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Federal Defenders of New York Second Circuit Blog


Monday, May 22nd, 2023

Circuit construes supervised-release conditions (restricting or monitoring computer and Internet use) in the defendant’s favor in order to avoid constitutional, statutory, or delegation problems

In United States v. Victor Kunz, 2d Cir. No. 21-2577-cr (May 23, 2023), Judge Lynch (joined by Judges Livingston and Calabresi) upheld (with one exception) several potentially problematic conditions of supervised release restricting or monitoring Kunz’s computer and Internet usage. Kunz was convicted of CP possession in 2005 and has been on supervised release since 2009 (with several violations (and terms of imprisonment) between then and his current 33-year term of supervision). The Circuit acknowledged that he “raise[d] a number of legitimate concerns” on appeal, but ultimately concluded that “a sensible reading of the restrictions neutralizes the most troubling of those concerns” and thus affirmed the “judgment of the district court as construed in the manner set forth below.” Op. 3.

The relevant conditions / restrictions fall into three categories. Here’s how the Court dealt with them.

Conditions that are “technically vague or unworkable”

Kunz challenged several conditions requiring …

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Tuesday, May 16th, 2023

Supreme Court to decide how to decide which state drug convictions qualify as ACCA predicates

The Supreme Court has granted certiorari in another pair of ACCA cases. Under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), a defendant who possesses a gun faces a minimum 15-year sentence if he has three prior state or federal convictions that qualify as “violent” felonies or “serious drug offenses.” We have talked a lot recently about what qualifies as a “violent” felony. Now it is time to consider “serious drug offenses.”

Under § 924(e)(2)(A), a “serious drug offense” includes offenses “under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law.”

Courts use the categorical approach to decide if a prior state conviction involves a “controlled substance,” comparing the elements of that …

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Monday, May 15th, 2023

Supreme Court Reverses Two Second Circuit Fraud Decisions

On May 11, 2023, the Supreme Court decided Ciminelli v. United States, 21-1158 and Percoco v. United States, No. 21-1158, reversing the Second Circuit in two fraud decisions  resulting from the multi-defendant trial of alleged corruption surrounding the Cuomo administration. The Supreme Court continues its curtailment of amorphous theories of federal fraud to prosecute government corruption cases.

In Ciminelli, the Supreme Court rejected the Second Circuit’s “right to control” theory of  federal fraud, in which “property” under the fraud statutes “includes intangible interests such as the right to control the use of one’s assets.” Under this theory, Ciminelli was convicted of wire fraud for a bid-rigging scheme on the theory that he deprived the victim of “potentially valuable economic information” “necessary to make discretionary economic decisions.” Op. at 1-4. The Court reversed his conviction.

The Supreme Court reiterated the rule of Cleveland v. United States, 531 U.S. …

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Categories: honest services fraud, property, wire fraud

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Friday, May 12th, 2023

A Divided Panel Of The Second Circuit Upholds A Barebones CCE Indictment That Identifies No Predicate Acts

In United States v. Colin Montague, 19-2975 (2d Cir. May 9, 2023), a divided panel of the Second Circuit affirmed a CCE conviction and life sentence based on an indictment that identified no predicate offenses but alleged only that the defendant “did knowingly, willfully and unlawfully engage in a Continuing Criminal Enterprise in that he did violate Title 21 United States Code, Sections 841(a)(1) and 846, which violations were part of a continuing series of violations of said statutes.” Judge Menashi wrote the opinion, joined by Judge Bianco. Judge Jacobs dissented.

The majority acknowledged that “the violations composing a continuing criminal enterprise are elements of the CCE offense and must appear in the indictment.” It posed the question as “the level of detail with which the violations must appear.”  Op. 11. It relied on United States v. Flaherty, 295 F.3d 182 (2d Cir. 2002), which it read to …

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Categories: CCE, grand jury, indictment, plain error

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Tuesday, May 9th, 2023

Circuit considers several summation misconduct claims, affirms in summary orders

In two summary orders issued on the same day by the same panel (Cabranes, Bianco, and Merriam), the Second Circuit considered several different claims of prosecutorial misconduct. Ultimately, neither defendant prevailed, although for different reasons. 

During the main summation and rebuttal of United States v. Saunders, No. 22-569 (2d Cir. May 3, 2023) (summary order), an 18 U.S.C. 922(g)(1) felon-in-possession trial, prosecutors described the facts of the case in vivid detail that emphasized the dangers posed to the public and bystanders. Comments included: “Samuel Saunders . . . sprayed bullets into the middle of a city street”; “he barely missed other innocent bystanders”; “That’s why we’re here, because Samuel Saunders sprayed bullets into a public street and almost killed someone”; “The defendant acted with a complete disregard for human life. He could have killed multiple people that night. There were kids in the street. You saw them running for …

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Monday, April 24th, 2023

(1) Evidence was sufficient to prove a violation of 18 U.S.C. § 2251(a) — which prohibits using a minor to engage in sexually explicit conduct to produce a visual depiction of that conduct — when the defendant created a video showing a fully clothed, sleeping teenager and the defendant (nearby) engaging in conduct with himself. (2) Also, a 5-level sentencing enhancement, for engaging in a “pattern of activity” involving “prohibited sexual conduct,” was proper — under U.S.S.G. § 4B1.5(b)(1) — based on the offense of conviction and proof (by a preponderance) of just one other prohibited act. (3) Finally, a 70-year prison sentence, the Circuit holds. isn’t substantively unreasonable. United States v. Osuba, No. 20-3322, __ F.4th ____ (2d Cir. Apr. 17, 2023) (C.J.J.’s Calabresi, Park, Nardini).

