clause because “one can be found guilty of manslaughter under the New York statute on the basis of an omission.” Specifically, “the failure to perform a legally imposed duty” permits conviction if the inaction leads to another’s death. People …

Posted by Matt Larsen
Categories: ACCA, career offender, crime of violence, manslaughter, murder

Posted By Matt Larsen
Categories: ACCA, career offender, crime of violence, manslaughter, murder

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Friday, October 14th, 2016

Hearing Regarding Conditions at MDC Brooklyn Scheduled for 10/27

Eastern District Judge Cheryl Pollak has scheduled a hearing on the conditions of confinement, particularly for women, at the MDC.

For years, lawyers have raised issues about the conditions of confinement in general and the conditions of confinement for women in particular. As reported in today’s New York Daily News, the National Association of Women Judges has conducted official visits to the MDC and found “abysmal conditions faced by female prisoners, including a lack of fresh air and sunlight, no air conditioning during the heatwave, rotten food and insufficient medical care.” You can read more about the case and Judge Pollak’s comments here.

Steve Zizzou and Sally Butler, counsel representing the defendant at the October 27th hearing, are looking for individuals who have information regarding the conditions at the MDC, particularly regarding the lack of medical care and serial sexual and other abuse. Information can be given on a …

Posted by Peggy Cross-Goldenberg
Categories: BOP

Posted By Peggy Cross-Goldenberg
Categories: BOP

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Second Circuit rejects Sixth Circuit’s Interpretation of 26 U.S. C. § 7212(a)’s “Omnibus Clause”

The Second Circuit decided the case of United States v. Marinello (Docket No. 15-2224) on Friday. You can see the 44-page decision here. The case involved small businessman, Carlo Marinello, who did not keep corporate records or file personal or corporate income tax returns for nearly two decades. Marinello was convicted by a jury in 2014 in the Western District of New York on nine counts of tax-related offenses. In his appeal, he raised three grounds. I’ll review two of them here. First, he challenged his conviction under the “omnibus clause” of 18 U.S.C. § 7212(a), which imposes criminal liability on one who “in any other way corruptly . . . obstructs or impedes, or endeavors to obstruct or impede, the due administration of this title.” In making his argument, Marinello relied on the Sixth Circuit case, United States v. Kassouf, 144 F.3d 952 (6th Cir. 1998), which …

Posted by Thea Johnson
Categories: knowledge, overbreadth, statutory construction, statutory interpretation, tax evasion

Posted By Thea Johnson
Categories: knowledge, overbreadth, statutory construction, statutory interpretation, tax evasion

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Tuesday, October 11th, 2016

The 5-level enhancement under U.S.S.G. 2G2.2(b)(3)(B) for distribution of child pornography “for the receipt, or expectation of receipt, of a thing of value,” requires “specific, individualized evidence” of the bargained-for exchange.

Last week, the Second Circuit vacated the sentence in United States v. Bennett, No. 15-0024 (“Opinion”). The Court held that, in order to justify the 5-level enhancement under U.S.S.G. 2G2.2(b)(3)(B) for distribution of child pornography “for the receipt, or expectation of receipt, of a thing of value,” “the Government must advance specific, individualized evidence that [a defendant] provided access to his collection of child pornography to another user with the expectation that that user would provide similar access to other child-pornography files.” Opinion at 15. In this case, the Court held the 5-level enhancement was justified because the defendant had engaged in the quid pro quo exchange of passwords protecting child pornography files with other users. Despite finding that the enhancement applied, the Circuit vacated the sentence and remanded for resentencing because the District Court (Sullivan, J.) failed properly to calculate the applicable guideline to reflect the fact that, because …

Posted by Peggy Cross-Goldenberg
Categories: child pornography, guideline

Posted By Peggy Cross-Goldenberg
Categories: child pornography, guideline

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No Second Circuit decisions today.

In EDNY news: On Friday, Jeffrey Hurant, the CEO of Rentboy.com, pleaded guilty to promoting prostitution. He will be sentenced on February 2. Rentboy.com allowed escorts to advertise their services online. The case made headlines last year when Hurant and others were arrested and the files of Rentboy.com seized. The site, which ran for nearly 20 years, was shut down. The particularly detailed affidavit in support of the warrant drew censure by many for describing gay sex acts, as one pundit put, “ with shuddering relish.” As the popular blogger, Dan Savage, and others noted, Rentboy cut out the middleman – namely pimps – in connecting escorts to clients, which actually made the process safer. After a massive amount of criticism of the prosecution, charges were dropped against all of the defendants, save Mr. Hurant.…

Posted by Thea Johnson
Categories: prostitution, travel act

Posted By Thea Johnson
Categories: prostitution, travel act

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Tuesday, October 4th, 2016

U.S. v. Jones: Hold That Thought…

In United States v. Jones, previously blogged about here, the Second Circuit held New York robbery is not a categorical “crime of violence” under the Career Offender Guideline, U.S.S.G. § 4B1.2. The Court’s opinion was based in part on the view, shared by the government and all but one of the circuits, that the Guideline’s residual clause is “likely void for vagueness in light of the Supreme Court’s analysis of the ACCA’s [Armed Career Criminal Act’s] identical phrase in Johnson v. United States, 135 S. Ct. 2551 (2015).”

In an order published yesterday, the Court vacated the Jones opinion pending the Supreme Court’s decision in Beckles v. United States. Beckles will decide whether the Guideline’s residual clause survived Johnson. After Beckles is decided, a final judgment will issue in Jones.

Takeaways for the Defense Bar

1. In ACCA cases, the absence of Jones poses …

Posted by Matt Larsen
Categories: ACCA, career offender, Johnson, robbery

Posted By Matt Larsen
Categories: ACCA, career offender, Johnson, robbery

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Friday, September 30th, 2016

Undercover officer liable for denying defendant’s right to a fair trial by fabricating evidence

Anyone trying to convince a judge or a jury that a police officer is lying, have hope! Kwame Garnett always asserted that an undercover officer was lying about his involvement in a drug buy and bust. Unlike many defendants, however, Mr. Garnett was able to convince the judge and jury that he proved that the undercover made up evidence. Not only did a jury acquit Mr. Garnett of state drug charges, but he also successfully sued the undercover officer under 42 U.S.C. §1983, arguing that the officer had denied him a fair trial by fabricating evidence. The jury awarded Mr. Garnett $1 in nominal damages and $20,000 in punitive damages. The undercover officer appealed. Today, in a unanimous opinion written by Judge Pooler, the Second Circuit affirmed the jury verdict.

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