The Second Circuit did not issue any decisions in criminal matters today.…
Monday, June 20th, 2016
No decisions in criminal matters today.
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Categories: Uncategorized
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Federal Defenders of New York Second Circuit Blog
Friday, June 17th, 2016
Second Circuit Updates – June 17, 2016
One major decision out of the Second Circuit today, United States v. Rowland (Docket 15-985). It’s a good read for those interested in statutory construction and interpretation. A brief overview of the facts: The defendant, John Rowland was once governor of Connecticut. After being released from federal custody following a 2004 conviction for corruption and a kickback scandal, Rowland attempted to get back in the political game by offering his consulting services to Connecticut politicians running for federal office. When the politicians, wanting his advice, but not an association with him, raised their concerns about the optics, Rowland suggested that their respective companies and non-profits hire him as a consultant. As the government alleged, though, in reality he would offer advice to their campaigns.
One politician declined his offered, going so far as to rip up the proposed contract Rowland provided that would have him work for the politician’s non-profit. …
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Thea Johnson
Categories: fraud, statutory construction, statutory interpretation
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Thursday, June 16th, 2016
Defendants bat 0-3 in the Circuit today
The Second Circuit issued three summary orders in criminal cases today.
In United States v. Clare, 15-1601, the Court affirmed the defendant’s conviction on marijuana and gun charges. Clare argued that the evidence at trial was insufficient to sustain the convictions, primarily because the cooperating witnesses were not credible. The Court rejected this argument, explaining that “the credibility of witnesses is within the province of the jury, not this Court.” Order at 2. In light of the remaining evidence, the Court held that a reasonable juror could have concluded that Clare was guilty beyond a reasonable doubt. Because the evidence was sufficient, Clare’s attorney was not ineffective in failing to move for a judgment of acquittal in post-trial briefing. The Court also affirmed the district court’s denial of a motion to suppress.
In United States v. Washington, 14-4740, the Circuit rejected the defendant’s assertion that he had been …
Wednesday, June 15th, 2016
Circuit Affirms Life Sentence for Leader of Violent Drug Trafficking Organization
There were no published opinions today.
In an unpublished opinion, United States v. Fernandini, No. 14-2203, the Second Circuit affirmed a within-Guidelines life sentence for the leader of a violent drug trafficking organization over procedural and substantive reasonableness challenges.
Fernandini pleaded guilty to (i) conspiracy to traffic narcotics; (ii) using a firearm to commit murder in furtherance of the conspiracy, 18 U.S.C. § 924(j)(1); and (iii) discharging the firearm in furtherance of the conspiracy, § 924(c)(1)(A)(iii). In affirming, the Circuit noted that “Fernandini was the leader of a notorious and ruthless gang for nearly a decade. As gang leader, he significantly increased the quantity of narcotics the organization imported and enforced the organization’s territory with violence, including killing or ordering the killing of rival gang members.”
On the government’s consent, however, the Circuit vacated the § 924(c)(1)(A)(iii) discharging count, as it was a lesser included offense of the § …
Tuesday, June 14th, 2016
How Severe is Too Severe (for Production of Child Porn)?
“Serious nonhomicide crimes may be devastating in their harm[,] but in terms of moral depravity and of the injury to the person and to the public, they cannot be compared to murder in their severity and irreovocability.” So said the Second Circuit today in United States v. Brown, No. 13-1706-cr (June 14, 2016) (quoting the Supreme Court decision in Graham v. Flordia, 560 U.S. 48, 69 (2010)), in remanding a 60-year sentence for production of child pornography on procedural grounds that look awfully substantive. The opinion contains must-use language for advocates at sentencing for a less-than-extreme sentence in any non-homicide case.
