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Federal Defenders of New York Second Circuit Blog


Thursday, May 12th, 2016

Advising Clients Regarding Sexual Polygraph Exams and the Fifth Amendment in Child Pornography Cases

Earlier this week, in United States v. Von Behren, the Tenth Circuit Court of Appeals held that requiring that a person on supervised release answer questions on a sexual history polygraph that are designed to elicit admissions of criminal conduct violates the Fifth Amendment’s privilege against self-incrimination.  You can read a copy of the opinion here.  Thank you to the folks at the Sentencing Resource Counsel for forwarding the opinion and congratulations to Assistant Federal Defender John T. Carlson who won the case before the Tenth Circuit.

This issue presents itself in many SDNY and EDNY cases, perhaps most frequently in possession of child pornography cases.  If your client is sentenced to a term of supervised release that contains a special condition regarding compliance with a sexual history polygraph, make sure you advise your client to assert his Fifth Amendment right, to do so in writing to his …

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Categories: child pornography, self-incrimination, sex offenses

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Categories: child pornography, self-incrimination, sex offenses

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Wednesday, May 11th, 2016

Two Interesting District Court Civil Cases Regarding Informants

For the third day in a row, there were no criminal decisions or summary orders from the Second Circuit.

We thought these two civil cases related to government informants were interesting.

Last week, in Barone v. United States, 12-cv-04103, SDNY Judge Lewis A. Kaplan allowed a Bivens claim brought by a former FBI informant to proceed on a “theory that the FBI defendants purposeful and punitively leaked [the informant’s] status, which, in turn, caused the general prison population to be unsafe,” and required BOP officials to confine the informant in the special housing unit.  You can read Judge Kaplan’s opinion here.  The New York Law Journal has coverage here.

Yesterday, in In re Motion for Civil Contempt by John Doe, 12-mc-0557, EDNY Judge Brian M. Cogan ordered the unsealing of many documents related to civil contempt proceedings brought by a former cooperating witness against attorneys who …

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Categories: Bivens

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Categories: Bivens

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Tuesday, May 10th, 2016

Judge Rakoff Rejects Proposed Handwriting Expert Testimony

In an opinion released May 6, in the case Almeciga v. Center for Investigative Reporting, 15-cv-4319, SDNY Judge Jed S. Rakoff granted a defense motion to exclude proposed expert handwriting analysis testimony, holding that “handwriting analysis in general is unlikely to meet the admissibility requirements of Federal Rules of Evidence 702.”  The opinion documents the development of handwriting analysis as a forensic field and its history in the courts before analyzing the Daubert and Kumho Tire factors.  See Opinion, 17-43.  The Court concludes that handwriting analysis “bears none of the indicia of science and suggests, at best, a form of subjective expertise,”  Opinion at 26.  “It remains the case,” the Court explains, “that the methodology has not been subject to adequate testing or peer review, that error rates for the task at hand are unacceptably high, and that the field sorely lacks internal controls and standards” and that “as …

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Categories: expert witnesses

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Categories: expert witnesses

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Friday, May 6th, 2016

Summary Order Reaffirms Second Circuit Rule that Youthful Offender Adjudications Can Count as Crimes of Violence under the Guidelines even after Sellars

There is only one summary order today, United States v. Oscar Cardoza, 15-1602-cr. The Second Circuit reaffirmed its rule that a New York youthful offender adjudication counts as a crime of violence under USSG 2L1.2(b)(1)(A)(ii), if the nature of the proceedings, the sentence received, and the actual time served shows that the state treated the conviction as an adult conviction. See United States v. Pereira, 465 F.3d 515, 520-22 (2d Cir. 2006); United States v. Reinoso, 350 F.3d 51, 54 (2d Cir. 2003). The Court distinguished its holding in United States v. Sellars, 784 876 (2d Cir. 2015) that a youthful offender conviction does not qualify as a violent felony under ACCA on the ground that ACCA explicitly excludes convictions that are deemed “set aside” under state law, while there is no such provision in the guideline.…

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Categories: crime of violence, youthful offender adjudication

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Categories: crime of violence, youthful offender adjudication

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Thursday, May 5th, 2016

District Court Plainly Erred by Using a Guideline Unsupported by the Facts, Even Where the Parties Stipulated to that Guideline in a Plea Agreement

