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United States v. Burden

On June 19, 2017, the Second Circuit (Katzmann, Kearse, Livingston) issued a per curiam decision in United States v. Burden, et al., vacating the term of supervised release imposed on the defendants and remanding the case for resentencing as to supervised release.  Judge Kearse concurred in a separate opinion.

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Second Circuit Defers Allegations of Attorney Relationship With Client’s Mother

On June 5, 2017, in an opinion with facts that even the Court seemed to recognize read like the script for a straight-to-video movie, the Second Circuit (Jacobs, Sack, Carney) declined to overturn a defendant’s conviction and 35-year sentence despite the fact that the defendant’s counsel had engaged in an alleged sexual relationship with the defendant’s mother contemporaneously with his representation of the defendant, arguably creating an impermissible conflict of interest in violation of the Sixth Amendment. The Second Circuit deferred the issue of whether the relationship in fact infringed on the defendant’s right to conflict-free representation, reasoning that post-conviction collateral review provided a better avenue to develop a factual record as to the nature and extent of the alleged affair and its impact, if any, on the defendant’s decision to plead guilty.

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    "Toxic" Hearsay Upends Murder Convictions for Member of Bronx Drug Trafficking Crew

    In a rare move, the Second Circuit (Jacobs, Pooler, Hall) overturned Armani Cummings’s convictions for murder, conspiracy, and multiple drugs and firearms offenses.  The Court reversed based on violation of the hearsay rules—not a common basis for reversal, but on the facts here, the Court recognized the powerful nature of the evidence that was admitted in violation of the rules of evidence.  Any reversal of a criminal conviction based on an evidence error—particularly one involving crimes as serious as those alleged here—merits close consideration.

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    Second Circuit Affirms Parole Conditions Imposed On Notorious Spy

    In a summary order issued on May 24, 2017, Pollard v. United States, 16-2918 (Raggi, Carney, and Kaplan by designation), the Circuit affirmed the decision of the United States District Court for the Southern District of New York ( Forrest, J.), denying Pollard’s habeas corpus petition pursuant to 18 U.S.C. § 2241 to challenge conditions of his parole.  Pollard, arguably one of the most notorious spies in American history, was arrested in 1985 after passing top secret documents to Israel while working as a research analyst for the U.S. Navy.

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    A Long Journey Through “Silk Road” Appeal: Second Circuit Affirms Conviction and Life Sentence of Silk Road Mastermind

    On May 31, 2017, the Second Circuit issued its long-awaited decision in the “Silk Road” case, United States v. Ulbricht, (15-1815-cr) (2nd Cir. May 31, 2017) (Newman, Lynch, Droney).  The panel affirmed Ulbricht’s conviction and sentence of life imprisonment, identifying no reversible error.  From 2011-2013 Silk Road, which functioned as an “eBay” for drug dealing, generated approximately $183 million in sales of illegal drugs.  Defendant Ross William Ulbricht, who used the pseudonym “Dread Pirate Roberts,” was the owner and creator of Silk Road, and he took a commission on drugs sold through the website.

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    Supreme Court Unanimously Holds SEC Disgorgement Is Subject to Five-Year Limitations Period

    We are attaching an article about a major Supreme Court decision that imposes a five-year statute of limitations on disgorgement actions brought by the SEC.  Justice Sotomayor, writing for a unanimous court, held that disgorgement is a financial penalty, not a form of restitution to victims.  The SEC now must either more quickly bring its charges or persuade targets of its investigation to agree to a tolling agreement.

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    Second Circuit Rejects Novel Due Process Challenge to Rule Permitting Evidence of Prior Sexual Assaults

    The Second Circuit joined its sister circuits and upheld the constitutionality Federal Rule of Evidence 413, which renders admissible propensity evidence about the defendant in sexual assault cases.  In United States v. Schaffer, 15-2516-cr (Walker, Cabranes, Berman[1]) the Circuit rejected as a matter of first impression the defendant’s argument that Rule 413 violates the Due Process Clause of the Fifth Amendment.  The Court also reviewed its jurisprudence on “custodial” interrogation in the course of affirming the admissibility of incriminating statements the defendant made to law enforcement agents prior to his arrest.

