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Federal Defenders of New York Second Circuit Blog


Thursday, September 29th, 2016

Second Circuit Updates – September 29, 2016

Supreme Court to Decide Whether Johnson Applies to 18 U.S.C. 924(c)

The Supreme Court granted certiorari today in Lynch v. Dimaya, 15-1498, 2016 WL 3232911 (U.S., Sep. 29, 2016). The issue is whether the residual clause in 18 U.S.C. § 16(b), which has the same wording as the residual clause in 18 U.S.C. § 924(c), is void for vagueness under Johnson v. United States, 135 S. Ct. 2551 (2015). The Ninth Circuit held in Dimaya that Johnson applies to the residual clause in section 924(c) and there is a split in the Circuits. In light of certiorari grant, district judges should be urged not to deny Johnson claims involving section 924(c) convictions based on the Second Circuit’s decision in United States v. Hill, __ F.3d __, 2016 WL 4120667 (2d Cir. Aug.3, 2016). Courts should instead await the decision in Dimaya and resolution of the Hill rehearing …

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Categories: 924(c), ineffective assistance of counsel, Johnson

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Categories: 924(c), ineffective assistance of counsel, Johnson

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Wednesday, September 28th, 2016

SUNY Trustees Vote to Remove Question about Felony Convictions from Their Applications

Today SUNY voted to remove questions from applications about the applicant’s criminal record. This is an important step towards making access to education easier for people who have been convicted of crimes.

As explained in a detailed report from the New York City Bar Association*, over the past decade, colleges and universities have increasingly included criminal history screenings and exclusionary policies in their admissions processes, even though there is no empirical evidence that students with criminal records pose a greater risk to campus safety than students without criminal records. Often, this process imposes a great burden on applicants with criminal records. Applicants must answer numerous supplemental questions and produce extensive documentation. The process can be daunting and frustrating, and the practical impact is that many of these applicants are either unable to provide the required documentation and simply abandon the application process altogether.

Until now, SUNY which consists of 64 …

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Categories: criminal history

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Categories: criminal history

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Monday, September 26th, 2016

Defense attorneys move to dismiss cases based on equal protection violations

Defense attorneys in Chicago have moved to dismiss cases on the basis that the Bureau of Alcohol, Tobacco, Firearms and Explosives (the ATF) violated the equal protection clause by targeting people of color for its fake stash house sting cases.  The Federal Defenders, CJA Panel attorneys, and the Federal Criminal Justice Clinic at the University of Chicago have moved to dismiss three cases and plan to move to dismiss seven more in the coming weeks.

The motions are supported by a study conducted by Columbia Law School Professor Jeffrey Fagan.  The study ruled out race-neutral reasons for the selection of individuals targeted for the stings.

You can read more about the challenges, and access Professor Fagan’s study, here.

 …

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Categories: Uncategorized

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Friday, September 23rd, 2016

Is Hobbs Act Extortion a “Crime of Violence”?

In today’s United States v. Sheehan, the Second Circuit (Winter, Wesley, Lynch) affirmed a conviction for using a “destructive device” during a “crime of violence,” in violation of 18 U.S.C. § 924(c)(1)(B)(ii).

Wearing a wig, an arm sling and makeup, Sheehan planted an almost-complete pipe bomb in a Home Depot on Long Island.  He sent a letter to the store, saying there was a bomb and demanding $2 million so he could “go[] to a warm climate with thin brown girls and drink [him]self to death.”  He promised to repay the money in the form of a $2 million “life insurance policy naming Home Depot beneficiary.”  The almost-complete bomb was recovered and no one was hurt.

Arrested and brought to trial, Sheehan conceded guilt on what was charged as the underlying “crime of violence” — Hobbs Act extortion in violation of 18 U.S.C. § 1951 — but denied …

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Categories: explosives, extortion

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Categories: explosives, extortion

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Thursday, September 22nd, 2016

net-meme

In today’s United States v. Harris, the Second Circuit (Newman, Calabresi, Raggi) decided two things with respect to supervised release.

First, “18 U.S.C. § 3583(e) does not preclude revocation of supervised release on the basis of conduct that earlier prompted a modification of supervision conditions.”  Here, the district court first modified Harris’s terms of supervision — based on his being arrested for allegedly selling drugs — and later revoked supervision when that suspected violation was confirmed by two police officers credibly testifying to witnessing the drug sale.

