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Federal Defenders of New York Second Circuit Blog


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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Wednesday, March 8th, 2023

Second Circuit Vacates §§ 924(c) And 924(j) Convictions Predicated On Attempted Hobbs Act Robbery, But Affirms § 924(c) Conviction Predicated On VICAR Assault With A Deadly Weapon.

In two direct appeals, the Second Circuit  addressed follow-on issues arising from United States v. Taylor, 142 S. Ct. 2015 (2022) (holding that attempted Hobbs Act robbery is not an 18 U.S.C. § 924(c)(3)(A) crime of violence).

In United States v. Collymore, No. 19-596 (2d Cir. March 7, 2023) (per curiam) (Sullivan, Park, Nardini), the Circuit, on direct appeal, vacated 18 U.S.C. §§ 924(c) and 924(j)(1) convictions predicated on attempted Hobbs Act robbery in light of Taylor. Taylor itself required vacatur of the § 924(c) conviction, and the Circuit reasoned that because a § 924(c) violation is an element of a § 924(j)(1) offense, Taylor also required vacatur of the latter conviction.

However, the Circuit rejected, on plain-error review, Collymore’s argument that his guilty plea was invalid. At Collymore’s Rule 11 colloquy, the magistrate judge had advised him—correctly, under pre-First Step Act law—that his §§ …

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Categories: 924(c), Hobbs Act

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Friday, March 3rd, 2023

Circuit rejects new trial bid, despite evidentiary errors and refusal to voir dire on “antisemitic bias.”

In United States v. Mendlowitz, No. 21-2049-cr (2d Cir. March 2, 2023) (summary order), the Second Circuit affirms the defendant’s wire fraud convictions, despite possible evidentiary errors and the district court’s refusal to ask about “potential antisemitic bias” during jury selection.

On appeal following trial, the defendant challenged the district court’s exclusion of a proffered expert witness and a recorded conversation between the defendant and a cooperating witness. The Circuit largely agreed with defendant’s arguments: it recognized that, contra the district court, the proffered expert testimony about standard industry practices would have been relevant to the defendant’s good faith defense. The expert testimony also would have provided relevant information outside the average juror’s knowledge and beyond any government witness testimony.

With respect to the recorded conversation, the defendant argued that it reflected his state of mind at the time of the charged conduct and supported his defense. The district …

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Categories: expert witnesses, harmless error, jury selection, voir dire

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Circuit orders resentencing in light of statements that created a risk of the appearance that a defendant’s nationality impacted his sentence.

In United States v. Vasquez-Drew, No. 20-2195-cr (2d Cir. March 2, 2023) (summary order), the Second Circuit ordered the defendant resentenced before a new district judge because certain remarks the original judge made at sentencing created a “risk that a reasonable observer … ‘might infer, however incorrectly’ that Vasquez’s nationality played a role in determining his sentence.”

In sentencing the defendant, a Bolivian national, the district court (Cote, J.) stated that the sentence was “motivated by concerns about appropriate punishment, but also general deterrence,” and that it was “important” “that the people in Bolivia understand the kind of sentences that are potentially imposed here from engagement in activity to send cocaine into America.”

This decision follows an interesting and wide-ranging oral argument available here and previewed here.

Ultimately, the Circuit’s short summary order hewed closely to precedent: “[E]ven the appearance that the sentence reflects a defendant’s race or …

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Monday, February 27th, 2023

The Second Circuit Grants Panel Rehearing in Gibson to Reject the Government’s Request to Recast its Holding as Dicta

In United States v. Gibson, 55 F.4th 153 (2d Cir. 2022), the Second Circuit held that the defendant’s 2002 New York state conviction for attempted third-degree criminal sale of a controlled substance was not a “controlled substance” offense under the career offender Sentencing Guideline because the New York drug schedules in 2002 included naloxegel, which had been removed from the federal schedules in 2015, making the New York offense categorically broader than the federal controlled substance offense when Gibson was sentenced in 2020. The government had conceded that the New York 2002 schedule was broader than the current federal schedule, but argued that the comparison should be between the New York and federal schedules in 2002. The Circuit rejected that argument. See December 8, 2022, Blog post.

The government (W.D.N.Y.) sought panel rehearing, asking the Court to issue an amended opinion stating that this holding was actually dicta. …

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Categories: guideline, sentencing

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Supreme Court to review the scope of the expanded “safety valve.”

Today the Supreme Court granted certiorari in Pulsifer v. United States, No. 22-340, to clarify the First Step Act’s expansion of 18 U.S.C. § 3553(f)’s “safety valve.”

Section 3553(f) permits a district court to sentence a defendant below the otherwise applicable statutory mandatory minimum for federal drug offenses if the defendant meets certain criteria. The 2018 First Step Act expanded this provision.

As relevant here, to be eligible for the safety valve, a defendant must have a limited number of criminal history points. The defendant must “not have–

(A) more than 4 criminal history points, excluding any criminal history points resulting from
a 1-point offense, as determined under the sentencing guidelines;

(B) a prior 3-point offense, as determined under the sentencing guidelines; and

(C) a prior 2-point violent offense, as determined under the sentencing guidelines ….”

The “and” has been a source of confusion.

Several circuits hold the “and” …

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Argument preview: Second Circuit appoints amicus to defend sentence apparently based on defendant’s national origin.

