In today’s United States v. Richards, the Second Circuit emphasized the importance of strictly adhering to Federal Rule of Criminal Procedure 32(i)(1)(A), which requires a judge to “verify that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report.” The Circuit implied that, where the “discussion” is not confirmed, raising that issue on appeal may require reversal.…
In United States v. Danielle Faux, Docket No. 15-1282-cr, the Circuit (Jacobs, Hall, Restani), in an opinion by Judge Jacobs, reversed on the Government’s interlocutory appeal the district court’s grant of defendant Faux’s suppression motion, based on the claim that she was “in custody” when law enforcement agents questioned her (without providing Miranda warnings) while executing a search warrant of her home. The ultimate question in such cases — whether, taking into all the circumstances, “a reasonable person would have understood his freedom of action to have been curtailed to a degree associated with formal arrest,” Op. at 12 — is necessarily fact-specific. And while the Court acknowledges that this is a very close case – “[t]he Government stepped right up to the limits of constitutionally permissible conduct and . . . just managed to toe the line” – it ultimately concludes that “the circumstances did not rise to …
Pre-2009 Bank Fraud Convictions Vacated Where Evidence Showed Only that Defendant Intended to Defraud a Non-Federally Insured Mortgage Lender
In United States v. Michael Bouchard, Docket No. 14-4156-cr, the Circuit (Parker, Lynch, Lohier) in an opinion by Judge Lohier vacated on sufficiency grounds three bank-fraud related convictions, based on conduct occurring between 2001 to 2007, because the Government proved only that defendant Bouchard intended to defraud a mortgage lender (BNC Mortgage) that was not a federally insured financial institution. This was the case even though BNC was a wholly owned subsidiary of Lehman Brothers, a federally insured financial institution, since the Government concedes that “there was no evidence that Bouchard specifically intended to defraud Lehman Brothers or was even aware of Lehman Brothers’ role in the transactions involving BNC.” Op. 16. In so concluding based on Circuit precedent holding that “the Government must show that a defendant intended to …
Late last week, the Second Circuit issued a short summary order in United States v. Horton, No. 16-1574, ordering that the District Court vacate its order of detention and remanding for further proceedings. Although it issued just a short summary order, the Circuit clarified that even in “presumption” cases, the government retains the ultimate burden of persuasion on the issue of remand based on a defendant’s dangerousness.
In certain types of cases, Title 18 U.S.C. 3142(e) creates a rebuttable presumption that “no condition or combination of conditions will reasonably assure” the safety of the community. The defendant bears the burden of producing evidence to rebut this presumption. If the defendant does so, the presumption is not eliminated, but it remains a “factor” just like any other factor the district court has to consider and weigh. “At all times,” though, “the government retains the ultimate burden of persuasion by …
The Circuit issued no relevant published decisions today and only two short summary orders, one of which (marginally) bears wider interest. In United States v. Mobutu Thornhill, Docket No. 15-2147-cr, the Circuit (Jacobs, Calabresi, Raggi) affirmed Thornhill’s conviction, following a jury trial, for being a felon in possession of a firearm. The sole issue discussed in the summary order is Thornhill’s argument (not made below and thus reviewed here for plain error) that the trial court “improperly allowed a lay witness to offer expert testimony concerning the identification of the weapon[,] in violation of Rule 701 of the Federal Rules of Evidence.” Order at 1.
The challenged testimony was by a lay eyewitness who told the jury that “he saw the defendant with what appeared to him to be a ‘[.]22 long rifle target pistol.’” (NB: The Internet informs that this is a target pistol that uses a …
Today there is a short opinion discussing the meaning of “aggravated felony” in the context of a removal proceeding. And there is a summary order in a criminal case.
In Weiland v. Lynch, No. 14-3631-ag (Circuit Judges: Parker, Lohier, and Carney), the Circuit rejects the petitioner’s argument, in his fight against removal to Germany, that his conviction for possession of child pornography under the New York Penal Law (§263.11) did not qualify as an aggravated felony under the Immigration and Nationality Act (“INA”). His argument was that the New York offense was not an offense “described in” the analogous federal crime because the New York offense lacks an interstate commerce element that is present in the analogous federal child pornography statute. See 8 U.S.C. § 1101(a)(43) (defining aggravated felony as an offense “described in” certain federal laws). The Circuit relied on this years’ Supreme Court decision in Torres v. …
The Circuit issued no published decisions or summary orders in criminal cases today. But the Supreme Court issued a doozy in McDonnell v. United States, as reported here.…
The Circuit issued decisions in four criminal cases today.
In United States v. Brown, 14-4643, the Court vacated and remanded for resentencing. The district court had imposed special conditions of supervision, but had not given any explanation for the conditions or stated the relationship between the conditions and any sentencing objective. But a district court does not have “untrammeled” discretion in imposing special conditions of supervised release, the Circuit explained, and “usual and severe conditions,” like those impinging on a First Amendment right, will be “carefully scrutinize[d].” The district court “is required to make an individualized assessment when determining whether to impose a special condition of supervised release and to state on the record the reason for imposing it.” Because the district court failed to do so, and the reason for the special conditions was not “self-evident in the record,” the Circuit vacated the special conditions and remanded …
In Mathis v. United States, No. 15-6092, the Supreme Court reaffirmed the categorical approach to determining whether a prior conviction can give rise to the enhanced sentencing provisions of the ACCA. If the elements of a state crime are broader than the elements listed in the generic offense, a conviction for the state crime cannot qualify as a predicate under the ACCA. This remains true even if the defendant’s actual conduct fit within the definition of the generic offense. In Mathis, the defendant’s prior conviction for burglary did not qualify as a prior violent offense under the ACCA because the Iowa burglary statute under which he was convicted — which listed “structures” and “vehicles” as alternative means for fulfilling one of the crime’s elements — was broader than generic burglary. Even though his conduct had involved burglarizing a structure, that fact was “off-limits” to the sentencing judge.
Justice Kagan …
In yesterday’s Utah v. Strieff, five of the eight members of the Supreme Court held the existence of an arrest warrant for someone a police officer unlawfully stops sufficiently “attenuates” the taint of the illegal stop, at least where the stop is not “flagrantly” unconstitutional.
Based on an anonymous tip, a South Salt Lake City police detective conducted “intermittent surveillance” of a house to see if it was being used to sell drugs. He saw people leave “a few minutes after arriving at the house,” and this “raise[d] his suspicion that the occupants were dealing drugs.” One day he saw Strieff leave the house; he followed Strieff on foot and stopped him. When he got Strieff’s ID card and relayed the information to a colleague, he discovered “Strieff had an outstanding arrest warrant for a traffic violation.” The detective then arrested Strieff and searched him, finding drugs in his …
The Second Circuit did not issue any decisions in criminal matters today.…