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Federal Defenders of New York Second Circuit Blog


Tuesday, August 30th, 2016

Existence of “Second or Subsequent” § 924(c) Conviction Remains a Mere “Sentencing Factor” after Allyne

In United States v. Boykin, Docket Nos. 14-851-cr & 14-1033-cr, the Court (Walker, Calabresi, Hall) in a per curiam opinion rejected defendant Simmons’s argument that under Allyne v. United States, 133 S. Ct. 2151 (2013), the fact of whether he had a “second or subsequent” conviction under 18 U.S.C. § 924(c) (for using or carrying a firearm during either a crime of violence or a drug trafficking offense), which triggers an enhanced mandatory consecutive sentence of 25 years, must be submitted to and found by a jury. The Court thus re-affirmed United States v. Anglin, 284 F.3d 407 (2d Cir. 2002), which held that the existence of a “second or subsequent” § 924(c) conviction is a mere sentencing factor, falling under the Almendarez-Torres exception (523 U.S. 224 (1998)) to the rule of Apprendi (530 U.S. 466 (2000)), and thus need not be submitted to or found by …

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Monday, August 29th, 2016

Second Circuit Updates – August 29, 2016

The Second Circuit issued summary affirmances in two criminal cases today.

In United States v. Jasmin, No. 15-2546, the Court affirmed the conviction of the former mayor of Spring Valley, New York, on mail fraud and extortion charges.  The Court held that the government’s reliance at trial on a mailing not specified in the indictment was not a constructive amendment or variance of the indictment.  The government did rely on a mailing that was listed in the indictment, and Jasmin had notice of the additional mailing more than a year before trial.  The Court found there was sufficient evidence to support both convictions.  In terms of the mail fraud count, the use of the mail was foreseeable to Jasmin.

With respect to the Hobbs Act claim, the Court found the evidence sufficient to support the conviction.  Part of the proof on the interstate commerce element involved Jasmin’s travel to …

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Categories: extortion, Hobbs Act, illegal reentry

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Categories: extortion, Hobbs Act, illegal reentry

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Thursday, August 25th, 2016

Follow up on third opinion from August 24, 2016

Note, this is a follow up on the third of three opinions issued yesterday that we blogged about; see original teaser post here.

Hobbs Act robbery (the interstate commerce element); Rule 16 violation (late disclosure of defendant’s statement); defense counsel’s summation comment (case agent is an interested witness); sequestration of a witness (the case agent).

United States v. Hisan Lee, et al., Nos.11-2539; 11-2543; 11-2834; 11-4068 (Aug. 24, 2016) (Circuit Judges: Cabranes, Pooler, and Lynch).

A) A robbery that affects the “intrastate” sale of marijuana satisfies the interstate commerce element of Hobbs Act robbery (18 USC § 1951)

The defendants were part of a group (called the DeKalb Avenue Crew) that robbed dealers of cocaine and marijuana. Relying on the Circuit’s prior caselaw, the several defendants argued that evidence of an effect on interstate commerce was insufficient “because there was no evidence that any marijuana involved in the …

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Categories: Hobbs Act, summation

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Court rejects IAC claim because defendant cannot show that he would not have pleaded guilty absent counsel’s mis-advice about guidelines range

Only one summary order from the Circuit today in the criminal realm: In United States v. Jeremy Viles, Docket No. 15-885-cr, the Court (Livingston, Carney, Stanceu), rejected the defendant’s claim that he should be allowed to withdraw his guilty plea based on then-counsel’s allegedly erroneous advice regarding the advisory Guidelines range he would face at sentencing. Under Circuit law, in order to meet Strickland’s prejudice component in this context, the “‘defendant must show that there is a reasonable probability that were it not for counsel’s errors, he would not have pled guilty and would have proceeded to trial.’” Order at 2 (quoting United States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005)). Viles fails to do so.

Even assuming that counsel erred in telling him that he faced a range of 27 to 33 months (rather than a slightly lower range), Viles cannot show that he …

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Categories: guideline, ineffective assistance of counsel

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Wednesday, August 24th, 2016

Second Circuit Updates – August 24, 2016 – Part 2

I. A state court’s ruling denying collateral review of a “mixed claim” of  ineffective assistance of counsel (involving matters on the record and outside of the record),  on the procedural ground that the claim was not raised on direct appeal, was not “adequate” to bar federal habeas corpus review (28 U.S.C. § 2254).

Pierotti v. Walsh, No.15-1944-pr (Circuit Judges: Pooler, Livingston, and Lohier), holds that a state prisoner’s claim of ineffective assistance of counsel (“IAC”) was not procedurally barred under 28 U.S.C. § 2254 .

A. The state trial

Petitioner Pierotti has been hearing impaired since childhood. He “wears hearing aids in both ears,” and “the only hearing aid he had with him in jail broke.”  At a pretrial hearing, his lawyer asked for a continuance to make “some accommodation for his hearing loss.”  The judge denied the request saying “this is a very small courtroom” and suggesting that …

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Categories: ineffective assistance of counsel, supervised release

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Second Circuit Updates – August 24, 2016 – Part 1

The Circuit issued three Opinions today that are relevant to people litigating issues of criminal law.  Below is a brief description, which will be followed up with more discussion later.