The majority opinion (written by J. Pooler with J. Sack signing on) found that the District Court (J. Sharpe, NDNY) may have misunderstood certain facts in imposing a virtual life sentence for photographing and disseminating sexual images of three young girls and possessing thousands of other images of …
Posted by David Patton
Categories: child pornography, procedural reasonableness, sentencing, substantive reasonableness, Uncategorized
Categories: child pornography, procedural reasonableness, sentencing, substantive reasonableness, Uncategorized
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David Patton
Categories: child pornography, procedural reasonableness, sentencing, substantive reasonableness, Uncategorized
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Friday, June 10th, 2016
Second Circuit Updates – June 10, 2016
Not much to report today, just one summary order, which reminds us of the importance of due dates! In United States v. Russow, 15-1768, the district court extended the defendant’s time to file an appeal. When the defendant failed to file by that date and the government objected, the 2nd Circuit precluded an appeal. The court noted that in their ruling in United States v. Frias, 521 F.3d 229, (2d. Cir. 2008), if the government objects to a further extension of time to file an appeal after the first extension has been granted, Federal Rule of 8 Appellate Procedure 4(b) is inflexible and the appeal must be precluded.…
Wednesday, June 8th, 2016
Johnson Held Substantive and Retroactive in the Fourth Circuit
Today, the Fourth Circuit held that Johnson is substantive and retroactive as applied to the Guidelines. You can read the decision in Hubbard here.…
Friday, June 3rd, 2016
Second Circuit Updates – June 3, 2016
No criminal cases were decided by the Circuit today.
But there is an interesting civil case resulting from the plaintiff’s arrest by NYPD detectives, on charges that were later dismissed. The plaintiff brought a civil suit against the defendants — several named NYPD detectives — under 42 U.S.C.§ 1983 .
The case is Figueroa v. Mazza et al., No. 14-4116-cv (2d Cir. June 3, 2016) (Circuit Judges: Kearse, Walker, and Cabranes; Judge Kearse dissents from part of the opinion).
In the plaintiff’s civil suit under 42 U.S.C.§ 1983 and state law, he raised the following claims against the detectives: (1) false arrest, (2) excessive force, (3) assault, (4) failure to intervene (because the detectives did not stop an unidentified police officer from beating him as he sat in a police car), and (5) unlawful entry.
Of interest is Circuit’s discussion of the unlawful entry claim because it involves a …
Thursday, June 2nd, 2016
Defendant Not Eligible for Second § 3852(c)(2) Reduction when New Amendment Does Not Lower the Sentencing Range Determined by Prior Amendment
In United States v. Leroy Derry, Docket No. 15-1829-cr, which was issued yesterday but amended today, the Circuit (by Judge Parker, joined by Judges Pooler and Livingston) ruled as a matter of statutory interpretation that Derry was ineligible for a second sentence reduction under 18 U.S.C. § 3582(c)(2) because the new 2015 amendment (under which he was seeking the second reduction) did not lower the range determined by a prior Guideline amendment in 2011, under which Derry received a lower sentence (though not to the bottom of the amended range), even if this range was lower than the range employed at the original sentencing in 1999.
Here are the essential facts. Derry was convicted in 1998 of multiple offenses, including drug trafficking (crack), racketeering, and murder. When calculating the applicable sentencing range, the Probation Office determined that there were at least three “groups.” The group including the drug trafficking …
Friday, May 27th, 2016
More Thoughts on Ganias
Today there was a big decision (both metaphorically and literally – the decision runs 104-pages) from the Second Circuit in United States v. Ganias about search warrants in an age of digital data. In Ganias, the government seized and made identical copies of three hard drives that belonged to an accountant, Stavros Ganias, pursuant to a warrant (the “2003 warrant”) in a fraud investigation. The government continued to hold the files, even after reviewing them for all relevant information contained in the 2003 warrant. In 2006, the government obtained a second warrant (the “2006 warrant”) as part of an IRS tax evasion investigation and they searched the files anew pursuant to that second warrant.
There were two questions presented:
- Whether the fourth amendment was violated when, pursuant to a warrant, the government seized and cloned three computer hard drives containing both responsive and non-responsive files, retained the cloned hard
In En Banc Opinion, Second Circuit Upholds “Good Faith” Reliance on Search Warrant
Today the Second Circuit issued a 104-page en banc opinion in United States v. Ganias, 12-240-cr.
In Ganias, the Court affirmed the judgment of the district court, holding that the government had relied on a search warrant in good faith and declining to reach the Fourth Amendment question raised by the defendant.
The case involved the government’s retention of a mirrored hard drive containing data that went beyond the scope of a search warrant issued in 2003. In 2006, the government searched this data pursuant to a search warrant obtained in 2006. Mr. Ganias contended that the 2006 search would not have been possible if the government had not retained a copy of the data that was not responsive to the 2003 search warrant. The Court held that the government’s good faith reliance on the 2006 warrant was objectively reasonable, and so did not reach the question …