Second, Federal Rule of Criminal Procedure 32.1(b)(2)(c) does not preclude revocation of supervised release on the basis of hearsay if (1) there is good reason to proffer hearsay and (2) the hearsay is sufficiently reliable.  Here, a witness who claimed Harris punched her “professed fear of retaliation” if she testified against him, which the Court deemed good reason to excuse her …

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Categories: Confrontation Clause, supervised release

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Categories: Confrontation Clause, supervised release

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Wednesday, September 21st, 2016

Tax Attorney’s Conviction Affirmed

The single opinion the Circuit issued today is United States v. Daugerdas, No. 14-2437-cr  (Circuit Judges: Kearse, Walker, and Cabranes).

The defendant was a Certified Public Accountant and tax attorney. He and others designed tax shelters (for wealthy clients) in which the transactions underlying the shelters focused on the transactions tax consequences, not on their profitability. And the tax shelters “generally did not generate meaningful returns.” The defendant was convicted by a jury of seven counts related to the tax shelters (i.e., 1 count of conspiracy to defraud the IRS [§371] ; 4 counts of client tax evasion [26 U.S.C. § 7201]; 1 count of IRS obstruction [id. 7212(a)]; and 1 count of mail fraud [18 U.S.C. § 1341] ).

Interesting though, the jury acquitted Mr. Daugerdas of the 3 counts that charged him with personal tax evasion based on his use of  the tax shelters …

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Categories: fraud, hearsay, tax evasion

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Tuesday, September 20th, 2016

SDNY Update: Gun Suppressed; Anonymous Tip Did Not Justify Stop

Last week, SDNY Judge Naomi Reice Buchwald suppressed a gun that was obtained following a stop based on an anonymous tip.  You can read the decision in United States v. Oden here.

In suppressing the gun, the Court held that the information conveyed by an anonymous caller “neither explained how [the 911 Caller] knew about the gun nor supplied any basis for believing [she] had inside information about [Mr. Oden].”  The tip contained a specific description of “relatively distinctive apparel” (a bright orange sweatshirt and army shorts), but this “does not bolster the tip’s reliability ‘in its assertion of illegality.'”  Where all that the officers responding to the call corroborate relates to the subject’s description and whereabouts, as opposed to the alleged illegality, the tip lacks sufficient indicia of reliability.  Nothing in the record justified treating the 911 call as fitting into a narrow emergency-related exception.

Julia Gatto of …

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Categories: annoymous tips

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White House Report: “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature Comparison Methods.”

The President’s Council of Advisors on Science and Technology today released a report entitled “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature Comparison Methods.”  You can access the report here.  According to a White House press release, “the study aims to help close the gaps for a number of ‘feature-comparison’ methods — specifically, methods for comparing DNA samples, bitemarks, latent fingerprints, firearm marks, footwear, and hair.”  The report contains a number of recommendations directed at the FBI Laboratory, the Attorney General, and the judiciary as well as the National Institute of Standards and Technology (NIST) and the White House Office of Science and Technology Policy (OSTP).

In cases with feature comparison evidence that was not gathered and evaluated as recommended in the report, the report may support the exclusion of the evidence or provide a fruitful area of cross examination.  It should also help limit the opinions …

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Categories: DNA, expert witnesses, firearms

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Tuesday, September 13th, 2016

Third Circuit Upheld Two As-Applied Challenges to 18. U.S.C. 922(g)(1)

Last week, the Third Circuit, sitting en banc, upheld two as-applied challenges to 18 U.S.C. 922(g)(1), holding that it was unconstitutional as applied to individuals who have not previously been convicted of a felony involving violence.  You can read the decision in Binderup v. Attorney General, 14-4550, 14-4549, here.

The Court itself described the opinion as “fractured,” and helpfully included a Section IV with instructions for applying the case to future as-applied challenges to 922(g)(1).  The Court explained that the steps to an as-applied challenge are governed by the Third Circuit decision in United States v. Marzarella, 614 F.3d 85 (3d Cir. 2010).  A person challenging the constitutionality of 18 U.S.C. 922(g)(1) must first demonstrate that the law burdens conduct protected by the Second Amendment.  To do so, the challenger must prove that he was not previously convicted of a serious crime.  Evidence ofthe challenger’s rehabilitation or likelihood of …

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Categories: 922(g)

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Wednesday, August 31st, 2016

Second Circuit Updates – August 31, 2016

In United States v. Cunningham, No. 14-4425, the Court reversed Judge Sullivan’s decision denying a suppression motion in a robbery case where a gun was recovered from defendant-appellant Damian Cunningham’s vehicle after a traffic stop. The Court found that the circumstances of the stop did not justify a full protective search, noting in part that gender and race may have played a part in the determination of immediate danger that led to the search and the denial of the suppression motion. Full discussion to follow.…

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Categories: traffic stop

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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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Categories: 924(c)

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