Federal Defenders of New York Second Circuit Blog

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

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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 … Read more

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

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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 … Read more

Second Circuit affirms above-guideline sentence; declines to consider one IAC claim on direct review, but rejects another where record below was sufficiently developed on the point

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In United States v. Pendergrass, 15-1965, the Second Circuit affirmed the conviction of Terrence Pendergrass, a former captain at Rikers Island, on one count of willfully violating the constitutional rights of an inmate, who died following the ingestion of cleaning supplies, by refusing to get him medical attention and prohibiting other guards from getting him … Read more

Second Circuit rejects claims that District Court erred in limiting cross-examination of prosecution witness and committed various procedural errors at sentencing.

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United States v. Rodriguez, No. 14-4267 (2d Cir. Apr. 27, 2016) (Leval, Droney, and Engelmayer). Rodriguez was convicted by a jury of charges of racketeering conspiracy and conspiracy to distribute narcotics. He argued on appeal that the district court erred by disallowing certain cross-examination of a key prosecution witness, and that the district court committed … Read more

In Summary Order, Second Circuit rejects claims that bank records and tax returns erroneously were admitted into evidence, that the government improperly interfered with defense access to witnesses, and that the government made improper statements during summation.

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United States v. Tavarez, No. 15-1395 (2d Cir. Apr. 27, 2016) (Katzmann, Cabranes, and Kaplan). Tavarez was convicted after a jury trial of one count of conspiracy to distribute and possess with intent to distribute cocaine. He argued on appeal that: (1) the district court abused its discretion by admitting Tavarez’s bank records and tax … Read more

New RDAP Rules

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Below is a message from Denise Barrett from the National Sentencing Resource Counsel Project reporting on new rules relating to the Bureau of Prisons’ Residential Drug Abuse Program (RDAP). The BOP changed some of the RDAP rules.  They are published in the federal register and take effect May 26, 2016. Unfortunately, BOP has retained the … Read more

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Second Circuit “Disturb[ed] That District Courts Do Not Routinely Follow” Rule 11

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Today in United States v. Pattee, the Second Circuit (Calabresi, Lynch, Lohier, CJJ.) found it “disturbing that district courts do not routinely follow the minimal procedures put in place to protect defendants’ rights.” In accepting a guilty plea to producing, distributing and possessing child pornography, the district court (Geraci, Ch.J.) failed to advise the defendant of “five … Read more

Circuit Affirms Convictions of Madoff Co-Conspirators

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The Circuit issued no published criminal decisions today. But it did issue three summary orders, including a 30-page decision (does that still qualify as a “summary” order?) affirming the fraud-related convictions of five former employees of Bernie Madoff’s investment company. United States v. Bonventre, No. 14-4714-cr(L) (2d Cir. Apr. 20, 2016) (Walker, Raggi, and Droney) … Read more