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    Upon Further Review, Second Circuit Holds That Defendant’s Conduct not “in Furtherance of” Alien’s Unlawful Presence in United States

    In United States v. Khalil, No. 15-3819 (2d Cir. May 16, 2017) (Calabresi, Wesley, Lohier), the Second Circuit reversed the defendant’s conviction for transporting an alien within the United States for profit in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and § 1324(a)(1)(B)(i).  It did so based on the Government’s failure to put forward sufficient evidence at trial to establish that Khalil transported an alien “in furtherance of” the alien’s illegal stay in the United States. 

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    Second Circuit Partially Affirms Evidentiary Ruling on Interlocutory Appeal in Decision Illustrating the Importance of Proofreading

    In United States v. Brown, 16-3468-cr (Leval, Hall, Chin) the Second Circuit affirmed in part and vacated in part via summary order a ruling excluding evidence related to a firearm that had not been identified in the indictment.  The ruling is the result of a typographical error in the original indictment that went uncorrected in four superseding indictments issued over the course of nearly five years.

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    Exigent Circumstances Under the Fourth Amendment May Extend to the Need to Interview an Arrestee in Place

    In a split decision in United States v. Delva, No. 15-cr-683 (Kearse, Winter, Jacobs), the Second Circuit held that the Fourth Amendment allowed law enforcement officers to seize cell phones and a number of letters that were in plain view in the room of a suspect’s home where he was interviewed immediately after an arrest.  The majority opinion, written by Judge Kearse, relied on the “exigent circumstances” doctrine to hold that it was reasonable under the circumstances to hold an interview in the suspect’s home, which allowed the officers to seize incriminating evidence that was in plain view without obtaining a search warrant.  Although the majority opinion is careful to recognize that the exigent circumstances exception requires a case-by-case analysis, the decision extends the infrequently applied exigent circumstances doctrine to a new set of facts.  The decision drew a dissent from Judge Jacobs, who objected to the majority’s reliance on the exigent circumstances doctrine when the government had not raised it in the trial or appellate court, thus denying the defendant any chance to respond to this somewhat novel analysis offered by the Court.

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    Second Circuit Provides Primer on Criminal Procedure in Methamphetamine Case

    In United States v. Lyle, 15-958-cr (Raggi, Chin, Lohier), the Second Circuit covered an array of criminal procedure issues—including the Fourth Amendment concerns associated with rental car searches, proffer agreement waivers, and the admissibility of a co-defendant’s confession—in the course of affirming the defendants’ narcotics conspiracy convictions.  Lyle leaves unresolved the issue of whether an unauthorized driver ever has a reasonable expectation of privacy in a rental car.  It does provide, however, an important reminder of the potential pitfalls of proffer agreements and the challenges that arise when trying multiple defendants together.

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    In Lengthy Opinion, Second Circuit Affirms “Silk Road” Conviction and Life Sentence

    On May 31, 2017, the Second Circuit issued its long-awaited decision in the “Silk Road” case, United States v. Ulbricht, (15-1815-cr) (2nd Cir. May 31, 2017) (Newman, Lynch, Droney).  The panel affirmed Ulbricht’s conviction and sentence of life imprisonment, identifying no reversible error.  Notwithstanding the many amici submissions challenging the district court’s unreasonableness in imposing a life sentence, the Court disagreed with those contentions and explained that it was required to be deferential to the district court.  Judge Lynch, who is a scholar in the area of sentencing, reasoned that “[a]t his point in our history . . . the democratically-elected representatives of the people have opted for a policy of prohibition, backed by severe punishment.”  Id. at 120 (emphasis added).

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    Til Death Do Us Part – Second Circuit Vacates Deceased Former New York State Senator’s Criminal Fine and Special Assessment under the Common Law Doctrine of Abatement

    In United States v. Libous, 15-3979 (2nd Cir. May 30, 2017) (Katzmann, Winter, Stein), the Second Circuit vacated the jury conviction of former New York State Senator Thomas W. Libous’ and remanded the case to the district court for dismissal of the indictment and an order to return the $50,000 fine and $100 special assessment to the decedent’s estate.  The short story is that if you die while your appeal is pending, any fine is revoked; if your fine was paid, then the amount is returned to the decedent’s estate.  The Court invites Congress to enact legislation if it is dissatisfied with the result created by this common law rule.