I. The sufficiency of the evidence to prove the production count: 18 U.S.C. § 2251(a)

Appellant challenged the sufficiency of the evidence supporting his conviction, after a jury trial, of violating 18 U.S.C. §  2251(a), which mandates a minimum 15-year prison term for: “Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct . . .”

Back in 2018, Appellant “was in the living room of his girlfriend’s house, talking to someone over Kik Messenger, an instant-messaging app.” See Opinion (“Op”) at 4. While “[h]is girlfriend’s seventeen-year-old daughter was sleeping, fully clothed, on the couch in the same room, with her face turned away from him[,]” he “turned on his camera and recorded two short videos” that “show him masturbating close to the minor—first sitting or lying …

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Appellant’s submission of (three) “forged letters” of support, to the sentencing court, results in a 5-level increase in offense level: a two level upward adjustment for obstruction of justice (U.S.S.G. § 3C1.1) and the denial of a 3-level reduction for acceptance of responsibility (id. § 3E1.1). United States v. Strange, No. 21-2923, __ F.4th ____ (2d Cir. Apr. 17, 2023) (C.J.J.’s Pooler, Wesley, and Menashi).

Background

Appellant worked for a company that (generously) matched the charitable donations of its employees “up to $25,000 in donations per employee annually.” Opinion (“Op”) at 2. From 2015 to 2019, Appellant he “carried out a scheme to defraud” by “submitt[ing] fake documentation purporting to show that he, as well as some of his coworkers, had made significant charitable donations to an entity that Strange himself controlled.” Op at 2-3. The coworkers “had no knowledge of the submissions.” Op at 3. Appellant received about $600,000 from the company’s matching program, which he used “for personal expenses.” Id.

Appellant ultimately pleaded guilty to one count of wire fraud (18 U.S.C. § 1343). And his initial Guidelines range was “33 to 41 months incarceration.” Op at 3.

But a few days before sentencing, he submitted three letters “each encouraging the imposition of a probationary sentence rather than imprisonment.”Op at 3. The government …

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Categories: acceptance of responsibility, obstruction of justice, wire fraud

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Thursday, April 13th, 2023

Second Circuit holds that prison term of one year and one day for convicted fraudster is unreasonably lenient.

In Watts v. United States, Nos. 21-2925(L), 21-3028 (2d Cir. Apr. 12, 2023) (summary order), the Circuit affirmed the defendant’s convictions for various counts involving securities fraud, wire fraud, and money laundering. But, at the Government’s urging on its cross-appeal, the court vacated his sentence—which included a below-Guidelines term of imprisonment of one year and one day—as substantively unreasonable because it was  “shockingly low, or otherwise unsupportable as a matter of law.” Fortunately, the decision is an unpublished summary order, meaning that it has no precedential effect.

Watts was convicted in the Eastern District of New York (Seybert, J.), of charges that, over a four-year period, he and his co-defendants schemed to defraud investors in several publicly traded companies by artificially controlling the price and volume of traded shares in those companies. In brief, Watts and other insiders at public companies allegedly hired a Long Island “boiler room” to …

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Friday, April 7th, 2023

Certiorari petition to watch: United States v. Rahimi, No. 22-915

In United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), the Fifth Circuit held that 18 U.S.C. § 922(g)(8), criminalizing firearm possession by a person subject to a domestic violence restraining order, was facially unconstitutional in light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, — U.S. –, 142 S. Ct. 2111 (2022). In doing so, it became the first — and only — circuit to invalidate a federal criminal statute on Second Amendment grounds.

Within weeks, the government filed a “highly expedited” Supreme Court petition, acknowledging the lack of a Circuit split but contending that the Fifth Circuit’s decision was incorrect, had “significant disruptive consequences,” and “threatens grave harm for victims of domestic violence.”

Rahimi’s response is due on April 20, 2023. Amicus briefs should be due 30 days after that. Bruen aficionados: keep your eyes peeled and start hitting refresh on that …

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Wednesday, April 5th, 2023

Kidnapping is Not a Crime of Violence

Most courts (and the government) have for a while acknowledged that kidnapping is not a crime of violence given that it can be accomplished through deception and thus without physical force.  The Second Circuit has now acknowledged this too, holding in US v. Eldridge that NY kidnapping in aid of federal racketeering isn’t a 924(c) predicate: it can be committed using “deception to hold a victim in a place” and thus without “the use, attempted use, or threatened use of physical force.”

PS – The career offender guideline lists “kidnapping” as a COV but doesn’t define it, meaning the generic definition (how most jurisdictions define it) applies.  The DC Circuit surveyed the law and decided generic kidnapping requires “a criminal purpose beyond the mere intent to restrain the victim.”  US v. De Jesus Ventura, 565 F.3d 870, 876 (D.C. Cir. 2009).  Neither federal kidnapping nor NY kidnapping requires such heightened …

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Wednesday, March 22nd, 2023

Today, in United States v. Lewis, the Second Circuit strongly reaffirmed that the Circuit has no “categorical rule” about Fourth Amendment standing over shared spaces in multi-unit buildings. On the contrary, the Circuit noted that people who live in single-family homes should not have greater Fourth Amendment protections then people in multi-unit buildings. It counseled that courts should use an “individualized approach” to assess a person’s privacy interest over any shared spaces.

Unfortunately for Vashun Lewis, however, the Circuit still found that he hadn’t shown a reasonable expectation of privacy over a back “porch” area that led to a common stairway. (The area described as a porch seems to have been inside the building, although it is not entirely clear from the decision). The Circuit said that Lewis had “neither pointed to any relevant evidence nor made any arguments pertinent to his reasonable expectation of privacy over the porch.”…

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