In United States v. Rendsland, Docket No. 14-3942-cr, a summary order issued today, the Circuit ruled that the district court committed plain error in relying on U.S.S.G. § 2A2.2 (“Aggravated Assault”) to calculate Mr. Rendsland’s Guideline range, rather than § 2A2.4 (“Obstructing or Impeding Officers”), even though the parties had stipulated that this was the applicable Guideline in a plea agreement. (Disclosure: Ed Zas of the Federal Defenders of New York submitted an Amicus brief raising this argument on Mr. Rendsland’s behalf). This was so because nothing in the record showed that Mr. Rendsland committed “aggravated assault,” defined in Application Note 1 of § 2A2.2 as a “felonious assault that involved (A) a dangerous weapon with intent to cause bodily injury (i.e., not merely to frighten) with that weapon; (B) serious bodily injury; (C) strangling, suffocating, or attempting to strangle or suffocate; or (D) an …

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Categories: guideline, sentencing findings

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Categories: guideline, sentencing findings

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Wednesday, May 4th, 2016

Circuit affirms denial of 18 U.S.C. 3582 sentence reduction

In United States v. Jimenez, 15-1624, the Circuit affirmed the District Court’s denial of a reduction in sentence pursuant to 18 U.S.C. 3582.  The Circuit held that when the District Court stated that a lower sentence was “foreclose[d]” by the defendant’s participation in four murders, it meant that the original sentence was the minimum sentence necessary in light of Jimenez’s conduct and that the facts of the case did not provide a basis for granting a sentence reduction.…

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Categories: 3582(c)(2), Uncategorized

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Categories: 3582(c)(2), Uncategorized

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No need to dismiss juror who learned the defendant had been shackled but did not see him shackled; Circuit declines to decide whether USSG 4B1.3 is susceptible to a vagueness challenge; affirms prosecutor’s comments on summation

In United States v. Nastri, 15-489, the Circuit held that the District Court did not err either by declining to dismiss a juror or by applying USSG 4B1.3’s criminal livelihood enhancement, and that the prosecutor’s remarks in summation were not improper.

The juror in question learned from a third party that another juror had been dismissed after seeing the defendant in shackles.  The District Court questioned the juror and the juror told the Court that the knowledge she obtained from the third person would not affect her ability to be impartial.  On these facts, absent a specific showing of harm, the defendant could not show that his right to a fair trial was prejudiced.

On summation, the prosecutor called certain defense arguments “red herrings” and “distractions.”  The defense did not object at the time, so the Circuit reviewed these comments for plain error and, after comparing the comments to …

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Categories: juror discharge, summation, vagueness

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Categories: juror discharge, summation, vagueness

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Second Circuit Affirms District Court’s Determination of Weight of Controlled Substance and Reliance on Acquitted Conduct

In United States v. Guerra, 14-1025, the Second Circuit affirmed by summary order the District Court’s methodology for determining the weight of oxycodone prior to sentencing.  The District Court’s finding after relying on “documentary medical and telephone records, recorded conversations, and witness testimony regarding the methodology of the scheme” was a permissible view of the evidence and, therefore, not clear error.

The Circuit also rejected Guerra’s argument that the District Court’s reliance on acquitted conduct rendered his sentence unreasonable, holding that it is well-established that a court can rely sentence on the basis of acquitted conduct that is proven by a preponderance of the evidence.…

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Categories: acquitted conduct, drug quantity

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Second Circuit: Conviction for Investment Adviser Fraud Requires Only Intent To Deceive, Not Intent To Harm

In United States v. Tagliaferri, No. 15–536, the Second Circuit held that a conviction for investment adviser fraud, under section 206 of the Investment Advisers Act of 1940, 15 U.S.C. § 80b–6 and 80b–17, requires only intent to deceive one’s clients, not intent to harm them as well.

Tagliaferri ran a boutique investment advisory firm where, the government alleged, he engaged in various deceptive practices, including taking kickbacks for investing client funds with particular entities, cross-trading between client accounts, and falsely characterizing investments as loans. The government charged Tagliaferri with, among other offenses, investment adviser fraud under section 206. At trial, Tagliaferri’s defense was that, despite his deceptive practices, he “always believed that he would be able to work things out so that his clients would not be harmed.” Accordingly, he sought a jury instruction that investment adviser fraud requires not only intent to deceive one’s clients, but …

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Categories: fraud, intent, Uncategorized

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Categories: fraud, intent, Uncategorized

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