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    Second Circuit Rejects Application of Collateral Order Doctrine to “Non-Colorable” Double Jeopardy Claim

    In United States v. Serrano, 16-432-cr; 17-461-cr (Kearse, Calabresi, Cabranes), the Second Circuit denied the defendant’s interlocutory appeal for lack of jurisdiction, holding that the collateral order doctrine is inapplicable to “non-colorable” double jeopardy claims and reaffirming its prior rulings that the denial of a Rule 29 motion does not fall within the scope of the doctrine.  The Court infrequently polices the bounds of its appellate jurisdiction, and so it is useful to have this short decision on the subject of when a defendant may take an interlocutory appeal.

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    Colombo Mob Boss to Remain in Prison

    A Second Circuit panel has ruled that infamous mob boss Carmine “The Snake” Persico will continue serving his 100-year sentence in federal prison.  In United States v. Persico, 16-2361, the Second Circuit (Walker, Jacobs, Parker) affirmed by summary order the decision of the United States District Court for the Southern District of New York (Duffy, J.), denying Persico’s motion to shorten his sentence pursuant to the old Federal Rule of Criminal Procedure 35(a).

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    District Court Must Consider Significant Disparity Between Plea Offer and Ultimate Sentence When Assessing Ineffective Assistance Claims

    In Reese v. United States, 16-516, the Second Circuit (Pooler, Wesley, Carney) vacated by summary order the order of the U.S. District Court for the Southern District of New York (Marrero, J.) denying Reese’s petition to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255.  Reese claimed that his counsel had provided ineffective assistance, an argument the district court rejected on the grounds that Reese could not establish prejudice because the evidence of guilt presented at trial was “overwhelming.”

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    Court Upholds Murder-for-Hire Conviction, Rejects Fourth Amendment Challenges

    The murder-for-hire statute makes it a crime to agree to commit murder in exchange for “anything of pecuniary value.” 18 U.S.C. § 1958. The Second Circuit has understood this language to require that, at the time of the agreement, there was a quid pro quo or at least the promise of some pecuniary consideration. In United States v. Babilonia, No. 14-3739, the Court (Chin, Carney, and Cogan, sitting by designation) reaffirmed this “pecuniary consideration” requirement, but then suggested it presents a minimal hurdle where there was payment after the fact.[1]

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    Second Circuit Holds that District Court Orders Determining Restitution Credits are Final, Appealable Orders

    In United States v. Yalincak, No. 11-5446 (2nd Cir. Apr. 10, 2017) (Calabresi, Raggi, Lynch), the Second Circuit addressed a complicated issue of appellate procedure in the course of a decision on the law of restitution.  Specifically, the Court weighed in on when a district court’s order crediting a defendant funds against his restitution obligations becomes a final, appealable order that cannot be revisited by the district court.

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    The Circuit Raises A Glass To A Broad Construction Of Law Enforcement’s Authority Under The Fourth Amendment

    Yesterday the Second Circuit issued a decision in United States v. Diaz, No. 15-3776 (Walker, Sack, Chin).  In an opinion by Judge Sack, the Court addressed two questions under the Fourth Amendment:  when does a police officer have probable cause to make an arrest under an ambiguous law, and whether an officer can conduct a search incident to arrest if she only intends to issue a citation.

