Federal Defenders of New York Second Circuit Blog

Circuit Vacates Two Supervised Release Conditions

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In United States v. Rodriguez, No. 22-1820-cr (2d. Cir. Dec. 7, 2023) (summary order), the Circuit (Kearse, Calabresi, and Nathan) vacated two drug- and alcohol-related special conditions on plain error review. At sentencing, the district court imposed a condition requiring Rodriguez to undergo drug treatment evaluation, and “if deemed necessary,” attend outpatient drug treatment. The … Read more

The Government is seeking certiorari from Range v. Attorney General, United States, 69 F.4th 96 (3d Cir. 2023) (en banc), which held that 18 U.S.C. § 922(g)(1) was unconstitutional as applied to Bryan Range, whose predicate offense was a (1995) conviction for making a false statement to obtain government benefits. See Merrick B. Garland, Attorney General, et al. v. Bryan David Range, No. 23-374. The case is to be conferenced tomorrow, November 17, 2023.

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The Solicitor General filed the government’s petition for a writ of certiorari on October 5, 2023. Respondent Bryan Range’s papers were filed on October 18, 2023. The Solicitor General filed its reply on November 1, 2023. The Supreme Court docket is available at: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-374.html

Supreme Court grants certiorari to an alleged drug courier (challenging a federal drug conviction) because the prosecution used an “expert witness” to rebut her defense that she didn’t know about the drugs that were hidden inside her car, which she said belonged to her boyfriend. Petitioner says the “expert” testimony violated Fed.R.Evid. 704(b).

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The Supreme Court granted certiorari in Diaz v. United States, No. 23-14 (cert. granted, Nov. 13, 2023). Discussions and relevant cert. papers are available here: https://www.scotusblog.com/case-files/cases/diaz-v-united-states/ The petition for certiorari frames the “Question Presented” as follows: Federal Rule of Evidence 704(b) provides: “In a criminual case, an expert witness must not state an opinion about … Read more

In a summary order, the Second Circuit vacates a district court’s judgment imposing a complete ban on internet use, as a condition of supervised release. The Circuit concludes that it’s “substantively unreasonable” to impose such a ban on someone whose offense involved child pornography, and no evidence suggested he “is likely to seek out children on social media or prey on them in reality.” United States v. Gonyea, Nos. 22-1722-cr, 22-1727-cr (2d Cir. Nov. 13, 2023) (C.J.J.’s Jacobs, Lohier, Lee) (“Summary Order”).

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I. Background In 2017, Appellant was convicted of one count “of receiving child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1)” and sentenced to 72 months’  imprisonment “and a life term of supervised release.” Order at 3. In 2021, after his release from custody, Probation Officers discovered that he had “created two email … Read more

Five Second Circuit Judges Dissent From Denial Of Rehearing En Banc On Whether RICO Predicate Offenses Must Be Factually Set Forth In The Indictment.

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In United States v. Montague, __ F.4th __, 2023 WL 6852846 (2d Cir. Oct. 18, 2023), Judge Perez, joined by Judges Lee, Robinson, Nathan, and Merriam, dissented from the Circuit’s denial of rehearing en banc. The dissent posed the question (and answer) of “exceptional importance”: “does an indictment for a crime with predicated offenses as … Read more

Attempted Murder is a Crime of Violence (For Now)

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In yesterday’s United States v. Pastore, the Circuit (Walker, Sullivan, Nathan, C.JJ.) held attempted murder in aid of racketeering – specifically, attempted New York murder – is a “crime of violence” under 18 U.S.C. § 924(c). The Circuit reasoned that, because murder requires someone to intentionally “’cause the death of another person,’” Slip Op. at … Read more

Supreme Court will revisit the application of the Confrontation Clause to forensic evidence.

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The Supreme Court has granted certiorari in Smith v. Arizona, No. 22-899. The question presented is: Whether the Confrontation Clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert … Read more

A Panel of the Second Circuit holds (over a dissent) that a non-citizen is removable for a crime involving moral turpitude “for which a sentence of one year or longer may be imposed” — under 8 U.S.C. § 1227(a)(2)(A)(i) — even though New York subsequently reduced the maximum sentence for Class A misdemeanors from one year to “364 days” and made the change retroactive. Vasquez v. Garland, No. 21-6380, __ F.4th ____ (2d Cir. Sept. 13, 2023) (C.J.J.’s Jacobs and Chin; C.J.J. Robinson dissenting).

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I. Background Under 8 U.S.C. § 1227(a)(2)(A)(i) —  which is Section 237(a)(2)(A)(i) of the Immigration and Nationality Act (“INA”) — a non-citizen “is deportable” if “convicted of a crime of moral turpitude” (committed within a specified period “after the date of admission”) “for which a sentence of one year or longer may be imposed.” (emphasis … Read more

Second Circuit Affirms 18 U.S.C. § 115(a)(1)(B) Conviction And Sentence For Defendant Who Posted “Kill Your Senators” Video Online

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In United States v. Hunt, No. 21-3020 (2d Cir. Sept. 20, 2023) (Walker, joined by Parker and Bianco), the Circuit affirmed Hunt’s conviction and sentence for threatening to assault and murder United States officials, in violation of 18 U.S.C. § 115(a)(1)(B), based on Hunt’s online posting of a video entitled “Kill Your Senators.” In the … Read more