I. In Pierotti v. Walsh, No.15-1944-pr (Circuit Judges: Pooler, Livingston, and Lohier), the Circuit ruled in favor of a State prisoner. It holds that his claim of ineffective assistance of counsel, presented under 28 U.S.C. § 2254,  is not procedurally barred.

The petitioner in the case was hearing impaired since childhood and required two hearing aids.  His last hearing aid was destroyed while he was in jail awaiting trial.  The ineffective assistance of counsel (“IAC”) claim was that his trial lawyer did not take measures to ensure his hearing disability was accommodated at trial, so he could not understand much of what was occurring.

The IAC claim was not raised on direct appeal.  But it was presented in a …

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Categories: Hobbs Act, ineffective assistance of counsel, interstate commerce

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Wednesday, August 17th, 2016

Bronx Assemblyman’s Conviction and Sentence Upheld

In 2014, a jury convicted Eric Stevenson, a former member of the New York state assembly for the Bronx, of accepting bribes to promote a proposal in the state legislature about adult daycare centers. The district court sentenced him to 36 months of imprisonment and a forfeiture of $22,000. Today the Second Circuit affirmed the conviction and sentence.

The circuit court disposed of all of Mr. Stevenson’s substantive arguments in a summary order. It found it wasn’t arbitrary for the district court to deny the attorney’s two-week adjournment request because 26 days was enough time to prepare for trial. It rejected the argument that Mr. Stevenson’s cross-examination was limited for a witness who had used a racial epithet. And it found the evidence of guilt sufficient.

The court also completely rejected Mr. Stevenson’s sentencing arguments in a separate published decision. Mr. Stevenson argued that increasing his offense level by two …

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Wednesday, August 10th, 2016

Second Circuit Updates – August 10, 2016

The Second Circuit didn’t decide any criminal cases today. But for your daily dose of criminal justice info, check out this new report about the views of crime victims on incarceration and punishment. A study by the Alliance for Safety and Justice found that the vast majority of crime victims would prefer that the criminal justice system focus more on rehabilitation than on punishment: about 60% of victims think that the criminal justice system should attempt to rehabilitate people convicted of crimes rather than giving them long prison sentences, and 70% support alternatives to incarceration. Could these statistics bolster your next sentencing argument? Download the full report here.…

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Tuesday, August 9th, 2016

Failure to Charge Loss Amount in 18 U.S.C. 641 Case Harmless Error

In United States v. Lee, 15-458, the Second Circuit affirmed a conviction under 18 U.S.C. 641 and the 30-month sentence that followed.

Relying in part on Apprendi, the Court concluded that a loss amount in excess of $1000 is an element of a felony offense under Section 641 and that, to allege a felony, the indictment should allege that the loss amount exceed $1000.  In this case, however, where the pretrial discovery and the trial included “overwhelming” evidence that hundreds of thousands of dollars worth of government property had been stolen, the violation of the Fifth Amendment’s Grand Jury Clause was harmless.  Opinion at 3.  The deficient indictment gave Lee “specific notice of the nature of the offense and the core of the criminal conduct to be proven at trial.”  Opinion at 22.…

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In an Extraterritorial Duel of Canons, the Aversion to Superfluity Trumps Expressio Unius and the Presumption against Extraterritoriality.

Last week, the Second Circuit decided United States v. Epskamp, No. 15-2028.   The Court affirmed the district court’s decisions regarding the extraterritoriality of 21 U.S.C. 959.  The appeal followed a trial in front of Judge Sullivan and concerned the use of an aircraft registered in the United States as part of a scheme to fly drugs from the Dominican Republic to Amsterdam.

Section 959(b) makes it unlawful for any person on board an aircraft registered in the United States to (1) manufacture or distribute a controlled substance or (2) possess a controlled substance with intent to distribute.  [NB:  the statute has since been amended, so that the old section (b) is now section (c) and the old section (c) is now section (d).  Because the amendments did not result in substantive changes, the Court referred to the old version of the statute.]  Section 959(c), entitled “Acts committed outside territorial …

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Wednesday, August 3rd, 2016

Court reporter’s inability to provide a complete transcript of the guilty plea allocution does not, in itself, warrant vacating a guilty plea.

United States v. Jiamez-Dolores, et al., No. 14-1840(L), 14-1842 (CON) (Circuit Judges:  Hall, Lynch, Chin).

In addition to today’s decision in Elvin Hill, the Circuit also issued this Opinion in United States v. Jiamez-Dolores, et al.

Incomplete transcript of the guilty plea.   Here, only a partial transcript of the Rule 11 colloquy was produced by the court reporter. “Both the government and the defendant agree[d] that a considerable portion of the transcript of the Rule 11 proceedings is unavailable despite their diligent efforts to locate it.” Op. at 3. Missing from the transcript were the parts of the Rule 11 proceeding that would have concerned inquiries about the defendant’s competence, his knowing waiver of various trial and constitutional rights, and his understanding of the nature of  the charges.

The defendant argued that “the absence of a complete transcript makes it impossible for this Court to determine whether …

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