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    In Summary Order, Second Circuit Finds Plain Error in Miscalculation of Defendant’s Supervised Release Guidelines Range

    In United States v. Shaday, 16-529, the Second Circuit (Jacobs, Livingston, and Kaplan (sitting by designation)) vacated and remanded the supervised release portion of defendant Yova Kana Shaday’s sentence after finding that the district court had applied the wrong Guidelines range.  The district court had sentenced Shaday to a Guidelines sentence of twenty-four months’ imprisonment for failing to register as a sex offender under 18 U.S.C. § 2250(a), along with a supervised release term of ten years.  Reviewing for plain error, the Second Circuit found that the district court had miscalculated the supervised release portion of Shaday’s sentence when it applied a three-years-to-life Guidelines range instead of the correct five-year fixed term.  Such an error was not harmless, the Court continued, as there was no indication in the record that the district court would have imposed the same supervised release sentence had it applied the correct Guidelines range; rather, the district court mistakenly believed it was imposing a within-Guidelines supervised release sentence and thus never considered whether to impose an upward departure. 

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    Pay the Piper: Restitution Payment to Victims Does Not Offset Mandatory Forfeiture to Government

    In United States v. Bodouva, 16-3937 (March 22, 2017) (Katzmann, C.J., Pooler and Lynch, J.), the Court held in a per curiam order that a defendant convicted of embezzlement must forfeit the full amount of her illicit gains to the government even after paying restitution to victims.  The ostensibly “duplicative” financial penalty entered against the defendant was not only permissible, but in fact required by statute.  The district court thus appropriately ruled at sentencing that it lacked discretion to modify the forfeiture amount.  With this decision, the Second Circuit joined several other circuits in holding that restitution and forfeiture serve distinct purposes and, absent clear statutory authority to the contrary, may not offset each other.

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    This Is Not Fine: Circuit Vacates Fine Imposed on Unable-to-Pay Defendant, Citing Lack of Reasoning or Evidence for Judge’s Sentence

    In a summary order issued March 7, 2017, United States v. Marmilev, 14-4738 (Leval, Calabresi, and Carney), the Circuit vacated and remanded the portion of the defendant’s sentence imposing a $250,000 fine after the defendant pled guilty for charges including conspiracy to operate an unlicensed money transmitting business.  From the Court’s procedural history, it’s fair to say that the fine assessed by the district court seemed to come out of the blue for all involved parties:  the presentence report (PSR) had cited the defendant’s inability to pay and recommended against a fine; the Government did not request that a fine be imposed; and the district court did not question the PSR’s recommendation or indicate prior to sentencing that it was considering a fine.  Yet not only did the district court order the defendant to pay a fine, but the fine it imposed was well in excess of the Guidelines range of $17,500-$175,000.

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    Court Affirms Conviction In Case Involving $126 Million Loan For Shopping Mall Transaction, Rejecting Argument That Sentence Should Be Lowered Because Of The Financial Crisis

    In a summary order on March 8, 2017, the Second Circuit (Katzmann, C.J. and Pooler and Lynch, J.) affirmed the conviction and sentence for wire fraud in United States v. Frenkel. The case attracted some public attention because Frenkel’s co-conspirator, Mark Stern, was a cooperating witness in a number of public corruption cases brought by the U.S. Attorney for the Southern District of New York. The underlying facts involved Frenkel’s fraudulent inducement of Citigroup to lend $126 million to finance the purchase of shopping malls. Although the decision has no precedential value, it presented four interesting issues.

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    Divided Panel Debates a Jury’s Ability to Resist the Persuasive Power of Hollywood

    In United States v. Monsalvatge (Nos. 14-1113, 14-1139, and 14-1206), a divided panel of the Second Circuit explored the contentious topic of introducing blockbuster films as evidence in a criminal prosecution.  Defendants Akeem Monsalvatge, Edward Byam, and Derrick Dunkley were tried and convicted of committing (and conspiring to commit) two armed robberies of Pay-O-Matic check-cashing stores in Queens.  The robberies occurred nearly two years apart—in 2010 and 2012—and there were significant differences in the manner in which each crime was carried out.  The government believed that these differences were attributable to the fact that the defendants admired and were inspired by the 2010 Hollywood crime thriller, The Town, and altered their modus operandi to carry out the 2012 robbery in a manner resembling the crimes committed in the film.  At trial, the district court permitted the government to play for the jury several brief clips from The Town, in order to highlight the similarities between the film and the 2012 robbery.  On appeal, the Second Circuit concluded that the district court did not abuse its discretion in admitting these clips into evidence.  Judge Livingston authored an opinion joined by Judge Droney; District Judge Analisa Torres, sitting by designation, found the introduction of the clips inappropriate but ultimately concurred in the judgment based on a finding of harmless error.[1]