“It has long been settled in this Circuit” that “national origin and naturalized status” cannot be “the basis for determining” a defendant’s sentence. United States v. Arslanouk, 853 F. App’x 714, 720 (2d Cir. 2021) (quoting United States v. Kaba, 480 F.3d 152, 156 (2d Cir. 2007)). The Circuit is thus “compelled” to order resentencing where a district court’s reference to “deter[ring] others sharing that national origin” “create[s] an improper appearance that a defendant’s national origin or immigration status might be driving the choice of sentence.” Id. at 721 (ordering resentencing where district court said sentence would send a “message” that “Russian organized crime that seeks to come to the shores of the United States … will be dealt with, with the power of our criminal justice system”).

In United States v. Vasquez-Drew, No. 20-2195-cr, the district court (Cote, J.) sentenced the defendant, a Bolivian national, to …

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Wednesday, February 1st, 2023

Inadequate Voir Dire Requires a New Trial

Perhaps you’ve wondered whether the Second Circuit would ever throw out a conviction because of inadequate voir dire in selecting the jury. Wonder no more. It’s finally happened.

In United States v. Nieves, — F.4th —-, 2023 WL 405354 (2d Cir. Jan. 26, 2023), the defendant, a former gang member, challenged his conviction, following a jury trial, of one count of witness retaliation, in violation of 18 U.S.C. § 1513(b)(1). He argued that the district court’s (Hon. Jed S. Rakoff) abbreviated voir dire left him and the court unable to meaningfully screen prospective jurors for bias against gang members, rendering the trial fundamentally unfair. Simply put, the defendant argued that in a prosecution centered around gang membership and alleged gang-related violence, the district court abused its discretion by refusing to take any steps to effectively screen prospective jurors for bias against gangs or gang members.

The Circuit unanimously …

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Thursday, January 19th, 2023

Davis (2019), voiding the residual clause at § 924(c)(3)(B) for vagueness, is retroactively applicable to cases on collateral review

Benjamin Hall v. United States, 2d Cir. No. 17-1513 (Jan. 19, 2023), decides a question most of us thought had been answered already – that United States v. Davis, 139 S. Ct. 2319 (2019), striking the residual clause of § 924(c) as unconstitutionally vague, rendered a substantive rule retroactive to cases on collateral review. As Judge Carney’s opinion notes, the Supreme Court held in Welch v. United States, 578 U.S. 120 (2016), that Johnson v. United States, 576 U.S. 591 (2015), striking the residual clause of the ACCA as unconstitutionally vague, is retroactively applicable as a substantive rule. Op. 9. Johnson “changed the substantive reach” of the ACCA by voiding its residual clause, thus “altering the range of conduct or the class of persons that the [Act] punishes.” 578 U.S. at 129.

Johnson qualifies easily as a substantive rule, defined as one that “narrow[s] the scope …

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Categories: 924(c), Davis, Hobbs Act, Johnson

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Tuesday, January 17th, 2023

After a Supreme Court remand, a Circuit Panel concludes that the defendants’ fraud and conversion convictions should be reversed because the confidential information misappropriated from a federal regulatory agency didn’t constitute “property” or a “thing of value” (to the agency) for purposes of wire fraud, Title 18 securities fraud, and conversion (in violation of 18 U.S.C. §§ 1343, 1348, and 641). United States v. Blaszczak, Nos. 18-2811, 18-2825, 18-2867, 18-2878, __F.4th__, 2022 WL 17926047 (2d Cir. Dec. 27, 2022) (C.J.J. Kearse and Walker; Judge Sullivan dissents).

After the Circuit’s original decision (in 2019) affirmed the fraud and conversion convictions of the four defendants (over a dissent by Judge Kearse), the Supreme Court granted cert., vacated the judgment, and “remanded for further consideration, in light of Kelly v. United States, ––– U.S. ––––, 140 S. Ct. 1565 (2020).”  See United States v. Blaszczak, 947 F.3d 19 (2d Cir. 2019), vacated and remanded, 141 S. Ct. 1040 (2021).

In light of Kelly, the Department of Justice “‘determined that the confidential information at issue in [Blaszczak] does not constitute ‘property’ or a ‘thing of value’ under the relevant statutes’” — 18 U.S.C. §§ 1343, 1348, and 641 — so, the convictions on the substantive counts of fraud and conversion should be dismissed. See Blaszczak, 2022 WL 17926047 at *4 (quoting the Government’s brief on remand). However, the government argued that two conspiracy …

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The government’s use of a former cellmate’s testimony to introduce a defendant’s statements about his planned trial strategy didn’t violate the Sixth Amendment right to the effective assistance of counsel where the witness wasn’t a government informant when the defendant confided in him. Also, a federal probation officer’s warrantless search of the home and car of a person “serving a term of supervised release” didn’t violate the Fourth Amendment because the probation officer needed only a “reasonable suspicion” to search, not a warrant or probable cause. United States v. Chandler, No. 18-1841, 56 F.4th 27 (2d Cir. [Dec. 27,] 2022) (C.J.J.’s Lynch, Carney, and Sullivan).

This appeal addresses a Fourth Amendment claim raised in the context of a Probation Officer’s search of the home and car of  “an individual serving a term of supervised release.” The Circuit concludes that the searches were valid because the Probation Officer had a “reasonable suspicion” that the defendant was committing crimes.

The case also addresses the scope of a defendant’s Sixth Amendment right to the effective assistance of counsel “when the government presents a witness to whom the defendant has volunteered his thoughts about defense strategy and who, after learning the defendant’s thoughts, agrees to testify for the government.” Here, the government witness was a person who shared a jail cell with the defendant, during a two-week period of pretrial detention, and later became a government informant. Because the witness “was not a government informant when Chandler spoke to him about Chandler’s expected trial strategy, the government did not …

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