The Second Circuit vacated former New York Speaker of the House Sheldon Silver’s convictions for honest services fraud, Hobbs Act extortion, and money laundering based on an erroneous jury instruction. You can access the opinion here. At trial, the District Court instructed the jury that an “official act” within the meaning of the charges was “any … Read more
In an opinion issued today, the Circuit vacated and remanded a decision by SDNY Judge Katherine B. Forrest to deny the defendant a reduction in offense level based on acceptance of responsibility despite his guilty plea. You can access the decision in United States v. Delacruz, No. 15-4174, here. The Circuit held that “[I]n light … Read more
The Restoration of Rights project has a useful website that can help you determine the collateral consequences of conviction your client may face. The project offers executive and judicial mechanisms for avoiding or mitigating those consequences and advice regarding non-discrimination in employment following a conviction. The project tracks this information for each state and for … Read more
Today, the Circuit held in Harbin v. Sessions, No. 14-1433-ag, that the New York offense of criminal sale of a controlled substance in the 5th degree, NYPL 220.31, is not a controlled substance offense for immigration purposes. You can access the opinion here. The analysis is straightforward: (1) The NY statute prohibits the sale of … Read more
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 … Read more
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 … Read more
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 … Read more
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 … Read more
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, … Read more
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 … Read more