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    An Empty Bargain: Circuit Overturns Guilty Plea Entered By Defendant Unapprised of Mandatory Life Sentence

    In a decision dated March 10, 2017, the Circuit issued a blistering decision vacating the district court’s denial of the defendant’s motion to withdraw his guilty plea in United States v. Johnson, No. 15-3498-cr (Jacobs, J., joined by Judges Cabranes and Parker), holding that the defendant’s plea to offenses requiring a mandatory life sentence was not made knowingly, voluntarily and intelligently.  Readers squeamish of benchslaps are advised to stop reading here: the panel called out the defendant’s asleep-at-the-wheel trial counsel by name no fewer than a dozen times, and chided the “robotic” prosecutor for delivering a prolix recitation of the sentence facing the defendant during plea allocation.  But the panel saved its strongest admonishment for the district court judge, whom it believed so incapable of handling the proceedings fairly and competently on remand that it directed the case to be reassigned.  In the end, only the defendant – a repeat offender facing felony drug trafficking charges – emerged from the opinion unscathed.

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    Return to Sender: Aéropostale Employee’s Fraud Convictions Affirmed, But Restitution Order Sent Back for Recalculation

    Aéropostale is known by many as a staple of adolescent wardrobes and shopping-mall standard.  But as a patsy for kickback schemes?  In United States v. Finazzo, 14-3213-cr, 14-3330-cr (Droney, J., joined by Judges Sack and Chin), issued March 7, 2017, the Circuit affirmed the mail and wire fraud convictions of an Aéropostale executive who, over the course of a decade, steered hundreds of millions of dollars in business to a vendor that cut him in on the profits.  In affirming his convictions, the Court held that the defendant’s deprivation of Aéropostale’s right to control its assets was injury sufficient under the mail and wire fraud statutes, and that the district court had adequately instructed the jury that such deprivation must be able to cause tangible economic harm.  However, the panel vacated and remanded the district court’s restitution order on the grounds that the calculations presumed that any financial gain to defendant through the scheme was a loss to Aéropostale.  With little more direction than to “try again,” the court instructed the district court to develop a new methodology for computing a restitutionary award that subtracts any legitimate value that Aéropostale derived through its dealing with the vendor.  The Circuit has long stressed the need for precision in restitution calculations, and it can be difficult to make such calculations in a kickback case prosecuted under a theory based on the deprivation of the right to control assets.

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    Second Circuit Reverses In Part and Affirms In Part In Appeal From Convictions Under Sarbanes-Oxley and Accessory-After-The-Fact Statutes

    On February 23, 2017, the Second Circuit (Chief Judge Katzmann, Judge Winter, and District Judge Sidney Stein, by designation) issued a per curiam decision in United States v. Natal, et al., that led to a partial reversal and remand for resentencing in the case of one defendant, Hector Morales. The Court held that the conviction of one defendant—Hector Morales—for destruction and concealment of evidence must be vacated because his conduct was not prohibited by Title 18, United States Code, Section 1519. This was a direct result of the Supreme Court’s decision in Yates v. United States, 135 S. Ct. 1074 (2015), which limited the reach of the relevant statute to the destruction of objects that can be used to record or preserve information. We have previously reported on this important decision. Here, the repainting of a van allegedly used to drive away from a crime scene was held to be outside of the reach of Section 1519, as limited by Yates. This reversal of the Section 1519 count requires that Morales be given a de novo resentencing. 

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    In Summary Order, Second Circuit Provides Guidance to Courts Deciding Motions for Sentence Reductions

    On February 16, 2017, the Second Circuit (Leval, Calabresi, Carney) issued a summary order in United States v. Lopez, No. 16-1019, vacating and remanding for reconsideration the district court’s denial of the appellant’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on a recent change to the United States Sentencing Guidelines.  The Second Circuit has recently issued several summary orders reversing similar denials.  (See our prior coverage here.)

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    Second Circuit Rules That Defendant Who Pleads Guilty Mid-Trial May Testify as Cooperating Witness Against Former Co-Defendants

    On Wednesday, February 15, the Second Circuit issued a published opinion in United States v. Barret, No. 12-4663(L) (Pooler, Hall, Carney), addressing an issue of first impression in the Circuit—whether testimony of a former co-defendant who pleads guilty during trial and agrees to testify as a government witness is admissible at that same trial.  The Second Circuit answered that question in the affirmative, holding that such testimony is admissible so long as the district court takes certain steps to avoid undue prejudice to the remaining defendants.  Those steps include limiting the testimony to events other than the witness’s involvement in joint defense planning and properly instructing the jury regarding the changed circumstances.  The Second Circuit noted that its holding was consistent with decisions issued in the First, Third, Seventh, and Eleventh Circuits.

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    Dissenting from Order Denying Rehearing En Banc, Judges Voice Concerns About Overbroad Criminal Statutes Enabling Prosecutorial Abuse

    Yesterday the Second Circuit issued an order denying rehearing en banc in United States v. Marinello, No. 15-224, after an active judge of the Court had requested a poll as to whether the case should be reheard by the full Court.  Two judges (Jacobs and Cabranes) dissented from the denial of rehearing en banc.  Writing for the dissenters, Judge Jacobs wrote that the panel decision placed the Second Circuit “on the wrong side of a circuit split” by affirming a conviction based on “the most vague of residual clauses,” and that in doing so the Court had paved the way for “prosecutorial abuse.”

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    In Summary Order, Court Vacates Denial of Resentencing Motion, Citing Ambiguities in the Sentencing Record

    On January 31, 2017, the Court (Katzmann, Kearse, Livingston) issued a nonprecedential summary order vacating and remanding an order denying a motion for resentencing in United States v. Majors, No. 15-4022. The remand was required in part due to substantial ambiguity over the sentencing range that applied at the defendant’s sentencing, an ambiguity caused in part by the enactment of the Fair Sentencing Act of 2010, after the defendant’s guilty plea, which reduced the Sentencing Guidelines ranges for defendants convicted of crack cocaine offenses in order to address long-standing racial disparity concerns about these provisions.

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    Second Circuit Affirms “One-Book Rule”: No Sampling from Different Versions of the Sentencing Guidelines

    Yesterday the Second Circuit affirmed, in United States v. Ramirez (No.15-2570), the so-called “one-book rule”:  if sentenced criminals want to seek a reduction in sentence based on changes in the Sentencing Guidelines, they have to accept the new Guidelines wholesale.  They can’t pick and choose the most favorable provisions from the various iterations of the Guidelines that might potentially apply.  Judge Droney wrote the opinion, with Judges Raggi and Chin also on the panel.

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    Sharply Divided Circuit Denies Government’s En Banc Petition In Microsoft Appeal

    In July 2016, the Second Circuit ruled that the Government could not employ a domestic search warrant, issued pursuant to the Stored Communications Act, 18 U.S.C. § 2703 (the “SCA”), to compel disclosure of an email account that Microsoft stored on servers in Ireland.  (See our coverage of that decision here.)  Yesterday, a sharply divided Court denied the Government’s petition for rehearing en banc, leaving the decision intact.  The decision will presumably be met with relief in the technology sector, some of whose major players submitted amici briefs in support of Microsoft’s position.  But the four dissenters expressed concern that it hamstrings the Government in its pursuit of electronic evidence, jeopardizing national security.  And all of the Judges agreed that the SCA – which was passed in 1986 – is due for congressional review in light of the dramatic changes in electronic data storage that have occurred over the past 30 years.

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    How “Close” is Close Enough? Parties Submit Supplemental Briefing in Martoma in Light of Salman

    The Supreme Court’s decision in Salman v. United States, 137 S.Ct. 420 (2016) is already having an effect on the appeals arising out of the insider trading convictions in the Southern District of New York.  Shortly after Salman, the Second Circuit asked the parties in the insider trading case of United States v. Martoma to submit supplemental briefing discussing the decision’s impact.  Salman rejected the defendant’s argument that he could not be convicted of insider trading where his brother-in-law did not receive a pecuniary benefit for passing information to him, holding that the relative’s tip satisfied the standard for a “gift of confidential information to trading relatives.”  The decision partially overturned United States v. Newman, 773 F.3d 428 (2d Cir. 2014), which had required “a meaningfully close personal relationship that generates an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature.”  Our prior coverage of Newman can be found here and here, and our prior coverage of Salman can be found here.

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    Closing the Courtroom? Second Circuit Reluctantly Approves, Reminds Lower Courts to Create a Clear Record

    In Moss v. Colvin, 15-2272, the Second Circuit (Katzmann, Wesley, Carney) issued a per curiam decision affirming the denial by the U.S. District Court for the Southern District of New York (Crotty, J.) of the petitioner’s writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d) (“AEDPA”).  Despite the affirmance based on procedural grounds, the decision serves as a good reminder to lower courts to create a clear record when weighing a potential courtroom closure.

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    Court Vacates Term of Supervised Release

    In a short summary order in United States v. Breton, the Court (Winter, Jacobs, Cabranes) vacated a term of supervised release because the district court had improperly calculated the advisory Guidelines range.  Defendant Raddy Breton pleaded guilty to attempted possession of methylone with intent to distribute.  Pursuant to U.S.S.G. § 5D1.2(a) and 18 U.S.C. § 3553(f), which limits the applicability of statutory minimums in certain cases, Breton faced an advisory Guidelines range of one to three years of supervised release.  During sentencing, the district court calculated the applicable supervised release range as three years to life.  Both parties submitted that the miscalculation constituted plain error.

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    Court Affirms Filing of Section 851 Prior Felony Information

    In United States v. Strong, No. 15-2992, the Court (Kearse, Lohier, and Droney) affirmed Strong’s conviction in a brief, per curiam opinion.  Strong was charged with conspiracy to possess with intent to distribute and to distribute cocaine base and heroin.  The government filed a 21 U.S.C. § 851 prior felony information that doubled the applicable mandatory minimum from 60 months to 120 months.  Strong did not object to the filing of the prior felony information.  He pleaded guilty to the conspiracy charge and admitted the fact of his prior state felony conviction. 

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    Second Circuit Parses Distinction Between “Based on” and “Applicable to” in Context of Sentence Reductions for Retroactive Amendments to Sentencing Guidelines

    In United States v. Leonard, No. 15-22-32-cr (December 14, 2016) (Raggi, Chin, Droney), the Second Circuit vacated and remanded an order finding a defendant ineligible for a sentence reduction based on a retroactive amendment to the Sentencing Guidelines under 18 U.S.C. § 3852(c)(2). 

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    The Second Circuit Limits the Application of Two Guidelines Enhancements

    In United States v. Huggins,15-1676, the Second Circuit (Winter, Cabranes, and Restani, sitting by designation) limited the scope of two Guidelines enhancements often applicable to white-collar crimes:  (1) U.S.S.G. §2B1.1(b)(16)(A), which provides for a two-level enhancement when the conduct derived more than $1 million from financial institutions; and (2) U.S.S.G. §3B1.3, which permits a two-level increase when a defendant has abused a position of public or private trust.  Huggins marks the first time the Court has given thorough consideration to the first enhancement and further clarified how courts should apply the second. 

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    Divided Court Withdraws Opinion Vacating 60-Year Child Pornography Sentence and Affirms the Sentence as Procedurally and Substantively Reasonable

    In United States v. Brown, No. 13-1706, the Second Circuit (Pooler, Sack, and Droney), withdrew the Court’s June 14, 2016 opinion, vacating Nathan Brown’s sixty year prison sentence on three counts of production of child pornography, in violation of 18 U.S.C. § 2251(a); and two counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).  On December 6, 2016, the divided panel issued a new opinion affirming the district court’s sentence.

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    In A Summary Order, Second Circuit Vacates 30-year Child Pornography Sentence on Substantive Reasonableness Grounds

    In United States v. Sawyer, No. 15-2276, the Second Circuit (Jacobs, Pooler, Crawford) vacated and remanded for resentencing a case involving a conviction for possession of child pornography.  The decision rested on a finding that the 30-year sentence was substantively unreasonable, yet was made by unpublished summary order.  This is the third time in the past several months that a child pornography sentence has been vacated and remanded (see our posts on United States v. Bennett and United States v. Brown), but while the prior two decisions rested on procedural grounds as a means of sending the case back to the district court for a second look, Sawyer relies solely on substantive unreasonableness.  It is very rare for the Second Circuit to reverse a within-the-range sentence for substantive unreasonableness.

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    Food For Thought: Court of Appeals Questions Relevance Of Guidelines To Case Of Fraud Involving Supplemental Nutrition Assistance Program

    In United States v. Algahaim, No. 15-2024(L), the Second Circuit (Newman, Winters, Cabranes) upheld the conviction of two defendants for misconduct involving the Supplemental Nutrition Assistance Program (“SNAP”), but remanded to the district court for consideration of a below-Guidelines sentence.  The Court, in an opinion by Judge Newman, held that the outsize effect of the loss amount enhancement on the defendant’s base offense level—a sentencing scheme for fraud that is “unknown to other sentencing systems”—required the district court to reconsider whether a non-Guidelines sentence was warranted.

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    Law Enforcement Permitted To Obtain GPS Location Data Without A Warrant In A Sex Trafficking Investigation

    In United States v. Gilliam, 15-387, the Second Circuit (Newman, Winter, Cabranes) held that, under the exigent circumstances present in that case, law enforcement could use cell phone GPS data to locate a suspect without obtaining a warrant consistent with both the Stored Communications Act and the Fourth Amendment.  This appeal presents one of many unanswered questions arising out of cellphone technology.  While cellphones are far from new, there are still some questions about how cellphone data can be used in investigations and at trial.

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    Second Circuit Clarifies Scope Of Proffer Agreement Waivers

    Securing a cooperation agreement after proffering to the government can lead to enormous benefits for those who successfully navigate the process. However, the negative consequences of a failed proffer are profound. Assessing the risks of whether to proffer and enter into a proffer agreement is an important part of federal criminal practice. In an important recent decision, in United States v. James J. Rosemond, 15-0940-cr (Nov. 1, 2016) the U.S. Court of Appeals for the Second Circuit elaborated in detail on exactly when certain defense tactics will (and will not) open the door to the introduction of the otherwise-protected proffer statements. The Court held that the district court in Rosemond applied the waiver provision in defendant’s proffer agreement too broadly, thereby incorrectly precluding defense counsel from making sufficiency arguments. 

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    Do It Again: Circuit Reaffirms That De Novo Resentencing Required After Partial Vacatur

    In United States v. Heath Powers, 15-3867, the Second Circuit (Cabranes, Pooler, Parker) issued a per curiam decision remanding to the U.S. District Court for the Northern District of New York (D’Agostino, J.) with instructions to vacate an erroneous count of conviction on a child pornography charge and for de novo resentencing.  The defendant had been charged by a federal grand jury of eleven counts of production of child pornography, one count of distribution of child pornography, and one count of possession of child pornography.  The Court’s description of the underlying facts indicated that the defendant also engaged in sexual acts with the seven-year old girl he had photographed.  After the defendant pleaded guilty to all counts, the district court sentenced him to a below-Guidelines 480-month term of imprisonment, which included terms of imprisonment on each count, all to be served concurrently.

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    In Well-Publicized Case, Circuit Denies Arms Trafficker New Trial

    In United States v. Viktor Bout, 15-3592, the Second Circuit (Walker, Hall, Chin) issued a summary order affirming the decision of the District Court for the Southern District of New York (Scheindlin, J.) denying the defendant’s motion for a new trial.  Bout was convicted following trial on four counts arising from a sting operation that involved Bout’s participation in a conspiracy to sell 100 surface-to-air missiles to the Colombian terrorist group Fuerzas Armadas Revoluncionarias de Colombia (“FARC”), and sentenced to 300 months in prison.

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